Maliki’s Kurdish Dilemma

A world without Usama al-Nujayfi, Ayyad Allawi, Ammar al-Hakim and Mutqada al-Sadr. Surely that must be one of the most pleasant dreams that could happen in the head of Iraq’s prime minister, Nuri al-Maliki these days?

In fact, given political developments during the weeks since the announcement of the uncertified election result, Maliki has quite good chances for such a dream to become reality. Crucially, though, that dream would have to include a personality Maliki probably would have preferred to shut out along with the others: Masud Barzani, the president of the Kurdish federal region.

What has happened is as follows. In the uncertified election result there were 92 straightforward State of Law winners and another 3 State of Law affiliated people running on various pan-Shia lists in the Shiite-minority provinces in the north. Subsequently, Maliki has been formally joined by smaller Shiite parties such as Solidarity in Iraq (1 seat in Dhi Qar), the Just State (1 seat), Professionals and Masses (2 seats), Loyalty to Iraq (2 seats in Najaf). Additionally, support for Maliki from the Sadiqun movement affiliated with Asaeb Ahl al-Haqq (1 seat) is a foregone conclusion since probably no one else wants to have anything to do with that controversial movement.

That’s 102 seats. For their part, the combined parliamentary strength of the Kurds is mostly assessed to be above 60 seats, certainly if pro-Kurdish minority representatives from the north are included. Accordingly, Maliki and the Kurds are now so close to securing the absolute majority needed to seat a new government (165 seats) that it would be very easy for them to secure a few extra MPs without having to involve any other big bloc. Also, by virtue of their relatively disciplined parliamentary contingent, the Kurds are probably in a better position to deliver actual votes to Maliki in parliament than any combination of smaller Arab-dominated parties would be able to. All of this is different from 2010, when State of Law plus the Kurds would have fallen short of 163 votes, the absolute-majority mark in the 325-member parliament back then.

This scenario offers a potential negotiation dynamic that is very different from the outcomes that have dominated the discussion thus far –  i.e. a political majority government of pro-Maliki centralists against decentralizers among the Kurds, ISCI and Nujayfi; or a quasi political-majority government of Maliki and at least one of the big parties (Nujayfi, Allawi, Hakim, Sadr) that would be prepared to join him bilaterally in opposition to the others; or an anti-Maliki coalition along the lines that challenged him in the first part of 2012; or a decision on the next PM inside a reconstituted grand Shiite alliance, perhaps followed by another oversized partnership government.

Nonetheless, despite all the talk about these scenarios (and perhaps a revived Shiite alliance in particular), the only thing that has actually happened on the ground since the election result was announced  is that State of Law has continued to grow steadily, attracting also some parties with more secular leanings that wouldn’t fit particularly well in the Shiite Islamist National Alliance at all. Indeed, it is likely that such smaller parties on the Sunni side could also be subsumed by the State of Law alliance.  It is noteworthy that despite the strong regional tensions, parties favouring dialogue with Maliki instead of maximizing the sectarian conflict won multiple seats in key Sunni governorates such as Anbar. Indeed, it could be argued that the vote for the smaller pro-sahwa lists and the secular Iraq coalition in Anbar – altogether 130,000 votes and 6 seats – was a vote in favour of rapprochement with Maliki. If movements like these get included in the next Iraqi government, the contention frequently seen in Western media to the effect that “Iraqi Sunnis lost the elections” would lose even more of its limited relevance. True, the option of Maliki’s enemies forming some kind of grand coalition against him still exists, but with Maliki’s recent growth they are running out of time: Once Maliki reaches around 125 deputies, it will be near mathematically impossible for his adversaries to form a bigger parliamentary bloc without the Kurds. With trends like these, the chances of Maliki acting bi-laterally instead of multi-laterally in the government formation process certainly go up.

Of course, the Kurds will not sign up to a a third Maliki premiership just for the sake of forming a slimmer government. Like in 2010, they will have specific demands, including the general relationship between Baghdad and the Kurdistan federal region, oil policy issues, payment for Kurdish armed forces as well as disputed areas.

There are key differences from 2010, though. Firstly, the Kurdish demands have grown more radical. No longer are questions about the validity of contracts of foreign oil companies most prominent on the agenda. The Kurds have recently opened up separate pipelines to Turkey and want Baghdad to approve this move without any interference. Second, the Kurds have already seen what happened with lofty promises in the Erbil agreement of 2010, which largely remains unimplemented. Surely they will fashion their demands to Maliki in ways that can prevent a repeat of that disappointment this time.

In practice, it will not be too difficult for Maliki to reverse much of his anti-Kurdish political majority rhetoric if he instead can form the new government on the basis of some kind of landmark agreement with the Kurds that can lead to satisfaction on both sides. The problem though, given the increasingly radical nature of the Kurdish demands, is to find concessions that are in the spirit of the Iraqi constitution of 2005 as a union between Iraqis, rather than practical guidelines for the implementation of a divorce.

