Legal Pluralism and Justice in Iraq after ISIL

Jacqueline Parry, Institute for Regional and International Studies, American University of Iraqi Sulaimani

This memo was drafted for POMEPS Studies 30,The Politics of Post-Conflict Resolution.” 

Iraq’s Fragmented Justice Landscape

Iraq announced the end of its military offensive against the Islamic State of Iraq and the Levant (ISIL) in December 2017. By this time, the actions of ISIL and the military campaign to dislodge the group had killed 30,000 civilians and wounded twice that number.[1] Thousands of women, girls, men and boys had been raped and kidnapped and more than 5 million persons displaced.[2] The intimacy and depravity of this violence created deep fractures within Iraqi communities. Towns retaken from ISIL have been characterised by assassinations, forced disappearances, and the looting and destruction of homes belonging to ISIL suspects[3] as well as acts of revenge by tribal authorities and militias.[4] Justice and accountability are critical not only for victims of ISIL atrocities, but also for those who lived under ISIL occupation, in order to distinguish those who committed violations from those who did not. This type of accounting is particularly important given that ISIL emerged following a perceived miscarriage of justice brought about by deBaathification reforms, discriminatory counterterrorism laws and brutal policing, each of which targeted the Sunni community.[5]

Now, ISIL affiliates face justice in disparate forums. The Iraqi Federal Government relies on a 2005 Anti-Terrorism Law to prosecute ISIL suspects, drawing little distinction between those who committed violent acts and those who performed ancillary roles for the group.[6] Provincial councils have used their authority to pass governorate-level decrees: the provincial councils of Babylon and Salah al-Din, for example, both ordered the homes of ISIL suspects demolished and their extended families deported from the province.[7] Some tribes have also enacted community punishments, such as in Al Qaim and al-Alam where tribal leaders ordered the destruction of the homes of accused ISIL supporters, without the possibility of pardon.[8]

This assortment of measures reveals a hyper-fragmented Iraqi state. Over the last fifteen years, Iraq has divided into subnational units tied to distinct local, tribal, economic and political-party interests. Each of these subnational groups seeks some form of self-rule and self-protection.[9]  What this means for justice after ISIL is that the state, provincial authorities, community leaders, tribal leaders and armed groups each claim the right to punish ISIL suspects, and turn to different regulatory frameworks to do so: laws, courts, provincial decrees, tribal processes, religious (shari’a) laws or social norms, depending upon the actor.

This fractured justice landscape is not unique. As Frederic Wehrey’s paper in this series also demonstrates, in many countries, the idea of a single, uniform legal system is obsolete, and multiple legal forms coexist and compete. Law, in this sense, encompasses a continuum of normative systems stretching from the clearest form of state law, to the vaguest form of informal social control.[10] What each of these normative systems has in common – and what renders them ‘legal’ – is the capacity to generate rules, and to coerce or induce compliance to those rules, be it via legislatures, courts or police, or through shared social rules and customs.[11] These rules are not necessarily compatible. In fact, it is very common for them to clash. Sometimes these clashes can be reconciled. Sometimes they can be ignored. Sometimes they operate in a complementary fashion. But very often they remain in conflict, with serious social and political ramifications.[12]

This article explores two such mechanisms and what happens when they clash. The first is the security vetting of ISIL suspects, a process that Tamanaha categorizes as a ‘functional normative (legal) system.’[13] The second is the customary normative system of tribal law. Both mechanisms interact with and challenge the state framework in different ways, and this article seeks to understand the implications. If justice – a highly political arena where issues of power, resources and rights are at stake[14]  – remains the purview of subnational groups, what does this mean for the state, state-citizen relations and reconciliation?

