Iraq and Gulf Analysis

Objections by the Kurds, the IHEC and UNAMI; the Legal Committee Comes Up with Two More Alternatives on Kirkuk

Posted by Reidar Visser on Thursday, 29 October 2009 17:53

[Update 31 October 12:25 CET: It has just been reported that the IHEC has extended the deadline for forming coalitions until 4 November 2009]

Today’s brief proceedings in the Iraqi parliament made it clear that it was indeed the objections of the Iraqi elections commission (IHEC), supported by UNAMI and the Kurds (who boycotted), that prevented a vote on the elections law. Meanwhile, the legal committee came up with two more alternatives on Kirkuk.

The first alternative involves holding a vote using the 2009 registers, to be followed by a scrutiny of those registers within one year to find whether there are irregularities amounting to more than 38% “in the registers” (a little unclear what the percentage really refers to, given as واذا كان هناك خلل بنسبة 38% في السجل يتم الغاء نتائج) in which case the annulment of the result will follow.

The second alternative is another creative multi-constituency arrangement. Once more, an explicit ethno-sectarian distribution formula has been avoided, even if three of the four proposed constituencies seem intended to guarantee some kind of minimum communal representation: Hawija, Taza and Shwan will each have three deputies (apparently aimed at Arab, Turkmen and Kurdish constituencies) whereas Kirkuk itself will remain fully competitive with 5 representatives. This seems to over-represent the peripheral constituencies to a certain extent over Kirkuk, but the proposal has the clear advantage of keeping the potential for cross-sectarian voting in Kirkuk alive, while at the same time apparently offering each of the main communities a minimum fallback position in their areas of demographic concentration. In the case of the Turkmens it is particularly easy to sympathise with this approach: As a medium-sized minority they are in many ways the bravest of the Iraqi nationalists since they so far have been competing without guaranteed quotas of the kind offered to the micro-minorities (Shabak, Yazidis, Christians, Sabaeans), and also without a de facto guaranteed minimum vote in bastions of governorate-level territorial concentration (of the kind enjoyed by the Shiite and Sunni Arabs and the Kurds).

All in all, while both of these options do preserve a special status for Kirkuk, the first one seems highly diluted given the high threshold for annulling elections (if correctly specified in the official report from today’s proceedings). One can get the impression that the second one could conceivably have greater appeal to Iraqi nationalists. Be that is at may, the rapidity with which the Iraqi parliament seemed to accept today’s highhanded intervention by the IHEC is quite shocking. The Sadrist Fawzi Ikram Tarazi, himself a Turkmen, has been one of the few parliamentarians to protest to the Iraqi press so far, suggesting that at least some of the non-Kurdish members of the legal committee would be more than happy to see endless procrastination and a reversion to the closed-list system of 2005 by way of timeout. In this they are ably assisted by the Kurds, who appear to receive full support from UNAMI and IHEC in torpedoing any proposal that does not conform one hundred per cent to their own preferences.

A new element in the mix is the release by the US embassy in Baghdad of a somewhat cryptic joint statement by General Ray Odierno and Ambassador Christopher Hill. It goes as follows:  “As Iraqi authorities prepare to adopt an elections law, we reiterate our view that the rules, procedures, and decisions adopted for the January elections should apply only to that election.   They should not serve as precedents for future elections or for future political settlements related to Article 140, demographic change, disputed boundaries, or other contested issues.”

In the first place, this is a flagrant and remarkably public interference in Iraqi affairs of a kind not seen since the Bush days (and the 2003–2005 period in particular). Secondly, the statement really is quite hard to decipher! The first sentence and the first part of the subsequent one seems to suggest that this election law should be unique to the January 2010 elections, thereby presumably opening space for special treatment of Kirkuk (the Kurds want it to be treated as an ordinary governorate; if that procedure had been acceptable to others and therefore was adopted there would have been no need to restrict the application of the law to 2010 as per the Odierno/Hill recommendation). The second part of the second sentences raises doubts, however. One would expect the logic to continue to flow in a consistent fashion, i.e. a reassurance to the Kurds that any special arrangements arrived at for Kirkuk should not prejudge the outcome of future negotiations over the city (the Kurds want to keep article 140 of the constitution sacred). But is that what is being said? After all, the standard argument by the Kurds and UNAMI has been roughly “the election law should not serve as diversion or substitute for political settlements related to Article 140, demographic change, disputed boundaries, or other contested issues”. But the American statement clearly says “precedents”, which seems to create the exact opposite logic, i.e. a rather indiscreet American initiative to convince the Kurds to be more accommodating. So far, the PUK has published the statement on its website without adding any comment.

