Everyone Wants to Be a Governorate: 17 Iraqi Districts Demand Status Upgrade

Iraqi districts that have been slated for governorate status (green) and districts that demand governorate status (red).

The recent announcement by the Iraqi cabinet that a number of existing district (qada) administrative units will be upgraded to governorate status (muhafaza) has prompted intense discussions across Iraq. As of today, beyond what the cabinet has announced, around 17 additional districts have in various ways been promoted as candidates for governorate status.

The lists that follows is supposed to be up to date as of the time of writing, but this is clearly a moving target, with the situation quite literally changing by the hour. Nonetheless, it can be assumed that the most eager candidates for governorate status have made their voices heard by now. Also, to some extent, there are a few common characteristics between these would-be governorates that seem to explain their candidacies. In particular, in many cases, they form the second most populous area of their current governorate, but not the seat of the provincial government. Furthermore, distinctive minority populations are important in some areas (Yazidi in Sinjar, Shia Arab in Balad and Dujayl, Kurdish in Khanaqin). Some of the districts involved stand out for their natural resources (Qurna and Zubayr in Basra). Generally speaking, it is worth noticing that whereas the new governorates proposed by the cabinet were mainly Shiite minority and other minority areas in the north that are scheduled to be separated from mainly Sunni Arab majority governorates, most of these “bottom-up” demands for governorate status are Shiites wishing to separate from Shiite majority governorates (Dujayl and Balad in Salahaddin being the exception, but Shiite politicians have been talking about plans for the attachment of these to Baghdad at least since 2011).

Here is the complete list, with population estimates from 2003 in parentheses:

Basra: Madina(159,000), Qurna (137,000) Zubayr (277,000), Garma, (106,000)

Dhi Qar: Rifai (280,000)

Muthanna: Warka (n/a), Rumaytha (213,000)

Najaf: Kufa (275,000)

Babel: Musayyib (280,000)

Wasit: Suwayra (162,000), Aziziyya (113,000)

Baghdad: Sadr City (n/a), Mahmudiyya (250,000)

Diyala: Khanaqin (160,000)

Salahaddin: Balad (167,000), Dujayl (n/a)

Nineveh: Sinjar (166,000)

Methodological problems aside, it is noteworthy that according to population estimates from 2003, most of these districts have smaller populations than the districts recently upgraded to governorate status by the cabinet: Tell Afar was estimated at 301,000; the Nineveh plains governorate formed by the 3 districts of Hamdaniya, Tell Kayf and Shaykhan at around 392,000; Falluja at 426,000. The exception is Tuz Khurmato, estimated at only 153,000 in 2003. There aren’t that many districts that had more than 300,000 inhabitants in 2003 without at the same time being the provincial seat of government – Shatra in Dhi Qar is the main exception at around 315,000.

Simultaneously, some more news about the thinking of the Iraqi government on the issue of new governorates has  emerged. Regarding Baghdad, the legal adviser of Prime Minister Nuri al-Maliki has made the claim that the city is indivisible because of the capital status enshrined in the Iraqi constitution with reference to its governorate borders (article 124). More generally, in a statement to the press, an inspector general of the ministry for municipalities and public works says that the legal procedure for creating new government is modelled on the old governorate law no 159 from 1969, but then goes on to (rightly) admit that the old law has been replaced by a new law (of 2008, which does not provide any particular framework for such changes). Nonetheless, the inspector general seems to think there are specific criteria that govern the selection of candidates for upgrade to governorate status, including population size, existing institutions of government and distance from the existing provincial centres. He goes on to mention difficulties of investment in places like Halabja and Tal Afar which he attributes to the crimes of the Baath regime and more recent terrorist activity.

All in all, frankly, this does not serve as a legal clarification. Of course, in theory, the Iraqi government can introduce a bill on just about any subject under the sun, but in a modern democracy it is expected that matters such as administrative jurisdictions are governed by a uniform legal framework.

In any case, maybe the multiplication of demands for governorate status was to be expected. Maybe the Iraqi cabinet had calculated this would happen, and that the impracticality of admitting all these candidates – and especially the inevitable debate about the capacity of governance related to such wide-ranging transformations – would kill off the whole idea of changing Iraq’s administrative map in its infancy. The only thing that is certain is that none of these plans will come into existence before the 30 April parliament elections, meaning that much of the debate relating to it must be studied in relationship to those elections first and foremost.

More on the New Iraqi Provinces: Election Stunt or a Strategic Vision of Local Government?

