مجتمع وقانون
مجلة تعنى بسيادة القانون ودوره في المجتمع

legal analysis For the situation of Lands & Properties In Iraq

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Introduction:

“From developed to developing countries, no nation is immune from gaps and vulnerabilities”, [1]

Land is among the most important assets for people around the world. It can be a vital part of cultural and social identities, a valuable asset to stimulate economic growth, and a central component to preserving natural resources and building societies that are inclusive, resilient, and sustainable. All societies have a system to govern property rights—whether formally defined by law or informally established through customary systems—and these rules evolve and change. Land tenure is the relationship that individuals and groups hold with respect to land and land-based resources, such as trees, minerals, pastures, and water. Land tenure rules define the ways in which property rights to land are allocated, transferred, used, or managed in a particular society. When land tenure is secure, land can be a cornerstone for economic growth and an incentive for investment, but when land rights are insecure, this can lead to conflicts, instability and the exclusion of vulnerable groups, such as women, indigenous people and the poor.

Iraq is a country with a malty ethnicities, nationalities, and cultures. In addition to a large diversity of terrain, from mountains and valleys in northern Iraq, especially in the Kurdistan region, to the hills in the Hamrin hills, from the fertile sedimentary plain between the Tigris and Euphrates rivers to arid deserts such as the Arabian desert and the desert of the Levant, as well as Iraq contains the western desert plateau in the west And on two important rivers are the Tigris and Euphrates, on whose banks the first civilizations arose, and the presence of natural marshes in southern Iraq, the most famous of which is the Hawizeh and the Hamar marshes. Artificial lakes such as Tharthar lake, Razzaza, and others, and natural lakes like Lake Sawa are found in the desert of Samawah in the province of Muthanna.

Iraq has witnessed many political changes in different periods of time,

The totality of these political changes has been reflected in the stability of laws and regulations.  It brought about a change in the individual ownership of lands and real estate, and it produced deep-rooted problems that negatively affected the development. the ancient history of human settlement in Iraq means that forms of land rights associated with settlement in the country are likely among the oldest in the world. This has created both problems and opportunities. Problems, in that certain aspects of older land rights systems, coming from both from within the country and outside over time, still influence how land rights operate today, providing for a certain degree of confusion and ‘legal pluralism’ (different laws for different people). In addition, laws from different eras are aligned with the governing ideology of their respective time periods and do not always reflect the current legal environment, problems or aspirations of the country. Opportunity, in that such history, provides a rich source of legal land concepts, techniques, institutions, and experience that will be needed in order for land and property rights to contribute robustly to Iraq’s recovery and economic development.

Iraq is a fragile country, exhausted by crises, and it has become necessary to support this country to develop its capabilities, and help it to organize a national strategic plan [MV1] to move forward and end the suffering of citizens and start a decent life that respects human rights and the rule of law.

The most important challenges on the lands and properties in Iraq are;

  1. & properties the challenges of development  

Land management in an economically productive and environmentally sustainable manner is considered a high priority in Iraq which requires vision, goals and prioritized activities within the land sector. The land is a key asset for the country and a non-replenishable valuable asset that needs to be sustainably exploited for the economic and social welfare now and for future generations.

Of significant influence on Iraq’s land rights are the many waves of forced dislocations that have occurred over the centuries, particularly in recent decades. the structure of the land rights system in Iraq has deep historical roots, going back to the Hammurabi period (1810 BC – 1750 BC). The current tenure system is significantly influenced by the Ottoman period in Iraq (1534 – 1704 and 1831 – 1920) spanning some 400 years, followed by the British mandate period (1920 – 1932). In the Ottoman and British periods, the landholding structure was designed to reinforce political power through the provision of lands to individuals who were influential and supportive of the government in-place. The result was a great deal of land accumulation in a few hands, and a peasantry that possessed very few rights inland. In the Ottoman period, the land administration system is known as TAPU (title deed) provided for both deeds and a land register, and lands were classified into categories. In 1974, the Real Estate Registration Law replaced the TAPU system, establishing Real Estate Registration Departments and creating an improved title issuing service.[2]

During the past regime period (1963 – 2003) a socialist ideology led to the implementation of large-scale land reform in the rural tribal areas in which limitations on landholding size were enacted, and collective ownership and agricultural production pursued.

