Iraq and Gulf Analysis

Archive for the ‘Kirkuk and Disputed Territories’ Category

Exxon Moving into Seriously Disputed Territory: The Case of Bashiqa

Posted by Reidar Visser on Thursday, 17 November 2011 11:46

More details continue to emerge about the recent deals cut by Exxon Mobil with the Kurdistan Regional Government.

A key point in this respect is newly-emerged information that at least two of the six exploration blocks are in so-called “disputed territories” that are formally part of the Nineveh governorate but since 2003 have been administered by the Kurds who occupied these areas at the beginning of the war. This includes both the Qush and Bashiqa blocks. 

In itself, this move by international oil companies into “disputed territory” is not entirely unprecedented in Iraq. Other companies including Hunt Oil and Gulf Keystone have previously concluded deals for blocks in disputed territory in Nineveh.

Once again, it is to some extent of course Exxon’s stature as a “Big Oil” company – and over above that as “American Big Oil” – that is particularly significant as far as the new disputed-territory dimension is concerned. It is noteworthy in this respect that previous attempts by the central government in Baghdad to auction off service contracts in disputed territories in Kirkuk failed, both in the first and second licensing rounds in 2009.

But there is a particular dimension to the Exxon contract for Bashiqa. It is commonly assumed that pro-Kurdish areas of the Nineveh governorate like Shaykhan and even Tall Kayf (where Qush is situated) may eventually gravitate towards the Kurdistan Regional Government when final status negotiations get going – to some extent as the result of pro-Kurdish feeling among Yazidis and Christian minorities there. However, in Bashiqa the situation is far from clear. A good study on the disputed territories by Sean Kane of USIP uses elections data at the district level to highlight Bashiqa as an area of Nineveh where Kurdish claims are not particularly popular among the local electorate. Additionally, to the extent that there is a pro-Kurdish tendency among parts of the population, much of it is actually Christian. As such, it is torn between the idea of joining the KRG and the alternate (and constitutionally dubious) scheme of a Christian-dominated sub-governorate administrative unit in the Nineveh plains. It is not unlikely that Bashiqa and its oil will end up remaining outside the final KRG borders and hence outside Kurdish jurisdiction.

In other words, in Bashiqa, Exxon is not only going into “disputed territory” but is becoming involved in a particularly disputed area. By so doing, Exxon is positioning itself in direct opposition to the longstanding official US government policy of trying to build trust and détente in these areas through so-called “joint patrols” with Kurdish and central-government participation. Additionally, this particular move may prove to be yet another thorn in the relationship between Kurds and Sunni Arabs: The Nujayfi family of Mosul and its two leading brothers (Usama, the parliament speaker, and Athil, the governor of Nineveh) have been personally involved in the quest to keep Bashiqa as part of Nineveh. This could in turn have a negative impact on recent tendencies of rapprochement between Sunni Arabs and Kurds as the result of growing interest in federalism among Sunnis, especially in Salahaddin.

In sum, one cannot help wonder whether Exxon may have been lured into a trap by including such a contentious and risky piece of real estate as Bashiqa in its recent bouquet of exploration blocks. There is now the impression that Exxon has wedded itself to a policy of Kurdish maximalism from which there can be no easy or partial retreat.

The Kurds may well have tried to sell the whole Exxon package as an “all or nothing” deal. As such, it is looking singularly successful.

Posted in Iraqi constitutional issues, Kirkuk and Disputed Territories, Oil in Iraq | 20 Comments »

Another Parliamentary Defeat for Maliki

Posted by Reidar Visser on Saturday, 24 September 2011 20:19

Today’s vote in parliament on a law for Iraq’s anti-corruption commission was in some ways another defeat for Iraq’s prime minister Nuri al-Maliki. On a key article of the law, namely the mechanism for appointing the leader of the integrity commission, Maliki and his political allies had sought a different formula than that eventully agreed to by parliament: Whereas Maliki had asked for prime ministerial appointment powers, parliament reserved that prerogative for itself in article 4 of the new law. As usual in Iraq, no details on the votes of individual deputies were published but it has been made clear in press reports that the supporters of the anti-Maliki measure were generally Iraqiyya, the Kurds and possibly some individual members of ISCI.

Still, despite these developments in parliament today, two important caveats pertain to the image of Maliki coming under pressure. Firstly, today’s decision was in the realm of simple-majority decisions rather than anywhere near the absolute-majority territory in which the most crucial decisions – such as sacking the government itself – are made. With 248 deputies present, no more than 125 votes were required to win the vote, meaning we are still far away from the magical 163 needed to withdraw confidence in Maliki.

Second, today’s vote against Maliki was enabled precisely because it focused on a single anti-Maliki clause that attacked him personally. Conversely, when the issues are broader, this sort of cross-party political consensus that could form the basis for a challenge to the government simply does not exist. This can be seen for example in the debate on the oil and gas law. Seemingly there is a parallel challenge to prime ministerial power in the parliamentary oil and gas committee version of the oil and gas bill, which differs from the government version above all when it comes to the role of the PM in the projected, all-powerful federal oil and gas council. But in other areas of the oil and gas legislation – and especially in areas concerning centre-periphery relations – fissures in the anti-Maliki coalition are evident. Firstly, it seems unclear whether the Kurds are wholeheartedly supporting the committee version of the bill at all, since their latest tirade against the “Maliki draft” included criticism of items concerning central government powers that can in fact be found in the committee version of the bill as well. In other words, maybe the Kurds are not terribly serious about the committee bill at the end of the day and instead are just trying to heap pressure on Maliki in order to get a better deal from him bilaterally in KRG-Baghdad negotiations.