The surprise decision by the Iraqi government last week to announce plans for altogether four new provinces has been met with mostly predictable reactions among Iraqi politicians. Kurds are angry; as are Sunni Arabs and particularly those of Nineveh who will get most directly affected by the central government’s plans to parcel out some of their territory to create new governorates. Conversely, there has been jubilation in some of the minority communities affected by the plans (Turkmens, Shabak, Christians). Few know what the people of Falluja – the last area to become a projected province – may think about the plans. Their problems are of a more immediate nature, with dramatic estimates of the number of refugees having left the city because of the recent flare-up in the conflict between the Iraqi government and sympathizers of the Islamic State of Iraq and the Levant.

At first it was tempting to assume that the reason behind the sudden declaration of new provinces related to the upcoming 30 April parliamentary elections, with Prime Minister Nuri al-Maliki possibly trying to win votes among Shiite minorities (and Christians) outside the Shiite majority areas. However, interestingly, a more elaborate justification for the scheme has now been presented, suggesting there could be an attempt at grander strategic thinking behind the initiative after all. Tareq Harb, a close legal adviser to Maliki, has maintained that the move is aimed at pre-empting the creation of more federal regions and the potential split-up of Iraq. According to Harb, by weakening large governorates like Basra and Nineveh, the prospect of them turning into federal regions lessens since the tiny rump governorate in each case would be “a joke” of a federal region. Among the potential new governorates enumerated by Harb are Rawa (Anbar), Balad and Dujayl (Salahaddin, both with Shiite populations) and Qurna (Basra).

Meanwhile, the legal framework concerning the creation of such new governorates remains unclear. It has not helped matters that the minister of state for the governorates, Torhan Mufti (himself a Turkmen) has declared that the provincial powers law of 2008 does give the central government a right to change provincial boundaries. The same claim has been reiterated by a member of the parliament committee for the governorates, but neither claim has been buttressed with a reference to a specific article of the provincial powers law. It would be helpful if they (or anyone else who knows) could do so. A cursory reading of the amended law of 2008 indicates a right of governorates to change their internal boundaries (sub-provinces) in article 7-11, but where is the alleged corresponding right of parliament to change provincial boundaries?

One would have thought the US government, which was influential in Iraq at the time the provinces law was adopted in 2008, had analysed this problem. However, whereas an annotated version of the provincial powers law by USAID sounds promising, it fails to produce the required clarity. It seems to agree that there is no power for anyone to change provincial boundaries in the provinces law itself; however it does refer to the 1969 law on provincial administration as an alleged basis for parliament to change borders. There are several problems here. Footnote 32 of the American reports refers to “a power of parliament to change provincial boundaries” in law 159 of 1969. However, article 4 of the 1969 law does not mention parliament at all: Instead, it refers to the revolutionary command council. Even more importantly, as the American report itself goes on to mention, the 2008 law abrogated the 1969 law and hence took away any specific framework that may have existed in that piece of legislation for the central government to create new administrative entities.

Few believe these latest decisions will create changes on the ground in the near future. However, there is a qualitative shift in the Iraqi debate when the redrawing of provincial boundaries becomes part of the political horse trading process. Heretofore, provincial grievances have mostly been contained in the budgetary process, with a certain inflation of petrodollars and other dollars (including compensation for border provinces and provinces with pilgrimage traffic). But whereas money can be easily negotiated, the mere discussion of borders threatens to create precedents and goals that can be difficult to contain once they have been ignited. For example, the schemes for provinces in the Nineveh plains and Turkmen areas dovetail with far more ambitious schemes among Christian and Turkmen politicians to create federal regions in their own right. Another problem relates to scale. If areas the size of Falluja can have their own governorate, one would expect a degree of symmetry in the shape of a multiplication of other similarly small-scaled new governorates. Whereas the existence of micro-minorities like Turkmen, Christians and Shabak may conceivably be used as an argument for administrative separateness (advocates of their scheme refer to article 125 of the Iraqi constitution), no such argument is present in the case of Falluja. All in all, then, given the momentous implications of such vision, it seems doubly important that Iraqi politicians should be a lot clearer about the legal basis for the dramatic changes they now propose.

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.

Dammit, It Is NOT Unravelling: An Historian’s Rebuke to Misrepresentations of Sykes-Picot

I have long maintained that Western commentary on the Middle East is driven as much by trends in journalese as by realities on the ground and historical facts. For example, for much of the past decade we have been told that the country of Iraq is about to “implode”, given that it was “cobbled together” after the First World War from three “disparate” provinces whose centrifugal forces have continued to “fuel” and “stoke” conflict between “embattled” Iraqi “factions” in the period after 2003, making it quite impossible for them to justly “divvy up” the country’s revenue derived from the “oil-rich Shiite south” and the “Kurdish north”. All of this is misleading, and if these clichés hadn’t been employed by Western journos and pundits in the first place it would perhaps have been easier to understand the survival of Iraq as a nation despite pressures from the outside that can hardly be described as other than extreme.