Security Vetting and Collective Guilt    

When Iraqi Security Forces drove ISIL fighters out of Iraqi territory, it triggered widespread displacement of those living under ISIL occupation. With ISIL eradicated and their areas declared safe, residents often wish to return; but before they can do so, they are subject to a vetting process that clears them of ISIL affiliation. The vetting process is managed by the Operations Command Center, a provincial government body responsible for local security matters. Typically, each applicant must be cleared by five different security authorities who operate under the Operations Command Center: National Security, Federal Police Intelligence, Local Police Intelligence, Iraq Security Forces Intelligence, and Governorate Operations. Each authority maintains its own computerized database with names of suspected ISIL affiliates. Should an applicant’s name show up on one of these databases, they are refused permission to return and may also be arrested and detained pursuant to the Anti-Terrorism Law of 2005 (Law No. 13 of 2005).

Complicating the vetting process is role of non- or quasi-state armed groups. When ISIL took over large swathes of Iraqi territory in 2014, government forces collapsed and the security vacuum that emerged was quickly filled by an array of armed groups such as the Popular Mobilization Units (PMUs, known collectively as the Popular Mobilization Force, PMF, or al-hashd ash-sha’abi) and a variety of tribal and minority forces. The status of the PMF is ambiguous. It was recognized by Iraqi Parliament in November 2016 via a law that categorizes it as both an independent institution and part of the state, within the auspices of the Prime Minister’s office.[15] The PMF uses this ambiguity to maneuver between state and non-state actor, both cooperating and contesting the state as its interests dictate.[16]

In areas retaken from ISIL across Nineveh, Anbar and Salah al-Din, the PMUs operate checkpoints, carry out raids against ISIS sleeper cells, investigate criminal networks, and detain suspects. They often out-man and out-gun the Federal Police in areas of shared operation, which gives them significant influence over the vetting process and the return of displaced Iraqis.[17] Due to this prominence, PMUs are a key player within the Operations Command vetting syndicate and each PMU assesses applicants against its own database of ISIL suspects.[18] Moreover, the Operations Command Centre frequently seeks advice not only from armed groups but also from tribal authorities or other local informants as to who is ‘guilty’ in the community.[19] Then, once a person or family is identified as guilty, it is often left up to the PMU to enforce the punishment, be it property destruction, deportation, or even arrest and detention at (unlawful, non-state) facilities belonging to the PMUs or other armed groups.[20]

The vetting process constructs an understanding of guilt that extends far beyond the individual. Although the vetting database contains the names of individuals, a prescription of guilt is made against the entire family – up to the fourth degree in some instances. This means that relatives as distant as a great uncle or first cousin may find themselves marked as an ISIL affiliate, no matter their own actions or their actual connection to the primary suspect. Moreover, the impression of collective guilt extends even beyond the family: vetting is usually only required for Sunni Arabs and Sunni Turkmen, while Shiite, Kurdish and ethno-religious minority communities do not typically face restrictions when they wish to return.[21] Together, these measures have forced whole Sunni communities into protracted displacement, labeled with a sweeping indictment of ‘ISIL families’ and generating deep resentment towards a process they view as a tool for revenge, rather than justice.[22]

Moreover, the PMF involvement in vetting exacerbates a sectarian narrative about victimhood. The events of 2003 and its aftermath have elevated the political relevance of sectarian identities in Iraq, such that sect-centric fears and ambitions have come to dominate people’s political perceptions. This has led Iraqis to view themselves as part of sectarian collectives, and to speak of ‘us’ versus ‘them’ on sectarian terms.[23] In such a context, the identity of vetting actors matters deeply. When vetting is carried out by predominantly Shia actors against Sunni Arab communities in conditions that lack transparency and due process; when it is left to Shia PMUs to enforce negative vetting decisions and punishments against Sunni families; and when the actors responsible for vetting stand accused of detaining, disappearing or executing (Sunni) ISIL suspects,[24] it reinforces a sectarian sense of victimhood and undermines prospects for justice.