Second, even parties often seen as pro-Kurdish are at variance with Arbil when the specifics of oil and gas and other “big issues” (like disputed territories) come up for debate. Nowhere is this more evident than in the case of the Islamic Supreme Council of Iraq (ISCI), which despite its reputation as a pro-Kurdish party has recently found it necessary to issue criticism of alleged oil smuggling from the Kurdish areas as well as what is seen as Kurdish attempts at grandstanding through reducing the oil output from the KRG area. Issues like these have over the past few weeks been highlighted by pro-ISCI deputies such as Qasim al-Aaraji and Falih al-Sari. Indeed, when it comes to the disputed territories, even Iraqiyya – which has recently gone quite far in accommodating Kurdish sentiment with respect to oil, at least at the level of the party leadership – have strongly protested developments in Diyala province, where the recent visit by the Kurdish president Masud Barzani prompted strong protests locally.

The lack of cohesion among Maliki’s opponents in turn explains how he is able to remain in power despite a decidedly flimsy parliamentary support base. The Kurds took at face value his promises on oil and gas and other issues in late 2010, overlooking the fact that these issues belong to the realm of parliamentary decisions and even referendums rather than to that of the premier. Maliki clearly is not strong enough to produce parliamentary decisions on these matters; however, he is quite capable of  hanging on to power thanks to the inability of the opposition to unite to sack him. In the end this may suit Maliki well, since it means he can escape or postpone painful decisions on issues like oil and Kirkuk that would potentially bring him into conflict with the limited power base that he still retains in parliament.

Posted in Kirkuk and Disputed Territories, Oil in Iraq, UIA dynamics | 31 Comments »

The Territorial Dimension of the Nukhayb Tragedy

Posted by Reidar Visser on Saturday, 17 September 2011 15:52

The recent terror attack at Nukhayb in Anbar province killing several Shiite pilgrims en route to Syria has deeper political dimensions.

First there is the jurisdictional issue. Shortly after the incident, a security force from the neighbouring governorate of Karbala crossed the provincial border and detained a number of alleged suspects who were then taken back to Karbala for questioning. This prompted loud protests from politicians in Anbar who complained there had been a breach of jurisdiction since Nukhayb lies within the border of Anbar governorate.

Second, there are some more fundamental territorial questions related to the recent altercations between these two Iraqi governorates. Since at least 2005, various Shiite politicians – in particular the Islamic Supreme Council of Iraq (ISCI) and Ahmed Chalabi but also local politicians in Karbala close to Prime Minister Nuri al-Maliki – have claimed that the territory of Nukhayb should be “returned to the governorate of Karbala”. Subsequent to the recent attacks, those claims have been reawakened. By way of example, Abd al-Hadi al-Hakim recently called for the “return of Nukhayb to Karbala as it was before the former regime transferred it to Anbar”.

The Karbala claims to Nukhayb rest on shaky historical foundations. It is true that for a short period in the 1970s, Nukhayb was transferred to Karbala by the former regime (it can be documented that it was part of Ramadi in the 1960s) and then transferred back again in 1979. But for the overwhelming part of the twentieth century, Nukhayb has been administratively affiliated with Ramadi (or, before that, with the special desert police force) rather than with Karbala.

Map of Iraq in 1966 showing Nukhayb as part of Ramadi province

More fundamentally, the Nukhayb claim relates to the much bigger issue of “disputed territories” that threatens to polarise Iraqi politics along ethno-sectarian lines in years to come. This vexed idea of collective ethno-sectarian entitlement to land (as distinct from the right of individuals to seek redress for misdeeds and confiscations of land by the former regime) was unfortunately included in the US-sponsored Transitional Administrative Law in 2004, from where it made its way into the current Iraqi constitution. Exactly like the Karbala claim to Nukhayb, many of the claims under the “disputed territory ” heading have scant historical basis, but if granted, they could set the stage for a perpetual debate about real and imagined “disputed territories” across Iraq in the next years.

So far there are some positive signs that Prime Minister Nuri al-Maliki is trying to rise above the claims of his partisans in Karbala in the Nukhayb case and will work for the transfer of those arrested to Baghdad and indeed for the release of some of them. The more important question is however this: Will he have the guts to come out loud and clear against the murky attempts by other Shiite Islamists to play the opportunistic territorial card in Nukhayb?

Posted in Iraqi constitutional issues, Iraqi nationalism, Kirkuk and Disputed Territories | 33 Comments »

The Oil-Law Showdown

Posted by Reidar Visser on Wednesday, 14 September 2011 19:18

If the restart of oil exports from the Kurdish Regional Government area in February served as an indication of an evolving axis of political friendship between the Kurds and Prime Minister Nuri al-Maliki’s State of Law bloc, developments in Iraq during the past month have pointed in the opposite direction.

