The Iraqi Parliament and Child Marriage: Iraqi Child Rights from One Dilemma to Another

After weeks of controversy surrounding the proposed amendment to Personal Status Law No. 188 of 1959, the Iraqi legislature approved the first reading of the amendment. The Shiite bloc in the Iraqi House of Representatives amended the Personal Status Law by a third paragraph Unpleasant Article 2 from the old version, which requires courts to adhere to “well-known Shiite and Sunni jurisprudence,” when registering prenuptial agreements. The bloc claimed that the reasoning behind the amendment is that the latter is in line with the Constitution of Iraqwhat does it mean Article 41 that “Iraqis are free to commit themselves to their personal status, in accordance with their religions, sects, beliefs or choices.“ It is also argued that the amendment is consistent with the terms of the Constitution (Article 2(1)) in the sense that “Islam is the official state religion and a fundamental source of legislation.” Importantly, according to both Shia and Sunni precedents, For girls, marriage is permitted at the age of nine lunar years (8.7 years). However, concerns have been raised about this amendment as it is believed to promote child marriage. This raises the stakes of this proposed amendment and its potential consequences. Furthermore, the amendment defies decades of international law and legalizes the potential exploitation of future generations of Iraqi girls. And while Iraq is not a signatory to the 1969 Vienna Convention on the Rights of Treaties – binding parties to treaties they have signed – Baghdad should carefully consider the implications of ratifying an amendment that arguably violates so many international treaties regarding the human rights of children to which Iraq is a signatory.

The Amendment Violations of Human Rights Treaties

The proposed amendment is in conflict with a number of international treaties that Iraq has already ratified. First of all, the amendment is in clear conflict with Article 1 of the Convention on the Rights of the Childwhich defines a child as “every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.” Linguistically, the term “age of majority” in this case refers to the age at which a person becomes a legal adult, usually around the age of 18 or 21. In the definition, the word “majority” is carefully chosen to refer to a person’s mental stage and not to the sexual majority during puberty.

However, the Iraqi amendment ignores this specific fact and establishes the grounds on which female children can be married off much earlier.The amended version of the law, Article 8allows the marriage of a person who has reached the age of fifteen, if and only if it is permitted by a judge who deems it “absolutely necessary” and “subject to legal maturity and physical capacity.” Ironically, the Iraqi regulations not allowing citizens to vote – a hallmark of adulthood in democratic countries – until they are eighteen years old. The amendment also violates a number of other articles: Article 3(1) where the best interests of the child are a primary consideration, Article 34 calling on States Parties to “protect the child from all forms of sexual exploitation and sexual abuse”, and Article 36 which calls for protection “against all other forms of exploitation prejudicial to the well-being of the child.” The amendment also violates Articles 4, 12, 16, 19, 31 and 42 of the Treaty, which clearly shows that it is contrary to the Treaty itself.

Slavery under the guise of marriage

Apart from this more recent treaty, the amendment also conflicts with the Supplementary Slavery Convention (1956)), Article 1(c)i. The ratifying States are hereby called upon to take all practical and necessary legislative and other measures to abolish the practice of “(a) a woman is promised or given in marriage, without the right to refuse, against payment of compensation in money or in kind to her parents, guardian, relatives or any other person or group. Convention of 1956 defines forced marriage as a submissive form of marriage and describes it as a practice comparable to slavery.

In addition, forced marriage correlates with the traditional concept of slavery as defined in the Slavery Convention of 1926and is often referred to as “slavery of movable property.” It is a type of movable property because it any or all powers attached to the right of ownership issued by the holder of the right of ownership, in this case the spouse, parent or guardian of the child, against the victims – the child. Although the child in the marriage in this relationship is not subject to the exercise of the extreme property rights associated with slavery, the destruction that would be caused to the legal personality of the child cannot be ignored (European Court of Human Rights in Rantsev vs Cyprus and Russiaparagraph 142). The adoption of the amendment is contrary to the spirit and soul of the 1956 and 1926 Conventions and contradicts the abolition of dowry marriage.

The amendment also conflicts with the ILO, Worst Forms of Child Labour Convention, 1999 (No. 182), Article 3which defines child labor as, among other things, “all forms of slavery or practices similar to slavery, such as the sale or trafficking of children…” It prohibits the performance of any work that – by its nature or the circumstances in which it is performed – is likely to harm the health, safety or morals of children. Ironically, Iraq ratified the Convection on 9 July 2001, but the current parliamentarians have ignored this fact. The proposed amendment will thus set out the grounds for child labour and sexual exploitation, with modern slavery being disguised under the cloak of “consensual marriage”.

Human trafficking and Iraqi female children

The amendment also promotes human trafficking. Protocol Supplementing the United Nations Convention against Transnational Organized Crimein Article 3defines “trafficking in persons” as the act of, inter alia, “giving or receiving payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” Knowing that a dowry marriage is based on a transaction between the parent, the guardian of the female child and the future husband as the beneficiary, such an arrangement can certainly be considered as trafficking in persons. Furthermore, child marriages are inherently non-consensual, as the female child is incapable of consenting to such exploitationFurthermore, the absence of the child’s consent or the irrelevance of the consent violates Article 16(2) of the Universal Declaration of Human Rights. The Declaration states in the above-mentioned article that the “free and full consent of the intending spouses” is the only condition for entering into marriage. In this way The amendment also conflicts with this article.

Furthermore, dowry-related violence falls under the definition of violence against women in the United Nations Declaration on the Elimination of Violence against Women, Article 2(a)The . Convention defines violence as “any form of physical, sexual or psychological harm or suffering caused to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.” Marriage with a child dowry is therefore a form of violence against women, and the amendment clearly violates this Declaration to which Iraq has committed itself. admitted on August 13, 1986.

Children’s rights at risk

In the recently adopted amendment, Article 2, paragraph 3(c) requires the Shiite Scientific Council and the Sunni Scientific and Fatwa Council, in cooperation with the State Council, to develop a “code of Sharia provisions on personal status matters” and submit it within six months from the date of entry into force of this Law, to regulate the application of the proposed provisions of the amendment. It is important that the councils are not judicial bodies that make laws and regulations, but a council of religious experts in the field of sharia jurisprudence of islam, from which courts must seek interpretations. The decisions of the council are binding on the courts according to the new amendment. There is still no active law or regulation in Iraq to combat child marriage or child exploitation. However, when we consider the increasingly brutal measures the Shia Coordination Framework in Baghdad is taking to impose its will, there is no doubt that such codes can be circumvented if it so wishes.