8 Responses to “Objections by the Kurds, the IHEC and UNAMI; the Legal Committee Comes Up with Two More Alternatives on Kirkuk”

  1. Sam said

    The statement is not cryptic. You’re trying to read too much into it. All they mean is that Kirkuk is falling victim to the broader Arab-Kurd struggle over status for Kirkuk and the other disputed territories, and secondarily to differences about oil and constitutional issues (if you choose to link them to territory). For example, the Kurds will benefit, at least symbolically if not legally, to have a piece of legislation issue from the COR that endorses the validity of the 2009 voter rolls when it comes to establishing the final status of Kirkuk. That’s the sort of precedent they’re referring to.

    Sure, with this elections law and the provincial elections law, it’s partly about power sharing within Kirkuk itself and the direct stakes of the elections. But we’re still only talking about two seats’ difference at most in the difference between the 2004 and 2009 registries because Kirkuk only has 9 seats (in the 2005 framework–maybe 10 or 11 this time). The debates surrounding both elections laws have seen the July 22 forces use the legislative arena to challenge Kurdish efforts to create facts on the ground to bias the settlement on status. That’s why all this is happening.

    Hill and Odierno have as their overwhelming priority that this law be passed soon and that elections be held in January because of the tie to U.S. troop redeployment. They’re just trying in this statement, to the extent that they can, to not have the mere passage of an elections law get held hostage to the fundamental problems at the heart of the Kirkuk issue. They’re not “opening space” to anything specific in the law because they don’t really have the leverage to, nor do they have a specific interest in how Kirkuk gets treated beyond both sides agreeing to something.

  2. Reidar,
    I read some cynical interpretations of the intentions of the KRG: The Kurds want the US to stay longer in Iraq so much that they are willing to destabilize the political process in order to create conditions to prevent the planned withdrawal in 2010. The events you are highlighting make the analysis almost credible. In this context, the Odierno-Hill statement seems to be either a last ditch objection over the assertiveness of the Kurds and their ISCI allies or an acceptance of the Kurdish/ISCI conditions.
    My favourite scenario again is UNCEI: United Nations (Not UNAMI) run Census and Elections for Iraq.

  3. Reidar Visser said

    Sam, I suspect you may well be right about their underlying intentions. After all, that was why I added the question mark! But I want to focus on the statement as such, where their use of the term “precedent” remains mystifying. And if they are indeed trying to appease the nationalists and not the Kurds with this, then they fundamentally misunderstand the nationalists. The nationalists are not worried about “precedents” but only this one election. They expect the Kirkuk issue to be dealt with during the constitutional review during the next parliamentary cycle. Also, if we assume that “precedent” does indeed refer to an election law where no exception is made for Kirkuk, then the following sentence becomes highly problematic: “They should not serve as precedents for future elections or for future political settlements related to Article 140”. How could a law involving a non-exception for Kirkuk mean anything in terms of “precedents” with respect to 140, which if implemented to the letter will consist not of more parliamentary elections but of another census before a referendum and thereby eliminate the whole debate about 2004 registers versus those of 2009? I submit that my reading of the statement is no more flawed than the opposite interpretation and stand by what I wrote in my original draft of the post (but sheepishly replaced by a question mark): The Odierno-Hill statement is unintelligible.

  4. bb said

    I think the word “precedent” is crucial. You seem to accept at face value that July 22 is only worried about this one election. However if the precedent is set to treat one Iraqi province differently to the others, it has implications for the whole integrity of the process going forward.

