Above the Law

Criminal cases in the Kurdish north of Iraq are increasingly being resolved through tribal mediation.

Above the Law

Criminal cases in the Kurdish north of Iraq are increasingly being resolved through tribal mediation.

In July 2006, Mohammad Amin Abdullah, a resident of Sulaimaniyah, took out a lawsuit against Iraqi president Jalal Talabani which concerned the latter’s role as head of the then rebel Patriotic Union of Kurdistan, PUK, in the Eighties.

Abdullah sought 25 million Iraqi dinars in compensation for foodstuffs that he claimed he supplied to the PUK in 1983 and was not paid for.

Soon after this news was published in Hawlati, an independent newspaper, the PUK's bureau of finance contacted Abdullah to persuade him to withdraw the case and sort the matter out through tribal mediation.

He agreed to do so, and eventually withdrew his case in return for a financial payment.

Such forms of tribal reconciliation are superseding courts, as people come together to resolve disputes that would normally be determined by courts.

Tribal influence remains very powerful in large parts of Kurdish society. Within a clan, there are a number of tribes and in each of the latter hundred of families.

Tribal leaders are vested with significant authority. Essentially, members must abide with whatever they say, especially in more rural areas. They can decide whether to go to war and choose whom their members should vote for in elections.

Many of those who’ve committed crimes seek tribal resolutions rather than judicial ones. Often, the family and friends of the perpetrator will meet the relatives of the victim in the presence of clerics, noblemen and local political figures, in a mosque to settle their dispute - which commonly results in the payment of compensation.

The two sides will sign a document confirming that that their conflict has been resolved and the victim’s family will withdraw the court case.

These agreements, usually called tribal reconciliation, are so common that the two main Kurdish political parties, the Patriotic Union of Kurdistan, PUK, and the Kurdistan Democratic Party, KDP, have formed special so-called social bureaus which deal with such cases on a daily basis.

From 2003 to 2005, the PUK's social bureaus mediated in more than 1800 disputes, of which 184 were murder cases. In 2005 alone, they resolved more than 600 conflicts. Figures of how many the KDP’s social bureaus have tackled are not available.

"Between 1999 and 2000, an armed conflict between two tribes [in Piramagrun, 15 kilometres west of Sulaimaniyah] claimed the lives of 17 people, but we mediated successfully and resolved the problem,” said Mawlood Talani, head of the PUK's social bureaus.

In much of the region, local people are suspicious of courts, questioning their independence and integrity. They believe many judges are vulnerable to influence from political parties, friends and other social connections.

Meanwhile, social bureaus claim that Islam, the religion of the majority of the Kurds, and Iraqi law supports what they do.

According to Islamic law, for instance, there are three way of settling a murder case: the killer is executed; pays blood money; or is forgiven by the family of the victim.

In Iraqi law, there are several articles on tribal agreements. For example, in article 198 of law 111 passed in 1969 and valid today, the latter are considered equal to court verdicts, for crimes which carry punishments of up to one year imprisonment.

In such cases, the family of the perpetrator can come to some sort of arrangement with the family of the victim, and the outcome is legally binding even if the court has not been notified. With crimes carrying punishments of more than one year, they have to ask the court whether it will sanction their agreement.

Talani said that the only cases in which his bureaus won’t intervene are those concerning women, espionage and theft. He says he prefers the courts to deal with the first category because of its potentially big social impact, and the latter two since they are in the public interest.

He says one of the reasons people opt for tribal reconciliation is because current laws can’t protect a convicted criminal who’s released from prison after serving his sentence. "He might be a target of revenge by the victim or the family of the victim," he said.

Talani recounted a case of a criminal who after serving his time for murder had to go into hiding for two years fearing retribution from his victim’s relatives. Talani said that one of his bureaus mediated and the criminal paid 30,000 US dollars to the aggrieved family, and is now free to go wherever he pleases.

But lawyers and judges believe that these agreements have undermined the legal system. "If the two main parties don’t want to insult the courts and law, they have to dissolve these bureaus," said lawyer Soran Qaradakhi. "The parties want to increase the power of the tribes."

However, Omar Ahmad, who has served as a judge for six years in a Sulaimaniyah criminal court, said that it is hard to change a system of justice that is rooted in tradition. "There is no legal education," he said, "The nature of Kurdish society is tribal."

Rebaz Mahmood is an IWPR contributor in Iraqi Kurdistan.

This article has been produced with support from the International Republican Institute (IRI).
Iraqi Kurdistan, Iraq
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