Maria Rita Corticelli has been director of the Centre for Genocide Studies based in the Kurdish Region of Iraq from 2016 to 2019 where she specialized on religious minorities. She has been working as researcher and project manager for international NGOs operating in Latin America and the Middle East. Currently she is a consultant for the Shoah Foundation, an editor for the International Journal of Humanitarian Studies published by the King Salman Humanitarian Aid and Relief Centre (KSrelief) and for the King Faisal Center for Research and Islamic Studies, and an analyst for EGIC.

Abstract

This article shows how the lack of transitional justice in Iraq is affecting religious minorities. The case study of the Kakais is a striking reminder of the need for change to guarantee a peaceful coexistence in the country.

The Lack of Transitional Justice Jeopardizes the Recognition of Kakais in Iraq

In 2010 the Office of the United Nations High Commissioner for Human Rights (OHCHR) recognised that implementing the main concepts of transitional justice ‘is needed for peace to prevail. A few years earlier, in 2006, the United Nations High Commissioner for Human Rights, Louise Arbour, said: ‘transitional justice must have the ambition to assist the transformation of oppressed societies into free ones by addressing the injustices of the past through measures that will procure an equitable future. It must reach to—but also beyond—the crimes and abuses committed during the conflict that led to the transition, and it must address the human rights violations that predated the conflict and caused or contributed to it.’[1]

When in 2003 George W. Bush intervened in Iraq the ignorance of his Administration to the reality on the ground in Iraq led to the country’s unavoidable division. In his book The End of Iraq: How American Incompetence created a War without End, Peter Galbraith denounces the complete shamble of the American-led post war Iraq and the distrust toward Iraqi people and culture which very quickly transformed what was supposed to be a liberation into an occupation. This process was extremely damaging not only for the Americans but, more importantly, for all Iraq.

This political will for a united Iraq makes even less sense now when it is evident that Baghdad’s central government has not been able to make the already shaky idea of federalism work after the fall of Saddam Hussein’s regime. The sanguinary war between Shia and Sunni Muslims heavily compromised any attempt at nation-building. It dramatically reaffirmed the idea that Iraq was very far away from any sense of unity. The 2005 constitution was based on the Transitional Authority Law (TAL) imposed by the Americans and Paul Bremer, Administrator of the Coalition Provisional Authority (CPA), with ‘no opportunity for public comment or input, an omission unheard of in modern constitution writing, and this angered many Iraqis.’[2] The 2005 Iraqi Constitution, which should have paved the way to a new country, already contained all the contradictions that led to the subsequent war and new authoritarianism that materialised in the eight-year reign of Prime Minister Nouri Al-Maliki.[3]

The Constitution itself guarantees equal treatment of all Iraqis irrespective of ‘gender, race, ethnicity, nationality, origin, color, religion, sect, belief or opinion, or economic or social status.’[4] However, the insistence on the obedience of Islamic law constitutes a serious obstacle to implementing these laws. In general, ‘almost all these laws resulted in potential discrimination against minorities, because they were rooted in Islamic Shari’a principles that did not account for non-Muslim communities.’[5] This distinction put the survival of non-Muslim communities in danger and, in case of war, fails to provide them any protection. In addition, on a basic level, the adherence to the Shari’a law does not allow non-Muslim citizens to identify themselves in the culture of the country.

This was very clear during the debate on a new law proposed by Baghdad on 31 October 2017, which sparked a massive controversy in Iraq and around the world. The Iraqi government proposed an amendment to the country’s personal status law, which would allow men to marry nine-year-old girls. Since 2014, it was the second attempt to change this law, dating back to 1956. The draft law, withdrawn due to the strong internal and external opposition, would have reverted women’s situation in the country, allowing Muslim clerics to decide on marriage contracts and restricting women’s rights regarding the custody of children and inheritance. The law would have, in theory, applied only to Shia Muslims. However, since the Shari’a Law applies to all Iraqi citizens according to the Constitution, it would have affected minority groups and caused even more divisions among them. Other amendments in the bill, which included provisions that would legalise marital rape and prohibit Muslim men from marrying non-Muslims, would only reinforce that.[6]

This is only one of the latest examples of the country’s failure to protect minorities stemming from the 2005 Constitution’s inconsistencies. A constitution should reflect the country’s diversity and the similarities shared by the variety of religions practiced on its territory rather than being written with a specific group in mind, otherwise there is a risk of hindering religious freedom.