Some such potential concessions within the framework of a federal state still exist. Firstly, there are things Maliki could offer on disputed internal boundaries that would involve one-off concessions to the Kurds in some of the less disputed of the disputed territories in the north, though without Kirkuk and a comprehensive article 140 settlement (which is likely to take many years to be implemented even under the rosiest of circumstances). Second, there is the recurrent issue of payment for the Kurdish security forces. Since these forces also serve in domestic and internal roles, their payment over the federal budget is not particularly logical. Still, if such an arrangement can serve as glue in the Iraqi federation, it is far better than deals that would remove the oil sector entirely from Baghdad’s sphere, effectively making Kurdistan an independent country but without a suitable legal and constitutional framework. Thirdly, there are the oil contracts with foreign companies operating in Kurdistan, which Baghdad have yet to formally approve. It could be argued that one-off approval of these contracts could be a suitable concession if an appropriate framework for cooperation for future foreign contracts could be established as part of the compromise.

All of the above are compromises that would retain the essence of the Iraqi constitution of 2005 and would be sellable also to Maliki’s domestic audience (which should not be forgotten after they gave him more than 700,000 personal votes). Above all, though, if Maliki and the Kurds want to cut a separate deal, it is important that both sides exercise realism in order that another Erbil paper tiger, and the concomitant dysfunctional government it produced, can be avoided.

The Iraqi Cabinet Decides to Form Three New Governorates

The Iraqi cabinet made big headlines today with a shock decision to form three brand new provinces. Supposedly, there will be new governorates in Tuz Khormato (a Turkmen-dominated area currently in Salahaddin province), the Nineveh plains (a Christian-dominated part of Nineveh province) and Falluja (centre of the current Sunni-led uprising in Anbar province). With a recent decision to create Halabja as a separate governorate in Kurdistan, some observers declared that Iraq all of a sudden has 22 provinces, after decades of relative administrative stability in 18 governorates since the early 1970s.

It is not like the inhabitants of Falluja, Tuz and the Nineveh plains will feel any major changes related to administrative status when they wake up tomorrow. Some of the uncertainty regarding the new move of the Iraqi government can be glimpsed from the language of the cabinet decision itself: The agreement on the formation of these new decisions was made “in principle”, to be completed after the necessary formalities “had been completed”. Those formalities were not detailed: A special committee including members of the ministries of justice and municipalities will look into the “standards and procedures” necessary to complete the transformation.

This ambiguous choice of language in turn reflects wider legal uncertainties regarding any decision to form new provinces. In theory, despite the absence of any constitutional reference to administrative boundary changes, after 2003 such administrative changes were governed by a Baathist-era law, law no. 159 from 1969, which vested the power to change administrative boundaries in cabinet. However, the anachronistic nature of that procedure is attested to by a requirement that “the revolutionary council” approved the measure – an institution that Iraq now thankfully lacks. In any case, in 2008 a new provincial powers law specifically replaced the old provinces law (and repealed it), but it failed to make provision for new administrative boundary changes, meaning there is currently no detailed Iraqi legislation dealing with the subject of the creation of new provinces. That’s the ironic reality of the new Iraq: Whereas elaborate measures exist for the creation of new federal regions, no special provisions for the creation of new governorates exist.

Of course, the absence of a law does not necessarily mean decisions on these matters are off limits to the current Iraqi government. However, in a democracy there will be an expectation that such momentous decisions regarding the administrative structure of a country are governed by laws. Indeed, the recent Iraqi cabinet decision to transform Halabja in Kurdistan to a governorate was accompanied by comments to the effect that a law was expected to be sent to parliament for approval, the lack of relevant formal mechanisms notwithstanding. But whereas the submission to cabinet of a separate Halabja governorate project reflected longstanding internal Kurdish debate on the issue (and eventually a modicum of consensus), no such consensus is known to prevail regarding these three latest would-be provinces.

In sum, such is the uncertainty connected to today’s decision that it is tempting to view it as mainly empty rhetoric calculated to create happiness in particular political circles prior to Iraq’s 30 April parliamentary elections. The question then is what those interested political circles would be. In the case of Tuz and the Nineveh plains (Tall Kayf) one obvious answer would be minority groups in those areas that have long advocated autonomy – Turkmens and Christians respectively. Some view these projects as antidotes to Kurdish expansionism and potential annexation (either through article 140 on disputed territories or the Talabani project to change administrative boundaries back to pre-Baath conditions). It has therefore been suggested that the cabinet move today was an anti-Kurdish project, with Falluja thrown in as a new governorate simply in a rather strained attempt at mollifying Sunni Arab opinion. It would certainly look rather asymmetrical with a small Falluja governorate carved out from the vast Anbar – a hark back to the special administrative provinces seen in particularly ungovernable parts of the Ottoman Empire!

