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A man reads a booklet about the Iraqi draft constitution in the holy city of Najaf October 9, 2005. [Iraq will impose special security measures including travel restrictions and a gun ban for several days on either side of an October 15] referendum on the new constitution, the government said on Saturday. - PBEAHUNWKED
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The constitutional context for Iraq’s latest crisis

Scott R. Anderson
Editor's Note:

To achieve an enduring reconciliation in Iraq, both the Iraqi government and the Kurdistan Regional Government will eventually need to reach a political agreement that not only resolves the key issues underlying the conflict but is consistent with—and reflects a shared understanding of—Iraq’s constitution. As Scott Anderson writes, doing so will almost certainly require renewed engagement from the international community. This piece originally appeared on Lawfare.

For the past three weeks, the central government of Iraq has been engaged in an unprecedented military campaign to re-assert its authority over the country’s internally disputed territories. An explicit response to the Kurdistan Regional Government (KRG)’s recent decision to hold a referendum on independence, the offensive quickly recaptured the contested city of Kirkuk, which—like much of the disputed territories—had been under the KRG’s de facto control for several years. This in turn severed the KRG’s access to the significant oil wealth around Kirkuk, dealing a serious blow to any hopes of secession. Federal Iraqi forces have since pushed even further into the disputed territories, up to the edge of the Kurdistan Region and at times threatening to push past it in order to reestablish control over border crossings, pipeline hubs, and other facilities the Iraqi government maintains should be under federal control.

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Recently, however, there have been some signs of de-escalation. Both the Iraqi government and the KRG have indicated that they are willing to negotiate, though the preconditions remain a subject of debate. The parties agreed to a temporary ceasefire last weekend to allow security dialogues, which appear to be tenuous but ongoing. And last Monday the KRG’s powerful President Massoud Barzani—a forceful advocate for Kurdish independence and the lead proponent of the independence referendum—announced his resignation, removing a potential obstacle to dialogue.

Echoing calls from the international community, both parties have said that negotiations will take place within the framework of Iraq’s constitution. This posture is consistent with the Iraqi government’s framing of its military campaign, which it has consistently described as a “federal operation aimed at restoring federal authority” as assigned by Iraq’s constitution. And for the KRG, Iraq’s constitution not only guarantees Iraqi Kurds certain rights that are especially important in defeat, including to continued self-government in the Kurdistan Region, but gives some recognition to their own claims.

While this equipoise allows both sides to point to the constitution as a touchstone for reconciliation, it has also contributed to the present conflict. A product of a heated and condensed negotiation process, Iraq’s constitution sacrifices clarity for consensus, as its authors addressed major disputes in ambiguous terms in hope that future political processes would resolve them. As these processes failed, each of the parties seized on these ambiguities to legitimize their respective positions and at times further them through domestic and international legal processes.

To achieve an enduring reconciliation, both the Iraqi government and the KRG will eventually need to reach a political agreement that not only resolves the key issues underlying the conflict but is consistent with—and reflects a shared understanding of—Iraq’s constitution. This includes certain provisions that require concrete steps of the parties, such as a census and referendum. Further, recent history shows that the parties will likely not be able to implement these provisions on their own. Instead, doing so will almost certainly require renewed engagement from the international community.

A Failed Process in the Disputed Territories

The disputed territories at issue in the present conflict run along the Kurdistan Region’s southern border, where they overlap with several major oil and gas fields. Despite the Saddam Hussein regime’s brutal displacement of Kurds and other groups as part of its “Arabization” efforts, the area contains a diverse population that often lives in mixed communities. While Iraqi Kurds have made demographic and historical claims to the disputed territories for decades—infamously going so far as to describe Kirkuk as “our Jerusalem”—other groups contest these claims.