Since 2003 and the fall of Saddam’s regime Iraq has been at the centre of numerous internal and external conflicts. Internally, the Sunni-Shia war between 2006 and 2009, as well as the presence of Al Qaida and the advent of Islamic State of Iraq and Syria (ISIS) in 2014, led to chronic instability and a permanent state of war. Externally, the ever-present interference of regional powers such as Iran and Turkey, coupled with the Syrian war consequences, has inhibited any attempt at a real nation-building process in the country. All these conflicts have caused a dramatic series of forced displacement resulting in the wreaking up of old communities. Particularly hit by this were religious minorities living mainly in the Nineveh Plain and the border areas with Syria.

In this context, the subsequent Iraqi governments were trapped in ethnic and religious conflicts and were consequently unable to guarantee security to its citizens. Notably, politicians like Maliki have held on to power with the support of militias operating in parallel to the Iraqi army.[7] The existence of militias is still an essential factor of instability in the country. Many Iraqis were born after the advent of ISIS, which prompted different communities to defend themselves from the attacks. At least fifty militias operate in different areas besides the known presence of the Iraqi army and the Peshmerga in the Kurdish region. Security is, therefore, the main concern for any community that attempts to rebuild itself.

Is transitional justice possible in Iraq?

Trials and truth commissions became the main mechanisms of transitional justice in Latin America, where most of the affected countries managed a peaceful transition to democracy and saw their institutions strengthened as a result. There has not been a similar transitional justice process that would follow this pattern in the Middle East.

To analyse the process of transitional justice in Iraq, it is important to distinguish between the different approaches to human rights and post-conflict policies (partially) adopted by the central government in Baghdad and the Kurdistan Regional Government (KRG) in Erbil.

In the aftermath of the war and the US occupation of Iraq, every initiative regarding the administration of justice has been subject to American supervision. This ultimately jeopardised the whole process since the Iraqi High Tribunal had to act during a foreign occupation and in the middle of the civil war between Shias and Sunnis. The result was that the “Iraqi-led” judicial system envisaged by the United States constitutes a special case in the literature of transitional justice. Born to be an endogenous system, it ended up as a victim of the past sectarian violence, that swept the country after the fall of Saddam Hussein. The de-Baathification process implemented by the CPA complicated matters further because it fuelled the divisions.

In general, the process was heavily jeopardised by two elements included in Order 1 and 2 of the CPA, on the necessity to clean the civil service and to disband the military and security services. Regarding Order 1, the vetting of the people belonging to the party was carried out based on the rank of the accused, while ignoring all personal history. This automatically excluded all members who were not guilty of human rights abuses and could have helped reconstruct a working state apparatus. Moreover, the swift process immediately gained a sectarian connotation to the point that Shi’as started to talk about the de-Sunnification of the Iraqi society.

The whole process lacked the political commitment to pursue justice and security, two elements that Yaacov Bar-Siman-Tov indicates as fundamental to the journey towards reconciliation and democracy.[1] The Iraqi High Tribunal failed to deliver criminal justice, and the conflict together with the American occupation failed to deliver the compensatory and culture justice that would have led to the society’s reconciliation. As a result, the governments in Baghdad failed to implement the 2005 Iraqi Constitution and smooth down the ethnic divisions. The political failure led to the repetition of violence with the current war against ISIS. The Iraqi government never promulgated laws for the inclusion of all parties but has always been very influenced by the politics of its neighbours, read Turkey, Iran and Syria. Consequently, any political recognition always followed ethnic and religious lines.

