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 Saturday, January 30, 2010

IRAQ: Citizenship and Women's Rights under the Iraqi Constitution

Sara Burhan Abdullah, Pitt Law LLM '08 and JD '12, was an observer to the Iraqi Constitutional Review Committee. She shares her experiences with the issue of inheritance of citizenship and women's rights in her home country of Iraq...

Under Saddam Hussein's dictatorial regime, children born of Iraqi women and foreign men could not inherit Iraqi citizenship, whereas children of Iraqi men and foreign women could. Iraqi women were also not allowed to travel outside the country without an escort of a father, brother, husband, or other close male relative, known in Arabic as a mahram. With the overthrow of Saddam Hussein's regime, however, these laws have been changed in favor of Iraqi women, and women's rights have generally increased. Thus, for example, the 2005 Iraqi Constitution clearly provides in Article 18 that a child born to an Iraqi father or an Iraqi mother is considered to be an Iraqi holding original Iraqi citizenship.

As an externship student working in Baghdad on a US State Department grant managed by the University of Utah School of Law, one of my responsibilities was to attend the Constitutional Review Committee (CRC) as an observer. The CRC was responsible for amending the current Constitution and was composed of representatives from each of Iraq's major political blocs, including the Kurd, Sunni, and Shi'a factions, as well as some other secular parties. A contentious issue discussed by the CRC members was Article 18, which proposed granting Iraqi citizenship to children born to only an Iraqi mother. This was opposed by some of the committee's members.

I witnessed one of the committee's most vigorous arguments on this issue. The Kurds, supported by some of the Shi'a Islamists, opposed any amendment to Article 18 that would discriminate against women while the primarily Sunni Islamist members argued that an Iraqi mother should not be able to pass on Iraqi citizenship to her children. While I was technically not allowed to participate in the discussion as a student observer, I could not stay silent, and I asked for permission to give an opinion. I was motivated to speak because a child with an Iraqi mother and Iraqi father believes herself to be as much a citizen of her mother's country as her father's country. The idea that a child belongs solely to the country of her father and has no right to the country of her mother, even if she lives in her mother's country, suggests that her entire heritage devolves from her father alone. This constitutes unfair discrimination against a child born to only an Iraqi mother. Additionally, if a mother cannot pass on citizenship to her child, there is the possibility that her children would be without citizenship where the child lives in the mother's country of citizenship and the father's country requires the child to be resident in the father's country of citizenship in order to be a citizen.

The committee chair nodded his assent, and the members listened to me speak. I asked the members in favor of amending Article 18 to explain the basis of their position. One CRC member stated that his objection stemmed from concerns surrounding dual citizenship. A representative from Kurdish bloc countered this by stating that the Constitution allows dual citizenship. Furthermore, the Kurds argued that if the goal were to reduce dual citizenship, Article 18 should have included children born to foreign women with Iraqi husbands, since Iraqi men marry foreigners in greater numbers than Iraqi women.

The next day, I provided research to the committee about the number of countries which are signatories to the Convention for the Elimination of all Forms of Discrimination against Women (CEDAW). CEDAW Article 9(2) prohibits the type of sex-based discrimination which the CRC was considering making law in an amendment to Article 18. A few countries, including Iraq, have made reservations to Article 9(2), but most have not. My goal in providing the committee with this research was to encourage it to reconsider its views in light of the international community's position respecting women's rights. This had an effect on some Shi'a Islamist parties, but was ignored by others.

The committee finally agreed to amend the article so that it did not explicitly state the citizenship of child born to only one Iraqi parent. Rather, the CRC agreed that the legislative branch should speak to this issue. I am certain that some parties will attempt to pass legislation which discriminates against Iraqi women who have children with foreign men. However, I would hope that women's rights activists would challenge the law under the separate equal protection clause of the Constitution which prohibits discrimination in the law on the basis of gender. From my perspective, it would appear that they would have an excellent case.

Mentioned in this Article:

Convention on the Elimination of All Forms of Discrimination Against Women

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