Iraq’s post-2003 interim government settled on a rough process for resolving the status of the disputed territories, which it set forth in Article 58 of the pre-constitutional Transnational Administrative Law. Article 140 of Iraq’s constitution in turn incorporates Article 58 by reference. While Iraq’s constitution places the disputed territories under federal authority, Article 140 makes the Iraqi government responsible for implementing “normalization” policies intended to unwind the effects of Arabization. These policies are then to be followed by a census and a “referendum in Kirkuk and other disputed territories to determine the will of their citizens[,]” which will be used to resolve the territories’ status (though how is left unclear). Article 140 establishes a deadline of Dec. 31, 2007 for these measures, but provides no guidance on what should happen if this deadline is not met.

This omission’s significance quickly became apparent as both the December 2007 deadline and an agreed-upon six-month extension passed with little progress. Several normalization policies proved controversial and stalled—in part over objections to new Kurdish settlement in advance of the referendum. A national census was repeatedly and then indefinitely delayed due to fears that it would be conducted unfairly or stoke further sectarian conflict, even after Iraq’s Federal Supreme Court determined that Article 140 required a “special census” separate from any national one.

By 2010, then-Iraqi Prime Minister Nouri al-Maliki was publicly suggesting that Article 140 is “drafted in such a way that it cannot be implemented,” necessitating a constitutional amendment. Others began to describe it as a “dead item” no longer having legal effect. But for Iraqi Kurds—who widely believed that the results of the referendum would support making the disputed territories part of the Kurdistan Region—this apparent willingness to ignore Article 140 only cast further doubt over the legitimacy of the Iraqi government’s own claims of constitutional authority.

Creating Facts on the Ground

The collapse of the Article 140 process created new incentives for competition in the disputed territories. Absent any credible legal mechanism for resolving the territories’ status, the KRG began to expand its efforts to gain leverage in any future conflict or negotiation by acquiring de facto control of—and building institutional ties to—strategic areas.

While KRG-associated peshmerga forces had been deployed in parts of the disputed territories since 2003, the scope of their operations expanded over time, often under the auspices of responding to internal security concerns. KRG administration and resources frequently followed, particularly in areas with Kurdish populations. By 2009, these efforts had resulted in a hotly contested “trigger line” that split the disputed territories—including Kirkuk—between Iraqi government and KRG control. Tense stand-offs and occasional exchanges of hostilities became common, though active mediation by the United States and others was able to stave off a broader conflict.

However, this situation changed in June 2014 when a surprise ISIS offensive caused federal Iraqi forces to abandon many of their positions along the trigger line. The KRG responded by moving its forces into Kirkuk and other strategic areas, protecting them from ISIS while simultaneously bringing them under its control. As the peshmergawent on to play an important role at the front lines of the counter-offensive, the KRG applied the same strategy to areas it helped to liberate, gradually bringing more of the disputed territories under its control.

Holding these areas was essential to protecting their civilian populations from further ISIS atrocities. Yet statements and actions by the KRG’s leadership—culminating in the recent referendum on independence, which the KRG administered throughout the parts of the disputed territories under its control—made clear that the KRG had no intention of relinquishing its control once the threat from ISIS had receded. Indeed, many Iraqi Kurds saw control of the disputed territories and the referendum on independence as fulfilling the intended promise of Article 140.

Control over Oil and Gas

Further compounding the parties’  territorial dispute is the Iraqi constitution’s ambiguous distribution of authority over the country’s oil and gas resources.

Article 112 of Iraq’s constitution makes “[t]he federal government, with the producing governorates and regional governments,” responsible both for managing oil and gas extractions “from present fields” and for setting related “strategic policies.” While it explicitly anticipates that subsequent legislation will delineate how these authorities will be exercised, efforts to pass a federal oil and gas law have repeatedly failed.

The Iraqi government maintains that Article 112 makes the management of oil and gas resources a federal responsibility. The KRG, however, argues that Article 112 only applies to “present fields” in operation at the time that the Iraqi constitution was ratified in 2006. Further, as no other constitutional provision explicitly addresses the exploitation of new oil and gas resources, the KRG contends that this power should be reserved for the regions and governorates.

