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Article 140 and the Future of Iraq

this file photo shows the oil rich city of Kirkuk north of Iraq

By Nadine Hoffman

A Capitol Hill conference co-sponsored by the Washington Kurdish Institute (WKI) and the University of Pennsylvania explored the challenges of implementing 140 and its implications for Iraq’s future.

Washington Kurdish Institute (WKI) President Dr. Najmaldin Karim described Article 140 as the most pressing issue in Iraq, describing the gerrymandering, expulsion of citizens, and ethnic cleansing that led to the disputed territory, including Kirkuk. This provision in Iraq’s constitution calls for normalization with compensation to move settlers back to their original areas and to return rightful inhabitants to their homes. A census and referendum would follow this process. In reexamining the boundaries of Kurdistan and other governates, areas with a clear Kurdish majority have the right to join the Kurdistan Regional Government (KRG), Dr. Karim said. Kirkuk remains in limbo until its status is decided, unable to get resources from either the KRG or the federal government.

General Jay Garner, who spoke after Dr. Karim, described the Kurds as the most vibrant people he has ever met. The constellations are all aligned, General Garner said, and Iraqi Kurdistan is the best environment in the Middle East. “If I lived in Kirkuk,” General Garner said, “I know how I’d vote.”

The first panel discussion, Article 140 and the Iraq Constitution, included Ambassador Peter Galbraith, Joe Reeder, Jason Gluck, and Professor Brendan O’Leary, and was chaired by Dr. Karim. Ambassador Galbraith, fellow at the Center for Arms Control and Non-Proliferation, said that Kurdistan is in every regard an independent country except in terms of international recognition, and its de facto independence is enshrined in Iraq’s constitution. The only place where democracy exists in Iraq is in Kurdistan, which he described as imperfect but pluralistic. He stressed that referendums do not lend themselves to compromise, and that there will be a winner and a loser. This should be accepted while seeking a way to mitigate the pain of those who lose through meaningful power sharing. Reeder, former Under Secretary of the U.S. Army, described a different approach to Kirkuk consisting of “nothing but compromise.” The challenges of implementing Article 140 are formidable and factors to take into account include justice, self determination, fairness and stability. Sanctity of rule of law is essential if the agreement is to be honored, and minorities must perceive that they will be treated fairly, which depends on good governance. The extended June 30, 2008 deadline will not be met, Reeder said, because of two main challenges – the inherent difficulty of political line drawing and the ambiguity of Article 140. He compared the situation to tensions in Kosovo, and said drawing lines comes down to villages. Reeder said his most important advice to all parties was to be nice. “The Kurds deserve the world’s sympathy as much as Israel,” Reeder said.

Gluck, a rule of law advisor for the U.S. Institute of Peace, offered an opposing viewpoint. With the original deadline past, he said, it is no longer mandatory to hold a referendum; under the letter of the law the Iraqi government’s responsibility is past. Gluck said there could be no purely legal solution and a resolution would require a political agreement. He said a hostile all or nothing referendum will increase tensions and allegations of voter intimidation are likely. Iraqi Kurdistan will find itself standing alone against Turkey, Syria, and Iran and maybe lose some areas that they currently administer, he said. Professor Brendan O’Leary, the Director of University of Pennsylvania’s Penn Program in Ethnic Conflict, responded strongly against Gluck’s remarks. He said it would be a great error to declare Article 140 null and void.

O’Leary dismissed four clichés about Kirkuk, starting with what is at stake. Saying oil is at stake in Kirkuk ignores key constitutional provisions under which oil is allocated to Iraq as a whole, regardless of where it comes from. The situation is “not an oil grab conspiracy,” he said. The second myth is that Kirkuk is sitting on a powder keg. Unification through due process would not precipitate such violence as long as sufficient security was maintained, he said. Professor O’Leary called the third cliché the “terrible Turk thesis” – the idea that Turkey will do everything in its power to prevent the unification of Kirkuk with the KRG. He said he doesn’t think the Turks will do this because of their desire to join the European. Finally, he tackled the “crazy Kurd conjecture,” or the idea that the Kurds are planning their independence. In fact, Iraqi Kurds don’t need to declare their independence because Kurdistan is freer now than any EU member state.

