UNHCR's ELIGIBILITY GUIDELINES FOR ASSESSING THE ...
UNHCR's ELIGIBILITY GUIDELINES FOR ASSESSING THE ...
UNHCR's ELIGIBILITY GUIDELINES FOR ASSESSING THE ...
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Constitution endeavours to provide baseline protection of freedom of religion, such<br />
protection is constrained by numerous state objectives.<br />
Article 2 and Article 40 of the Iraqi Constitution guarantee religious rights and freedom of<br />
religious practices and worship for all individuals as well as administration of religious<br />
endowments. The protection of Shi’ite religious rites is specifically mentioned in Article<br />
40. At the same time, Article 2 guarantees the Islamic identity of the “majority of the Iraqi<br />
people” and provides that Islam is the official religion of the State and a basic source of<br />
legislation. The provision provides specifically that no law may be enacted contrary to<br />
“established provisions of Islam”. The interpretation of the scope and legal meaning of the<br />
“established provisions of Islam” remains ambiguous, and, based on analysis of the<br />
Constitution’s provisions, it will likely be tasked to the Federal Supreme Court, the highest<br />
court of the land, which according to Article 93(2) has jurisdiction over “(i)nterpreting the<br />
provisions of the Constitution”. 42 Until this is clarified, the scope of protection of non-<br />
Islamic religious practices, provided by Article 2 and Article 40 remains unclear. In<br />
particular, this pertains to the teaching of non-Islamic faiths to Muslims, blasphemy,<br />
conversion of Muslims to other beliefs and activities considered as contrary to the Islamic<br />
religion.<br />
The prominence given to the Islamic faith and the Islamic identity of the state would also<br />
appear to be at odds with Article 14 which provides for equality before the law of all Iraqis<br />
without discrimination on basis of “sex, ethnicity, nationality, origin, color, religion, sect,<br />
belief, opinion or social or economic status”. It is therefore unclear the extent to which non-<br />
Muslims are protected under the Constitution against serious discrimination by the Muslim<br />
majority.<br />
2. De-Arabization<br />
Article 140 of the Constitution provides for the “normalization” of the situation in Kirkuk<br />
and other arabized areas by 31 December 2007.<br />
The former Governments’ Arabization policies, which began in the 1930s and included the<br />
settlement of Arab tribes in certain areas, sought to change the demographic make-up of<br />
Kirkuk and other mixed areas. In particular, after the unsuccessful Kurdish Uprising in the<br />
aftermath of the 1991 Gulf War, Arabization policies were further intensified, with the<br />
forced assimilation and deportation of Kurds, Turkmen, Christians, Yazidis and Shabak<br />
from Kirkuk and other multi-ethnic areas. Most settled in the Kurdish-controlled three<br />
Northern Governorates. 43<br />
42 The wording is not clear as to whether this provision applies only to legislation passed after the<br />
Constitution was adopted or to all Iraqi legislation; see: Nathan J. Brown, The Final Draft of the Iraqi<br />
Constitution: Analysis and Commentary, Carnegie Endowment for International Peace, 16 September 2005,<br />
p. 3, http://www.carnegieendowment.org/files/FinalDraftSept16.pdf. See also: United States Commission on<br />
International Religious Freedom (USCIRF), USCIRF Analysis of Proposed Iraqi Constitution: Ambiguities in<br />
Text Threaten Human Rights Protections, Press release, 6 October 2005, http://www.uscirf.gov/mediaroom/<br />
press/2005/october/10062005_iraq.html.<br />
43 According to Human Rights Watch (HRW), from the 1991 Gulf War until 2003, the former Iraqi<br />
Government systematically expelled an estimated 120,000 Kurds, Turkmen and Assyrians from Kirkuk and<br />
29