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

U.N. Suspends Work On Disputed Territories Until Provincial Elections Are Over

The disputed territories in Iraq came to the fore this summer. In August 2008 Prime Minister Nouri al-Maliki sent the Iraqi army into the Khanaqin district in northern Diyala province. The area had been occupied by the Kurds since the U.S. invasion, and been under official Kurdistan Regional Government (KRG) administration since February 2008. Tensions were so high that violence seemed inevitable but for the intervention and mediation of the United States. Khanaqin is one of a dozen districts in Iraq that the Kurds hope to annex. Currently the KRG occupies 300 miles of territory outside of Kurdistan. The United Nations had been working on these disputed areas since late 2007, but in November 2008 the U.N.’s envoy to Iraq Staffan de Mistura said that the organization would be suspending its effort on the issue until after the provincial elections scheduled for January 2009.

Map of Kurdish occupied areas outside of Kurdistan

The Iraqi constitution’s Article 140 is supposed to deal with Kirkuk and other disputed territories, but it has never been implemented. By December 31, 2007 the government was supposed to have completed a census of Kirkuk and held a plebiscite on whether the population wanted to join Kurdistan or not. As the end of 2007 approached and nothing substantial had happened, the Kurds agreed to a six-month delay. That too has passed with no action either. In early 2007 when it was apparent that the article was not going to work any time soon, the U.N. began looking into alternatives.

On August 10, 2007 the U.N. Security Council passed Resolution 1770 that said the U.N. envoy to Iraq would work on the disputed territories. The first thing Staffan de Mistura did under this new resolution was to get Baghdad and the Kurds to agree to delay Article 140. This was supported by the United States who began pushing for a negotiated settlement instead of 140. This was a great disappointment to the Kurds who had hoped that the constitution would ensure a legal take over of the areas. They feared that any negotiations would cost them territory, especially Kirkuk, which is the most revered by the Kurds.

5 – Akre, 17 – Hamdaniya, 77 – Khanaqin, 79 – Kirkuk, 81 - Makhmur, 92 – Shekhan, 93 – Sinjar, 98 – Tal Afar, 100 – Tilkaif are some of the areas to be mediated by the United Nations under Resolution 1770

The U.N. and the U.S. have been moving towards power sharing and a division of disputed areas since the end of 2007. In December of that year, the U.S. pressured the KRG into accepting a division of power with the Arabs in Kirkuk’s Tamim province. At the same time, the U.N. began working on a 3-phase report on what to do with the other territories. In June 2008 they released their initial report that dealt with four areas. The U.N. suggested that two, Makhmur in Tamim and Akre in Ninewa would go to Kurdistan, while Hamdaniya would go to Ninewa and Mandali to Diyala. The U.N. specifically chose these four to go first because they had Arab and Kurdish majorities and would evenly be split. That didn’t seem to help as no side was happy with the report. Both the Kurds and Baghdad however seemed to accept the process. The second report is to address Tal Afar, Tilkaif, Shekhan and Sinjar in Ninewa, and Khanaqin in Diyala. The final one would deal with the thorniest issue, Kirkuk. De Mistura was supposed to have finished this work by September or October 2008, but that didn’t happen. Now the U.N. envoy has said that he is going to postpone his work until after the provincial elections in January 2009. De Mistura said that he didn’t want the process to be caught up in politics and electioneering. The Kurds condemned the delay.

Tensions between Kurdistan and Baghdad have only grown since the first U.N. report. Prime Minister Nouri al-Maliki feels that his security operations have strengthened his hand, and he is working to limit the Kurds in a number of disputed areas including Mosul, Kirkuk, and Khanaqin. The KRG in turn have condemned his moves, claiming that Maliki is attempting a power grab, and is undermining the constitution. Only through strong pressure by the United States and the United Nations can these contested territories be resolved. Even then they might not be able to resolve this thorny issue, which pits the regional aspirations of the Kurds against the determination of Maliki to assert national power, along with the demands of minorities. The U.N.’s initial recommendations were not welcomed, but all sides seemed to agree to the organization’s work, which is a positive sign that they might accept its arbitration to fix this mounting problem.

For more on Khanaqin and the Kurd-Maliki dispute see:

Cold War Between Baghdad and Kurds Turns Hot

Could Maliki Be Deposed?

Deal Struck To Defuse Khanaqin Issue

Khanaqin Deal Off?

Kurdish-Baghdad Tensions Over Diyala

The Kurds Come Out Swinging

Maliki Still Pushing The Kurds On Khanaqin District

Maliki Ups the Ante in Khanaqin District of Diyala

Mosul: The New Battleground Between Maliki And The Kurds

Two Reports On Trying to Solve The Kirkuk Issue

SOURCES

Agence France Presse, “Iraqi Kurds Accuse UN Of Delaying Report On Disputed Areas,” 11/30/08

Alsumaria, “Arabs in Kirkuk refuse UN recommendations,” 6/9/08

Aswat al-Iraq, “95 lawmakers criticize the U.N. recommendations over disputed districts,” 6/7/08
- “KRG: PM Should Create, Not Undermine, National Unity,” 12/2/08
- “Military units should be under central govt. control,” 8/19/08

Dagher, Sam, “Can the U.N. avert a Kirkuk border war?” Christian Science Monitor, 4/25/08

International Crisis Group, “Oil For Soil: Toward A Grand Bargain On Iraq And The Kurds,” 10/28/08

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

Londono, Ernesto, “Kurds in N. Iraq Receive Arms From Bulgaria,” Washington Post, 11/23/08

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

Russo, Claire, “The Maliki Government Confronts Diyala,” Institute for the Study of War,” 9/23/08