Emory International Law Review


Jomana Qaddour


What role did Iraq's ethno-sectarian cleavages play in the process of drafting its 2005 Constitution? And what role has that Constitution played in further entrenching those cleavages? The 2003 Iraqi invasion by U.S. and allied forces ultimately resulted in the drafting of two of the country's most important documents: the Transitional Administrative Law and the 2005 Constitution. These two documents—heavily influenced by the United States and Britain, as well as powerful Iraqi stakeholders (both local and exiled)—were approved despite their serious deficiencies, particularly in articles pertaining to power sharing, individual rights, and civil liberties. These deficiencies, some of which were inspired by ethno-sectarian cleavages, resulted in a constitution that has since fueled further turmoil in Iraq. Given the wave of new constitutions being drafted across the Arab world, this Article examines one of the Middle East's most pivotal constitutional processes. Lessons can be extracted for future constitutional processes, especially in diversely populated countries. Crucially, this Article dissects the ethnno-sectarian bargaining that transpired between the many stakeholders in drafting the Constitution, resulting in a document that has set Iraq on an undemocratic trajectory ever since.