Academic journal article The Middle East Journal

Tribal Law and Reconciliation in the New Iraq

Academic journal article The Middle East Journal

Tribal Law and Reconciliation in the New Iraq

Article excerpt

As of 2009, the Government of Iraq had failed to take key steps needed to promote reconciliation between Iraq's Sunni and Shi'a communities. In contrast, Iraq's tribal leaders began working as soon as security improved in 2007 to re-knit the Iraqi community through the processes of tribal law. This article explores their efforts in Baghdad in 2008-2009. It is based primarily on approximately 30 interviews conducted when the author was a member of a Human Terrain Team supporting the US military.1

Arab states have had notorious difficulties in establishing regularized and legitimate legal processes and in imposing them throughout their territories. The result has often been a form of legal pluralism in which religious, tribal, or even rival political forces render decisions on matters that would be, in Western conceptions of the state, under its purview alone. In particular, well-developed systems of tribal law originating in the pre-Islamic era have continued to function in the modern Arab world. Sometimes a state's challenger and sometimes its crutch, the role of tribal law in the Arab world today is best understood as a fluid product of ongoing negotiation between state and tribal actors.

Since a basic level of security was established in Baghdad in early 2008, tribal shaykhs have been involved in a frenzy of dispute resolution. Given the weakness of the new Iraqi state and in particular its legal system, it is not surprising that tribal law surged in to fill the gap. 2 What is interesting, however, is the key role that tribal law has played in furthering reconciliation between Baghdad's Sunni and Shi'a communities in the wake of the intense sectarian violence of 2005-2007. While the role of Iraq's tribal leaders in establishing the anti-al-Qa'ida militias of the Awakening Movement is widely understood, there is little appreciation for what may be their greater long-term contribution to security - the promotion of reconciliation through traditional tribal processes.

A BRIEF OVERVIEW OF TRIBAL LAW IN IRAQ3

Tribal or customary law predates shari'a law, but most Iraqis believe that it has been adjusted to conform to shari'a.4 Today, many of Iraq's tribes have printed their legal codes in formal documents that may be voted into effect by the tribe's senior members. There appears to be relatively little variation in the structure, specifics, or processes of law from tribe to tribe, and this facilitates the settlement of disputes between them.5 Processes center on shaykhs working with the parties involved 1) to determine the facts of the case, 2) with reference to tribal legal codes, to set out the amount of money that the perpetrator's tribe or family must pay to the victim's to avoid retribution (often referred to as "blood money" in English but called either fasel or the Qur'anic term diya in Iraq), and 3) to enact communal rituals of reconciliation. The Arabic term for this entire process is sulha, or settlement, but Iraqis often use the term fasel to refer not only to the "blood money" paid but also to the process for determining its amount.

Sulha may address premeditated or accidental injuries or killings as well as damages to honor, such as pulling the agal (head rope) off a shaykh's head, providing a bride who is not a virgin to another tribe, or baselessly calling into question a woman's reputation. In a culture requiring that honor be restored after a wrong through the tak- ing of revenge against the perpetrator or his extended family, sulha helps the community avoid feuds. The official group responsible for vengeance and against whom vengeance may be taken is normally the khamsa [five], all those males who share a common ancestor five generations back).6

Since the fundamental goal of sulha is to restore peace through restoring honor, a mediator, who relieves the parties directly involved of having to take a first, potentially humiliating step and who limits face-to-face interactions that could worsen a dispute rather than limit it, is essential. …

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