Perhaps the first sign that something was wrong came in August when Kurdish peshmerga troops entered areas in Diyala that they had previously agreed with the central government to stay out of. Whereas similar actions in Kirkuk earlier in late February and March had prompted a surprisingly muted reaction from Maliki (and hence seemed to suggest that the alliance between Maliki and the Kurds could be deepening at a time when Maliki was worried about increasing public anger on Iraq’s streets), this time the Kurdish moves have been followed by a heated verbal exchange between Maliki and Kurdistan’s president, Masud Barzani.

Of course, altercations between the Kurds and Maliki are nothing new. They were prominent in the 2006–2009 period as well, when they often focused on the so-called “disputed territories” claimed by the Kurds and the implementation of article 140 of the constitution related to these areas. This time around, however, it is the oil and gas law that has moved to the forefront of the debate.

In a recent statement, the Kurds promised to “boycott parliament and government” if the oil and gas law presented to parliament by the government is indeed passed by parliament. The Kurds say they object to new changes to the draft, which include giving the prime minister a somewhat stronger role in the projected oil and gas council, but also involves a slightly different decision-making mechanism on contracts: In the latest version of the bill, contracts signed by regional authorities are invalid unless they are specifically approved by the oil and gas council with a two-thirds majority; conversely, in the old draft, such contracts would automatically be valid unless they were actively struck down by the council, again with a two-thirds majority. In other words, the ability of regional authorities to push through their own contracts is more restricted in the newest draft. Last, but certainly not least, the latest draft indicates a stronger role for the ministry of oil in arranging licensing rounds also in the regional-government areas, which was seen as an exclusive competency of the regional authorities in the previous draft.

Constitutionally speaking, then, the latest “Maliki draft” (as it is already referred to by its opponents) is not that much different from the previous version. The creation of the federal oil and gas council recurs in all versions of the draft, albeit with a slightly stronger prime ministerial role in the latest one. True, there are real differences in article 18 second regarding the procedure of approving contracts, but again this is a gradual change from the last version. Perhaps the most dramatic intrusion on what some see as regional rights is the designation of a role for the oil ministry in arranging licensing rounds for the regional entities (article 14), which pro-federal politicians no doubt will see as infringement on the implicit residual right for the regions (and governorates) to sign deals for “future” fields in the constitution (only “existing” fields are specifically mentioned as falling within the exclusive jurisdiction of the central government). Of course, article 112 second of the constitution can be construed as giving the right to the ministry to get involved in all fields one way or another as far as “strategic policy” is concerned, but critics will probably argue that the involvement of the central government both at the contracting stage as well as at the decisive review stage in the oil and gas council means excessive interference.

It is unsurprising that the Kurds should react angrily to these changes. Somewhat more unexpected is the latest rush of visitors to Arbil in an apparent demonstration of loyalty to the Kurds in the oil and gas dispute, including Iraqiyya leader Ayad Allawi and the Jordanian prime minister. Iraqiyya, in particular, go quite far in some of their latest comments on the oil and gas law. Yesterday Maysun al-Damluji thundered that the latest draft was not only “unconstitutional” but also gave the oil ministry too much power! Apparently, Iraqiyya have already forgotten the outcry from Iraqi technocrats when the first oil and gas law was presented in 2007 and especially the criticism of the powerful oil and gas council headed by politicians at the expense of the ministry and the technocrats.  Had Iraqiyya been loyal to its own electorate of past bureaucrats, it would have been more logical to attack the oil and gas council as such (and restore the ministry as the chief power broker) instead of spending so much energy promoting the rights of regional entities. But by exploiting personal animosities between Allawi and Maliki, the Kurds have effectively managed to transform Iraqiyya to a pro-federal party.

For their part, Iraqiyya seems to be justifying what they are doing with reference to imaginary mathematics. Supposedly, the goal of it all is to create some kind of opposition alliance aimed at toppling Maliki. Except that the numbers just don’t add up. Even Iraqiyya, the Kurds and minority friends of the Kurds are unable to muster more than around 145 votes, which falls short of the required 163. The Kurds know this and are probably merely exploiting the show of support by Iraqiyya and Jordan to heap pressure on Maliki in order to get a better deal with him bilaterally. Perhaps the best indication of the tactics of the Kurds in this case is their sponsorship of an alternative oil and gas bill which, despite what many press reports say, in fact is not that much different from the government version. Exactly like the Maliki draft, the parliamentary version also provides for a federal commission with veto rights on regional oil contracts, albeit on slightly different terms. But the Kurds know that the parliamentary version is unlikely to go anywhere due to procedural objections by the federal supreme court, and may be co-sponsoring the bill just in order to get Iraqiyya on their side to put pressure on Maliki. 

It can be argued that if Iraqiyya cannot work with Maliki, they should seriously consider reverting to a more honest, purely opposition role from which they could speak their mind instead of producing convoluted statements of the kind presented by Damluji yesterday. If not, Iraqiyya and indeed the Kurds should be aware of an alternative scenario that is probably on Maliki’s mind every now and then: Building a majority with all of the Shiite Islamists (currently around 158) plus White Iraqiyya (10) and defector elements from Iraqiyya and then pretend to act as Iraqi nationalists and centralists. A sort of Shiite-led version of the old regime perhaps.

