A Closer Look at Iraqi Property and Tort Law

• Author: Dan E. Stigall
• Position: U.S. Army Judge Advocate (JAG)
• Pages: 766-822

Dan E. Stigall is a U.S. Army Judge Advocate (JAG). J.D., 2000, Louisiana State University Paul M. Hebert Law Center; B.A., 1996, Louisiana State University. Any opinion expressed is solely that of the author and not necessarily the United States Department of Defense.

The author would like to thank Professor Symeon Symeonides and Professor Sean Foley for taking the time to read this article and offer suggestions. The author would also like to thank the Perles Law Firm, PC for allowing him insights into their litigation. Most importantly, the author wishes to thank the Iraqi attorneys and students in Tikrit who so patiently entertained his questions and comments on so many hot afternoons.

Page 766

I Introduction

The conflict in Iraq has rapidly developed into one of the most complex undertakings ever faced by the United States.¹ In the shadow of the military conflict are multitudes of state-building efforts aimed at restoring peace to a country riddled with civil strife.² Among these additional objectives are numerous efforts aimed at rebuilding the legal infrastructure, restoring the rule of law, resettling displaced persons, and finding workable legal solutions to ongoing disputes regarding land and resources.³ Page 767

Rebuilding a legal system and restoring property rights will require a thorough knowledge of the legal regime that governs the ownership and use of property. Mediating disputes at which some form of property is a central issue will require knowledge of how property rights are conceived, how property is acquired, the allowable limits of extant property rights, and how such rights are lost. This article, therefore, provides a closer look at Iraqi property law. The major characteristics, substantive rules, underlying theories, and historical roots are discussed in order to illuminate the legal landscape and guide policymakers, international actors, and investors currently at work in this fascinating yet troubled area of the world.

Inextricably linked to the issue of legal reconstruction, property rights, and restitution is the regime of law that governs liability for damage caused to another. It is that area of law-commonly referred to as the law of torts-that determines the viability of civil actions for those in society who are aggrieved. Further, recent events have highlighted the potential for liability resulting from damage caused by those working in Iraq and the need for an understanding of the law that governs such legal action.⁴ This article, therefore, discusses the Iraqi law governing torts, its applicability to those working in Iraq, and its treatment in U.S. courts.

This author has elsewhere detailed the sources and general outlay of Iraqi civil law and, thus, shall repeat little of that information here.⁵ Prior work, however, has focused on the historical and epistemological origins of Iraqi law and did not extensively elaborate on certain aspects or discuss areas important for practitioners working in this specific field. This article, Page 768 therefore, seeks to focus greater attention on the laws of property and torts as they are understood in Iraq, discuss their applicability, and highlight these emergent issues of salience.

II Property

A Background

A brief outline of Iraq's legal roots is required for any complete discussion of Iraqi law, if only to set the backdrop for the discussion and provide some point of orientation. The territory of modern Iraq has a long and rich legal history that included complex, secular legal regimes such as that of the Mesopotamians and the fifth century Syro-Roman Code.⁶ In the early seventh century, however, the legal aspect of the region would be profoundly impacted by the emergence of Islamic law.⁷ Although secular legal institutions have long held sway in modern Iraq, the importance of Islam should be kept in mind when pondering contemporary legal institutions-even the most seemingly secular. This is not only because Islamic law still exists as a subsidiary source of law under the Iraqi Civil Code, but also because it allows one to better appreciate the cultural context of Iraqi law and the legal issues under consideration. As Sait and Lim note when discussing property law in the Middle East, Page 769

[a] lack of engagement with the internal Islamic dialogue risks creating land systems that are bereft of authenticity and legitimacy and thereby of effectiveness and durability. Even where well-intentioned donor-driven efforts to establish modern land systems succeed, the obduracy of informal norms, practices and processes leads to unattended dualisms that undermine the prospect of integrated and unifying land policies.⁸

Aside from that underlying Islamic influence, one must also understand the impact of Ottoman rule on modern Iraq. The territory of modern Iraq was once a part of the Ottoman Empire and governed by Ottoman law. As late as the early twentieth century, Iraqi law was largely comprised of numerous Ottoman legal codes:

The only civil code in existence was the Mejelle, which was a code of civil contracts rather than a complete civil code in the modern sense. In addition to the Mejelle, there existed the Land Code, the Tapu law, the law of disposition of immovable property, the law of succession to immovable property, and many other civil code rules scattered throughout the Code of Civil Procedure, . . . the Land Commercial Code, and the Peace Judges' Law. On the other hand the religious law still applied to a large area of civil transactions, such as inheritance, succession, wills, marriage and divorce, and the administration of pious foundations (waqf).⁹

As will be demonstrated more fully below, Ottoman law was not necessarily coterminous with Islamic law and must be understood as a separate, distinct influence. For instance, the Ottoman period saw a period of reform in the nineteenth century, known as the Tanzimat legal reform movement that resulted in the adoption by the Ottomans of a great deal of French-based law, such as the French Model Commercial Procedure Code, the French Page 770 Model Penal Code, the French Model Commercial Code, the French Model Land Code, and the French Model Maritime Code.¹⁰In addition, the Ottoman government enacted the Ottoman Land Code of 1858 that maintained Islamic property law categories.¹¹This period of reform, which introduced secular French law to the Ottoman polity, and served as a facilitator for the adoption of legal systems based on the French model in contemporary Middle Eastern states.

In the twentieth century, Iraq blended into its legal culture many elements of the continental civil law tradition with the enactment of its modern civil code. The code was principally authored by Abd al-Razzaq Al-Sanhr, who was then working as the dean of the Iraqi Law College.¹² Jwaideh notes that as Iraq approached modernity, "[t]he conditions under which [Ottoman law] had been enacted had completely changed and legislation for a new and unified civil code became a necessity."¹³ The substance of this new civil code was taken largely from Egyptian law (which mirrored the French civil code), then-existing Iraqi laws (such as those from the Mejelle and other Ottoman legislation), and from Islamic law. "The proposal put every effort to coordinate between its provisions which stem from two main sources: Islamic law and Western law, resulting in a synthesis in which the duality of sources and their variance is almost imperceptible."¹⁴

Structurally, the Iraqi Civil Code is divided into a preliminary part and two main parts, with each main part composed of two books.¹⁵ The preliminary part contains definitions and general principles that find application throughout the rest of the code.¹⁶Part I of the Code addresses obligations in general and subdivisions of that area of law, such as contracts, torts, and unjust Page 771 enrichment.¹⁷ Part II addresses property, ownership, and real rights.¹⁸ This article focuses on those parts of the Iraqi Civil Code dealing with torts and property law.

B Property Defined

Before launching into a discussion of the rules governing property, it is prudent to first ascertain the meaning of "property" in the context of Iraqi legal culture. In Islamic law, which influences and informs secular Iraqi civil law, property generally falls under three distinct rubrics of public property, state property, and private property.¹⁹ Property in those categories is further subject to certain land tenure arrangements, such as mulk (private full ownership), miri (state ownership), waqf (endowment), and metruke (common land).²⁰ Private ownership of property is recognized, though with the understanding that everything ultimately belongs to God. Therefore, private property rights may be impinged upon when there is a compelling societal need.²¹

Under the provisions of the Iraqi Civil Code, every right having a material value is considered property.²² The Iraqi Code states that everything is the subject of pecuniary rights except those things that are by their nature incapable of being so subjected (things to which no one may claim possession) or things that are by law excepted from being...