 Later after the war of Iraq Iran started in 1980, the regime started to expropriated lands of Iranians and Kurds even though it Contradicts the principles of the constitution. In this period both rights to land and tenure security were used to punish and reward citizens. Processes for transacting the property, registration and applications for improvements were quite lengthy but regarded as fairly effective.

With the deterioration of authority and institutions following the Second Gulf War, fraudulent titles have become increasingly common.[3]

The illegal decisions that taken by the previous regimes produced great challenges and fears in maintaining civil peace and societal stability. In order to advance the process of transitional justice and national reconciliation, laws have been enacted regarding property disputes and reparations.

The Commission for the Resolution of Real Property Disputes (CRRPD) operates a restitution process to attend to Ba’athist era expropriations from 1963 to 2003.

With the fall of the Saddam Hussein regime in 2003, the Iraqi Property Reconciliation Facility was established as land and property dispute resolution mechanism, and this was then succeeded by the Iraq Property Claims Commission (IPCC) in 2004. The specific purpose of the IPCC was to resolve disputes that arose from the Arabization policy to  The disputed areas that are adjacent to the Kurdish areas between 1968 and 2003. The effectiveness of the IPCC has been uneven, however, due to unawareness among the affected population, the challenge of handling a large number of claims, and the lack of enforcement for claims that have been decided.[4]

Iraq during a time between 1980 – 2003 has fought three wars and been occupied by the coalition forces led by the United States of America.

Between the years 2005-2018, Iraq faced internal conflicts and a war against terrorism that resulted in a major land occupation in northern and western Iraq.

These wars and conflicts have produced dangerous effects on lands and property in Iraq in terms of destroying the environment, spreading mines indiscriminately and not using lands because of great demographic and social changes. It also led to the emigration of millions of individuals internally IDPS and externally (refuges) and they refuged to the safe areas. [5]

The legislative authorities have attempted to remedy the major problems that have afflicted Iraqi society as a result and have legislated:

[6] And the war on terror to liberate the lands after the terrorist organization ISIS occupation Land tenure security is significantly low in many areas of the country due to the recent conflict with ISIS, and the resulting dislocations, secondary occupation, and temporary residence. This is compounded by the tenure insecurity experienced by returnees from earlier displacements, and those they interact within their attempts to reclaim land and property. The result is competing for claims, use of militias to secure and enforce claim assertions and ethnic and sectarian claims merging with individual and family claims— with no widely agreed-upon ways to resolve these. In addition, the conflict-related surge in falsified land and property documents, together with institutional, authority and enforcement deficits further compromise tenure security for many.[7]

The compensation process can be considered slow, and does not lead to reparation for the victims, as there are suspicions of financial corruption in the committees supervising the work.

The emergence of armed groups outside of the state (the militia) has caused these groups to control the large areas of lands and steal the resources, tampering with its Topography.  which has resulted in destroyed the master plan of the land and change the nature of the lands from agricultural to residential in an ill-considered manner and outside the administrative plans of the state which created a bad influence on the environment.

Although a great many Iraqis are farmers and pastoralists, oil production is responsible for 60 percent of the country’s GDP, 99 percent of exports, and 90 percent of government revenue. Yet there is no overall law to regulate oil and gas production, rights, and investment.

Water will be an ongoing concern in the country.  With the population growing and freshwater resources declining, there is no Tigris-Euphrates agreement among the countries with interests in the river system. And with water data regarded as a state secret in Iraq and the other basin states, planning for water use and development is extremely difficult and subject to error, overly broad estimations, and shortages.