The more Iraqiyya continues to stultify itself with statements like the recent ones on the oil and gas bill, the greater the probability for  defections from within their own ranks. In turn, Maliki’s alternative plan, without the Kurds and Iraqiyya, could gradually become less and less utopian. Maliki may well be hoping that as time passes by, such an alternative will emerge and will eventually allow him to take a more centralist position vis-à-vis the Kurds on disputed territories and not least on the symbolically important city of Kirkuk. The Kirkuk issue is more immediately understood by the Iraqi public than complex legal oil issues and is a question where neither Maliki nor Allawi may be able to give the Kurds all they want.

Posted in Iraqi constitutional issues, Kirkuk and Disputed Territories, Oil in Iraq | 25 Comments »

Maliki-Nujayfi Showdown in Mosul

Posted by Reidar Visser on Sunday, 24 April 2011 22:45

In 2009, Mosul represented a promising trend for those hoping for rapprochement between Sunnis and Shiites in Iraq. Today, the city exhibits some of the tensions that could potentially create instability in the country unless more is done to create a solid parliamentary foundation for the second Maliki government.

Back in 2009, local politicians in Mosul opted to work with the Maliki government in terms of challenging what they saw as Kurdish encroachments on the northern parts of the Nineveh governorate. In calling for assistance from Baghdad, the Sunnis of Mosul were requesting the help of a Shiite-dominated army with the declared aim of restoring the territorial integrity of their province. In terms of national reconciliation, it arguably represented one of the more significant steps taken since 2003.

Today, something vastly different is taking place. A few days ago, a new police commander for Mosul, Mahdi Sabih al-Gharawi, was appointed by the interior ministry in Baghdad. This prompted immediate protests by the local council, and yesterday it adopted a consensus motion that expressed disapproval of the actions of the Baghdad government and instead appointed a previous deputy commander as temporary chief of police. Athil al-Nujayfi, the brother of parliament speaker Usama al-Nujayfi of Iraqiyya, has been leading the protests against Gharawi.

The subtext of the drama is as follows. The local councils complains that the newly appointed police chief is “not from the governorate.” (He comes from Shiite-majority Wasit.) Moreover, if one looks back at Gharawi’s past career at the interior ministry, it becomes clear that he was frequently accused of  acts of torture and association with Shiite death squads during the dark days of sectarian violence in 2006. Against that backdrop, his appointment to Nineveh in the current climate comes across as particularly provocative.

Additionally, the legal procedures seem to have been subverted in this appointment too. It is unclear how Gharawi even became a candidate, since the provincial powers law of 2008 specifies a procedure in which the governor is to come up with 5 candidates, the governorate council limits the field to three and then the ministry in Bagdhad selects one. Today, the head of the security committee in Nineveh indicates that they have not been involved in selecting three suitable candidates so far.

Of course, the ministry of interior – which appears to have orchestrated these developments so far – is currently under the control of Prime Minister Nuri al-Maliki, who technically remains the deputy minister of interior. Waiting in the wings is probably Adnan al-Asadi, another Daawa operative who so far has been most successful in attracting support within the all-Shiite National Alliance as a prospective minister of interior. For these reasons, the Mosul appointment could serve as a warning about tendencies that may even grow stronger in the months and years to come. Demonstrations in favour of a US withdrawal have gained momentum in Nineveh lately, and the monster agenda recently adopted for next week’s parliament includes an item called the “law on the withdrawal of foreign forces from Iraq”. In other words, absent any voices of moderation in the last minute, it seems as if both the central government and the people of Mosul are prepared to close their eyes and go ahead with requesting a full US withdrawal according to the SOFA – all in the name of an Iraqi nationalism that is  in deep trouble in the real world of Nineveh politics.

Posted in Iraqi nationalism, Kirkuk and Disputed Territories, Uncategorized, US policy in Iraq: Leverage issues | 18 Comments »

Shiite–Kurdish Relations Get Strained over Talabani Statement on Kirkuk

Posted by Reidar Visser on Thursday, 10 March 2011 14:11

There are basically two ways of looking at the relationship between the dominant Shiite and Kurdish political parties in Iraq since 2003. One view emphasises converging interests – such as constructing a black and white narrative of the country’s past as “Sunni Arab discrimination” against everyone else; systematically playing up ethno-sectarian identities in politics; distributing leadership posts not on the basis of merit but according to ethno-sectarian quotas; and generally keeping any tendencies of the re-emergence of a strongman ruler in Baghdad in check. The contrarian position is to emphasise differences between the two, such as the tendency of many Shiites to maintain at least a façade and rhetoric of Iraqi nationalism (even if recruitment patterns may well be sectarian in practice), hold on to the vision of a mostly centralised state ruled by a strong prime minister in Baghdad, and reject the multiplication of new federal entities south of Kurdistan as well as Kurdish moves to annex additional territories outside the ones recognised as part of the Kurdistan Regional Government in the Transitional Administrative Law of 2004.

Key developments since 2005 present a mixed scorecard as far as these two competing perspectives are concerned. The new constitution of 2005 itself was of course basically the creation of the Shiite and the Kurdish parties, but there are two trends within that constitution. Some clauses favour the Kurdish view of unlimited decentralisation, which at the time resonated with the views of at least one Shiite party (SCIRI). The very limited powers of the central government and the award of residual powers to both governorates and federal regions in article 115 point in this direction, as do the provisions for creating new federal regions south of Kurdistan in what could theoretically turn in to a cycle of perpetual federalisation. On the other hand, other constitutional articles such as 121–122 point towards a more centralised form of government south of Kurdistan. Similarly, the constitutional arrangements for the end of the transitional veto-wielding presidency after the first five-year parliamentary cycle foreshadowed a potentially strong prime minister with a centralist and Iraqi nationalist language emerging in the future. Later on, the failure of the Shiite and Kurdish parties in 2007 – arguably at the point of their greatest influence – to amicably agree between themselves on an oil law and the disposition of the disputed city of Kirkuk highlighted the extent to which centralist ideals continued to make themselves felt in the Shiite camp, at the expense of Kurdish interests.