Since the early 1970s, Iraq has experienced relative stability in its administrative map with minor changes to the administrative boundaries of the 18 provinces. If actually granted governorate status, these new entities could soon apply for status as federal regions – something which the proponents of the Nineveh plains unit have long hinted at. It would open the path for similar demands from oil-rich districts in the south who have long felt marginalized within the governorates of which they currently form, including Zubayr and Qurna in Basra. If Falluja can be a governorate, why shouldn’t they claim the same status, with similar population numbers and vast energy resources?

Of course, the Maliki government is not known to be in favour of this kind of large-scale territorial fragmentation. Nonetheless, we now have yet another fictional act of state affecting centre-periphery relations in the new Iraq: The three projected new governorates come on top of a theoretical right for forming federal regions that is always rejected in practice, and a revised and very permissive law on provincial powers that  few think can work in practice.

For the time being, the Maliki government may feel safe that it can play with words in centre–periphery relations without having to face the consequences. In the long run, however, the increasing gap between rhetoric and practice – and between public expectations and the state’s capacity to deliver – may form a contributing factor to a more radical political climate in Iraq.

*Postscript: The changes above are contained in conclusion number 2 from the Iraqi cabinet meeting on 21 January. However, hidden away further down in conclusion number 4 is also mention of a law project to transform the largely Turkmen Tall Afar area of Nineveh to a governorate, and to send this law to parliament for approval. That does seem to indicate plans for altogether four new provinces. Tall Afar has apparently reached a more mature stage of progress towards governorate status. It is also clear that the Iraqi government believes it can send laws for changes of borders of individual governorates to parliament, quite without there being a more elaborate legal framework for such administrative changes in place. The cabinet can also probably rest assured that parliament is unlikely to approve these measures.

The Iraqi Supreme Court Annuls Article 23 of the Provincial Elections Law Regarding Kirkuk

Somewhat in the shadow of the recent decision by the Iraqi federal supreme court to strike down a law limiting the terms of the prime minister, another crucial decision has been taken by the court in relation to the disputed city of Kirkuk.

Technically speaking, this latest decision consists of a ruling that deems one article of the provincial elections law from 2008 unconstitutional. The article in question is number 23, which stipulated arrangements of quotas and power-sharing in the local government as well as a procedure whereby a parliamentary committee would arrive at special electoral arrangements for Kirkuk, which has not held local elections since January 2005. These stipulations have now been struck down, reportedly after a complaint from the Kurds filed only a month ago.

Since the court decision itself remains unpublished, exactly as in case of the ruling on the terms of the prime minister, we may only second guess the court’s rationale for acting the way it has. However, the most likely official reasoning for striking down the law could relate to the court’s past outspoken dislike of quota arrangements, which it considered before the great debate on the parliamentary elections law in 2009 when Kirkuk was also an issue. According to the court, the only quota arrangements that are sanctioned by the Iraqi constitution are for women as well as minorities – and crucially, the latter means minorities only when they are very small minorities that would risk no representation at all if quotas were abolished. There is of course a special irony if the argument against quotas is now being used in Kurdish favour in Kirkuk, since the Kurds have been the most consistent advocates of quotas in Iraqi politics since the 1990s. However, in Kirkuk it wanted to persevere with the same electoral arrangements as in every other governorate, thereby using its increasing demographic clout. The court’s latest decision will make it easier for the Kurds to have it their way.

There is an historical and symbolic dimension to the cancellation of article 23 that should not be lost upon us. That article, when it was passed in 2008, represented some sort of pinnacle to the Sunni-Shiite reconciliation in the name of Iraqi nationalism that eventually opened the space for Prime Minister Nuri al-Maliki to temporarily achieve some distance from Iran. Article 23 was fought over for many months, mainly with opposition from the Kurds and ISCI. Now it is gone.

This is sufficiently dramatic that it is difficult to study the decision by the court away from Iraq’s and indeed the regions political complications as a result of the Syria crisis. Why is the pro-Maliki court suddenly issuing a ruling that is so clearly in the favour of the Kurds? In the past, the  supreme court has not been particularly supportive of the Kurds, and for example in October 2010 rejected the idea of linking the Iraqi census to article 140 regarding the final status of Kirkuk and other disputed territories.

Could it be that the pressures of the Syria conflict have made it more important for Maliki than before to have good relations with the Kurds? Could it be that Iran also favours an even stronger Shiite-Kurdish alliance in Iraqi politics? With the increasing targeting of Kurds by Al-Qaeda friendly elements in Syria, the maintenance of a Shiite-Kurdish alliance may perhaps seem more important and achievable to Maliki than before.

