A Closer Look at Iraqi Property and Tort Law

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.

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

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, 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,

[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 twe...

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