With the recent shift of attention to Syria, a new artificial focus of discussion has emerged among Western pundits, namely, whether the Sykes-Picot agreement between the British and the French during the First World War is in the process of “unravelling”. Most commentators seem to think it is, with a particular emphasis on the supposed role of Sykes-Picot in determining the modern boundary between Iraq and Syria. As a consequence of this perspective, the ragtag of bandits and terrorists that is also known as the Islamic State of Iraq and al-Sham (ISIS) end up being portrayed, explicitly or implicitly, as the implementers of some kind of deep-rooted popular urge for pan-Arab and pan-Islamic unity that supposedly pulls the Syrian and Iraqi peoples towards each other.

Here is why the current focus on Sykes Picot is misguided.

1. The Sykes-Picot Agreement Is Not What Many People Think It Is. When it was concluded in 1916, the main idea behind the agreement was to secure annexation of certain coastal areas that were deemed to be of particular interest to the allies, especially Basra for the British and the coastland between Lebanon and Cilicia for the French (the Russians were accorded control of the Straits for similar reasons). The truly important aspect of the Sykes-Picot map were therefore the areas of exclusive control along the coasts – British in Acre/Haifa and Basra (naval interest playing a key role); French in Lebanon and north to Alexandretta in Turkey (the location of Christian minorities was accorded much importance). By way of contrast, the details of demarcation in the interior – where a more informal form of British and French influence was envisaged – was accorded less importance at the time. Furthermore, scholars such as Eliezer Tauber and Nelida Fuccaro have convincingly demonstrated that local politics, not the rough lines of Sykes Picot, governed the final details regarding the disposal of border areas between Syria and Iraq like Abu Kamal and Jabal Sinjar during the 1920s. Conversely, local resistance against Sykes Picot at the time was mainly framed as a protest against the way in which the agreement  divided what was perceived as  “historical Syria” by isolating the coastal fringe including Lebanon and the Alawite lands from Damascus. The desire for union between Iraq and Syria, by way of contrast, was not such a central theme. By December 1918, the Covenant society loyal to the Hashemite princes, probably the most pan-Arab force of the day, had itself fragmented into Syrian and Iraqi branches, quite without the help of foreign officers. To the extent that cross-border irredentism continued to survive in the 1920s and the 1930s, it mostly had the character of local regionalisms rather than popular movements for Syrian-Iraqi unity. In particular, the territory along the Euphrates from Ana in Iraq north to Raqqa in Syria remained the subject of some turbulence, with Raqqa often enumerated among Iraqi nationalists as a maximum objective of western expansion. Similarly, Hanna Batatu identified a degree of interwar regionalism linking Mosul in Iraq and Aleppo in Syria as a result of the way new borders cut across that old trade region. At no point, though, did any viable separatist or irredentist party emerge.

2. The Central Features of the Post-1918 Map of the Middle East Had Local Antecedents. Sometimes Sykes-Picot is being construed as a complete armchair project by willful European strategists. What is often not realized is the extent to which the agreement merely put on the map patterns of special administrative arrangements that had been in the making under the Ottomans for decades, if not longer. Thus, special Ottoman arrangements for Palestine and Lebanon date back to the nineteenth century: the special administrative district of Lebanon dating to 1861 and the special district of Jerusalem established in the 1870s. As for Iraq, it had been separated entirely from Syria in administrative terms almost since the beginning of Islam – and had for long periods been ruled from Baghdad as a single charge. Again, the only real exception pertains to the Raqqa-Ana borderlands which in brief intervals had gravitated towards Baghdad rather than Damascus. All the talk that these boundaries are a mere hundred years old and that everything was designed by a couple of European colonial strategists is utter unscientific nonsense that collapses immediately upon confrontation with contemporary primary documents, where terms like “Syria” and “Iraq” were in widespread use long before Sykes and Picot even knew where these areas were located.

3. The Bits of Sykes-Picot That Were Actually Implemented Are Very Few. It is often forgotten that most of the Sykes-Picot agreement was never implemented. Stipulated French control in Mosul was soon reversed. Alexandretta (Hatay)reverted to Turkey whereas the Alawite lands of Syria fell to Damascus during the decades of the French mandate before World War II. Sykes-Picot, by way of contrast, had prescribed territorial unity between what was seen as the “minority lands” of Lebanon, the Alawite areas of Syria and the mixed areas of southeastern parts of Turkey. What remains is the rough line of division between Syria and Iraq, but again that broadly reflected indigenous patterns of administrative subdivision and was not really implemented to the letter in any case.