Dr. Kamal Kirkuki, Deputy Speaker of Parliament in the KRG, followed the first panel. He called a centralized Iraq dangerous and said the Kurds don’t want revenge, just a chance to address injustices. “We want to remember,” he said, “like the Holocaust.” He discussed the progression of Iraq’s government grabbing land from Kurdistan over time. Saddam added Arab areas to Kirkuk to change the demographics,www.ekurd.net and concluded, “In a peaceful, lawful way, we want people to go back to their areas.” Dr. Mohammad Ihsan, KRG’s Minister for Extra-Regional Affairs, further explored the issue of demographics. In 1968 a policy of “normalization” led to forced immigration in and out of areas and new settlers were lured with agricultural contracts. Regarding the question of currently disputed areas, Dr. Ihsan said those who do not know what territory this includes do not know about Iraq or think its history started in 2003

President of the Kurdish Institute of Paris Dr. Kendal Nezan addressed concerns of neighboring countries regarding Article 140. Iran and Syria are not very happy with Iraqi Kurdistan because of their own marginalized Kurdish populations, but the U.S. doesn’t care about these countries’ concerns. The U.S. does, however, care about Turkey, where the Kurdish issue remains unsolved. Turkey, meanwhile, is concerned with the rights of the Iraqi Turcoman population of about 400,000-500,000. Ottoman sources refer to Kirkuk as Turkish, while the League of Nations in 1925 confirmed the Kurdishness of the region. The Kurdish prejudice started in 1925, Dr. Kendal said, and has to be solved. An agreement between the Turks, the Kurds, and the West should be sought, he said.

Dr. Saman Shali, President of the Kurdish National Congress spoke next, saying Iraq’s constitution was endorsed by the U.N., the U.S. and Iraq, including Article 140, which gives people in the disputed areas the right to “choose their destiny.” Not implementing Article 140 takes away stability and peace and a new set of conditions introduced to the Article undermines the constitution. Not upholding Article 140 is a “slap in the face of democracy, freedom, and human rights,” he said.

The second panel discussion, Reconciliation and Power-Sharing, included David Phillips, Ambassador David Berger, Erin Matthews, David Pollack, and Qubad Talabany. Professor O’Leary chaired the discussion. Phillips, a visiting scholar at Columbia University’s Center for the Study of Human Rights, called reconciliation a process, not an event, and said power sharing is essential so that people feel they have recourse without resorting to violence. He explored the technical issues associated with minority rights and said it was important to “give minorities a piece of the pie.”

National Democratic Institute (NDI) director of Iraq programs Erin Matthews spoke about NDI’s project-based efforts at problem solving at the community level in Kirkuk and stumbling blocks encountered. In bringing civil society groups together without political parties, Matthews found that citizens felt impotent when it came to Article 140. The problems this has caused are immediate, with sectarianism a larger issue in Kirkuk that in other parts of Iraq.

Ambassador Berger, a former Canadian ambassador and MP, argued that federalism ensures freedom because it is competitive. He cited three potential solutions for a diverse state: one group rules, the country breaks up, or there is a “messy democracy” i.e. a federal Iraq. He called Kurdistan’s experience “the beginning of a new direction in the Middle East.”

Pollack, a fellow at the Washington Institute for Near East Policy, said Article 140 is only one aspect of the broad issue of reconciliation – the larger issue in his view is power sharing between Kurds and Arabs and reconciliation between Iraq and its neighbors. It is important that Kurdistan does not suffer the fate of Pakistan with respect to its involvement in Kashmir, he said, and that it doesn’t mortgage its future on Kirkuk.

Talabany, the KRG’s representative to the U.S., said the KRG ultimately wants a sustainable, just resolution. There can be no national reconciliation without addressing the disputed territory, he said. There is no justice without rectifying the wrongs committed against victims of former regimes, and Iraq “can’t resolve a crime by committing a crime,” Talabani said. The KRG must show good governance, Talabani said, and it is working on developing a culture of better governance. “We are not Switzerland – yet,” he said.

The final panel of the day, History and Current Situation, included earlier speakers Dr. Kirkuki, Dr. Ihsan, and Dr. Karim, with Dr. Shali as chair. Speakers addressed the importance of protecting the rights of all groups and of building trust.