At the same time that vetting generates a perception of Sunni victimhood, it also provides a stage for Shia PMUs to reiterate their own victimhood and redemption. In Iraq, both Sunni and Shia communities consider themselves to be the prime victim of the events, conflicts and changes of the past thirteen years.[25] Shia PMUs have developed a strong narrative online and offline that interprets the fight against ISIL through historical symbols that express reverence to Shiite heroes combating ISIL and help to consolidate a collective Iraqi Shiite identity whose existence is believed to be threatened by the violent extremism of ISIL.[26] This victimhood offers a powerful rationale to justify vengeance and demarcate who deserves to be punished and who redeemed. This dichotomy plays out in concrete ways in towns retaken from ISIL; in Salah al-Din, for example, it is common to see the abandoned homes of Sunni families scrawled with: ‘Do not occupy – this home is reserved for a PMF martyr.’[27] These competing narratives of the deserving and non-deserving threaten the possibility of a unifying national narrative and create new fractures in Iraqi communities affected by ISIL-related violence.

Tribal Law, Justice and Reconciliation    

Tribes are ‘the oldest, most enduring and controversial social entity in the Middle East,’ so flexible in form and function that they defy any meaningful attempt at definition.[28] Today, they are best understood as a rural-urban hybrid held together by kinship ties (real or fictitious), patron-client relationships and a set of shared customs.[29] One key element of tribes as a social entity is their role in administering justice. Tribal law provides remedies for all types of disputes involving harm to person, property or reputation, whether intentional or accidental. Tribal legal processes are built upon the principle that those who have suffered have the right to respond with equal violence, in order to restore the honour of– not the harmed individual– but the group.[30] The group is referred to as khamsa– literally ‘five’ in Arabic– and includes all males descended from a common ancestor five generations back. If one member of the khamsa is the victim of a crime or serious insult, the honour of the entire group is violated. However, to mitigate against this system of revenge descending into frequent violence, tribal law also offers the khamsa an opportunity to restore its honor through a negotiated settlement (sahl) and payment of a tribute (fasel).

Tribal law exists alongside state law in Iraq and varies in influence depending upon the social mores and political culture of a particular area. Historically, the influence of tribal law has waxed and waned in opposition to the strength of the state: during times when the state is weak, tribal leaders and processes have stepped in to fill the gap, especially with respect to security and justice.[31] In the wake of intense sectarian violence in Baghdad between 2005 and 2007, for example, when the state’s security and justice apparatus had largely stopped functioning, tribal leaders and tribal law played a key role in adjudicating disputes between Sunni and Shia communities and obtaining justice for sectarian-related deaths.[32]

In recent years, also, tribal leaders and tribal law have played a key role in mediating grievances generated by ISIL. In Tikrit, for example, the massacre of 1,700 unarmed Shiite soldiers at Camp Speicher triggered widespread anger against the Sunni community due to a perception that many Sunni residents were complicit in the executions.[33] Therefore, when the 400,000 Sunni Arab residents displaced by military operations sought to return, local authorities and tribal leadership feared that the PMF and Shia tribes would engage in largescale revenge killings.[34] Following days of negotiation, Sunni and Shia tribal leaders finally reached a joint agreement: both sides agreed to disavow violence (thus diminishing the possibility of revenge killings), establish a vetting process with national authorities to clear Sunni Arab residents who wished to return, refer any of their own guilty tribesman to the national vetting process, and commit to seeking justice through formal legal channels. The strength of tribal influence in Salah al Din meant that residents largely upheld this agreement and, since then, more than 390,000 IDPs have returned to Tikrit.[35]

