Anne Harper is a JD student and pro-bono scholar at Benjamin N. Cardozo School of Law.
On 21 January 2025, Iraq’s legislature adopted a law that will highly likely subject Iraqi women and girls to human rights violations, based entirely on internal regulations developed by the religious sect to which they belong. Specifically, the legislation amended the 1959 Personal Status Law (PSL) to expand the authority of religious sects within Iraq to develop their own family (personal status) laws based on their interpretations of Sharia law.
While the legislation (2025 amendment) specifies that the sectarian legal codes being developed must comply with existing age restrictions for marriages established in the PSL, the danger of legitimizing child marriage and subjugating women to unequal status remains. The amendment to the PSL both contributes to and results from deepening sectarian conflicts within Iraq. The Iraq mixed legal system cannot function to protect women’s and girls’ rights, and the amendment is just a symptom of a larger crisis.
Iraq’s Mixed Legal System
Scholars place the legal systems of countries with Muslim-majority populations into one of three categories—classical, mixed, or secular. Most mixed legal systems are the result of colonialization, where the colonizer imposes their own legal system, be it civil or common law, which is then administered alongside religious, customary, or other preexisting systems. Iraq has a mixed legal system, with both civil and Sharia courts.
After the U.S. invasion of Iraq in 2003, the United States, with, as many commentators point out, no proper attention to the complexities of the ethno-sectarian divides within the country, heavily influenced the drafting of the current Iraqi Constitution. The process was so fraught with sectarian conflicts and attempts at sabotage that two members of the drafting committee were assassinated before the committee completed its work. Protests in 2019 specifically called for constitutional reform to address corruption and a lack of individual liberties. Unfortunately, the protests were met with government violence, and all constitutional reform efforts have stalled.
Iraq’s 2005 Constitution established a legal system founded on Islamic law, with Islam as the official religion of the state. The Constitution guarantees the “Islamic identity of the majority of the Iraqi people” and “full religious rights” to all (art. 2). However, Iraq’s “guarantee” of a religious majority is internally antithetical to religious pluralism and freedom for minority religions. By elevating the majority religion of Islam, the constitutional protections for minorities become platitudes, and Islamic law is unavoidably applied disparately within a nation plagued by sectarian conflict.
Iraqis seem to face a struggle of identity: is their identity grounded in their religious sect or their nationality as Iraqis? The mixed legal system providing different regulations for members of different religious groups creates a divided loyalty, which makes compromise and collaboration within Iraq’s federal system implausible.
Personal Status Law
The Constitution claims that “Iraqis are free in their commitment to their personal status according to their religions, sects, beliefs, or choices . . . .” (art. 41). This freedom to personal status is understood in a communitarian way and, therefore, restricted by one’s religious and sectarian identity. Sharia courts have jurisdiction over administering personal status matters generally, such as marriage, divorce, custody, and inheritance. However, the 1959 Personal Status Law established one law that would supersede the contradictory interpretations and applications of Sharia law within the country and protect individual rights by codifying them in civil federal law applicable to all, regardless of sect.
Even prior to the 2025 amendment, the PSL was already being circumvented. Clerics would routinely solemnize child marriages, but those marriages were not being registered with the government. The child’s community may accept the marriage as legitimate, but without civil legal protections guaranteed by registration, the females involved cannot claim rights and benefits they would otherwise be entitled to from the federal government. Without proof of marriage, women cannot even give birth in government hospitals, and children born at home may face difficulty obtaining identity documents, potentially becoming stateless.
The 2025 amendment has deepened the above-mentioned problem by providing a legal vehicle to undermine the purpose of the PSL—to prevent early marriages and protect women’s and children’s rights. It does so by permitting a choice of law applicable to marriages—the civil law or the sect’s religious law. A draft of the 2025 amendment was even more problematic and alarmed the international human rights community last fall when it included provisions that would have potentially allowed children as young as nine to be married. The backlash appears to have been effective because the final legislation requires that religious codes comply with the PSL’s existing age restrictions.
As a result, after the adoption of the 2025 amendment, legal protection for women in Iraq is now determined by the sect into which they were born rather than by constitutional or federal law. More broadly, the 2025 amendment seems to be a capitulation of the federal government to ethno-sectarian pressure and may contribute to further disunity of Iraqi society, strengthen the de-secularizing trend within Iraq’s legal system, and expand the system’s religious component at the cost of the civil law component.
What Can Be Done?
Sectarian divides are likely to worsen with the 2025 amendment to the PSL. While Iraq has struggled with its constitutional democracy since 2005, sectarian differences will be magnified through the development of different laws imposed on different communities. Further, deference and division will likely result in discrimination against women and children based on their inherited religious identities and the systematic gender inequality entrenched in the family laws of many of those religions or their domineering interpretations.
At minimum, the federal government should incentivize registration of marriages within the civil court system. To the extent not already in place, census data and resource allocation could be utilized to motivate political parties to invest in promoting registration, which would at least provide legal protection for women and children who are otherwise at risk of losing their rights and status.
The international community must respond. When the 2025 amendment was proposed, two UN Special Rapporteurs published an open letter, outlining the human rights concerns and requesting information about the proposed legislation. Efforts such as these should continue, and resources should be provided to Iraqi civil society organizations, especially those advocating for gender equality more broadly. Nations entering into security agreements with Iraq, such as the United Kingdom, should demand domestic security for Iraqi women and girls.
Ultimately, the 2005 Constitution should be redrafted. The Constitution should establish unity and a national identity under a secular government with broad protection for religious liberty. The application and enforcement of religious norms should be harmonized with basic protections from human rights violations, including limits on religious practices that are at odds with the rights and best interests of women and girls. Civil society organizations, particularly women’s and independent human rights organizations, should be included in the constitutional redrafting process to ensure all Iraqis’ interests are represented, regardless of their sect and gender.
In addition, education and reconciliation efforts between sectarian groups should be prioritized. Unity does not guarantee equality and respect, but it is a necessary foundation on which to build progress. Without reconciliation and common goals for Iraq as a whole, sectarian division will continue to undermine human rights for all Iraqis. The difficulty lies in convincing the sects that national cohesion is a worthy aspiration that should be prioritized and that protecting the rights of Iraqi women and girls is an essential component in pursuing that shared vision for Iraq’s future.