At one point between 2008 and 2009 it looked as if Nuri al-Maliki was making decisive moves towards establishing himself as the nationalist centralist enabled by the 2005 constitution, again to the detriment of the Kurds. But with the re-emergence of sectarian politics in the autumn of 2009, the Shiites refrained from re-entering into conflict with the Kurds over Kirkuk during the debate of the elections law. More recently, as Maliki emerged with a poorer result than he had hoped for in the March 2010 parliamentary elections, he saw no other option but to turn to the Kurds for support and has recently made conciliatory moves regarding Kurdish oil exports.

It is interesting, therefore, that the latest statement on Kirkuk by Iraq’s president, Jalal Talabani, a prominent Kurdish leader, seems to have once more created strains in the Shiite–Kurdish relationship. Talabani said Kirkuk was the “Jerusalem of Kurdistan”. This prompted strong reactions from Iraqis south of Kurdistan – Sunnis and Shiites alike – who objected to the connotations of “occupation” assigned by Talabani to the current situation (in which Kirkuk at least formally remains part of the central-government domain) and the concomitant discourse of an ethnic “liberation campaign” that would appeal to ethno-racial Kurdish sentiment to annex the area to Kurdistan.

Significantly, today there is a strong condemnation of Talabani’s statement by Maha al-Duri, a Sadrist leader. In a press statement also published on her website, she says that Talabani’s statement was “irresponsible”. Moreover, she went on to escalate the issue by saying that if Talabani considered Kirkuk his Jerusalem, it would “force Iraqis to consider Kurdistan their Jerusalem”. She seemed to modify that perspective somewhat when she went on to say that all of Iraq should be considered “occupied” (by the Americans) and that Talabani should understand the need for US forces to leave.

It is significant that this statement is not coming from the usual suspects. On Kirkuk and Kurdish issues more broadly, certain people close to Maliki are in the habit of making strong statements apparently without being able to influence the overall direction of policy to a significant extent. This includes Turkmen leaders like Abbas al-Bayati. Duri, on the other hand, is considered a high-ranking politician among the Sadrists who unexpectedly fell silent during the debate (or, more correctly, the non-debate) on Kirkuk during the passage of the revised election law in parliament in autumn 2009. A 38 year-old mother from Baghdad who graduated top of her class from Baghdad’s leading veterinary college in the late 1990s, Duri stands out as one the few female deputies who has asserted herself beyond women’s affairs.

Duri’s statements are not an isolated case either. Today in parliament, an interesting echo was produced by Mansur al-Tamimi, a Basra deputy from State of Law, who called for expanded powers for the governorates, but “with a strong supervisory role for the prime minister”. This prompted a Kurdish outburst and charges that Tamimi had failed to recognise the “federal” character of Iraq. Parliament speaker Usama al-Nujayfi of Iraqiyya duly sustained the objection and confirmed the standard ittihadi (“federal”) adjective for describing Iraq. But among the Shiites, those who vocally protest against “excessive centralisation in Iraq” now mostly seem to belong to ISCI, which after all is a small minority. A more immediate and material dimension to the whole affair has been provided by the recent influx of Kurdish peshmerga troops into Kirkuk, presumably to deal with potential disturbances, but a breach of past protocol according to which they have stayed away from the city.

Prime Minister Maliki himself was present  in parliament to give an update on the progress of the government and its programme. He sounded somewhat exhausted when he finally uttered the mandatory “federal” word towards the end of his speech. The Kurds may remain his best friend in troubled times, but at a juncture when the nationalist Iraqiyya is remarkably silent on Kirkuk (they are still seeking the good offices of the Kurds in their dealings with Maliki and have not said much except from some criticism from members who are themselves from Kirkuk), he is probably increasingly aware of the challenge from Iraqi Shiites who prefer to speak in the name of the centralist state.

Posted in Iraqi constitutional issues, Iraqi nationalism, Kirkuk and Disputed Territories | 25 Comments »

The Kirkuk/Census Ruling of the Federal Supreme Court

Posted by Reidar Visser on Tuesday, 26 October 2010 14:03

In the recent resurge of discussion of the planned 2010 census for Iraq, there has been much focus on the decision of the ministry of planning to scrap the “ethnicity” field from the questionnaire. This move has prompted strong Kurdish reactions  since the Kurdish leaders see the results of such a census as relevant to the settlement of Kirkuk and other so-called “disputed territories” as per article 140 of the constitution. (Typical of the complex Iraqi situation, though the minister of planning is in fact himself a Kurd!) What has received less attention, however, is that the move by the ministry has been based on a ruling by the Iraqi federal supreme court that specifically tackles the relationship between the 2010 census and article 140.

In its meeting on 19 October, the federal supreme court dealt with a request from the secretariat of the Maliki government relating to the upcoming census. The question from the government is framed as follows, “Does the census planned for December, which includes a field called “ethnicity” on its questionnaire, have any relationship to article 140 of the constitution [on disputed territories such as Kirkuk]?”

