The Constitutional Conundrum Of The Kurds

Officials of the Kurdistan Regional Government (KRG) consistently claim that the Constitution and its Article 140 need to be followed when it comes to resolving Kirkuk and other disputed territories. Most recently KRG President Massoud Barzani said at the end of July 2009 that he rejected the United Nation’s recommendations for the disputed areas and any other plan that does away with Article 140. At the same time the Kurds maintain de facto control of the city and other areas of northern Iraq they claim is part of a historical greater Kurdistan. This despite the fact that the constitution says they should not be there. This is their dilemma, the Kurds demand that part of the constitution be followed so that they can annex the areas they want, while at the same time they are ignoring other parts of the constitution that stand in the way of this goal.

Article 140 called for normalization, a census and a referendum on the future of Kirkuk and other disputed territories in Iraq by December 31, 2007. When it appeared unlikely that the article would be implemented in time the Kurds agreed to a six-month extension. That June 2008 deadline came and passed as well with no resolution to the problem. This has caused a huge amount of frustration on the part of the Kurds, who have held up major legislation in parliament in protest.

Despite this, the Kurds still maintain control over a large area of northern Iraq including Kirkuk. With the overthrow of Saddam, Kurdish peshmerga forces swept south into the areas they claimed to be theirs. The U.S. also asked for their help when the insurgency took off. This allowed the Kurds to establish themselves in northern sections of Ninewa, Salahaddin, Tamim, and Diyala. The Kurds also call a swath of northern Wasit theirs as well. If annexed this land would almost double the size of Kurdistan from 15,400 square miles to 30,100 square miles.



The problem is the 2005 Iraqi constitution says that this presence is illegal. The 2004 Transitional Administrative Law (TAL) that was drafted by the Coalition Provisional Authority to govern Iraq until it drew up its own constitution included Article 53(A). It said that the Kurds only had authority over areas that they controlled before the 2003 U.S. invasion. This area was established in the wake of the 1991 Gulf War when Iraqi forces withdrew and the U.S. and England established a northern no fly zone. The border between Kurdistan and the rest of Iraq became known as the Green Line. Article 53(A) was later incorporated into the 2005 constitution.

Since 2007 Kurdish officials have said they no longer recognize the Green Line since they have de facto control of these disputed territories. In late 2007 for example, the KRG Natural Resources Minister said the Green Line was passé. The KRG also told oil and security companies working in Kurdistan to remove any maps that included the Green Line. In early 2009 Masrour Barzani, son of KRG President Massoud Barzani, and head of the KRG’s security forces, stated that the Green Line was a relic of Saddam’s time and that the KRG refused to abide by it. In May he told the International Crisis Group that everything in the constitution should be negotiated to resolve the fate of these areas.

This is the conundrum the Kurds now find themselves in. On the one hand, they demand that Article 140 and the constitution be followed when it comes to Kirkuk, and the disputed territories. At the same time the constitution says they have no right to be in those areas as they now are. The Kurds have increasingly rejected this part of the constitution, and said that everything in it needs to be discussed. They can’t have it both ways. They can’t insist on the constitution being followed when they are breaking it and demanding revisions of it. This dilemma is unlikely to be resolved any time soon, especially with U.S. forces withdrawing. Even though Prime Minister Nouri al-Maliki recently traveled to Kurdistan to meet with top KRG officials, positions will probably harden as the 2010 parliamentary elections near.

SOURCES

Cordesman, Anthony, “Iraq’s Fracture Lines: Recidivism or Reassertion,” Center for Strategic and International Studies, 7/28/09

Dagher, Sam, “Arrests in Bank Robbery Create a Rift Between Iraqi Officials,” New York Times, 8/3/09
- “New Kurdish Leader Asserts Agenda,” New York Times, 7/29/09

International Crisis Group, “Iraq and the Kurds: Trouble Along the Trigger Line,” 7/8/09
- “Oil For Soil: Toward A Grand Bargain On Iraq And The Kurds,” 10/28/08

Iraqi Constitution

Janabi, Nazar, “Kirkuk’s Article 140: Expired or Not?,” Washington Institute for Near East Policy, 1/30/08

Mohammed, Shwan, “Kurdish forces refuse to quit Iraq battlefield province,” Agence France Presse, 8/13/08

Paley, Amit, “Strip of Iraq ‘on the Verge of Exploding,’” Washington Post, 9/13/08