    The opposition from UNAMI to the compromises put forward can be seen in the context of the politically motivated attacks on the independence of the IHEC which the UN has been nurturing since 2004. This would suggest that UNAMI is concerned to protect the integrity of the process from vested political self interests which would open the door to future vested interests to dismantle the electoral process in other provinces for their own benefit.

    This 38% figure is very telling given Iraq has a system of proportional representation. It suggests that it would take irregularities of at least 38% to effectively manipulate the outcome. Sam’s reminder that there are only 9 seats at stake illuminates this reality. It would appear that from UNAMI’s point of view July 22 has created a bogus strawman issue as a first point of attack on the whole process and ALSO on the IHEC. In which case I guess UNAMI would prefer a default to the 2005 electoral law rather than a discriminatory, precedent-setting compromise. And obviously it would want to protect the independence of the IHEC which ran the three elections in 2005 so effectively.

  5. Reidar Visser said

    Which other Iraqi governorate could conceivably be a candidate for exceptional treatment for reasons that are even remotely analogous to those that apply to Kirkuk? Kirkuk is the only governorate that has experienced widespread post-2003 demographic changes aimed at changing the political status of the governorate, and this makes it into a unique case.

    Also, your statement that “UNAMI is concerned to protect the integrity of the process from vested political self interests” seems disconnected from Iraqi realities. Everyone knows that those self interests were at the centre when appointments to the commission (such as that of the KDP operative Faraj al-Haydari) were made. More generally, I would caution against pretending that there is any kind of consistency in the joke that is the current political system as defined by the 2005 constitution. For example, federal regions have residual powers under the constitution, but for good measure ordinary governorates have this power too! UNAMI (who just like you are concerned with theoretical order and systems) for more than one year tried to convince the constitutional revision committee to clear up this inconsistency, but the centrifugal forces in the committee (mostly the Kurds and ISCI) flatly refused and wanted to keep residual forces for any kind of provincial entity, just to be on the safe side. The only principle was to make Baghdad as ungovernable as possible.

    Bb, by all means, go on with your abstract ideas about the dangers of “discriminatory, precedent-setting compromise” and pretend that to ignore the Kirkuk issue somehow creates neutrality. But if you know just a little bit about Iraqi history you will realise that Kirkuk is not “a bogus strawman”. This is the soul of Iraq and Western powers which ignore this fact will do so at their peril.

  6. Ali said

    This is ridiculous! Maliki, Allawi… all of them are corrupt and in Iran’s pocket! We need someone who has the courage to speak up, tell it like it is, and finally deliver services to Iraq instead of bickering and stealing. Ayad Jamal Aldin is that man. He started the Ahrar party today and I believe that he is the right man to turn Iraq around so it will serve the people!

    As an Iraqi, I am fed up with government officials who time and time again fail to deliver on their promises. Ayad Jamal Aldin will finally bring us hope!

  7. Reidar Visser said

    Ali, I saw Ayad Jamal al-Din joined with Wathab Shakir today. Are they not going to sign up for a bigger alliance? I think they may be a little lonely on their own, even if they have the best of intentions and very firm nationalist positions. By the way, Iran probably is not particularly enthusiastic about the new alliance being formed by Allawi with Mutlak, so I think you may be exaggerating its ability to influence him.

  8. Ali,
    With due respect to you and to all who may not agree with my opinion, the salvation of the political process in Iraq may not come from an individual or a block or an event, even if the event is highly significant such as open list election law or consensual agreement over Karkuk. Success will come from a continuation of power change process. Those who came from a flawed process are unlikely to improve it or defend reform unless there is self interest. If someone like Ayad Jamal Al Din came to power by chance or by appointment we should expect him to work to prolong his stay by un-democratic means because he does not owe his power to democracy. We need a process, not an event. In particular, we need to clean up the process from all outside influences including the U.S.; we can’t stand up to neighbors’ interference seemingly on behalf of the occupation.

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