Civil Liability for Tort in the Anfal Operations: A Comparative Study

Abstract

This research addresses tort (civil) liability for the Anfal operations carried out by the dissolved Ba‘athist regime in 1988 against the Kurdish people in the Kurdistan Region of Iraq. These operations involved the killing and arrest of tens of thousands of innocent, unarmed men, women, elderly people, and children, as well as the destruction of villages and forced displacement.

The study defines tort liability from both Islamic jurisprudential and legal perspectives, clarifies its constituent elements, and examines the resulting liability for the acts of others, including the liability of a superior for the acts of subordinates. It links these concepts to the liability of the government for the actions of its armed forces during the Anfal operations, whether such acts were committed against the persons of the victims—such as killing, injury, arrest, and torture—or against their property, including usurpation and destruction of property, demolition of houses, burning of villages, cutting of trees, and destruction of crops.

The study concludes that state liability is established in these operations, as the government falls within the category of superiors and is considered a juridical person capable of exercising rights and bearing obligations. The research also examines the issue of compensation for the victims of the Anfal operations under Islamic jurisprudence and the Iraqi Civil Code. The research is based on the descriptive, analytical, inductive, comparative approach, where it describes the general facts of the Anfal operations, then analyzes the elements of tortious civil liability, and analyzes the concept of tortious liability in Islamic jurisprudence and positive law. It follows partial jurisprudential texts, Sharia rules, and legal texts, and compares the provisions of Islamic jurisprudence and the provisions of positive law in determining tortious civil liability and the state’s responsibility for the actions of its agents, and compensating the victims.