The transitional justice process in the Kurdistan Region of Iraq and its social and political consequences has received even less attention than the same process in Iraq. Since 1991, the history of the Kurdish region of Iraq seems to run on a different path from the Iraqi one. How does the experience of transitional justice and the implementation of human rights impact the society living in the region? What role has the KRG played in promoting a human rights culture? Until now, the analysis of human rights has mainly dealt with non-governmental organisations (NGOs) operating in the area. However, the KRG’s role in promoting a human rights culture has been fundamental for nation-building. This report seeks to address this gap by sketching the relationship between human rights and the KRG. It will conclude with a critical analysis of KRG’s limitations in the promotion and implementation of human rights, demonstrated on a case study of Kakai people who are trying to make their voice heard following a series of deadly attacks perpetrated by ISIS.

Human Rights in the Kurdish Region

Iraq was internationally isolated during Saddam Hussein’s dictatorship and had to wait until its fall in 2003 to be reintegrated into the international community. Following the United Nations Resolution 1500, the UN Assistance Mission for Iraq (UNAMI) was established. The scope of this mission, still operating in 2020, focuses on ‘advancing inclusive political dialogue and national reconciliation; providing assistance to the electoral process; facilitating regional dialogue between Iraq and its neighbours; promoting the protection of human rights and judicial and legal reform.’[2] Nevertheless, Iraq’s recent history, plagued by sectarian wars and failed governments, has prevented these programmes from having a real impact on the society. Reconciliation and dialogue have failed as well as the protection of human rights for most Iraqi citizens. The situation worsened after 2014 with massacres of Yezidis and Christians perpetrated by ISIS. This situation of perpetual conflict complicates UNAMI’s work and does not favour far-reaching initiatives regarding the awareness of human rights. Therefore, despite the UN’s presence in the country, Iraq runs the risk of remaining isolated from the international community in the planning and implementation of human rights.

However, in all this, the KRG appears as an exception. The constant state of war has overshadowed its role in the human rights promotion and the status of a quasi-state still engulfs it. Since its establishment in 1991 the KRG has adopted human rights towards nation-building, inaugurating a trend that will become an essential reference point for the region’s institutions and citizens.

Before discussing the relationship between the KRG and human rights, it is important to point out that states’ interest in human rights has complex and dangerous ramifications since their involvement could spark resistance and social unrest.[3] On the other hand, human rights have become a way for states to engage their citizens and reassure them that their rights will be respected. In this framework, this article aims to analyse the commitment of the KRG towards human rights promotion in the region, taking into account the complex ramifications and contradictions that define the relationship between states and human rights.

The Kurdish people associate the beginning of transitional justice in the region with the establishment of the no-fly zone and the 1991 uprising when the Peshmerga released 90,000 prisoners, arrested for working with the Iraqi government, without charges. In more than one interview with local officials, this episode was presented as an example of Kurdish willingness to forgive. This attitude is also reflected in Massoud Barzani’s controversial decision to issue amnesty for all 450,000 Kurds who collaborated in some way with the regime.

This analysis also has to consider the particular situation of the KRG and its origins. The KRG is what Denise Natali has defined as a quasi-state, thus not a recognised state.[4] However, since its birth in 1992, the experience of the KRG has parted significantly from the rest of Iraq. In the first eleven years, the Kurdistan region was abandoned to its destiny by Saddam Hussein and this gave it the space and opportunity to organise its own, unique, socio-politcal and economic life despite the 1994-1998 civil war, that tore the society apart. The tensions and the contradictions that are part of every nation’s history have not prevented the drawing of a continuous line regarding the commitment of the KRG to human rights.

The 2005 Iraqi Constitution provided greater flexibility in that the Kurdish people could accept that politics and religion do not have to go together and that state secularism forms the bedrock for guaranteeing the respect for minorities. Peter Galbraith in his assessment of the failure of the Bush administration mentioned that the Kurdish elite was able to include provisions for human rights and territorial issues in the drafting of the 2005 Constitution.[5]

Contrary to the spirit of the Iraqi Constitution, in which the theme of identity could not be separated from religion, the 1992 Kurdish draft constitution already reflected a multi-faith society and provided a rare example of tolerance in a land that seems to disappear under the yoke of religious extremism. Almost a premonition of the current situation in which the constant flow of refugees, due to the rise of ISIS, have increased the presence of minorities in the region.

