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How America Can Help Resolve Iraq’s Arab-Kurdish Disputes
(By Dr. Najmaldin O. Karim, President of Washington Kurdish Institute (WKI
November 2, 2009. Source:
Kurdistan Digest Commentary
The Iraqi parliament’s failure to enact an election law, in appropriate advance of the federal elections scheduled for January of 2010, once again displays efforts by Iraq’s Arab politicians to prevent free and fair elections in Kirkuk, to partition it along racist lines, and to obstruct the implementation of the constitutional article that squarely addresses the issue of Kirkuk and the other disputed territories: Article 140 of Iraq’s Constitution.
While the law should indeed be expedited, the United States should not support such tactics against Kurdistan and its people. Just as the US and its allies rejected electoral theft in Kabul, so it should resist the transparent effort to rig elections in Kirkuk.
In short, Kurds want the election to take place on the most recent electoral register, modified by actions under Article 140, which have restored many expelled Kurds to Kirkuk. By contrast, some Arab parties want no elections in Kirkuk at all, and propose dividing the province’s legislators in fixed quotas of a third for Arabs, a third for Turkomen and a third for Kurds, thereby converting the Kurdish majority into a minority. Other Arabs want to use the old electoral register, thereby rejecting the constitutionally mandated changes that have taken place under Article 140. Either proposal is an open commendation of fraud.  
Kurds are not Arabs. They have their own language, culture, and identity. Within the existing Kurdistan Region the relationships between Kurds and the smaller minorities of Assyrian and Chaldean Christians, and Turkomen, are immeasurably better than inter-group relations elsewhere in Iraq – and not just because all live in peace.
Iraq’s Constitution was made by Kurdistan’s politicians in partnership with Arab parties and politicians, and endorsed by 4 out of 5 of Iraq’s voters. It was designed to prevent the revival of the centralized military state that Iraq had become under the Baathist regime, even before that regime became genocidal under Saddam Hussein.
Under the Constitution, Kurdistan rejoined Iraq as a voluntary union on the understanding that it would be certain of its entrenched rights. Regrettably, successive U.S. administrations, like many in Baghdad, have been much less keen on Kurdistan’s rights.  
Article 140 of the Constitution set out a fair way to resolve the “disputed territories”, including the province of Kirkuk, which Saddam had gerrymandered – along with executing mass murder and large-scale ethnic expulsions there. The disputed territories are adjacent to the existing boundary of the Kurdistan Region.
The existing boundary was not drawn by any democratic process, but marks the line of Saddam Hussein’s withdrawal from Kurdistan in the 1990s. It is bizarre that anyone should think that the border drawn during Saddam’s effort to starve Kurdistan into surrender should constitute the region’s final demarcation. This difficulty is compounded by sustained though inaccurate media references to the existing Kurdistan as comprised of three provinces, when the existing, Saddam-made boundary, straddles five.  
The Constitution rationally suggested the use of census returns and the referendum device to resolve the final status of Kirkuk and the disputed territories, but the Prime Minister of Iraq and his colleagues have deliberately failed fully to implement their solemn constitutional obligations.  
The federal government of Iraq has also breached its constitutional obligations on oil and gas. Minister Shahrastani has claimed powers he neither possesses under the Constitution, nor under new federal laws (because there have been none), and has tried to block Kurdistan’s legal development of its oil and gas rights, which international jurists have shown to be fully compliant with Iraq’s Constitution. Kurdistan’s offer of a rational revenue-sharing formula still remains on the table.  
More worryingly, some in the Baghdad government have been willing to play with fire, deploying the hugely expanded Iraqi military in the disputed territories, including Kirkuk.
For these reasons the people of Kurdistan are deeply worried that the US is intent on an irresponsible departure. They worry that their children might have to add President Obama to the list of US Presidents – Wilson, Ford and Bush Sr. – who sacrificed Kurdish rights on an altar named “realism”.  
There is, however, time to head off that bleak scenario.
The US must keep it eye on Iraq as it withdraws, and use all of its diplomatic and other muscles to resolve Kurdish-Arab disputes – but in accordance with Iraq’s Constitution, no more, and no less.  
Implementing Article 140 will benefit from appropriate international involvement. On a trip in July of this year to the Kurdistan Region, Defense Secretary Gates offered his help to resolving the disputed territories, wisely suggesting that the disputed territories should be resolved before the withdrawal of the American military presence in Iraq.  
What is required, as per the Constitution, is a referendum to determine the status of Kirkuk province, held under simple majority rule. This should be held, as per the Constitution, in the previous boundaries of Kirkuk, before they were gerrymandered. Simultaneously, save as required for Kirkuk’s provincial boundaries for the referendum, the existing Districts to the west and east of Kirkuk across the existing Green line should be used as units of territorial affirmation – either through census returns, or through votes (either referendums, or the votes cast for the Kurdistan list in the provincial elections of 2009).
Subsequently, and to ensure complete fairness, any sub-District of a District scheduled to unify with the Kurdistan Region should be given the right to opt out – provided the sub-District is adjacent to the rest of Arab-dominated Iraq, and provided that a simple majority of the provincial politicians elected in those sub-Districts concur. This route offers the best democratic and constitutional way to resolve this regional boundary. It would ensure, for example, that Arab-majority al-Zab could opt out of Kirkuk.
That is not all that is required to resolve territorial matters. The U.S. should encourage the Kurdistan Regional Government (KRG) to include within its draft Constitution power-sharing provisions for Kirkuk province that would apply upon its accession to the Region. These could include a dual governorship, a collective mayoralty for the city of Kirkuk, and entrenched proportional representation for its four communities – though not quotas.
The U.S. should offer, along with the U.N., the E.U. – especially countries with regular experience in holding referendums, such as Ireland and Sweden – to monitor the referendum in Kirkuk, and any held in the Districts, along with observers from the Arab League and the Government of Turkey. A Referendum Commission should be prepared now, with independent international representatives and independent representatives from the affected areas who have no record of involvement in the Baath party.  
Kurdistan does not insist that all of Iraq has to be like Kurdistan. Many Arabs prefer their existing provinces as units of self-government, and don’t wish to create bigger regions. It is also their right, under the Constitution, if they wish, to have a stronger federal government in their provinces. But what is sauce for the goose is sauce for the gander. Arab parties and people must respect the Constitution, and not try to impose a stronger federal government on Kurdistan than Kurdistan wants.
Kurdistan has made astounding progress since rising from the ashes of genocide. Last July’s election in Kurdistan, with its lively debate, large turnout, and call for accountability, was another step on the long road toward a liberal democracy and modern society thriving in my country. It is still the safest place in Iraq for Christians, minorities, and secular women.
But progress could be destroyed all too easily if the unresolved tensions between the Kurdistan Region and the federal government are not addressed and left for demagogues and neighboring powers.  
Kurds are watching President Obama with hope, but not with hope alone. They expect him to do the right thing by the U.S.’s sole reliable ally in Iraq.  
Washington Kurdish Institute
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Website: www.kurd.org