There are regional complexities to take into consideration as well: Kurdish-Sunni rapprochement in recent years has been associated with Turkey, Barzani of the KRG and  Nujayfi and Allawi of the Sunni-secular Iraqiyya . By way of contrast, Kurdish-Iranian rapprochement has been linked to President Talabani, Vice-President Khuzaie, PUK, PKK and Syrian Kurds generally. Barzani’s credibility as a Kurdish leader is increasingly under pressure from his alliance with Turkey which seems to do nothing to protect Syrian Kurds from atrocities by Al-Qaeda friendly elements.

Kurdish interests in post-2003 Iraq were first focused on grand settlements on Kirkuk and oil, and more recently on revising administrative boundaries. Maybe this recent change of status of Kirkuk elections arrangements through a court ruling represents a more mundane and achievable bargain with Maliki?

The Hawija Incident: Wider Ramifications in Iraqi Politics

The recent dramatic images from Hawija of protestors under attack by Iraqi government forces are in themselves nothing new in Iraqi politics. Populated mainly by Sunni Arabs and located close to the disputed city of Kirkuk and the border between the Iraqi central government and the Kurdistan Regional Government (KRG), Hawija has in recent years seen a level of violence that is significantly higher than the average in post-2003 Iraq. Some of the political violence has been mainly pro-Baath in nature, in other cases Sunni Islamic extremism has been at play, often with suspected ties to foreign radical groups.

What will determine the significance of the Hawija clash in Iraqi politics more broadly relates to its reception among Iraqi political factions outside the local area. And in this respect, early indications are not promising.

To some extent, it is unsurprising that Sunni and secular groups that have been critics of Maliki for a long period should rush to the defence of the Hawija protestors and complain about the actions of the Iraqi army. What is more critical, though, is that other Sunni and secular groups that lately have been on talking terms with Prime Minister Nuri al-Maliki are also deeply critical of the government’s handling of the Hawija affair. This includes Sunni and secular ministers that had recently returned to the Iraqi cabinet despite the boycott by the mainline Iraqiyya movement – including Saleh al-Mutlak, the deputy premier, whose support for the annual budget played a role in enabling Maliki to pass it without Kurdish support.

Beyond this, even if Mutlak can perhaps be accused of wavering rather often when it comes to his relations to Maliki, the disputed areas of northern Iraq and the contest between the central government and the KRG have generally speaking been among the few issues where Maliki has been able to win some Sunni and secular friends during his two terms in office. By way of example, after parts of Iraqiyya opted to boycott parliament and cabinet following the arrest order for Vice President Tareq al-Hashemi in December 2011, it was mainly deputies from Kirkuk and other northern areas unhappy with the pro-Kurdish turn of Iraqiyya that defected and signalled their willingness to work with Maliki through breakaway factions like Free Iraqiyya and Wataniyun. Similarly, Arabs from the disputed areas have repeatedly played a certain role in helping Maliki defeat pro-federal tendencies in the northern governorates.

It will not be possible for Maliki to alienate both the Kurds and the Arabs of the disputed areas at one time. In a reflection of this dilemma, Maliki has reportedly rejected the resignation of the education minister from the Mutlak bloc, and is still weighing his options with regard to Kurdish ministers he had promised to replace by acting ministers in the case of prolonged absence from cabinet.

One interesting indicator of how this tug of war will play out relates to the provincial elections results of Diyala and Salahaddin, which have Sunni Arab majorities and significant Shiite and Kurdish minorities. Those results, expected later this week, will likely influence the extent to which factions like that of Mutlak will remain in protest mode.

Another significant process is the holding of delayed elections in Anbar and Nineveh. It emerged yesterday that there has in fact been considerable tension between the elections commission IHEC and the Iraqi cabinet on the issue: Whereas IHEC indicated 18 May as the latest possible date, the Iraqi cabinet decided that elections will be held on 4 July absent any radical improvement of the security environment at an earlier stage. The relevant legal framework gives cabinet the right to fix election dates on the recommendation from IHEC; to what extent this procedure has actually been followed now seems in doubt.

It is no more possible for Maliki to endlessly delay elections in Anbar and Nineveh than to pretend that the conflict in neighbouring Syria doesn’t exist. Maybe the Hawija incident can serve as a reminder for Maliki about how radical winds from Syria can easily derail Iraqi politics, and how critical it is for him, now more than ever, to build bridges and create accommodation rather than letting confrontational politics of the Syrian kind gain hold in Iraq.