4. Things Aren’t Unravelling Completely Anyway. OK, so we have hordes of ultra-radical Islamists occupying points on either side of the Syrian-Iraqi border. They talk pan-Islamic and sometimes act pan-Islamic. Isn’t that decisive proof that the borders of the past, whatever their exact historical origins, are falling apart? Far from it. They are receiving more attention today because everyone’s eyes are on Syria, but back in 2005 pan-Islamic movements also operated in this area, including an Islamic emirate in al-Qaim near the Syrian-Iraqi border. In the face of that challenge, the Sunni population of western Iraq rose in protest through the sahwa movements. Today, there is once more a tug-of-war between pan-Islamism and Iraqi nationalism, but by no means has the local population universally sided with the Islamist rebels. Despite continuing squabbles among Iraqi leaders, a considerable segment of local Anbar politicians have rushed to support the Iraqi army in its efforts against pan-Islamist elements, showing that the people of western Iraq are once more sceptical about getting too intimately connected with political movements aiming at union with Syria. As for the continuing confrontations between Iraqi PM Maliki and individual Sunni leaders in Anbar, there are two ways of looking at them: True, Maliki’s rather overt use of the Iraqi judiciary to selectively target political enemies comes across as tendentious and often reckless; yet at the same time the apparently bottomless supply of Sunni tribal leaders prepared to continue to do business with him testifies to a degree of popular aversion to the alternative of all-out revolution. Finally,  note also that even ISIS in all their pan-Islamism couldn’t resist the differentiation between Syria and Iraq when they named their organization! The territorial spread of ISIS itself in Iraq and Syria with a core area along the upper Euphrates around Raqqa could even indicate that it resonates most strongly with a more limited historical legacy of regionalism in what was historically the Jazira borderland between Syria and Iraq (rather than with grand schemes for Fertile Crescent union) – and that this regionalism, in itself, ultimately remains subordinated to century-long patterns of administrative differentiation between Syria and Iraq that Sykes-Picot merely served to confirm.

Nothing in this should of course be seen to deny the validity of stories emphasizing the bitter fate of individual families living in borderlands affected by Sykes-Picot. But borderlands are always different, and European towns and farms with similarly heartbreaking stories about borders tearing families apart are legion. That does not mean Europeans need to urgently revisit past territorial agreements arrived at in places like Versailles (1919) or even Vienna (1815).

In sum, the current fixation with Sykes-Picot is just another case of Westerners being misrepresented as the omnipotent force in the Middle East. Today, the thing that appears to be in the greatest danger of unravelling is our fragile historical knowledge of the Middle East.

With Inspiration from Iraq, Syrian Kurds Publish a Draft Constitution

After having mulled the question of a constitutional draft since at least June 2013, leading Syrian Kurdish politicians have recently published their draft constitution for areas they would like to see unified as a Kurdish region in a future Syrian federation.

In analyzing the Syrian Kurdish draft constitution, two logical points of comparison stand out: The draft constitution of the Iraqi Kurdistan region dating back to 2009, as well as the Iraqi constitution of 2005 which was drafted with heavy Kurdish influences. Generally speaking the Syrian Kurdish documents seems closely modelled on the Iraqi Kurdistan precedent, though with some important exceptions. Comparisons with the Iraqi constitution of 2005 are less rewarding simply because the Syrian Kurds have largely refrained from demarcating the exact borderline between federal and regional power in their draft constitution.

The Syrian Kurdish draft constitution begins with a section on fundamental concepts. Among other things, the northern Syrian city of Qamishli (Qamishlo in Kurdish) is designated as the capital of the proposed region. The Persian new year (Nowroz) will be the national holiday, and there will be a flag for the region, although its design is not defined by the draft paper. Kurdish and Arabic will be the official languages of the proposed region. The draft specifically states that the Kurdish people have chosen union with the rest of Syria in a federation and envisages the event of the termination of the relationship (i.e. secession) in the event that the federal authorities act unconstitutionally or in a racist manner.

The second section of the draft constitution, exactly like the Iraqi Kurdish one, is a long list of rights. In many ways the document goes further than many Western constitutions in terms of explicitly guaranteeing civil liberties, the rule of law, the impermissibility of all forms of torture or extra-judicial punishment etc.

Whereas much of the second section could be seen as boilerplate, the hard aspects of constitution writing are contained in section 3 on the structure of government. Unsurprisingly, a republican model of government has been chosen. Parliament will consist of one representative for every 35,000 inhabitants, and a degree of proportional representation of ethno-religious minorities (mukawanat) seems implied. Parliamentary cycles will be of four years’duration.

