UNHCR's ELIGIBILITY GUIDELINES FOR ASSESSING THE ...

Constitution endeavours to provide baseline protection of freedom of religion, such
protection is constrained by numerous state objectives.
Article 2 and Article 40 of the Iraqi Constitution guarantee religious rights and freedom of
religious practices and worship for all individuals as well as administration of religious
endowments. The protection of Shi’ite religious rites is specifically mentioned in Article
40. At the same time, Article 2 guarantees the Islamic identity of the “majority of the Iraqi
people” and provides that Islam is the official religion of the State and a basic source of
legislation. The provision provides specifically that no law may be enacted contrary to
“established provisions of Islam”. The interpretation of the scope and legal meaning of the
“established provisions of Islam” remains ambiguous, and, based on analysis of the
Constitution’s provisions, it will likely be tasked to the Federal Supreme Court, the highest
court of the land, which according to Article 93(2) has jurisdiction over “(i)nterpreting the
provisions of the Constitution”. 42 Until this is clarified, the scope of protection of non-
Islamic religious practices, provided by Article 2 and Article 40 remains unclear. In
particular, this pertains to the teaching of non-Islamic faiths to Muslims, blasphemy,
conversion of Muslims to other beliefs and activities considered as contrary to the Islamic
religion.
The prominence given to the Islamic faith and the Islamic identity of the state would also
appear to be at odds with Article 14 which provides for equality before the law of all Iraqis
without discrimination on basis of “sex, ethnicity, nationality, origin, color, religion, sect,
belief, opinion or social or economic status”. It is therefore unclear the extent to which non-
Muslims are protected under the Constitution against serious discrimination by the Muslim
majority.
2. De-Arabization
Article 140 of the Constitution provides for the “normalization” of the situation in Kirkuk
and other arabized areas by 31 December 2007.
The former Governments’ Arabization policies, which began in the 1930s and included the
settlement of Arab tribes in certain areas, sought to change the demographic make-up of
Kirkuk and other mixed areas. In particular, after the unsuccessful Kurdish Uprising in the
aftermath of the 1991 Gulf War, Arabization policies were further intensified, with the
forced assimilation and deportation of Kurds, Turkmen, Christians, Yazidis and Shabak
from Kirkuk and other multi-ethnic areas. Most settled in the Kurdish-controlled three
Northern Governorates. 43
42 The wording is not clear as to whether this provision applies only to legislation passed after the
Constitution was adopted or to all Iraqi legislation; see: Nathan J. Brown, The Final Draft of the Iraqi
Constitution: Analysis and Commentary, Carnegie Endowment for International Peace, 16 September 2005,
p. 3, http://www.carnegieendowment.org/files/FinalDraftSept16.pdf. See also: United States Commission on
International Religious Freedom (USCIRF), USCIRF Analysis of Proposed Iraqi Constitution: Ambiguities in
Text Threaten Human Rights Protections, Press release, 6 October 2005, http://www.uscirf.gov/mediaroom/
press/2005/october/10062005_iraq.html.
43 According to Human Rights Watch (HRW), from the 1991 Gulf War until 2003, the former Iraqi
Government systematically expelled an estimated 120,000 Kurds, Turkmen and Assyrians from Kirkuk and
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