The Syrian Crisis and Its Repercussions for Erbil-Baghdad Relations

One of the interesting aspects of the crisis in Syria is the way Syria’s Kurds are navigating between regional power brokers in Turkey, Iraqi Kurdistan and Iraq. In particular, there seems to be a degree of tension surrounding the relationship between the largely pro-Turkish regional government of the Iraqi Kurds and Syrian Kurds who are seeking the support of Erbil but are not necessarily quite so supportive of Turkey.

So far, no decisive policy seems to have emerged among Syria’s Kurds in this respect. As for the spillover impact on the Iraqi scene, the Syrian crisis has so far served to further strain relations between the Iraqi Kurds and the central government in Baghdad. Due to tension in border areas with Syria, central government Iraqi forces have been seeking access to areas controlled by the Kurds, and this, in turn, has aggravated the conflict between Erbil and Baghdad.

For the first time, the Kurdish peshmerga ministry has now published a constitutional defence of its position. In a letter directed to Prime Minister Nuri al-Maliki, the Kurds enumerate four constitutional articles that they consider Baghdad are violating when they are seeking access to the Kurdish areas: Articles 9, 61, 111 (some sources say 11 but that makes no sense) and 121.

Article 9 of the Iraqi constitution deals with the Iraqi army. It is one of the few constitutional provisions to specifically demand proportional representation on an ethno-sectarian basis (quotas), and this is conceivably what the Kurds are complaining about, even though there are large numbers of Kurds serving in the Iraqi army controlled by Baghdad.

Article 61 deals with parliamentary powers, and presumably the Kurdish objection relates to the failure of government to have leading military officials confirmed by parliament. This is a real problem, although there are reports that the government has lately sent a list to parliament which is now awaiting approval.

Article 111, if correctly cited, deals with oil ownership (“Iraqi oil belongs to the Iraqi people in all the governorates and regions”)  and is presumably a general criticism of Baghdad regarding the longstanding dispute about whether Erbil or Baghdad should conclude deals with foreign oil companies.

Article 121 specifically gives federal regions the right to organize internal security including “guards of the region” which is commonly seen as the standard reference to the Kurdish peshmerga militia which is now the official internal army of the Kurdish region.

All in all, whereas it seems clear that the central government may need to make some improvements as regards Kurdish representation in the Iraqi army (article 9) and getting parliamentary approval of army officials (article 61), it is hard to see how article 121 could override the exclusive prerogative of Baghdad when it comes to managing national security and external defence  as set out in article 110-2, where “borders” are specifically mentioned. Indeed, article 121 itself at the outset explicitly stipulates that the powers given to the region should not usurp exclusive prerogatives of the central government as specified in article 110.

What this whole issue brings to the forefront, of course, is that whereas Iraq on paper may be a federation, it is in practice a confederacy in which the Kurdish entity appears to be torn between seeking independence and de facto Turkish overlordship. The Syrian crisis is likely to make these tensions more acute, given the apparent greater scepticism of the Syrian Kurds when it comes to accepting the idea of a substantial role for Turkey in deciding their destiny. As a consequence, it is possible that the autonomous Iraqi Kurds, too, will finally have to be more specific and concrete about where exactly they are heading and when.

A Smart Move by Maliki? Evoking the Stability Argument on KRG Foreign Oil Deals

In an interesting move, Prime Minister Nuri al-Maliki has asked President Barack Obama to intervene to stop Exxon Mobil activities in areas of Iraq controlled by the autonomous Kurdistan Regional Government.

Few details of the correspondence are known. The White House has officially acknowledged receipt of the letter from Maliki but has made no elaborate comment except saying it will reply in due course. A few comments on the letter by a Maliki adviser have been published by Reuters.

There is one interesting snippet of information in the reports that have emerged so far: Maliki is evoking Iraq’s “political stability” as an argument against Exxon’s operations in Kurdistan. As is well known, the conflict between Baghdad and the Kurds on oil concerns above all the right to sign deal with foreign companies generally. Additionally, some of the Exxon deals with the Kurds affect areas that are not only disputed between the KRG and Baghdad but even include territories that may well revert to the central government in a final border settlement.

The United States already has a series of executive orders in force relating to the stability of Iraq, though most of them target support for terrorism more specifically. Given Maliki’s choice of language, though, it is not inconceivable that he has in mind a logic similar to that embodied in a recent presidential executive order against US citizens threatening the stability of Yemen. That order contains deliberately vague language and could in theory apply to everything from Al-Qaeda to Aden separatism.

At any rate, by choosing the stability focus, Maliki is also addressing a latent contradiction in US policy on Iraq that is rarely addressed by the Americans themselves: Their continued support for Kurdish leaders with declared separatist agendas despite an official US desideratum of a unified Iraq within its sovereign borders.  The fact is that the United States (and many European nations) are treating Kurdish leader Masud Barzani pretty much as a head of state, with privileges during state visits etc. that few  other heads of federal entities worldwide can expect. This is precisely the sort of schizophrenic behaviour that has helped create unmanageable formulas for Iraqi governance like the Erbil agreement. It would be more honest of these players to make up their minds and either support full Kurdish independence or encourage policies that would provide for meaningful integration of the Kurdish region in an Iraqi federation.