The envisaged Syrian Kurdistan parliament will legislate in areas of government that are not the exclusive prerogative of the central government; these areas are however not enumerated. It is still possible, though, to catch a glimpse of the intensions of the Kurdish constitution framers in this respect insofar as certain areas of government are accorded special mention. Firstly, it is stipulated that parliament will legislate taxes and adopt an annual budget, meaning considerable financial autonomy is envisaged. Secondly, parliament will appoint heads of “regional guards”, the police and security forces. The nomenclature is identical to Iraqi Kurdistan, which governs its security affairs entirely without any interference from Baghdad.

As regards the proposed executive, the vision of presidential power is particularly interesting. The Syrian Kurdish constitution calls for a strong, popularly elected president that will have significant roles with respect to government formation, relations with federal authorities, amnesty, and questions regarding state of emergency. The Syrian Kurdish president will however not be quite as strong as his Iraqi Kurdish counterpart. Whereas the Iraqi Kurdistan president is commander in chief of the Kurdish armed forces, the Syrian Kurdistan one will be so for ceremonial purposes only. Similarly, whereas the Iraqi Kurdistani president has the right to initiate legislation, no such role is foreshadowed for the Syrian Kurdistan president under the draft constitution. Presidential terms are limited to two times four years, similar to all other leading positions in the proposed arrangements.

Regarding the powers of the cabinet, a particularly interesting point relates to oil and gas. It is stipulated that the cabinet will cooperate with the central government in order to find the best way of exploiting oil and gas resources, with Syrian Kurdish parliamentary approval needed for anything relating to resources within the Kurdish region. Compared with the situation on the ground in Iraq – where Kurdish authorities have recently concluded entire pipeline deals with Turkey without much discussion with Baghdad – this does come across as a somewhat softer position, allowing a greater role for Damascus in Syrian Kurdish energy discussion than what the KRG is prepared to accord Baghdad.

Finally, the chapter on state structure envisages the creation of a fully-fledged judiciary, with its own prosecutor-general, court of cassation and even a constitutional court. Again, this resembles Iraqi Kurdistan realities to some extent and arguably goes even further in terms of carving out regional autonomy.

A separate chapter deals with security. Some of it consists of reiteration of points already mentioned under the powers of the executive and the legislature. Other articles add interesting pieces of information. For example, it is stipulated that the minister of the interior should be a civilian. Also, the point is made that the guards of the region, although locally controlled, should be financed by the central government for the role they ostensibly play in external defence. This, in turn, relates to the Iraqi precedent, where the Kurds demand that Baghdad pay for their peshmerga forces.

The big difference with respect to the Iraqi precedent concerns constitution making at the federal level. Already in the 1990s, Iraqi Kurds began writing constitutional draft for a future Iraqi federation of Arabs and Kurds. That document, in turn, made it easier to see what the Kurds envisaged in terms of distribution of power between the centre and the region in various spheres of government. Such a proposal at the federal level is still lacking with respect to the Syrian Kurds. The only mention of an exclusive power of the federal government is an en passant reference to foreign policy. This makes it more difficult to discern the maximum demands of the Syrian Kurds in their new draft constitution – perhaps a reflection of a situation that is even more chaotic than post-Saddam Iraq, as regards the external environment and intra-Kurdish divisions alike.

Qatari Jets, KRG and Iraqi Airspace Sovereignty in the Hashemi Case

There are many interesting aspects to the recent departure by Vice-President Tareq al-Hashemi from Erbil in the Kurdistan Regional Government (KRG) area of Iraq to Doha, the capital of Qatar.

Among those aspects is one that has yet to receive the attention it deserves: The means of travel used by Hashemi – who is sought by the central government in an alleged criminal case – from Erbil to Doha.  Most accounts simply state that Hashemi arrived in Doha on 1 April en route from Erbil. Some Kurdish interior ministry officials even went on record saying they had no knowledge about Hashemi’s departure.

The picture of Hashemi arriving in Doha, published by the website of the vice-president, is clear enough. It shows Hashemi stepping out of a Qatar Airways jet, apparently onto a red carpet and with ministers waiting to welcome him.

So, Hashemi arrived with Qatar Airways. It is true that they have announced plans for an Erbil–Doha service. But that service will not commence until May. Also, it will be operated by Airbus 320s. The aircraft on the picture looks slimmer than an Airbus, perhaps more like a Bombardier?

The question of Iraqi airspace sovereignty has received some attention lately, both with dramatic declarations that Iraq would “close its skies” for the Arab League summit, and in relation to reports that Iran is continuing to send weapons and fighters to Syria on flights crossing Iraqi territory.  What this picture seems to indicate is that a foreign country, Qatar, can in fact send its aircraft in and out of Iraq with impunity, even on missions perceived as hostile by the Iraqi prime minister, Nuri al-Maliki. Whether the jet actually flew straight down to Gulf (as is most likely) or headed via Turkey and Jordan to avoid “central government” territory is somewhat academic. Guarding Iraq’s borders is a central government prerogative anyway and it seems entirely unrealistic that the Qatari jet landed in Erbil without the express permission of the Kurds.