The distribution of land by gender in Iraq is quite skewed, with 26.2 percent of land in the country owned by women, and 73.8 percent owned by men. Women face notable difficulties in reclaiming land and property after a forced dislocation. This becomes particularly difficult when the property in question is in the name of a missing or deceased male family member. And it can create problems when there is no documentary evidence of the relationship in the woman’s possession, or documents attesting to the male kin’s death or disappearance do not exist, resulting in an inability to claim the relevant property.[8]

Iraq’s multiple waves of displacement over a period of 40 years have created numerous complex land and property conflicts. Short and long-term displacements have resulted from expropriation by the past regime, terrorism, military operations, sectarian violence, and economic difficulties.

Official displacement of Iraqis of ethnic Persian descent from their lands began in 1979 and lasted into the 1980s, with the property then sold,  Subsequent to the end of the regime in 2003 many of those who were displaced, or their descendants, have attempted to return to reclaim their lands. Similar official dislocations took place among the Kurds and Turkmen in the vicinity of Kirkuk. Displacement of land and property during and subsequent to Iraq’s more recent conflicts have affected millions, with the current number of displaced due to the ISIS war approximating 3.0 million, and an additional 231,000 registered refugees from outside the country at year-end 2016 (UNHCR). As this population now tries to return, they are encountering those who were displaced in the Ba’athist era seeking to return to the same lands, with the inevitable conflicts difficult to resolve peaceably given the absence of institutions to do this in ISIS retaken areas.[9]

The agrarian reform efforts of the 1970s have also generated land and property conflicts between those who lost land and those who currently own it. A 1970 law reduced the maximum size of landholdings to between 10 and 150 ha of irrigated land, and between 250-500 ha of non-irrigated land. Holdings above these maximums were often expropriated. In 1975 an additional reform law sought to break up the large estates of Kurdish and tribal landholders, resulting in expropriations and then disputes once the Ba’athist regime ended. Additional expropriations worsened the Ba’athist government’s land rights, management, and conflict problems, and resulted in the government coming to hold a large percentage of arable land which subsequent to its fall became contested.

Iraq is divided into three zones: the highlands in the northeast (rising to approximately 3,000m); the desert in the southwest and west (elevation 600-900m); and the plains in the south-central part of the country. The plains are dominated by the Tigris and Euphrates river systems, which combine in the southeast of the country to form the Shatt al Arab waterway, a wide body of water which empties into the Gulf. Only 1.9 percent of the total land area in the country is in forest and woodland[10], and desertification is an ongoing problem in Iraq’s dry, hot climate. Soil salinization, erosion, and river basin flooding have impacted fertile agricultural lands over large areas of the country, and the deterioration of agricultural infrastructure has led to a decline in agricultural productivity, particularly since 2003. Agriculture primarily exists as small farming units with low input-output systems, as farmers attempt to minimize costs related to land preparation, planting, and harvesting. As a result, yields are quite low. Crop agriculture is the primary income source for 75 percent of farmers[11], with the remainder dependent on livestock and mixed crop-livestock systems.

Land use in Iraq has been strongly influenced by its role in the economy along with the country’s military conflicts, population relocations, and government interventions in control over agricultural production. From a total national area of 47.3 million ha, 34 million ha (77.7 percent) is not agriculturally viable under present conditions. Forest and woodland comprise less than 0.4 percent of the country and are located along Iraq’s northern border with Iran and Turkey. Approximately 9.5 million ha (22 percent) is devoted to agriculture, however, approximately half of this is of marginal utility and is used exclusively for seasonal livestock grazing—primarily goats and sheep. Tree crops comprise approximately 340,000 ha of primarily grapes, olives, figs and dates, with the latter being most prevalent. Most tree crop production is located in the vicinity of Karbala. Field crops include vegetables, cereals, pulses, and fruit, with the areas under cultivation at any given time-varying with market and weather conditions but averaging between 3.5 to 4 million ha. Grains constitute 75-85 percent of all cropped area—primarily barley and wheat.[12]

