I. Relevant Legal Standards

International Standards Protecting Minority Rights

Iraq made a declaration, on gaining independence and joining the League of Nations in 1932, that it would protect the rights of minorities—the first non-European state to so declare. With the formation of the United Nations after the Second World War, the international community recognized the particular vulnerability of minorities around the world to human rights abuses. In December 1948 the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide.[1] The Convention was followed by others firmly establishing the rights of minorities in international law. In 1971, Iraq was one of the first countries in the world to ratify the International Covenant on Civil and Political Rights.[2] Article 26 of the Covenant prohibits discrimination on grounds of race, religion, and language, and article 27 is specifically dedicated to the rights of minorities: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”

Iraq has assumed the obligation to take action to protect minority rights through other notable UN conventions, such as the International Convention on the Elimination of All Forms of Racial Discrimination,[3]and the Convention on the Rights of the Child.[4]The latter specifically requires the education of a child to be directed to the “development of ... his or her own cultural identity, language and values” and gives a child of a religious minority the right “to enjoy his or her own culture, [and] to profess and practise his or her own religion.”[5]

Additionally, the United Nations General Assembly (UNGA) has passed declarations that articulate best practices and human rights standards for the protection of minorities. In the UNGA Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981), the “freedom to have a religion ... and freedom ... to manifest his religion or belief in worship, observance, practice and teaching” is protected, and “coercion which would impair [t]his freedom” is prohibited.[6] More specifically, assembly for worship, observance of religious holidays, maintaining and erecting buildings for worship, acquiring items for use in religious rituals, religious teaching and appointment of religious leaders, fundraising for religion, and communication with coreligionists are activities that fall within the protection of freedom of religion.[7] According to the UNGA’s Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities (1993), states are obliged to protect minorities by taking “measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs.”[8] The declaration also says that states must protect the identity of minorities within their respective territories by encouraging “conditions for the promotion of that identity” and measures allowing minority members to “participate fully in the economic progress and development in their country.”[9] It states that minorities have the right to establish and maintain their own associations. Minorities also have “the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority.”[10]

The protection of minority rights is further incorporated into international law through regional instruments, such as the Council of Europe’s Framework Convention for the Protection of National Minorities and the European Charter for Minority Languages, and the Arab Charter on Human Rights.[11] The Arab Charter, adopted by the Council of the League of Arab States in 2004, states that “minorities shall not be deprived of their right to enjoy their culture or to follow the teachings of their religions.”[12] Further, the Arab Charter prohibits denying an individual’s rights because of his or her “race, colour, sex, language, religion, political opinion, national or social origin, property, birth or other status and without any discrimination between men and women.”[13] Iraq is a founding member of the League of Arab States.

National Standards Protecting Minority Rights

Iraq’s constitution, adopted in October 2005 by popular referendum, has various provisions guaranteeing the rights of minority groups. The constitution specifically “guarantees the full religious rights to freedom of religious belief and practice of all individuals such as Christians, Yazidis, and Mandean Sabeans.”[14] Article 3 explicitly recognizes that Iraq is a country of multiple nationalities, religions, and sects.[15] Article 4 guarantees the right to educate children in their mother tongue (such as Turkmen, Syriac, and Armenian).[16] According to article 14, all Iraqis are “equal before the law without discrimination based on gender, race, ethnicity, nationality, origin, color, religion, sect, belief or opinion, or economic or social status.”[17]

Iraq’s Constitution and the Disputed Territories

Additionally, the constitution stipulates a national law must be passed to “guarantee the administrative, political, cultural, and educational rights of the various nationalities, such as Turkmen, Chaldeans, Assyrians, and all other constituents.”[18]

The constitution takes up the language of article 58 of its predecessor, the Transitional Administrative Law, which specified steps the government must take to “remedy the injustice caused by the previous regime’s practices in altering the demographic character of certain regions, including Kirkuk, by deporting and expelling individuals from their places of residence, forcing migration in and out of the region, settling individuals alien to the region, depriving the inhabitants of work, and correcting nationality.” These steps, now required by article 140 of the constitution, include the following:[19]

• Restore expelled and deported residents to their homes and property, or, where this is unfeasible, provide just compensation;[20]
• Promote employment opportunities for persons who were previously deprived of employment or other means of support in order to force their migration out of the regions;[21]
• Repeal all decrees relevant to “nationality correction” and permit affected persons the right to determine their own ethnic affiliation free from coercion and duress;[22]
• Appoint a neutral arbitrator to make recommendations concerning the administrative boundaries that were modified by the previous regime;[23] and
• Conduct a fair and transparent census followed by a referendum in Kirkuk and other disputed territories “to determine the will of their citizens” by a date not later than December 31, 2007.[24] (As is discussed in chapter II, the referendum mentioned in the last point has yet to take place.)