Very few scholars have exhaustively discussed this process, overshadowed a few years later by the cruel civil war (1994-1998). However, these first steps are fundamental to understanding the development of the KRG and its role in supporting the creation of a human rights culture in the region. This original draft constitutes an important precedent in the history of the KRG. Despite, or thanks to, this experience, the KRG found that it was paramount to approve another draft of the Iraqi Constitution in 2009 after the one in 2005. Even if reaffirming some of the main points of the 2005 Constitution as well as keeping some of its ambiguities, this one more vividly reflects the need for the region to establish a strong link between its people and human rights both in the Preamble and, more specifically, in Article 7, which together establishes a connection to the crimes committed against the Kurds, such as Anfal, Faylee Kurds, Halabja and the abduction of the Barzanis.[6] Because of such suffering, the Kurds have prioritised the guarantee of the freedom of religion to every Kurdistan citizen as per Article 5, which states that ‘The people of the Kurdistan Region are composed of Kurds, Arabs, Chaldo-Assyrian-Syriacs, Armenians and others who are citizens of Kurdistan.’[7] Still, six years later, in 2015, the failure of the region to ratify the Constitution, and the ever-changing situation on the ground, called for yet another, permanent constitution which could give the Kurdish region more autonomy. The debate is still very poignant in particular in the view of the region’s possible independence from Iraq.

The Legacy of Anfal

After Anfal and Halabja the Kurdish people needed to cope with their own recent history and loss. Thousands of people were unaccounted for and the KRG had to embark on a post-conflict reconstruction project, which had to include an investigation into the serious human rights abuses perpetrated by the Ba’athist regime. Already in 1991, a local association, the Kurdistan Human Rights Organization operating in Erbil, began the onerous task of collecting data on the missing persons. Run completely by volunteers, this organisation started to collect the details of families that disappeared during the Anfal campaign.

Despite the efforts carried out immediately after its establishment in 1992, the KRG began to engage with programmes for raising awareness on human rights issues only after 2003. The memory of past atrocities and Iraqi government’s failure to implement a successful reconciliation process prompted the region to establish its own Ministry of Human Rights in 2002. This constituted a crucial step, which eventually drifted the KRG from Baghdad, where the Ministry of Human Rights opened in 2005 only to be shut down in 2009 to keep the human rights file independent from the Parliament. In 2010 KRG provided for the formation of an independent human rights commission, which would periodically report to the KRG on the situation of human rights in the region.

Following this path paid off since each interviewed official working in the field of human rights stressed the main differences between Erbil and Baghdad, which remits to a more extensive political experience of the region. The legislation for the respect and protection of human rights in the Kurdistan Region differs dramatically from the one in force in Baghdad. For example, the Kurdish government has cancelled Iraqi law 111 regarding honour killing and banned it in the region. The defence of women’s and children’s rights, following UN Resolution 1325, also constituted a priority for the Kurdish government. Domestic violence is banned in the region and women have a 30 percent quota in the Parliament compared to the 25 percent in Iraq. Similarly, men’s and women’s testimony in court are considered equal in the Kurdistan Region as opposed to the Sharia law still enforced in the rest of Iraq. In Baghdad, men need for testimony only one for men and two for women. Additionally, the Kurdistan Region has abolished the death penalty, which is still in force in Baghdad.[8] Another difference is that in Erbil, young people cannot join the military until they are 18, while in the rest of Iraq they are enrolled as children in the armed forces.

Of course, the situation in the region is far from being perfect and a lot remains to be done. However, many officials highlighted the fact that the region following the International Convention for Human Rights as part of the international community helped it overcome the isolation that characterised the rest of Iraq. Another example is that the Kurdistan Region is making an effort to follow international legislation, which is visible in the way they apply UN laws regarding the refugees’ treatment. Article 27 of the 1951 UN Convention relating to the Status of Refugees provisions that ‘states shall issue identity papers to any refugee in their territory.’[9] The Kurdistan Region not only provides IDs to the refugees but, contrary to the rest of Iraq, refugees also enjoy freedom of movement and have access to jobs.