Whether Washington will actually use this opportunity to rethink its Iraq policy remains to be seen. It is perhaps somewhat unrealistic given the presence of an able Kurdish lobby in DC that helped create the current contradictive policy in the first place. At the very least, though, Maliki will likely score some domestic points on the issue, of the same kind that recently endeared him to Sunni and secularist figures unhappy with how parts of the Iraqiyya leadership are cooperating with the Kurds, including in relation to Exxon Mobil in Nineveh.

Whether such support for Maliki’s KRG policy is sufficient to prevent any concerted action against him when the Iraqi parliament reconvenes on Saturday is still unclear. Already, some of Maliki’s enemies are accusing him of manipulating the security environment around parliament  with a view to intimidating political opponents (in particular this applies to the recent removal of the concrete barriers surrounding the national assembly). An unremarkable agenda for Saturday’s session appeared on the parliament website yesterday only to be removed again today. Parliament speaker Nujayfi now says he expects a request for a questioning of Maliki within two to three days, whereas Iraqi state television has indicated a forthcoming request for Maliki himself for an emergency session – possibly a pre-emptive move.

At any rate, with President Jalal Talabani having apparently abandoned the project of a presidential call for a no confidence vote, the conflict surrounding Maliki’s premiership is now likely to become a more long-drawn affair.

Iraqiyya, the Kurds & Disputed Territories in Iraq: The Grassroots Reaction

Sooner or later, it was bound to happen: Grassroots elements in the secular and traditionally Iraqi nationalist Iraqiyya would feel unhappy about the ever more intimate ties between their own leadership and the Kurds.

In an unprecedented expression of dissatisfaction with the course of Iraqiyya leader Ayyad Allawi, no less than 19 parliamentary deputies that are either part of Iraqiyya or have recently defected from it expressed their support for Prime Minister Nuri al-Maliki yesterday by signing a declaration of solidarity with his policies towards the Kurds. The declaration criticizes the current political crisis for being fabricated and alleges that accusations about “dictatorship” should more properly be addressed to Kurdish leader Masud Barzani, who has ruled for several decades. The highhandedness of Kurdish security forces (peshmerga) and secret police (asayish) in disputed territories in northern Iraq is highlighted as an area of particular concern.

It is worthwhile taking a look at the identity of the signatories. Almost all of them are Sunnis from various parts of northern Iraq, including Kirkuk, Nineveh and Anbar. In terms of bloc affiliations, most are either from the recent blocs of Iraqiyya defectors (Free Iraqiyya &  Wataniyun) or belonging to small lists. But it is noteworthy that there are also a couple of deputies from the Hiwar bloc of deputy PM Salih al-Mutlak and the Hall bloc of Jamal al-Karbuli. Historically, the Kirkuk issue is something that tends to bring Iraqi Sunni and Shiite Arabs and Turkmens together in opposition against Kurdish plans for annexing the city, as was evidenced by the 22 July trend back in 2008. However, thanks in part to US opposition, Maliki failed to mobilise on Kirkuk during the debate of the election law in autumn 2009 and has remained relatively aloof from the situation there until quite recently.

Importantly, no less than 12 of these 19 Maliki supporters are still technically reckoned as belonging to Iraqiyya. That, in turn, has implications for the arithmetical exercises being carried out these days about a possible no confidence vote in Maliki. What this means in practice is that Iraqiyya can probably muster no more than a maximum 75 votes in parliament from its own ranks  for an anti-Maliki vote – and that is the absolute maximum given the poor track record of many Iraqiyya MPs in terms of parliamentary attendance. In other words, even if the 40 or so Sadrists deputies should after all go all the way and join the Maliki critics in a move to sack him (a big if), there would be trouble garnering the required 163 deputies needed for an absolute majority (the Kurds command somewhere between 43 and 57 votes, depending on the position of independents and minorities).

Meanwhile, from Beirut, following rumours  about a possible rapprochement with Maliki, Mutlak himself cannot quite seem to make up his mind whether he truly does regard the Iraqi prime minister as a “dictator” or not. Maybe he and other Iraqiyya leaders should spend less time making statements from locations far away from Baghdad and instead spend some more time with their constituencies in northern Iraq. If not, they themselves – rather than Maliki – may end up as the main casualty of their current campaign to unseat him.

Disputed Territory in Iraq: Talabani Tries to Create Another Article 140

For some time, Iraqi politicians have been discussing a bill proposed by President Jalal Talabani, of the Kurdistan Alliance, on the subject of administrative changes to boundaries of governorates that were altered by the Baath regime.