Pursuant to this theory, the KRG has aggressively pursued its own contracts with international oil and gas companies. Over time, these contracts have increasingly included resources in the disputed territories, reinforcing the KRG’s claims to those areas. The Iraqi government has consistently objected to these contracts as unlawful and refused to recognize them. And while it has allowed some resulting exports to pass through the country’s federally-controlled pipeline system, disputes over related cost- and revenue-sharing have led to frequent stoppages.

In 2013, however, the KRG finalized its own pipeline, which intersects with an existing transnational pipeline at the Turkish border. Pursuant to an agreement with Turkey, the KRG began to use this pipeline to unilaterally export oil and collect the resulting revenue. Unsuccessful at securing an injunction from Iraq’s Federal Supreme Court, the Iraqi government initiated several international legal actions challenging the KRG’s ownership of the exported oil. Successful at limiting the market for Kurdish oil exports, these cases each hinged on the parties’ respective domestic legal authority over oil and gas, effectively exporting their constitutional dispute.

The parties ultimately put this struggle on the back-burner as the Iraqi government and KRG reached a temporary agreement on oil exports to fund counter-ISIS efforts. Yet the combination of this export capacity plus control of Kirkuk promised to dramatically increase the KRG’s economic independence. This helps to explain both the Iraqi government’s early focus on Kirkuk and its ongoing efforts to re-establish control over the border crossings and pipeline facilities that made KRG oil exports possible, even where they are within the Kurdistan Region itself.

Implications for the Future

If and when the present conflict comes to an end, any progress toward reconciliation is likely to be slow. Both Iraq and the KRG will hold elections in 2018, making major compromises unlikely in the short-term. And the immediate focus of any negotiations will likely be on interim measures to de-escalate the conflict and restore cooperation on areas of common interest, such as the fight against ISIS.

Any more permanent resolution the parties eventually reach, however, will need to be reconciled with Iraq’s constitution. Failing to do so will leave it vulnerable to invalidation by Iraq’s Federal Supreme Court or future repudiation as ultra vires, compromising its durability. While constitutional amendment is an option, it would require both a supermajority in Iraq’s parliament and approval by a nationwide referendum. Hence, the easiest path forward would likely be to simply comply with the Iraqi constitution as it currently stands, including Articles 112 and 140.

Fortunately, neither provision need be read as onerous. The KRG’s own legal expert argues that  Article 112 makes the exploitation of new oil and gas fields subject to “strategic policies” that the Iraqi government formulates “with” regional governments, giving a properly enacted federal oil and gas law primacy. And while Article 140 requires both a census and referendum, it does not define the subject matter of the latter. As the United Nations has previously suggested, a referendum could simply be used to ensure public approval in the disputed territories for a settlement negotiated by the parties, allowing for a range of possible dispositions in Kirkuk and elsewhere.

Whichever approach is taken, a joint statement by the parties—attesting their shared understanding that the constitutional requirements at issue are satisfied—will help mitigate the risk of constitutional invalidation. And while Iraq’s Federal Supreme Court could arrive at a contrary interpretation, its historical reticence to take an independent stance in these disputes makes this seem unlikely.

Distrust and suspicion of self-dealing will also make it difficult for the parties to implement a mutually credible census and referendum on their own. Instead, an independent third party will be needed to provide technical expertise, develop options for implementation, and serve as both neutral observer and mediator. The most likely candidate is the United Nations Assistance Mission for Iraq (UNAMI), whose extensive experience in Iraq and substantial prior work on the disputed territories make it well-qualified for this role. UNAMI will, however, require a new mandate from the U.N. Security Council that is independent of the Iraqi government’s direction and control. Further, the Security Council itself will need to remain actively engaged to encourage progress and ensure that the broader international community supports and reinforces the reconciliation process.

Ultimately, the likelihood of any permanent resolution to the conflict may be low. For 15 years, half-steps and temporary measures have allowed the parties to co-exist without compromising their claims to the disputed territories or oil and gas resources. The same may prove true moving forward. Yet the longer these core disputes—and the constitutional ambiguities that help perpetuate them—are left unaddressed, the more intractable the parties’ positions are likely to become. Further delaying resolution may thus only plant the seeds for a future conflict that is far more devastating.

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