Tribal Justice in a Fragile Iraq NOVEMBER 7, 2019 — HALEY BOBSEINE The Century Foundation | tcf.org Tribal Justice in a Fragile Iraq NOVEMBER 7, 2019 — HALEY BOBSEINE Tribalism is a defining characteristic of modern Iraqi society, justice system; dispute resolution; security coordination with but one that is constantly adapting to changing times. state actors; women’s interaction within patriarchal tribal This report aims to shed light on tribes’ engagement with structures; tribes’ support of or fight against the Islamic communities—sometimes helpfully, and sometimes not—as State and its legacy of extremism; tribal facilitation and they attempt to rebuild following the territorial defeat of the exploitation of the IDP return process; intra- and intertribal Islamic State. community disputes; and finally, the outlook of tribal sheikhs on the potential for tribal confrontation and coordination This report is built on the author’s recent field research in with the state. Iraq, including dozens of interviews with tribal sheikhs, Popular Mobilization Units (PMU, or al-Hashd al-Sha’abi While the Iraqi state is weak, Sunni Arab sheikhs residing in Arabic) leaders and fighters, religious and judicial tribal in areas since liberated from the Islamic State are often figures, lawyers, judges, local and regional government even weaker. Iraqi officials and international analysts alike officials, humanitarian workers, researchers, female activists perceive these areas as long-time hotbeds of violent Sunni and academics, internally displaced people (IDPs), extremism. Government and security actors—and even the returnees, and residents of predominantly tribal areas. The Iraqi populace more broadly—cast a suspicious eye on tribal report seeks to advance the understanding of complicated sheikhs and residents of areas once controlled by the Islamic tribal dynamics, as donors, nongovernmental organizations State. Tribal actors must maneuver in an environment filled (NGOs), the United Nations, and foreign advisors engage with more powerful security actors in their areas, such as the with tribal actors in post-Islamic State Iraq. Iraqi security forces, and the PMU and its affiliates. Only those tribal leaders with strong ties to political, government, The report first briefly explores evolving Iraqi Sunni Arab business, or PMU actors hold more sway. Such leaders use tribalism and foundational tenets of tribal customary law. It their positions to vie for military and political influence and then delves into thematic analysis of evolving tribal dynamics financial gain as brokers for lucrative reconstruction, conflict- “post-Islamic State.” It explores such issues in the following reduction, and IDP return projects. order: customary justice and its interaction with the formal This report can be found online at: https://tcf.org/content/report/tribal-justice-fragile-iraq/ The Century Foundation | tcf.org 1 Despite their tenuous position, tribal sheikhs are playing an roles in negotiating punishment for misdemeanors, IDP active role mediating disputes, including civil and criminal returns, land and housing disputes, and other issues.1 cases. Indeed, the Islamic State’s occupation of these sheikhs’ areas has left in its wake a large number of cases that This report highlights both residents’ grievances and tribal need tribal resolution. Tribes are referring captured Islamic structures’ and leaders’ more positive contributions. It reveals State fighters to state justice, because of security concerns a contrasting picture: tribal mechanisms have the potential and sensitivities around those who directly participated to contribute to better governance and the administration of in violence. At the same time, however, tribes are taking justice in Iraq—but only if there are reforms to rein in abuses. on a significant role in the administering of tribal justice for Islamic State family members and supporters—often Field research for this report was conducted in Sunni tribal resolving matters that the state is ill-equipped or unwilling to areas in Anbar, Erbil, and Baghdad governorates, as well in deal with. In such cases, tribes are rendering informal justice areas of the predominantly Shia Arab South. The author and negotiating disputes, sometimes acting in concert also conducted interviews about tribal practices elsewhere with the formal justice system and at other times filling the in Iraq, including in Nineveh and Diyala governorates. Due “justice gap” left by a state judicial system that many Iraqis to the sensitive nature of the topics discussed in this report— distrust, and which can be inaccessible. Tribal sheikhs are as well as, in some cases, fear of reprisals—the author has brokering local tribal agreements to prevent revenge attacks