UNHCR's ELIGIBILITY GUIDELINES FOR ASSESSING THE ...

the Middle East in terms of women’s rights. 54 Where, however, the Personal Status Law
does not make explicit provision for a situation, Shari’a law is applicable. It may then be
applied differently to members of the two communities as they follow different schools of
jurisprudence.
On 29 December 2003, the former Iraqi Governing Council (IGC) issued Resolution 137
that would have cancelled the 1959 Personal Status Law and placed issues of family law
under religious rather than civil jurisdiction. Former CPA administrator Paul Bremer did
not endorse the decision after domestic and international human rights groups protested the
resolution on the grounds that the imposition of Islamic law would erode Iraqi women’s
rights. The IGC finally repealed Decision 137 by a vote of 15 to 10. 55 The role of Islam and
Shari’a law vis-à-vis the more secular 1959 Personal Status Law was a major issue in the
drafting of the Constitution and continues to be highly contentious because enabling
legislation is required for Article 41 of the Constitution (requiring that Iraqis be free in
matters of personal status according to their religions, sects, beliefs or choices). It remains
unclear whether the Personal Status Law will be modified or cancelled altogether, leaving
different sects to apply their own sets of laws and interpretation as was done before 1959.
Certainly, any such decision will strongly affect the lives of Iraqis as it regulates
relationships within families. 56 Particular concerns are thereby expressed with regard to
women, LGBT and minority rights. 57
4. Criminal Sanctions
The two main sources of criminal law are the Law on Criminal Proceedings (Law No. 23
of 1971) 58 – which details the procedures to be followed for the investigation of offences,
the collection of evidence, trials and appeals – and the Penal Code (Law No. 111 of
1969), 59 which lists offences and applicable sentences. In addition, a number of laws and
orders of the Revolutionary Command Council (RCC) 60 also exist. The Penal laws of the
54 Isobel Coleman, Women, Islam, and the New Iraq, Foreign Affairs, January/February 2006,
http://www.foreignaffairs.org/20060101faessay85104-p10/isobel-coleman/women-islam-and-the-newiraq.html;
Edward Wong, Draft Iraqi charter backs Islamic law, The New York Times, 20 July 2005,
http://www.iht.com/articles/2005/07/19/news/charter.php.
55 Coleman, ibid.; The New Standard, Chris Shumway, Rise of Extremism, Islamic Law Threaten Iraqi
Women, 30 March 2005, http://newstandardnews.net/content/?items=1600; IRIN, Iraq: New family law on
hold, 4 February 2004, http://www.irinnews.org/report.aspx?reportid=23381.
56 Coleman, Women, Islam, and the New Iraq, see above footnote 54; Nathan J. Brown, Debating Islam in
Post-Baathist Iraq, Carnegie Endowment for International Peace, p. 6-7, March 2005,
http://www.carnegieendowment.org/files/PO13.Brown.FINAL2.pdf.
57 See also above “Freedom of Religion”.
58 Law No. 23 of 1971, Law on Criminal Proceedings, 4 February 1971, available in UNHCR’s Refworld
at: http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=468a674a2. See also Case Western
Reserve University / School of Law, Summary of Iraqi Criminal Procedure Law, http://law.case.edu/
saddamtrial/documents/Iraqi_Crim_Procedure_Code_Summary.pdf.
59 The unofficial English translation, as prepared by the US Armed Forces Judge Advocate General, is
available in UNHCR’s Refworld at http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=
452514424. For further information on Iraq’s Penal Law, see UNHCR, 2005 Country of Origin Information
Iraq, p. 116-117, see above footnote 53.
60 The RCC was established after the military coup in 1968 and was the ultimate decision making body in
Iraq until the fall of the former regime. It exercised executive and legislative authority in Iraq, whereas the
32