My interviews with various minority groups showed that the Baghdad government’s past policies have seriously undermined a level of trust, which was already weakened by the acts of violence perpetrated by the different Iraqi governments against the Kurds over the past few decades. The economic pressure exercised by Baghdad with the overt intent to worsen the conditions of the Kurds and the region caused a further sense of mistrust not only at the political level, but it also compromised the already weak relations between Arabs and Kurds and between Muslims and the religious minorities. On the other hand, the war against ISIS also undermined the relations between communities and the KRG in the region. The Yezidis, for example, have been abandoned by the Peshmerga, who did not stay to defend them against ISIS and left Sinjar to its destiny. The lack of a coherent transitional justice policy, which includes families’ and communities’ reunification, has further undermined the local population’s trust towards both the central and the Kurdish governments.

The Difficult Road to Peace

The history of the Kurds is a history of genocides. Arabization, the massacre of the Barzanis, the persecution and expulsion of the Failee Kurds, Anfal and Halabja are only some of the most infamous and deadly episodes. Violence against minorities even after the establishment of the Kurdish region in 1992 has persisted in the country and intensified with the advent of ISIS, leaving both the central government in Baghdad and the KRG in Erbil on a collision course with some of the minorities that felt betrayed. The attack on the Yezidi communities in Sinjar with widespread kidnappings and raping of women is just one of the most recent examples of both states’ failure to protect their citizens from attacks.

However, in the last twenty years since the establishment of the Kurdish Regional Government in northern Iraq, the region has become a safe haven for all religious minorities. The climate of religious tolerance has opened the doors for the development of civil society organisations, particularly local NGOs, which openly advocate for the recognition of their religious and civil rights for a more peaceful society based on the rule of law and a secular state.

Despite this, Kurdish society remains deeply religious, with the majority practising Islam. In the three KRG governorates of Erbil, Sulemaniyah and Dohuk there are 5,537 mosques, while Mosul and Kirkuk, which belong to the disputed territories between the KRG and the central government in Bagdad, count around 3,000 mosques for a total of 10,000 imams.

In this context, the religious intolerance preached and practiced by ISIS found fertile soil in the areas it occupied and some of the most extreme Muslim populations in the rest Iraq and the Kurdish region. A renewed religious intolerance reflected in the recrudescence of hate speeches delivered by different imams in the mosques, supported by some media. This situation alarmed both religious minorities, which feel threatened by the possibility of renewed violent attacks against them, and the most moderate Islamic representatives, working to establish a more stable and peaceful society through constructive inter-religious dialogue.

It is very difficult to envisage an international tribunal’s establishment as in Rwanda or ex-Yugoslavia because Iraq is not a party to the Rome Statute of the International Criminal Court. Consequently, any attempt to establish a transitional justice process is in the hands of the Iraqi government that lacks the knowledge and infrastructure to carry it out in a way that includes reconciliation and peace-building efforts. The summary trials and death penalties to which the central government in Baghdad condemned ISIS members show insistence on mere punitive measures for political purposes, which threaten to spiral the conflict between Sunnis and Shias as in the past.

As we saw previously, the KRG looks better prepared for a transitional justice process. Yet, despite the steps undertaken towards a better human rights policy, it still lacks the infrastructure to carry out a transitional justice process. One of the main challenges affecting the establishment of an ad hoc legal framework is the lack of prepared judges and operators. However, the presence of local and international NGOs, particularly those representing religious minorities, constitutes a valuable contribution.

The tensions between Arabs and other ethnic groups exacerbated with the advent of ISIS. Although ISIS’s defeat slowed down the military confrontation, its legacy keeps dividing the communities as ever before. It resumed the fear of forced Arabisation, a sad reminder of the policies implemented by the Baath regime. Most importantly, it broke the weak co-existence among communities in main cities like Mosul, where traditionally, many groups have co-existed.

Talking with locals makes it very easy to spot all the frustration for past and present acts of violence. The feeling of loss, displacement and injustice permeates the society and the desire of a group’s revenge on the other is always present. Also, the lack of experience in dealing with situation through diplomacy due to a permanent state of war, has favoured the continuity of acts of revenge among groups.