In principle, this discussion has been kept separate from the bigger question of article 140 of the Iraqi constitution on disputed territories. Some politicians have presented the bill as a preparatory step towards the implementation of article 140. Others, including Prime Minister Nuri a-Maliki, have cited the Talabani bill as something that necessitates postponement of the creation of federal regions in parts of Iraq affected by the bill.

For a long time, the Talabani bill was known mainly through paraphrases. By now, it is however clear that the proposed law is very short and basically just involves the cancellation of all “unjust” boundary changes by the former regime in pursuance of its “political goals”.

If implemented to the letter, this would mean altering the administrative boundaries of Iraq to the pre-1968 situation, roughly as on this map from 1966:

Baghdad would swallow Salahaddin, Kirkuk would grow a good deal, Najaf and Muthanna would cease to exist.

Importantly, in a consistent implementation, Kurdish-majority Dahuk would also revert to Mosul/Nineveh! Now, presumably that is not what Talabani wants (the Kurds mainly want a bigger Kirkuk), and presumably he is using the words  “unjust” and “political aims” in order to create a justification for going back to 1968 generally speaking – but not, of course, when it comes to land given to the Kurds by the Baathists. But that doesn’t make a lot of sense. Dahuk was given to the Kurds by the Baath precisely in pursuance of political “aims”, namely that of creating the first zone of administrative autonomy for a Kurdish minority in any modern Middle Eastern state. To the many Arabs in northern Mosul who suddenly found themselves in a Kurdish-majority governorate, the decision may well have been seen as  “unjust” first and foremost.

That is why the new Talabani draft law is just another article 140 in disguise. It is trying to create a cloak of objectivity but it has in fact exactly the same failings of subjectivity as article 140 has – disputed territories exist only in the eye of the beholders. As such, the new draft law of Talabani is likely to prove inflammatory to the derailed Iraqi political process rather than a means of facilitating greater rapprochement.

The Kurdistan Constitution Is Back on the Agenda: Implications for Iraqi Politics

The project to adopt a constitution for the federal region of Kurdistan (KRG) can be classified as one of the “silent drivers” of Iraqi politics.

The current draft constitution of the KRG was finalized by the Kurdish parliament in 2009. At the time, a referendum on it was expected but it was eventually delayed. Some attribute the delay to internal bickering among the Kurds; others say pressures from Baghdad played a role.

At any rate, Kurdish politicians – and Kamal Kerkuki in particular – are once more talking about the need to have a referendum on the Kurdistan constitution. Reactions from outside Kurdistan have been quite massive. The main reason the KRG constitution is sensitive to Iraqi politicians beyond the Kurdistan region itself is the definition of the Kurdistan region contained in the draft constitution. This includes several areas in the governorates of Wasit, Diyala, Salahaddin, Kirkuk and Nineveh that are claimed by the Kurds but are not currently controlled by them. Politicians in areas claimed by the Kurds in Diyala, Kirkuk and Nineveh are particularly furious about the renewed talk about a referendum.

The protestors make reference to the constitutional principle that no law passed in Iraq can contradict the constitution itself. Does the Kurdish constitution contradict the Iraqi constitution? Technically speaking, it certainly does. This is so because the definition of the Kurdistan region in the Iraqi constitution is very clear: Article 142 says article 53A of the Transitional Administrative Law from 2004 shall remain in force; that article in turn says “The Kurdistan Regional Government is recognized as the official government of the territories that were administered by the that government on 19 March 2003 in the governorates of Dohuk, Arbil, Sulaimaniya, Kirkuk, Diyala and Neneveh”. Of course, Kurdish politicians will lose no time in reminding us that also article 58 of the TAL regarding the settlement of “disputed territories” was given extended life through articles 140 and 142 of the constitution; their staunchest opponents say the failure to implement article 140 by the constitutionally mandated deadline in 2007 signified its death.

Irrespective of the legal complexities involved, it is noteworthy that in political terms, key allies of Prime Minister Nuri al-Maliki have previously invested considerable energy in criticizing the Kurdistan constitution for being in conflict with the Iraqi constitution. Importantly, this goes beyond predictable resistance from Turkmen allies of Maliki like Abbas al-Bayati. It also includes people like Sami al-Askari, who in the past has specifically spelt out the differences between the TAL definition of Kurdistan and the definition contained in the Kurdish draft constitution.

The revival of the Kurdistan constitutional referendum question highlights the long-term options before Maliki today.

Maliki can choose to work with the Kurds, support their constitutional referendum plus implementation of article 140 (or the light version proposed by President Talabani). This will inevitably make him look sectarian in the eyes of many Sunni Arabs, who are among the main opponents of Kurdish expansionism – and will in turn likely make him more dependent upon Iran.

