Iraq’s Constitution was drafted in 2005 by the Iraqi Constitution Drafting Committee. The resulting body of law guarantees the rule of law and the right to judicial trial, but that does not mean that all Iraqis view this the formal legal system as a superior way of settling disputes and wrongdoings. Tribal law today is a more popular legal system than civil law. Iraq has approximately 150 tribes, with some tribes having over a million members. 75% of the Iraqi population claims kinship to a tribe. During the 1950’s, the Ba’ath Party discouraged tribal affiliations and tribal autonomy from the central government. Tribes re-gained prominence during the 1979 Iran-Iraq war. Former Iraqi president Saddam Hussein co-opted tribes into contributing soldiers to the war effort by giving them regional political power and economic assistance in return. Tribes were dependent upon Saddam’s support and benevolence, and were subject to punishment if they did not follow the demands of the Ba’ath regime.
In Saddam’s absence tribal law has taken on a more de-centralized role in conflict resolution. After the collapse of the Saddam government, legal frameworks and institutions were virtually non-existent, thus Iraqis used tribal law to fill the void. Tribal leaders emerged as intermediaries between coalition forces and Iraqi citizens. Tribal leaders were critical components of discussions between the Coalition Provisional Authority and the Iraqi community on matters of development, security and assistance. Tribal law is now a recognized and accepted form of legal process, and it is formally integrated into the country’s formal political framework. The Iraqi government, for instance, has established a Ministry for Tribal Affairs, which, some argue, blurs the lines between civil and tribal law, rendering both legal systems less powerful. Iraqi politicians feel that as state apparatus grows stronger, the jurisdiction of tribal law will grow weaker. Jamal al-Batikh, Iraq’s Minister for Tribal affairs says this,
“There is a simple formula which explains this phenomenon…When the state is strong and capable of imposing the letter of the law, every person feels that his rights are respected. But when the state is weak for one reason or the other, and is incapable of enforcing the law throughout the entire country, then tribal associations become stronger and tribal laws are applied more frequently.”