A similar process took place in Hawija, a predominantly Sunni Arab sub-district located southwest of Kirkuk that has been a hotspot for violence and conflict since 2003. Following the defeat of ISIL in the area, people who had lived under ISIL occupation but displaced during the military operation started to consider the prospect of returning. Tribal leaders recognized the high likelihood of revenge killings of ISIL collaborators or unattainable demands for ‘blood money,’ both of which could set off new rounds of violence and instability.[36] As with Tikrit, tribal leaders from both sides – those who stood accused of complicity with ISIL and those who suffered violence – met regularly over a period of six months. Eventually, an agreement was reached with more than 100 Hawija tribal leaders. The tribal pact established that both sides would eschew tribal forms of retribution and revert instead to Iraq’s formal legal system.[37] This meant banning collective punishment, prohibiting the expulsion of anyone who had not been convicted in a court of law, and recognising the authority of police and judicial authorities to identify and punish individuals linked to ISIL. Tribal leaders, for their part, would use their authority to disown members convicted by law of affiliation with ISIL.[38]

The Tikrit and Hawija agreements were significant not only because they mitigated a possible descent into violence, but because tribal leaders recognized ISIL crimes as a matter for the state and not tribal law. There were several reasons for this shift. The Hawija agreement recognised that the scale and severity of ISIL atrocities was beyond the scope of traditional mechanisms since it would be impossible to collect evidence for each and every violation. Tribal leaders believed that permitting revenge killings on such shaky grounds would constitute a miscarriage of justice and almost certainly lead to further violence.

In addition, tribal leaders wished to preserve their role as agents of reconciliation. Iraq’s large tribes include both Sunni and Shiite members and this offers tribal leaders a unique vantage from which to mediate, particularly since tribal law is neither political, religious nor sectarian, but draws instead on shared norms. Some tribal leaders (such as those who joined the Hawija pact) worried that using tribal law to punish offenders without procedural justice would jeopardize this reconciliatory potential. There was also concern that enforcing the khamsa unit of responsibility for ISIL crimes would play into the narrative of collective guilt and condemn hundreds of (innocent) families.[39] By adapting tribal law to work alongside state law and delineate their different functions, then, the tribal pacts of Tikrit and Hawija were able to challenge the stereotypes that condemn whole tribes or the entire Sunni Arab community for the crimes of ISIL.[40]

Resolving the Clashes of Legal Pluralism

The mechanisms of security vetting and tribal law reveal unexpected tensions and opportunities when it comes to justice post-ISIL. Both are hybrid mechanisms, comprised of a mix of state and non-state actors. This is typical of pluralistic societies, where the lines between state, local and non-state actors often blur,[41] and security and justice actors exist ‘along a spectrum between the state and the purely informal,’[42] partly regulated by, and partly independent of, larger political structures.[43] Typically, non-state legal processes are viewed as an attack upon the state’s legitimacy, since they undermine the state and its monopoly on social control.[44] In Wehrey’s paper in this series, for example, he highlights that in Libya, where weak ‘official’ policing bodies must cooperate with armed groups and tribal elders, the disarray of the judiciary combined with the normative strength of customary law rendered state processes ceremonial and symbolic.[45]

On this basis, one might expect tribal law to undermine the state’s legitimacy and state-led security vetting to uphold it. And yet in the two Iraqi case studies the opposite proved true: tribal law was less disruptive to state authority than security vetting. Both mechanisms clashed with the state. In both cases, the clash was in part about jurisdiction: tribal leaders defended their ability to deal with their own members, while PMUs used their strength to effectively take over responsibility for security in areas liberated from ISIL; and both mechanisms reflected competing narratives about the war and who was guilty and who redeemed. However, one key difference was the way in which the two mechanisms resolved these clashes.

The PMUs operated ostensibly as part of the state security vetting process. However, their superior strength, together with their control of checkpoints, meant that individual PMF units held sway over who was deemed guilty and who was allowed to return. Moreover, a weak Iraqi security force and related institutions meant that the government sometimes relied on PMUs to enforce punishments against ISIL affiliates. While criticisms of the vetting process extend far beyond the actions of the PMF, its specific role exacerbated perceptions that vetting was a punitive tool driven by sectarian bias. Moreover, PMUs were able to coopt key state functions and disrupt fundamental rights of Iraqi citizens – via property demolition and banishment from Iraqi territory – which undermined the government’s impartiality and role as an agent of reconciliation in the eyes of the Sunni community.