Cropped land use in Iraq can be divided into the central-south irrigated zone, which produces fruits, vegetables and cereals; and a northern zone which is rain-fed and produces winter grain. A particularly productive area in the foothills of the Kurdish autonomous region produces about one-third of the country’s cereal production under rain-fed conditions. Other than this, rain-fed crop yield is generally low and varies with rainfall. The rest of Iraq’s cereal production exists in the irrigated zone along and between the Tigris and Euphrates rivers. In general, there is only one cropping cycle per year although there is some multiple cropping of vegetables under irrigation. The irrigated areas in Iraq’s central – south region have been affected by salinization throughout its history due to a saline water table. As a result, even a small over-irrigation brings saline water to the surface.

Livestock are grazed throughout the agricultural zones as well as in areas used only for pastoralism, while poultry production takes place near urban centers. As a result of UN sanctions beginning in 1990, the poultry and livestock populations have declined significantly due to the conversion of rangeland to grain crops, together with the decline in feed grain imports and veterinary medicines.

The 1991 Gulf War damaged the irrigation and transportation infrastructure, to the degree that agricultural productivity declined significantly. Salinization then expanded across much of the irrigated area in the country’s central and southern regions, with these then becoming much less usable. Rural labor shortages after the 1991 war resulted in less area under agriculture—with much of the shortage due to the departure of foreign guest workers. In an attempt to manage land use and agricultural productivity after the war, the government raised the official price of major field crops and expanded the area to be put under cereal crop production in the north of the country. The government also confiscated land from farmers who did not meet production quotas. Rising food prices and government incentives led farmers to expand cropped areas primarily by bringing under cultivation lands on fragile hillsides and marginal pastureland—with record areas under crop agriculture peaking in 1992 and 1993. A drought from 1999 to 2001 that affected much of the Middle East significantly impacted agricultural output in Iraq, with cereal production in the rain-dependent north particularly affected.

The legal framework for land rights in Iraq draws on multiple sources and ways of operating that have evolved over considerable time. Islamic law and Ottoman era law continue to influence the legal framework for land in Iraq, as does Egyptian and French law. In the 20th century Iraq blended in elements of the civil law tradition and produced its own Civil Code. Thus, Iraqi law is a blend of Western and Middle Eastern legal traditions. Presently Iraq embraces the civil law system.

The acquisition of land and property is governed by a legal system that may include:

1. The Iraqi constitution

2. Iraqi Civil Law No. 40 of 1951[13]

3. The Real Estate Registration Law and the procedures related to ownership, and there is a special department, the Real Estate Registration Department, which is concerned with the application of this law, and it has kept all the property documents.

4. The Agrarian Reform Law No. 117 of 1970. Comprising five chapters and 52 articles, this extensive law covers a variety of agricultural land ownership issues, including the maximum size limit of lands that can be owned privately without authorization. The Agrarian Reform Authority can requisition lands above the stated limit and stipulate the forms of compensation that the owner of the requisitioned excess land is due. The Authority takes over the responsibilities of the survey committees regarding lands not yet surveyed, and those lands against which survey decisions are still pending. The Authority will distribute agrarian reform lands to peasants both individually and collectively.5. Real Estate Tenancy Law No. 56 of 2000 and related decisions.

6. Exceptional decisions to own homes and residential lands.

7. Resolution No. 333 Promulgating Law No. 42 of 1987. This legislation is concerned with the reorganization of agrarian ownership under reclamation projects. The law is focused on the reorganization of land ownership for lands subject to agricultural projects. It also provides remedies for compensation to landowners for expropriation.[14]

8.  Resolution No. 176 of 1993 Promulgating Law No. 18 of 1993 Relative to the Body of Administration and Investment of Awqaf Properties. The resolution establishes the ‘Body of Administration and Investment of Awqaf Properties’ that is legally, financially, and administratively independent, but connected with the Ministry of Awaqf and Religious Affairs. The body administers and develops land and property received as an endowment and acts as a council for all issues in terms of the administration and investment in Awaqf (also known as waqf) properties. The body is managed by a council comprising the Minister, several experts, three lawyers and officials from government.

