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Can Baghdad-Erbil relations be based selectively on Iraqi constitution?

By Paul Iddon 9/5/2018
A private guard stands before a campaign poster for Rebwar Taha Mustafa, a PUK MP and candidate in oil-rich Kirkuk, on April 30, 2018. Photo: Sabah Arar | AFP
A private guard stands before a campaign poster for Rebwar Taha Mustafa, a PUK MP and candidate in oil-rich Kirkuk, on April 30, 2018. Photo: Sabah Arar | AFP
Kurdish leaders are once again insisting that Iraq fully implement its constitution as the basis for a fair partnership in light of the upcoming elections in the country and the gradual normalization of ties between them following the fallout from the Kurdish referendum last year. 

Upon outlining his reasons why the Kurdistan Region should have a referendum on independence, before the fateful vote on the matter last September 25, Kurdistan's former president Masoud Barzani declared that: "Kurdistan was forced to make its decision because Iraq failed to commit to its constitution and partnership." 

Barzani's comment follows a consistent policy on his part since the 2003 regime change in Iraq. Kurds committed to partnership with Baghdad but came out of it dis-advantaged and, at times, outright marginalized. Kurds invariably pointed to Iraq's failure to uphold the articles of the Iraqi Constitution as a major sticking point in the partnership. Differences first came to a head under the tenure of Iraqi Prime Minister Nouri al-Maliki, whom Barzani initially trusted until he sent the Iraqi military to Khanaqin, one of the disputed Kurdistani territories, in March 2008, then provocatively set-up the Tigris Operations Command military force in Kirkuk under his direct control and engaged in standoffs with the Peshmerga, in 2012, and later completely cut off the Kurdish share of the Iraqi federal budget, in February 2014. 

A brief thaw came under the current leadership of Prime Minister Haider al-Abadi during the war against the Islamic State group. Abadi initially said that he would simply dismiss the Kurdish referendum as meaningless and not send tanks to the area if the vote went ahead. Barzani also stressed that he would do his utmost not to undermine the incumbent Iraqi premier through the holding of the referendum. Nevertheless, shortly after the September 25 vote took place Abadi closed Kurdistan's airspace and sent troops, and tanks, to takeover Kirkuk and the other major disputed territories between Baghdad and Erbil. 

Even after beginning to normalize strained ties by reopening of Kurdistan's airports this year and re-sending the region its share of the federal budget, for the first time in four years, Abadi arbitrarily slashed the Kurd's constitutional share from 17 percent to 12.5 percent under the dubious pretense that the 17 percent share does not accurately reflect Kurdistan's actual population.

Now, ahead Iraq’s parliamentary election on Saturday, Kurdish leaders are stressing the need for Iraq to fully implement the constitution as the basis for a successful partnership. 

"It is the responsibility of any Iraqi government to enact all constitutional articles," Masrour Barzani, the Chancellor of the Kurdistan Region Security Council, recently stated. 

"We will work so that Kurds will go to Baghdad with a single stance on the issue to obtain the rights of the people of Kurdistan, and the implementation of the constitution, especially Articles 140 and 132," he pledged. 

Article 140 unequivocally states that the disputed status of regions such as Kirkuk should be resolved by a referendum "to determine the will of their citizens." Baghdad was supposed to implement this article by the specified deadline of December 31, 2007, but never did. Niyazi Mimamr Oglu, a Turkman MP in the Iraqi Parliament, recently argued that the Kurds need to come to accept that "Article 140 is dead." 

The first paragraph of Article 132 states that: "The State shall guarantee care for the families of the martyrs, political prisoners, and victims of the oppressive practices of the defunct dictatorial regime."

Baghdad never implemented either of these articles, even though in the immediate months after the referendum Abadi more than once cited the Iraqi Constitution as the legal framework through which his government and the Kurds can resolve their differences. However, it has often been a one-way street with him using it against, for example, Kurdistan's referendum and to justify his takeover of Kirkuk while simultaneously ignoring or neglecting several other important articles, such as the aforementioned two.  

Lahur Talabany, the head of the Kurdistan Region's other intelligence agency, also has Iraq's constitution on his mind these days, particularly Article 140. He recently argued that Kurds were "arrogant for a long time and Article 140 was neglected." 

"We should have tried harder while Mam Jalal was in Baghdad," he said, referring to his late uncle Jalal Talabani, who was leader of the Patriotic Union of Kurdistan (PUK) and President of Iraq. Talabani went on to argue that his uncle had a vision for co-existence between Iraq and the Kurdistan Region which "included the right of self-determination" and believes that if the Kurds get enough votes Baghdad cannot ignore their stance on Kirkuk nor continue to administrate that region on its own, as it has since taking it over last October. 

These stances from these two Kurdish leaders from the autonomous region's two most powerful political parties indicate that the ball is in Baghdad's court. If it is serious about equal partnership with the Kurdistan Region and demonstrates that it is not seeking to dismantle its autonomy, as Abadi has hinted he wants to do, then many of the primary conditions that Kurdish leaders quite reasonably argued necessitated a referendum on independence will no longer apply. To prove its sincerity all Baghdad needs to do is fully implement all articles of the constitution, particularly Article 140, in order to conclusively prove that this opportunistically cited document is not in fact dead. 

If Baghdad proves less than forthcoming on these straight-forward points in the coming months, however, it will once again demonstrate that the Kurds were right to conclude that any partnership with it was ultimately destined to fail, that they would always be treated as a subordinate rather than an equal partner and that secession was the only way to achieve their rights and unhindered self-determination.

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