In Tikrit and Hawija, tribal law displayed an opposite trend. Ordinarily dismissive of state authority, here tribal leaders came to recognize state jurisdiction in the particular case of ISIL crimes. This countered sectarian narratives by attaching guilt to an individual rather than a collective and setting an evidentiary yardstick for punishment. It also separated the functions of punishment and reconciliation and recognized complementary roles for state and non-state actors as a way of resolving their competing approaches to justice.

This is not to suggest that vetting will always have this affect or that tribal justice will always recognize state authority. Quite the opposite: together, these two examples showcase the value of an empirical examination of legal systems to reveal the processual aspects of the formation of public authority, and how it takes place in day-to-day encounters.[46] In doing so, we can move beyond the obsession with what a justice system should look like, to an empirical inquiry as to what it does look like.[47] In some instances, a state legal system may function in such a way as to undermine state legitimacy and prospects for justice, whereas a non-state legal system may in reality uphold these very same prospects. Rather than prescribing a certain form of justice, the case studies highlight the importance of understanding how each system reconfigures power, resources and rights, and the type of narratives that underpin this reconfiguration.

The case studies also reinforce the importance of a bottom up approach to justice. One built upon locally accepted customs, norms and leadership, that is, and formed through a consensual process. For countries that have experienced identity-based conflict, such an approach creates space for victims and their communities to pursue justice on terms they consider valid, rather than those imposed top-down by the state; and, in doing so, allows a plurality of justice to emerge, and thus a more varied process of reconciliation.


[1] According to UN figures from January 2014 until August 2017, 29,470 civilians were killed and 54,111 injured; according to Iraq body count figures from January 2014 until October 2017, 66,737 civilians were killed.

[2] IOM Displacement Tracking Matrix

[3] For example, see: Minority Rights Group International, Iraq’s Displacement Crisis: Security and Protection (March 2016) 23. See also:;; and

[4] USIP 2016 Justice and security needs in Iraq after ISIL

[5] Stephen Wicken, “Iraq’s Sunnis in Crisis,” Middle East Security Report 2, Institute for the Study of War, May 2013, (accessed on November 2, 2017); and Harith Hasan Al-Qarawee, “Iraq’s Sectarian Crisis: A Legacy of Exclusion,” Carnegie Endowment for International Peace (April 2014), (accessed on November 2, 2017).


[7];; for the original report on the Decree on Salah al-Din, see:مجلس-صلاح-الدين-يقرر-ترحيل-عوائل-دا



[10] Gordon R Woodman, ‘Ideological Combat and Social Observation: Recent Debate About Legal Pluralism’ (1998) 42 Journal of Legal Pluralism 21 at 45.

[11] Sally Falk Moore, ‘Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study’ (1973) 7 Law & Society Review 719. John Griffiths, ‘What is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism and Unofficial Law 1 at 38.

[12] Understanding legal pluralism, p401

[13] Understanding legal pluralism, p399

[14] Albrecht et al (2011) Non-state customary Actors in Justice Sec Reform, p5



[17] The majority of IDPs originate from three governorates: Ninewa (56% of the total IDP population) Anbar (16%) and Salah ad-Din (14%). The remaining 14% originate from a variety of other governorates. The majority of IDPs have also returned to these governorates, although at varying rates: the majority have returned to Anbar (49% of the total returned IDP population) followed by Ninewa (21%) and Salah ad-Din (17%). The remaining 13% have returned to a variety of other governorates. See:


[19] {Peace), 2017 #26}

[20] UNHCR, UNHCR Position on Returns to Iraq, 14 November 2016,, para. 28.

[21] UNHCR, UNHCR Position on Returns to Iraq, 14 November 2016,, para. 21.