9. Iraqi Company for Contracts for Land Reclamation (Law No. 116 of 1981). The law establishes the Iraqi ‘Company for Contracts of Land Reclamation’ under the Council of Ministers. The Company implements reclamation projects and acts as a contractor for reclamation projects. The Company is charged with carrying out its duties both inside and outside Iraq. The Company can sell and lease reclaimed lands and the properties of the company are considered ‘state domains.

10. law of 2013 Confirming Ownership of the Agricultural Lands and Orchards Excluded from the Adjustment Acts. This law operates within the Municipality of Baghdad and deals with orchards and agricultural lands that were excluded from previous settlement acts or are otherwise of unresolved ownership status. The Law focuses on urban development that takes place on agricultural and orchard lands that have become unsuitable for agriculture due to urban development. The Law establishes the ‘Land and Expropriation Committees,’ which were initially promulgated by the Agrarian Reform Law of 1970. The Committees determine the rights over such lands and remove the definition of ‘agricultural land’ if in the old registers of the city they were not officially designated as ‘agricultural land’.

11. Law No. 2 of 1983 on Pasture. This law intends to manage pasture lands by planning grazing according to scientific approaches and engaging in the protection of natural vegetation and water resources, and the organization of their use. The Law covers state-owned lands allocated for pasture. The Law states that the Ministry of Agriculture and Agrarian Reform is to regulate and organize livestock movements according to seasons and regions. The law prohibits the drilling of artesian wells and cutting plants in pasturelands.

12. Resolution No. 150 of 12 October 1997 Concerning the Sale of Plots of Land for Housing Owned by the State to Farmers. The Resolution stipulates that state-owned land not burdened by ‘disposal rights’ shall be sold to farmers, and pre-existing agricultural contracts are revoked and pre-existing rights extinguished. The Resolution provides limits of the allocation to farmers — not more than 1,000 m2 with no house and 2,000 m2 for a plot with a house.

13. Resolution Relative to Corporeal Compensation for Appropriated Real Estates and Amortization of the Right of Disposal of Vacant Agricultural Reform Lands, No. 90 of 1996. This law provides for compensation for the alienation of agricultural land, with alternative land as a first priority and cash compensation as a secondary priority. The law also prohibits compensation in kind or cash for certain types of land.

14. Resolution to Prevent Alienating of Estate Property of Iraqi Citizens who left Iraq, No. 21 of 1996. The resolution stipulates that the transfer of real estate owned by Iraqi citizens who left the country is to be prevented in all cases.

15. Resolution Concerning the Alienation of Real Property within the Boundaries of the Master Plan of Baghdad, No. 157 of 1994. This resolution stipulates that the transfer of real estate within the boundaries stipulated by Master Plan for Baghdad or the Master Plans of Aqdiyas and Nahiyas within the Governorate of Baghdad of a ‘certain type’

The land is among the most important assets for people around the world. It can be a vital part of cultural and social identities, a valuable asset to stimulate economic growth, and a central component to preserving natural resources and building societies that are inclusive, resilient, and sustainable. All societies have a system to govern property rights—whether formally defined by law or informally established through customary systems—and these rules evolve and change. Land tenure is the relationship that individuals and groups hold with respect to land and land-based resources, such as trees, minerals, pastures, and water. Land tenure rules define the ways in which property rights to land are allocated, transferred, used, or managed in a particular society. When land tenure is secure, land can be a cornerstone for economic growth and an incentive for investment, but when land rights are insecure, this can lead to conflicts, instability and the exclusion of vulnerable groups, such as women, indigenous people and the poor.

Iraq is witnessing a clear stumbling in the management of urban lands and no balance between the green areas of agricultural land and the growth of cities in terms of the lack of developing plans for cities in a strategic manner consistent with the growing population and to meet the cities’ needs of infrastructure and urban development. Rather, it was left to random construction by individuals without a study that may lose the balance between the urgent need to expand, preserve the environment, and preserve agricultural investments which could constitute revenues equal to oil revenues.