Alternatively Maliki can work with Iraqiyya, or with splinters from Iraqiyya, in which case it would be easier to keep Iran at an  arm’s length. But this would also raise the prospect of full secession by Kurdistan, possibly followed by armed conflict to settle final boundaries.

More likely, Maliki will try to avoid making too strong commitments to either side. In the meantime, however, he still needs some political allies to get the annual budget for 2012 passed.

Talabani, Maliki and the Disputed Territories

Certain comments by Prime Minister Nuri al-Maliki over the past week have failed to receive the attention they deserve. As the political scene in Iraq quietens down for the Shiite Arbain festival and a long weekend, it may be worthwhile to take a closer look at Maliki’s statements regarding disputed territories and the creation of new federal regions that may well reflect his negotiation strategy over coming months.

The most sensational aspects of Maliki’s comments are as follows. Firstly, they seem supportive of a plan by President Jalal Talabani, a Kurd, to introduce a bill to parliament that would adjust by law the boundaries of governorates that comprise so-called “disputed territories” and have boundaries that were modified during the Baath. This would be done prior to a final settlement of the disputed-territories issues by referendum. Secondly, in practical terms, Maliki revealed that with respect to Salahaddin governorate, which was created by the Baath in 1976, the plan would involve transferring parts of that governorate with Turkmens and Kurds to Kirkuk and parts with Shiites to Baghdad. Thirdly, Maliki used these arguments against any early referendum for a Salahaddin federal region, indicating that the Talabani plan would have to be implemented prior to any decision on federal status.

The Talabani plan, or law proposal, has not been published in its entirety. Nonetheless, there is sufficient information in these comments by Maliki to identify both theoretical and practical problems related to its potential application.

On the theoretical level, we know the desire of Talabani and the Kurds more broadly to reverse any administrative changes to governorate boundaries that they interpret as having flowed from racist and anti-Kurdish motives. In particular, Kirkuk’s loss of a solid chunk of territory to Salahaddin in 1976 is seen as something that needs to be rectified. The Kurds appear to believe that the number of Kurds and possibly pro-Kurdish Turkmens in the area will work in their favour as far as aggregate numbers for a reconfigurated Kirkuk governorate are concerned, and also maintain that it would be more difficult to make these changes if Salahaddin was to receive federal status prior to a final territorial settlement. To some extent, chronology works in advance of the Kurdish claims in this regard, because the creation of Salahaddin in 1976 was one of the last major changes to the administrative geography of Baathist Iraq, potentially making it a convenient cut-off point. Other major changes, such as the creation of the Muthanna governorate and the separation of Dahuk from Nineveh both antedated 1971. Clearly, the Kurds do not want to go back to 1971 since they probably see the creation of Dahuk as a virtuous move whose reversal is undesirable (it was in fact part of the peace negotiations between the Kurds and the Baath at the time).  

But exactly at the same time as the creation of Salahaddin in January 1976, another new Iraqi governorate came into existence: Najaf. This in turn has similarly created cases of “disputed territories” with respect to neighbouring and more well-established governorates like Karbala. Presumably Talabani does not aim to abolish the Najaf governorate. Presumably, too, his law proposal contains impenetrable arguments for abolishing Salahaddin but not Najaf!

At the practical level, there are problems too. Why should the Shiite parts of Salahaddin plus Samarra revert to Baghdad but not Sunni Tikrit? All of these lands belonged to Baghdad in the early 1970s, reflecting administrative realities that date back at least to monarchical times. If the Talabani proposal involves attaching Shiite but not Sunni parts of Salahaddin to Baghdad it will no doubt be seen as sectarian, perhaps in resonance with the idea of a “smaller Iraq” from Basra to Samarra that has been in vogue among some exiled Iraqis.

Iraq administrative map 1971

It is interesting that Maliki is flirting publicly with ideas that will be seen by many Iraqis as typically post-2003 partition-oriented discourse – precisely the sort of thing Maliki has tried to steer away from since 2008. On the other hand, we should perhaps not exaggerate the importance attached by Maliki to these ideas as end goals in themselves. Maliki knows perfectly well that whereas giving him the premiership was completed in a single parliamentary session, fulfilling all his promises to the Kurds and others depends on further legislation in parliament. Each legislative initiative comes with at least three crucial junctures (first and second reading before a vote), each of which offers opportunities for unexpected drama that can easily consign a legislative project to the growing catalogue of on-hold items awaiting political consensus.

This may well be Maliki’s real intention in flirting with the Talabani initiative on disputed territories. The Kurds will see it as a concession of sorts. Sectarian Shiites will like the idea of a bigger Baghdad extending to Samarra. None of it is likely to come into existence anytime soon.

Meanwhile Maliki governs.