On top of persistent conflicts related to Kurdistan in the oil sector and the judicial extradition battle for Hashemi, the latest Qatar Airways episode once more raises questions about the true nature of the so-called Iraqi federation. It is becoming increasingly unclear whether the country is anything more than a very loose confederation.

Triumph for Maliki as Iraq Passes the Annual Budget

It took even longer than last year, but the Iraq annual budget finally passed in parliament today with a solid majority.

Many aspects of the budget are similar to last year, with small increases to all the main posts, roughly following the draft that was introduced in December 2011. The big money still goes to the central government and Kurdistan, with some added perks for the ordinary governorates. It is noteworthy that spending on electricity is sharply up compared with 2011, which must be a good sign.

Some special features of the last-minute changes to the original draft call for comment.

The Sadrists had demanded a petrodollar scheme by which a portion of Iraqi oil revenues would go directly to Iraqi citizens. This idea has indeed been included and was celebrated by the Sadrists as a win for their leader Muqtada. However on closer inspection it seems the money that will actually go to the citizens is whatever surplus is left after deficits have been covered, meaning that unless the oil price increases enormously, there may not be that much money to distribute after all.

Money has also been specifically guaranteed for the sahwa pro-government militias in Diyala and Nineveh. This is a response to a demand from the Wasat sub-bloc of the Iraqiyya coalition, and some parliamentarians suggested it constituted the main concession by the government in obtaining Iraqiyya support for the budget.

Last year, the Kurds pressed hard to obtain cost coverage for foreign oil companies operating in Kurdistan. This heading still exists, but the main Kurdish achievement this year seems to be the privilege of having the central government financing their electricity sector outside their fixed 17% share of the budget (at least, that is how some Kurdish politicians interpret the new arrangements). By way of contrast, oil is referred to in the same way as last year but with a somewhat Delphic reference to payment of costs to foreign companies “according to all articles of agreement between the oil minister in Baghdad and the KRG energy minister”. Whether this refers to the existing pragmatic cost-oil recovery scheme or something else (and maybe future) remains unclear.

As regards the governorates, the role of the governor in implementing investment projects seems somewhat strengthened and in some cases is defined as an exclusive prerogative. The petrodollar scheme for producing governorates also continues, and there is money for the pilgrimage cities (Karbala gets the lion’s share followed by Najaf).  Not all of the enhanced governorate focus is necessarily progressive – there are now for example governorate quotas for foreign scholarships. Also, regardless of what the budget says, much of this will depend on implementation capacity in the governorates, which is often substandard.

In this way – and perhaps with the added incentive for Iraqi parliamentarians to show up and vote since they will now get their armoured cars as a result of today’s vote – the budget passed despite a pessimistic outlook earlier in the week.

What it all amounts to is something of a triumph for embattled Prime Minister Nuri al-Maliki. Critics of this interpretation will perhaps say there are individual clauses in the budget that may limit prime ministerial freedom of action more than before. Some of his own deputies soured today and said silly things (Sunayd: “I consider resigning as a deputy because the parliamentary majority defeated me on article 36!”) But that is besides the point. What Maliki has achieved is a situation in which he doesn’t really need the Iraqi parliament for a long time, providing him with the cover he needs to take a relaxed attitude to demands for national conferences and the implementation of the Arbil agreement. To have achieved passage of the budget under adverse circumstances and with Iraq literally under fire from terrorists today is nothing short of a masterful accomplishment in statecraft.

It is quite emblematic of the situation in Iraq that earlier this week, Usama al-Nujayfi, the parliament speaker of the secular Iraqiyya, characterized Iraq as a “derailed train”. Today, Nujayfi went on to play exactly the role Maliki wanted him to play by shepherding the budget vote to a successful conclusion. Maliki plays it well when he manages to buy political support over the budget instead of making political concessions.

Symptomatically, perhaps, the Iraqi media almost forgot that another preparatory meeting for the elusive national conference had to be cancelled today because of the prolonged budget debate. That cancellation might well be a bellwether for Iraqi politics for the rest of 2012.

Towards Asymmetrical Decentralisation in Iraq?

Maybe it was the physical dislocation of the Iraqi cabinet and Iraqi journalists to the southern port town of Basra that was the reason.  Perhaps it had to do with a desire on the part of Prime Minister Nuri al-Maliki to somehow please his constituency in Basra at a time when pro-federal Sunni movements have forced him to take a negative stance on the creation of new federal regions generally. Whatever it was, Iraqi politicians and journalists produced an amazing array of misleading statements subsequent to the first meeting of the Maliki government outside the capital Baghdad yesterday.