Iraq needs to review urban planning and allocate funds for the purpose of building infrastructure for new areas, as well as imposing the rule of law to prevent abuses on the agricultural lands.

I think that facilitating the establishment of small projects in the agricultural and industrial sector by individuals within a strategic plan run by the state may be a solution to many of the problems facing the country, including eliminating unemployment, empowerment the  women, The elimination of unemployment and resettling internally displaced people, in addition to attracting and giving armed militants involved in militias Job opportunities and lay down arms.

The government  needs development in order to elevate the government’s modest performance and to be successful management to be able to overcome challenges.

Perhaps one of the most important recommendations could be;

Problems can be solved in parallel by investing human resources from the internally displaced and encouraging them to establish small and medium agricultural projects that can be funded by the state and donor countries that want to help Iraq.

There are large lands that can be invested in agricultural projects and animal husbandry, and a workforce with disruptive capabilities and in need of financial resources to continue life. This can be achieved through a national project supported by the international community. The cooperation may take place during the planning stages, setting the legal framework and implementation, as the Iraqi government has no clear plan for reform, nor a list of priorities, and it needs guidance. Civil society organizations can cooperate in the nomination for the beneficiaries, and monitor implementation.

As a priority issue, IDPs currently seeking to return to their lands and properties face an uncertain legal, security and livelihood landscape, and most are unaware of their legal options and recourse. What is needed is a legislative and institutional ability to engage in a land and property restitution process (to include a variety of remedies) specifically for the 3.0 million people displaced due to the ISIS conflict. Without such an effort, the concern is that returnees will default to armed kin or local militias to resolve their land and property problems. [15]

All cities and urban centers in Iraq have master plans and detailed

plans that identify urban land uses, service areas, as well as growth

and future expansion trends. There are almost (256) urban and

municipal units in Iraq.  Most of these plans have already become outdated upon the regime change in 2003 and have not been updated due to the circumstances

in Iraq at the time. UNHABITAT have efforts in this subject. But it need more support by donors.

it could achieve this aim after Strengthen abilities justice system and rule of law.


[1] the President of the UN General Assembly. https://news.un.org/en/story/2020/03/1058441

[2] https://law-society.iraqilawfirm.com/why-society-and-law/

[3] https://www.land-links.org/country-profile/iraq/

[4] https://www.humanitarianlibrary.org/sites/default/files/2013/05/PNADE241.pdf

[5] . file:///C:/Users/venous/OneDrive/lands/Environmental_risks_in_Iraq.pdf

[6] https://law-society.iraqilawfirm.com/why-society-and-law/

[7] file:///C:/Users/venous/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/8HWFHOOX/ISIS-Child-Soldiers-Report-2019.pdf

[8] https://www.land-links.org/country-profile/iraq/

[9] https://reliefweb.int/report/iraq/housing-land-and-property-rights-response-mosul

[10] SIXTH NATIONAL REPORT OF IRAQ TO THE CONVENTION ON BIOLOGICAL DIVERSITY December 2018 https://www.cbd.int/doc/nr/nr-06/iq-nr-06-en.pdf h

[11] The Geography of Water and Oil Resource Governance in Post-Conflict Iraq The Arab World Geographer, 2019 Jon D Unruh. Jon D Unruh

[12] Environmental risks in Iraq. Roz Price  Institute of Development Studies 08 June 2018 file:///C:/Users/venous/OneDrive/lands/Environmental_risks_in_Iraq.pdf

[13]. http://iraqld.hjc.iq:8080/free_search.aspx

[14] file:///C:/Users/venous/OneDrive/lands/2values_final_ar_2_.pdf

[15] http://habitat3.org/wp-content/uploads/Iraq-National-Report.pdf


 [MV1]Would that be in terms of land management or land use planning in general (national level and or local?) or how to tackle specific issues such as climate change/land restitution/regional inequality

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