[23] Fanar Hadad 2016 Competing Victimhoods in a Sectarian Landscape – Maydan

[24] For example, see:;;;

[25] Fanar Hadad 2016 Competing Victimhoods in a Sectarian Landscape – Maydan

[26] Al Raqi and Jiwani 2017 Mediated conflict_ Shiite heroes combating ISIS

[27] To add source and clarify exact language in Arabic

[28] Faleh A. Jabar, “Sheikhs and Ideologues: Deconstruction and Reconstruction of Tribes under the Patrimonial Totalitarianism in Iraq, 1968-1998,” in Tribes and Power: Nationalism and Ethnicity in the Middle East, eds. Faleh A. Jabar and Hosham Dawod (London: Saqi 2003), 69-109. Also, Amatzia Baram, “Neo-Tribalism in Iraq: Saddam Hussein’s Tribal Politics 1991-1996,” International Journal of Middle East Studies 29, 1 (February 1997): 1-31.

[29] Patricio Asfura-Heim, “Tribal Strategies and Their Impact on Legal Pluralism in Iraq,” Center for Naval Analyses paper (September 2008),


[30] Patricio Asfura-Heim, “Tribal Customary Law and Legal Pluralism in Al Anbar, Iraq,” in Customary Justice, ed. Isser, 239-279; Carroll, “Tribal Law”; and Sulayman N. Khalaf, “Settlement of Violence in Bedouin Society,” Ethnology 29, 3 (July 1990): 225-242.

[31] Baram, “Neo Tribalism in Iraq”; Jabar, “Sheikhs and Ideologues”; and Katherine Blue Carroll, “Tribal Law and Reconciliation in the New Iraq,” Middle East Journal 65, 1 (Winter 2011): 11-29.

[32] Katherine Blue Carroll, ‘Tribal Law and Reconciliation in the New Iraq’ (2011) 65 Middle East Journal!, II.

[33] Viola Gienga, ‘In the Shadow of a Massacre, a Peaceful Return in Iraq, Part II,’ at:

[34] Between June and December 2014, more than 56 demonstrations by the families of the victims occurred in 9 provinces, all calling revenge. In addition, some IDPs from Tikrit living in Babylon province were attacked, and southern governorates (from where the executed PMF soldiers originated) forbade entry to persons from Salah al-Din. See:





[39] Interviews conducted by the author for the purpose of this paper.

[40] In: Post-ISIS Mosul Context Analysis, July 2017, Rise Foundation, p.2

[41] Roseveare, C. (2013). Rule of law and international development. London: DFID.

[42] Zurstrassen, M. (2011). Village Justice in Indonesia: Defining the ‘State’ and ‘Non-State’ in Dispute Resolution Processes. In P. Albrecht, H. M. Kyed, D. Isser, & E.Harper (Eds.), Perspectives on Involving Non-State and Customary Actors in Justice and Security Reform. Rome: International Development Law Organisation / Danish Institute for International Studies. p. 117

[43] Lund, C. (2007a) ‘Twilight Institutions: An Introduction’, in C. Lund (ed.) Twilight Institutions: Public Authority and Local Politics in Africa, pp. 1–12. Oxford: Blackwell) at 2.

[44] Santos (Toward a New Legal Common Sense, p. 30); Ottley and Zorn, ‘Criminal law in Papua New Guinea’, p.299

[45] Frederic Wehrey, ‘Libya’s Policing Sector: The Dilemmas of Hybridity and Security Pluralism,’ POMEPS Studies 30: The Politics of Post-Conflict Reconstruction.

[46] Lund, C. (2007a) ‘Twilight Institutions: An Introduction’, in C. Lund (ed.) Twilight Institutions: Public Authority and Local Politics in Africa, pp. 1–12. Oxford: Blackwell) at 3.

[47] Isser, D.H. (2012) ‘The Problem with Problematizing Legal Pluralism’, in B. Tamanaha et al. (eds) Legal Pluralism and Development. Scholars and Practitioners in Dialogue, pp. 237–47. New York: Cambridge University Press, at 244.