Statelessness Working Paper Series 2016/08 1. Introduction In a windowless conference room at the Ministry of Labour and Social Welfare (MOLSA) in Sadr City, Iraq, a spirited debate is momentarily interrupted by a power outage. The room is cloaked in darkness and the air conditioning unit whirls to a stop. The dozen or so participants gathered for a UNsponsored working group on Sexual and Gender Based Violence (SGBV) are quickly enveloped in a stifling heat. “We do not need a special register for babies born of ISIS fathers,” a voice from the far side of the room insists, “because under the Constitution, all children born of Iraqi mothers are citizens.” Another voice, from the other side of the room responds, “Yes, we have the legal framework, but we must somehow activate the law.” Several people begin to talk at once, seemingly taking sides in the exchange, when the electricity returns with a click and a chime. A MOLSA official in attendance brings order to the room. “We will need legal advice on this issue,” she states imperially. “Let us move on for now.” Experts working to end SGBV have many reasons to doubt the efficacy of Iraq’s laws, including the Constitution, to promote the interests of Iraqi women. Pockmarked with conflicting legislation, gaps in rights protection, and bold-faced discriminatory provisions, Iraq’s legislative framework is directly at odds with a women’s empowerment and equality agenda.1 Even where the law provides for equitable treatment, as in the nationality provisions of the Iraqi Constitution, action in implementing the laws is far from guaranteed. Deep capacity deficits of institutional service providers, coupled with bureaucratic ambivalence and/or contempt towards women, discourages many from demanding their rights, particularly in cases involving SGBV.2 Iraq’s traditional norms also present challenges to women survivors of violence. A woman who is raped may bring great dishonour to her family. As a consequence, she may later be killed by a family member in order to reinstate the family’s standing. Weighing these circumstances, survivors of SGBV often choose to keep silent about the crimes committed against them or run away from home. As traditional women’s shelters are rare in Iraq, survivors are sometimes sheltered in detention facilities or nursing homes for the survivor’s protection. Women and girls who are sold, gifted or otherwise forced into sexual slavery to Islamic State (ISIS) soldiers, many of whom are non-Iraqis, face particularly grave circumstances. As if the lives of these women were not tragic enough, their children stand a good chance of joining the growing ranks of stateless people in the Middle East. The status of Syrian refugee children in Iraq has been a key concern for people working on statelessness for several years now.3 But less is known about the potential obstacles to nationality provision that face children born of women kidnapped and raped by ISIS soldiers in Iraq. It is in this context, that rule of law theory and practice reveals a potentially valuable contribution towards addressing statelessness. The rule of law, defined and explored in more detail later in this paper, provides a conceptual framework that gives shape to a multi-pronged and coordinated approach to addressing statelessness. In its most skeletal form, the framework is composed of three types of 1 See Article 41 of the Iraqi Criminal Code, interpreted as providing license for a husband to physically abuse his wife for disciplinary purposes and; Article 409 of the Iraqi Criminal Code interpreted as a sanction for men to commit so-called honor killings. Iraq Criminal Code, Art. 41 and 409 (Act No. 111 (1969)); for a review of controversies relating to legislation see for example, Iraqi Women in Armed Conflict and Post Conflict Situation, Shadow Report submitted to the CEDAW committee, 57th Session, 2014; UN Office of the High Commissioner for Human Rights (OHCHR), Report on Human Rights in Iraq: June – December 2013, June 2014; Marilou Grégoire-Blais, Iraqi Women: Lost Liberties, Alternatives, Summer 2010. 2 See Iraqi Women in Armed Conflict and Post Conflict Situation, Shadow Report submitted to the CEDAW committee, 57th Session, 2014. 3 According to the Brookings Institute, “The Middle East now faces the prospect of adding hundreds of thousands to the stateless population. Of the 4 million Syrian refugees, over 1 million are children under 18—many having left Syria without proper papers. There are also around 10,000 minors who have arrived in neighboring countries paperless and without an accompanying adult.” Omer Karasapan, The State of Statelessness in the Middle East, 15 May 2015; Charlie Dunmore, ed. Leo R. Dobbs, Born in Exile, Syrian Children Face Threat of Statelessness, UNHCR, November 2014. 1