In what appeared to be direct quotes from normally reliable people like deputy PM Hussein al-Shahristani and government spokesman Ali al-Dabbagh, there were suggestions that not only had Basra been granted some kind of special status with minister rank for its governor and enhanced spending powers compared with other governorates. Some even suggested that contractual powers for the oil sector were also included:

وقال الشهرستاني في تصريح صحفي ان :” مجلس الوزراء قرر في جلسة عقدها اليوم في البصرة منح المحافظ خلف عبد الصمد صلاحيات وزير فيما يتعلق بصرف المبالغ الخاصة بالمشاريع الخدمية الى جانب ابرام العقود النفطية في خطوة ينشد منها المجلس توسيع صلاحيات الحكومة المحلية في المحافظة “.
واشار الشهرستاني الى ان ” قرار المجلس اعطى المحافظ صلاحية التوقيع على صرف مبالغ تتراوح ما بين 50 الى 100 مليون دولار والتي كانت سلفا حصرا بالوزير ، كما مكن المجلس المحافظ من احالة المشاريع وابرام العقود مع الشركات (بضمنها ا النفطية) دون الرجوع الى الوزارات المعنية بالامر “.

Many observers were skeptical, but for the next 24 hours the stories made their way through Iraqi media anyway – complete with parliamentarians commenting for and against the assumed cabinet decision. After all, the Iraqi cabinet already violates so many fundamental features of the Iraqi constitution (including the right to form federal regions) that it wouldn’t necessarily be shocking for it to introduce yet another infraction, however outlandish.

In the end, though, it was a false alarm. In the more down-to-earth report by parliament spokesman Dabbagh today, there is no mention of the oil sector, and hardly any suggestion that Basra was given special status – the reported spending cap was made to apply to all governorates. In fact, in the Dabbagh summary, the only special privilege granted to Basra is an apparently simplified governmental approval process for certain kinds of projects. Whether this really constitutes differential treatment in practice remains to be seen, but it is a lot less radical than the initial media headlines suggested:

7.الموافقة على زيادة سقف الحد الأعلى لصلاحية لجان المشتريات في كافة المحافظات الى (100) مليون دينار بدلاً من (50) مليون دينار ورفع صلاحية المحافظ في الإحالة الى (100) مليار دينار. والإيعاز الى محافظة البصرة بعرض المشروعات المحالة من قبلها دون إستحصال موافقة اللجان الوزارية المختصة على اللجان المختصة القطاعية لتدقيقها وإستحصال الموافقات الاصولية بشأنها وعلى اللجان الوزارية القطاعية (لجان الخدمات والشؤون الاقتصادية والطاقة والتعليم) النظر في المشاريع المحالة عليها من الوزارات والمحافظات خلال (14) يوماً من تاريخ استلام الطلب في اللجنة وبخلاف ذلك تعتبر موافقة اللجنة حاصلة ما لم تبادر اللجنة لطلب معلومات إضافية عن المشروع من الوزارة أو المحافظة خلال تلك الفترة وترسل طلبات الموافقة على الإحالة الى اللجان الوزارية المختصة مباشرة دون الحاجة الى إرسالها عن طريق الأمانة العامة لمجلس الوزراء من قبل الجهة المعنية وباليد لتسريع الإجراءات

What this whole little affair has revealed, however, are the large gaps in the legislation regulating centre–periphery  relations in Iraq – as well as considerable ambiguities in the Iraqi constitution itself.

Everyone talks about the “spending cap” for governorates, but where exactly has that been legislated? Is it in the provincial powers law of 2008 or in the annual budgets?? This problem in turn relates to the fact that the provincial powers law of 2008 did not really do much to demarcate responsibilities between governorates and ministries in so-called “shared” areas of government (articles 112 and 114 of the constitution). What it did, first and foremost, was to create a sack-and-appoint procedure whereby local politicians were given a say in the appointment of high-level officials of the central administration working in their governorate (health, police, education etc.).

Similarly, today, the Kurdish MP Bayzid Hassan expressed outrage about the alleged cabinet decision to give Basra contracting powers for the oil sector. This “has to be legislated”, he demanded. But his outrage is misguided. According to article 112, federal regions and producing governorates enjoy exactly the same rights as far as oil is concerned. Basically, if KRG can sign – and that is a big if, depending on how one reads the rest of 112 – Maysan can sign. There is no other possible reading, regions and producing governorates have equal constitutional status as regards energy (and residual powers, article 115), period. Incidentally, this means that if any of the current draft versions of the oil and gas law actually passes in parliament, it will be unconstitutional from the get-go since all versions bestow contracting rights on federal regions but not on producing governorates.