The Kakais: A Community in Danger

Over the past few decades, the history of the minorities living in Iraq has been particularly violent even in comparison to other countries at war. In this chronic instability, the different communities sharing this land have been largely left alone in their struggle to survive the various mass killings they have been subjected to. The process of re-building communities after the physical, moral and economic disruption caused by every war left has been frequently a responsibility of individuals fighting to preserve their memory in the almost total absence of a developed civil society. The fragmentation of society and political instability makes it very difficult to gather information and preserve the memories of the genocides committed against Kurds, Christians, Yezidis, Kak’ais , Mandeans and other groups, a violence of which ISIS is perhaps the cruelest, but not the only, expression.

The Kakais are the representatives of one of the oldest religions in the Middle East. Currently, there are around 500,000 in Iraq and more than 3,000,000 in Iran, some also live in Syria, Lebanon and India. They are divided into different social groups: Peres (Father), who are religious men responsible for teaching the religion and running worship places. Each of them is the point of reference for specific families and groups within the community. The Yarsani or Kaka’i advise the community not on religious matters. The Khalifa or Mam (from the Kurdish world uncle) guide the whole community. Baba (from the Kurdish world father) are responsible for supporting people’s health through religion. The Kakaie or Taifa do not have any religious responsibility and refer to the first group as a guide.

In 1916, following the Sykes-Picot Agreement, the Kakai community suffered the same destiny as the Kurdish people. Its members were separated into the new states formed by the European powers. The Kakais found themselves as minorities forced to share the history of the countries in which they found themselves, Iran and Iraq. But it is the Kakai community in Iraq that had to endure the most destructive series of attacks.

Under the Ottoman Empire the community suffered a lot of attacks, particularly from Muslims, who did not like them because of religious differences and their Kurdish ethnicity. For this reason, they have practiced their religion in secrecy. Consequently, their historic presence in the area has been denied despite the graves with Kakai names on them.

The Kakais live in different areas of Iraq, especially between Erbil and Mosul, around Sulemanya, in Kirkuk, Halabja and in the Germian area in the Khalar region. Since the community has been split into different parts, each of them had different destinies. The communities living in Kirkuk, for example, had to deal with the unresolved issue of the disputed territories between Iraq and the Kurdish Region. Other communities have been very isolated without capacity to make themselves heard. One characteristic that unites all these communities is the forced Arabisation they suffered since the 1960s. Even now, they are not recognised as a religious minority, consequently they figure as Muslims on their ID cards. This situation, along with the permanent fear of attacks by different Islamic forces, led the community to live in secrecy, scared of making itself public.

The United Nations and international non-governmental organisations are present in Iraq, particularly in the Kurdish region. However, sometimes their access to populations is limited due to the weak security situation. The presence of local NGOs, mainly in the Kurdish region, provides good support in documenting atrocities and serious human rights abuses. This presence is also crucial to gather information about the ever-changing demography of areas that otherwise would be very difficult to reach.

Conclusion

The inconsistencies in the 2005 Iraqi constitution represent a first step toward ending violence against religious minorities in the country. Privileging the Shari’a law jeopardises any attempt to build a society based on a more inclusive idea of citizenship.

At this moment, Kakais are perhaps more in danger due to the lack of protection of their members. There are several actions that the Iraqi and Kurdish governments and international organisations should take to safeguard the future of this community, also given the attacks against them perpetrated by ISIS still in 2020. The first step would be an official recognition of the Kakai religion, which would help the community to denounce openly the persecutions, killings and abductions carried out against them as acts of violence against a minority group. Until this recognition is made, the Kakai community will not have access to the international support that other minorities enjoy at this moment. Additionally, an independent investigation on the status of the communities hit by the war against ISIS would offer the opportunity to involve them in the reconstruction efforts now in force in the Nineveh Plain for Christians and Yezidis. While other religious minorities, such as Christians and Yezidis, were able to establish civil society organisations that represent them in the international arena, Kakais are struggling to obtain the same level of attention, which makes them more vulnerable. These are the first steps that could help the victims of the violence to find their voice.