The answer from the court is interesting: It says the census law of 2008 falls within the ordinary decennial censuses that were held in Iraq in the previous century, ending with the 1997 census. The court specifically says that the upcoming census has no relationship whatsoever to article 140, and that article 140 calls for a separate count in the disputed territories. The December 2010 census, by way of contrast, is for all of Iraq.

Based on this ruling from the court, the ministry of planning has apparently resolved to go ahead without the ethnicity field, since it has limited relevance for planning purposes, all Iraqis being equal in terms of government services etc. It is an interesting ruling that should perhaps serve as a warning to the Kurds about what sort of miracles the king they are currently in the process of making will be in a position to deliver at the end of the day.

 

Posted in Iraqi constitutional issues, Kirkuk and Disputed Territories | 14 Comments »

The Kurdish Demands: Some Legal and Constitutional Hurdles

Posted by Reidar Visser on Monday, 18 October 2010 13:16

At Versailles, in 1919, in reaction to the 14 points outlined by US President Woodrow Wilson as a basis for the peace settlement after the First World War, Georges Clemenceau, the French premier, famously complained, “Even God was satisfied with Ten Commandments, but Wilson insists on fourteen”….

Today, the Kurdish leadership aims even higher, with “19 points” intended as its basis for negotiations to form the next Iraqi government. Recently, the Kurds have seen a strengthening of the fortunes, first after the failure of Iraqiyya and State of Law to talk to each other, and then a result of the partial disintegration of the projected all-Shiite National Alliance, leading to a situation in which both the Allawi and Maliki camps are seeking Kurdish support instead of choosing the more logical option of making an alliance together. As a consequence, we have the ironic situation whereby two declared Iraqi nationalists who are theoretically committed to working against the destruction of the Iraqi state in practice are trying to outbid each other in an attempt at satisfying Kurdish aims that are directed precisely at the dismemberment of Iraq as a recognisable and governable state. The other day, Aliya Nusayf of Iraqiyya declared that “the Kurdish demands will only be implemented through Iraqiyya”! What a pathetic thing to say for a representative of a party that was once critical about the constitution adopted in 2005, not least for its excessive concessions to the centrifugal forces in Iraqi society. True, Nusayf is not on the accredited list of official spokespersons of Iraqiyya, but why is she allowed to say such things with impunity? Maliki’s State of Law aren’t lagging much behind either, with Khalid al-Asadi recently declaring himself in favour of most of the 19 points with the possible exception of the rather ridiculous idea that the government automatically be considered resigned if the Kurds withdraw from it.

However, whatever one thinks of the politics of centralism versus decentralisation, in contrast to God and statesmen seeking to redefine the rules of the international community in 1919, the Kurds need to take into account certain guidelines that they themselves often claim to adhere to: the Iraqi constitution adopted in 2005. The problem is that some of the Kurdish demands cannot be implemented without abrogating the Iraqi constitution altogether.

Some of the Kurdish demands are boilerplate items that should not pose a problem, or are loose enough to be interpreted in whatever way one wishes. For example, when the Kurds are calling for “balance” in the state apparatus, they really mean that everywhere there should be a percentage of officials corresponding to the Kurdish share of the total population. In other words, they mean that professionalism as a principle should be set aside to make room for appointees vetted by the two biggest Kurdish parties. This sounds like a bad idea, but it is not something that could be done overnight and presumably there would be a degree of judicious bureaucratic resistance.

The first major problem in the Kurdish demands, from the legal point of view, is number four, the establishment of a senate within the first year of the parliament, and the extension of the veto powers of the presidency council until the senate is up and running. This is simply one hundred per cent unconstitutional and against the basic principles of separation of power. It is for the Iraqi parliament, not the government, to draw up the rules of the next senate, with a two-thirds majority. An attempt has been made at this through the work of the constitutional revision committee, but after 3 years of work (well, “existence” would be more correct) this committee has only produced a partial report. Although it does outline the provisions for a senate, it has left many other questions unanswered and cannot be voted on in its present shape. Even more importantly, the current powers of the presidency council automatically expire as soon as a new president is elected. The presidency council was a transitional arrangement for 2005-2010 only (as per article 138) and therefore it was also given strong powers; by way of contrast the next Iraqi president will have no real power, as defined in article 73 of the constitution. To change this, one would need to change the constitution which can only be done in one of two ways: Either with a special two-thirds majority in parliament followed by a referendum (article 126), or as part of the broader constitutional revision with an absolute majority in parliament and a referendum in which any three governorates can vote the changes down by a two-thirds majority in their constituencies (article 142). Again, it is not possible to seat a government based on eventualities relating to parliamentary dynamics and forthcoming referendums. What if the proposal to expand the powers of the presidency council is rejected by the people?