Most commenters dismissed the story about Basra contracting rights as unrealistic, not least given the past record of centralism on the part of Shahristani in particular. What the episode actually highlighted was yet another fundamental contradiction between the Iraq outlined in the constitution of 2005 and the way the country actually works.

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.

Barzani Throws Down the Gauntlet

In the clearest statement yet, Kurdish leader Masud Barzani has said he will not attend any national conference to deal with the current political crisis if it is held in the Iraqi capital, Baghdad. Barzani’s stance is supported by Ayad Allawi, the leader of the secular and increasingly Sunni-supported Iraqiyya party, and is strongly resisted by the Iraqi premier, the Shiite Islamist Nuri al-Maliki.

The question is whether the move will prove a bridge too far for Barzani. Or rather, the real question is whether Maliki truly needs the national conference, tentatively scheduled for the end of January. 

Maliki has after all spent the weeks subsequent to the US withdrawal in mid-December to signal a complete disregard for the issues that his detractors (and partners in government) want to discuss at the national conference. Above all, Maliki has gone far in saying that the Arbil agreement of November 2010 is mostly unconstitutional (which is true), and that having received his share of the bargain (the premiership) he intends to ignore anything in the agreement that cannot be found in the constitution. This includes calls for the creation of a high council for strategic policies, ethno-sectarian balances in government ministries and ethno-sectarian formulas for the allocation of security ministries.

To some extent, developments over the last weeks have indicated that Maliki may in fact succeed with an audacious policy of ignoring both Iraqiyya and the Kurds at the same time. In the first place, despite the Iraqiyya boycott, parliament has continued to meet and has made some progress on the 2012 budget which needs to be passed over the next month or so. Iraqiyya has seen a flurry of defections, quite a few of which have occurred in Sunni-majority areas and cannot easily be attributed to intimidation by Maliki supporters (as has been claimed with respect to the south). Some Iraqiyya ministers – in particular independents and those from smaller factions like Al-Hall – have continued to take part in cabinet despite an official boycott. When Maliki presides over elaborate military displays and emphasises his role as commander in chief, he is probably thinking of an alliance of his own Shiite coalition and new breakaway elements from Iraqiyya and the White party that alone can reach the critical absolute-majority mark of 163 deputies in parliament.

Recent reports suggest Maliki is even about to try to reshuffle the Kurdish chief of the Iraqi army. It is not the first time such rumours appear: In December they were heard in relation to Kurdish demands for more power in government; this time it is being suggested the refusal to hand over Vice President Tareq al-Hashemi is part of the equation.

It is high time Iraqi politicians begin to understand Maliki and his modus operandi. In 2010 he promised the Kurds to deliver on their 19 points in exchange for their support for his second term – and went on to discover that most of those points were unconstitutional so it would be difficult to implement them. There is a similar situation with the Sunni-majority governorate of Anbar, which handed Maliki a list of 20 points. Maliki approved, of course, provided that everything was in accordance with the constitution. Needless to say, from 2008 and onwards the federal supreme court has mostly produced rulings in favour of Maliki – certainly on questions of centre-governorate relations where some decisions have placed the provincial powers law of 2008 above the constitution itself. The judiciary also seems sufficiently amenable to Maliki’s desires that it synchronises its business to fit his agenda, probably creating a sense of terror among political opponents not unlike that seen during the run-up and the immediate aftermath of the March 2010 parliamentary elections.

But Maliki can also be pragmatic. He probably does not care much if the Iraqi parliament is left to its own devices for most of the year, but he does need its approval for the annual budget. Exactly one year ago we had a similar situation subsequent to the euphoria of the government formation; Maliki then turned to the Kurds and made compromises on oil exports the basis for a budgetary deal. He went on to ignore most of the Arbil agreement and has continued to consolidate power. Today he is probably weighing whether he actually needs the Kurds – all of the Kurds –  to pass the 2012 budget.

Scenes like these have been played out before. It deserves mention that much of the Arbil conference that led to the formation of the second Maliki government actually took place in Baghdad. The Iraqi football association – just like Iraqiyya dominated by secular and anti-Maliki personalities – long tried to have its summit in Kurdistan but eventually ended up having it in Baghdad anyway.

Maliki must be asking himself why he, as the Iraqi prime minister, should take the trouble of travelling to the Kurdish region to attend a conference he does not really need. Maybe the most interesting question today is whether the rest of the Kurds, and in particular those who are the Kurdish competitors of Barzani, will back up his demand to have the conference outside Baghdad.