withheld the names of most interviewees, upon their request. and contain simmering intra- and intertribal and communal To further protect the anonymity of sources, the author has tensions. Further, tribes are pivotal in facilitating—and in many cases intentionally left the dates of interviews vague. sometimes blocking—the return of more than 1.5 million IDPs. With Iraqi security forces and PMU groups stretched Evolution of Tribalism thin across vast territory, tribal PMU groups supplement and support local security efforts. Tribalism remains a defining characteristic of modern Iraqi society, but its current expression is the result of centuries Tribal justice has always played a role in Iraq. But today, even of adaptation and evolution in reaction to political and as tribes are weakened overall—especially at the national territorial events. Tribes lost sovereignty over their members, level—the role of tribal justice has increased. And tribes and in large part, over their own territory, decades ago—the have mobilized to use their localized, client-centric tribal Iraqi state now holds jurisdiction. As anthropologist Hosham authority (which at times is bolstered due to connections Dawod writes, the tribe now survives as a cultural and social with powerful actors in Baghdad) to insert themselves in reality that sometimes emerges politically when the state is reconstruction and conflict-prevention initiatives, while weak, or when co-opted or empowered by the state, or with attempting to sideline adversaries. The resolution of the the assistance of an outside or international force.2 Today, large number of outstanding tribal justice cases is impacted traditional tribal customs continue to influence day-to-day by a fractured political environment, regional political and life, and many Iraqis may resort to their tribe when seeking security tensions, and the dissatisfaction of residents, who physical and economic security or dispute mediation. Tribes’ demand increased security and better access to services role at the national level remains marginal, but at the local and jobs. level, client-centric forms of tribal authority continue to be important throughout Iraq. Tribal sheikhs complain that they are unfairly burdened by these demands and challenges, and say that they lack proper Tribes’ power often expands and contracts in inverse support from the state. However, residents in tribal areas proportion to the strength of the state, and tracks with often complain, in turn, of tribal transgressions. They allege tribes and their leaders’ proximity to powerful state actors.3 that tribal leaders exploit, for material benefit, their customary For example, Saddam Hussein sought to strengthen tribes The Century Foundation | tcf.org 2 when doing so proved strategically expedient. He purposely span across several countries and are made up of dozens recruited forces from specific small and midsized tribes, of tribes, or “asha’ir” (singular “ashirah”). Within Iraq, Arab capitalizing on “asabiyya” (group solidarity) to command tribal confederations are broken down into asha’ir, which are loyalty and undercut enemies on opposing ends of intra- then divided into a category of subgroups known as “fakhdh” and intertribal disputes. He also used tribes to violently crush (clan), which in turn comprises a number of houses, or dissent among his opponents.4 Some of the Sunni Arab “biyout” (singular “bayt”), and which finally include a number tribes that enjoyed privileged status under Saddam Hussein of “awa’il” (families).9 The term “tribe” is therefore a technical were later disadvantaged by de-Ba’athification, and lacked term, but is also used in a broad sense to include units of political representation in Baghdad. And some of the Sunni organization that operate within the tribal structure (this Arab tribes disadvantaged by the post-2003 order sought report uses the term in both senses). transactional associations (and in other cases, ideological associations) with armed extremist groups to challenge Tribes are characterized by a distant patrilineal ancestry, central and regional government authorities.5 Others one often more claimed than real. As is the case elsewhere aligned with Iraqi government or international actors to fight in the world, Iraqis may manipulate their genealogical back against extremist groups. Anti-government protests ancestry in search of new tribal associations. A “sheikh” is in 2013 divided tribal leaders, and the subsequent rise of a venerable tribal leader, and each tribe normally includes the Islamic State divided them further: tribal leaders and multiple sheikhs.10 Tribal leadership, or sheikhdom, is often tribesmen fought on both sides of the conflict. Following the passed down from a sheikh to his eldest son, but