Similar problems apply to the tenth Kurdish demand, acceptance (by parliament!) of the latest oil and gas draft law (of 2007) “and its acceptance means recognition of the oil industry activities going on in Kurdistan and gives Kurdistan the rights to explore and export” (sic!) Again, the government cannot do anything other than introducing the oil law to parliament, which it failed to do last time due to Shiite-Kurdish disagreement. Whether the parliament agrees or not is a different issue altogether. It is worth noting that the current draft oil and gas law appears to be unconstitutional in many ways, for example by treating producing governorates and regions on a different basis, apparently giving contracting rights to regions only (and not governorates). If a right to anyone outside Baghdad to sign contracts is indeed recognised by the Iraqi parliament – and that is a big if, since it would seem to violate article 112 which stipulates shared power in strategic energy policy  – then it should apply to regions and governorates alike, otherwise it would be against article 115 of the constitution that puts regions and governorates on an equal footing in terms of residual powers. Of course, the Iraqi parliament would think twice before giving contracting rights to Basra, Maysan and Dhi Qar. Similarly, no Iraqi government can promise to “implement” the parts of article 140 that relate to referendums on disputed territories, since special legislation on those referendums would have to be passed by the Iraqi parliament.

The Kurdish leaders may not care much about the principle of separation of powers in their own constituencies, but in the rest of Iraq it still applies, or so one hopes. One may agree or disagree with the Iraqi constitution of 2005, but in areas where it is clear it should be respected – if not, one might as well abandon all the nice talk about democracy altogether, and instead stage a military coup proper. The Kurdish negotiating document is not only a step towards the complete destruction of the Iraqi state, it is also a flagrant violation of the constitution that the Kurds themselves supported back in 2005.

Posted in Iraq's 2010 parliamentary election, Iraqi constitutional issues, Kirkuk and Disputed Territories, Oil in Iraq | 20 Comments »

Let the Kurdish Drama Begin!

Posted by Reidar Visser on Wednesday, 6 October 2010 13:59

It is a pitiful sight: The two would-be saviours of the Iraqi nation, Ayad Allawi and Nuri al-Maliki, trying to outbid each other in an attempt at satisfying the author of one of the most destructive and separatist agendas for Iraq’s political future, the Kurdish leader Masud Barzani. All because Allawi and Maliki cannot trust or even talk to each other.

But that is where we finally are, some seven months on from the 7 March elections. The nomination dynamics within the recently-reconstituted all-Shiite National Alliance (NA) played out in way that suited the Kurds more perfectly than they could have ever dreamt of: The size of the internal protest against Maliki – in the range of 10-20 NA deputies – was just big enough to make him totally reliant on the Kurds, instead of having the theoretical alternative of building ties to smaller parties like Tawafuq, Unity of Iraq and the independent minority representatives. It was also big enough to keep the scenario of an alternative Allawi-led government afloat, at least in a theoretical sense, thus finally turning the Kurds into real kingmakers.

So there we are. Maysun al-Damluji of Iraqiyya yesterday said “Iraqiyya looks positively on the Kurdish list of demands”. As for Maliki’s approach, Muhammad Khalil of the Kurdish alliance said his initial response consisted of “positive signs”. Let’s not forget what the Kurdish list of demands is: It consists of 19 points aimed at finishing the project of emasculating Baghdad that was begun with the constitution adopted in 2005 (whose co-architect, Peter Galbraith, was today awarded compensation estimated in the range of 55 to 75 million US dollars from the Norwegian oil company DNO for lost business stakes in Kurdistan dating from 2004-2008 when he was also a consultant for the Kurds on constitutional issues). According to the Kurdish perspective, the constitution did not go quite far enough, so they included new ideas about decentralising the oil sector, settling territorial disputes within a new timeline and prolonging veto powers based on ethno-sectarian formulas of power sharing. Additionally, there are some new demands more reminiscent of a kindergarten logic than modern democracy, including the idea that “the government is considered resigned if the Kurds withdraw because they consider it to be in violation of the constitution.” So much for the principles of separation of power and parliamentarism! Ironically, the Kurds already seem to be in violation of a pledge reportedly made during the visit by Masud Barzani to Washington last January to refrain from raising controversial issues like Kirkuk as a basis for participating in the next government; no prize though for guessing Washington’s “reaction”, which so far has consisted of encouraging Maliki and the Kurds to talk more and get on with forming a government anyway.

The reason we finally got here is fairly simple. Since last autumn, due to its dislike of Maliki as a person, Iraqiyya has been wasting its time talking to the Islamic Supreme Council of Iraq (ISCI) and the Iraqi National Alliance (INA) more broadly, hoping to lure this half of the then still putative all-Shiite NA away from Maliki (possibly through the medium of the Sadrists). For his part, Maliki has been cultivating ties with the Kurds and to some extent Tawafuq. In isolation, none of these strategies provided numbers that sufficiently added up towards the magical 163 majority mark; the change came through the sudden change of heart by the Sadrists, who until recently were loud critics of Maliki. With a little help from Iran, though, axes were buried and Sadr began supporting Maliki’s nomination within the NA. And voila, on a more realistic basis this time, Maliki could resume his dialogue with the Kurds which has after all been in the making for more than a year.

So the question is whether Maliki can satisfy the Kurds, who felt short-changed during the previous government, and this time are demanding firmer guarantees. He will probably have problems given the considerable but often under-estimated opposition to Kurds from within his own ranks, where there are those who think of both oil and Kirkuk in centralistic terms and are generally quite critical of the Kurds: Media close to the Daawa published slander about the private jets of the Barzani family only days ago. The recently-announced government decision to postpone the planned census a couple of months – against the wishes of the Kurds – is another indication of the limited room for manoeuvre available for Maliki. But the point is that neither Maliki nor Allawi seems able to do anything else at the moment – and the Iraqi electorate seems incapable of articulating the level of disgust that this ironic twist of events so clearly warrants. So maybe we should all lean back and watch the Kurdish drama unfold for some time?

Posted in Iraqi constitutional issues, Iraqi nationalism, Kirkuk and Disputed Territories, Oil in Iraq | 42 Comments »

The Silent Drivers: The Census, Football and the Basra Region

Posted by Reidar Visser on Thursday, 23 September 2010 16:08

Several events scheduled for October might create additional hiccups for the Iraqi government-formation process. At the same time, they serve as an indicator of an unhealthy climate in Iraqi politics where personality issues prevail at the expense of ideological questions, creating illogical alliances and preventing more logical ones from materialising.

The most prominent of these issues is the census scheduled for the second half of October – Iraq’s first since 1997. Holding the census is seen as controversial by many Iraqi nationalists, including Arabs and Turkmens living in northern parts of Iraq that fell to Kurdish control during the chaos that reigned during the first days of the Iraq War in 2003. Their fear is that Kurdish dominance on the ground will create biases in the way the census is conducted, with the potential of results that may be used by the Kurds in their quest to annex some of these areas which they claim as “disputed” ones. Even though the holding of a census in itself is not a political issue, the explicit mention in the Transitional Administrative Law of 2004 of a census as a step towards the settlement of so-called disputed territories means it will be seen as political pending the resolution of those territorial issues.

In terms of policy contradictions, it is the position of Prime Minister Nuri al-Maliki that stands out in this regard. Back in 2008, when Maliki turned to Iraqi nationalism, he for a while seemed to challenge Kurdish expansionism in the north and saw his popularity increase among some Sunni Arabs and Turkmens as a result. As late as in 2009, he played a role in delaying the census one year despite Kurdish pressures to have it conducted on time as per the census law adopted by the Iraqi parliament. However, since the autumn of 2009 – as the result of a series of events that led to Maliki’s greater isolation from much of the Iraqi political establishment from the August explosions in Baghdad onwards – the Iraqi premier has been increasingly conciliatory vis-à-vis the Kurds, seeing them perhaps as his best option for a post-election alliance at a time when he was probably inflating the potential for a big State of Law victory in the March 2010 parliamentary elections. During the debate on the election law, State of Law supported “special” but ultimately extremely diluted arrangements for Kirkuk that essentially gave the Kurds what they wanted there, and went on to support the Kurds during their attempt to exploit the veto of the law by Tareq al-Hashemi to achieve a new seat allocation formula more in tune with Kurdish demands. There was some limited but not decisive rapprochement on oil exports, and the Kurds offered some support to Maliki when he came under pressure in the shape of a projected “law on electoral conduct” and the debate on the budget. Now, indications are that Maliki will support holding the census on time.

The big irony of course is that even though Maliki seems to be investing heavily in Kurdish friendships right now, that in itself can not deliver the coveted premiership to him. Just like Iraqiyya in the case of the Sadrists, he is courting kingmakers that aren’t real kingmakers. To become the premier candidate of the would-be Shiite alliance, Maliki would need to improve relations with the Sadrists; alternatively, he could start a more serious kind of dialogue with Iraqiyya with the aim of establishing a bilateral pact with them. Of course, there is added irony because in principle both State of Law and Iraqiyya oppose ceding Kirkuk and other disputed territories to the Kurds, with the Daawa traditionally being less inclined than ISCI to make compromise with Arbil. Nonetheless, Iraqiyya keeps talking to ISCI and their Sadrists friends (their voters should ask whether Ammar al-Hakim is ready to stop the census), whereas Maliki keeps talking to the Kurds (it would be interesting to learn what the more hardliner, anti-Kurdish members of State of Law – like Abbas al-Bayati, Abd al-Hadi al-Hassani and even Hussein al-Shahristani – think about the decision to persevere with the census in the current climate.)

A second possible showdown relates to the standoff regarding the national football committee – delayed for more than a year, but now also scheduled for October. Here, Maliki is facing off against prominent sports personalities that have a background in the old regime and that still receive some support internationally from FIFA, where there is a strong Arab voice within the Asian branch of the organisation. As ever, though, the conflict is not one hundred percent clear cut. Maliki has also promoted sports stars that have a background with the old regime. Rather, there is concern about the ways the government is trying to impose its own candidates to be coaches for important football clubs, as a springboard for eventually taking control of the football association itself. There is an added territorial dimension, too, with the football association and FIFA insisting on holding their elections in the Kurdish areas (“Baghdad is unsafe”), with Maliki of course preferring to have Baghdad as the venue of the elections since in his view it would be more normal for the capital to host such events. Again, the contradictions: Iraqiyya supporters in this case flocking to the Kurds with whom they disagree fundamentally on so many territorial issues; Maliki the centralist appearing to wake up again, if more reluctantly than before.

And finally, there is the reported revival of Basra federalism demands which would create even further contradictions if a referendum gets underway in earnest (such rumours also surfaced last winter).  In this case, Maliki the centralist could face challenges from his own ranks, where State of Law members in the Basra provincial council now express more pro-federal sentiment than they used to only a year ago, when a similar scheme was launched only to fail.

Posted in Basra and southern regionalism, Iraqi nationalism, Kirkuk and Disputed Territories | 28 Comments »