David Romano. The Middle East Journal. Volume 68, Issue 4. Autumn 2014.
In the summer of 2014, the Iraqi government lost control of much of the country. Insurgents—including the Islamic State of Iraq and al-Sham (ISIS), former Ba ‘thists, and an array of Sunni tribes—captured Mosul, and then much of western Iraq. Although complex factors lay behind these developments, this article focuses on one theme of central importance: attempts to consolidate power in Baghdad and the concomitant evisceration of Iraq’s constitution. When key provisions of a very decentralizing federal constitution were ignored or violated, the blowback from disenfranchised groups in Iraq brough t the country to the brink of collapse.
In early June 2014, the Islamic State of Iraq and al-Sham (ISIS) and a constellation of Sunni Arab tribes and former Ba’thists captured Mosul, Iraq’s second largest city. Much of the Iraqi Armed Forces disintegrated, and the rest fled southward from the Sunni rebel advance. As most of the majority-Sunni Arab areas of the country quickly fell to the insurgents, Prime Minister Nuri al-Maliki’s government scrambled to fortify Baghdad’s defenses. Peshmerga (Kurdish fighters) of the Kurdistan Regional Government (KRG), meanwhile, took the opportunity to advance farther south and take control of virtually all the territories disputed between Erbil and Baghdad, including Kirkuk, which has some four percent of the world’s proven oil reserves around it. As authorities in Baghdad struggled to mount a response to the breathtaking developments, ISIS declared the establishment of a new Islamic caliphate straddling Syria and Iraq, and the KRG announced their intention to hold a referendum for Kurdish independence. More than ever before, the dissolution of Iraq suddenly appeared both likely and imminent.
What precipitated such a collapse of one of the most important states in the Middle East and North Africa region? Rather than seeing a predetermined fate that doomed Iraq after the toppling of President Saddam Husayn, the explanation provided here focuses on agency—choices made within a structural context that offered real alternatives. The structural context presented huge difficulties to be sure, with a society and political system ravaged by wars, neighboring states meddling in Iraq, and a civil war raging next door in Syria since 2011. But explanatory weight needs to be assigned to the choices that Iraqi prime minister Nuri al-Maliki and his administration made over the last several years as well. Although Prime Minister Maliki likely pursued his policies with the best intentions, the highest authorities of a state bear the greatest onus to strengthen, not weaken, its constitutional foundations. While many people warned that the 2005 Iraqi constitution’s strongly decentralizing provisions could threaten Iraqi territorial integrity, subsequent developments and the current crisis demonstrate the opposite: key elements of the Constitution’s robust provisions for decentralization and power-sharing were never respected, leading to the total alienation of Iraq’s disparate Sunni Arab and Kurdish populations. Even some Iraqi Shi’i political groups appear disaffected today, reviving old militias to oppose Baghdad’s authority. As Prime Minister Maliki assiduously worked to concentrate power in his own hands, American policy makers continued to back him almost unconditionally. In doing so, they squandered the blood and staggering sums of money spent rebuilding Iraq.
The following pages provide an overview of the key components of the Iraqi constitution that Prime Minister Maliki’s administration eviscerated. While an exhaustive treatment of all the varied factors that led to the current crisis in Iraq remains impossible to provide here, it is the author’s contention that the 2005 Iraqi constitution, despite its necessary ambiguities on many issues, provided a legal and political structure that could have led the country to a much more propitious future. This would also have required wise and inclusive leadership in Baghdad, of course. Tragically, such leadership did not come from the Maliki administration or Washington, which turned its back on a constitution it helped midwife. Efforts to form a new “inclusive” government without Maliki as prime minister will also likely fail without serious attempts to respect the Constitution’s provisions for real decentralization of power.
Writing in the early summer of 2003, Toby Dodge concludes his book Inventing Iraq with the following worry:
U.S. policy makers and their allies will have to decide if they can commit the time (up to ten years), resources, and personnel to tackle the underlying structural problems dominating Iraqi politics … Any serious postwar attempt to reform the state will have to take into account the members of the shadow state. They are still in their positions of influence across the country … The temptation of U.S. administrators, short of resources and time because of American domestic pressures, will be to use these individuals to provide oppressive and violent stability at the lowest possible cost.
Events following the overthrow of Saddam indicated that the Americans clearly had not restored “the old ruling formula.” Extensive de-Ba’thiñcation and the disbanding of Iraq’s army in 2003 through Coalition Provisional Authority Orders 1 and 2 had upended the old formula, replacing it for a time with a serious political void and a complex insurgency that reached its peak in 2006. In the subsequent race to fill the dangerous political and security vacuum that followed Saddam’s overthrow and establish a legitimate government in Iraq, the need to draw up a new constitution stood paramount. Although American officials harbored many ideas and preferences about what post-Saddam political structures should look like, the process of writing a new constitution was actually taken over by those meant to determine such things: Iraqis themselves. When the document the Iraqis, led by the Kurdish parties and Shi’a from the Supreme Council for the Islamic Revolution in Iraq (SCIRI)—later renamed the Islamic Supreme Council of Iraq (ISCI)—negotiated was put to voters in a referendum in late 2005, it garnered approval from 78% of the electorate.
This constituted the greatest possible endorsement one could have hoped for in a country like occupied, post-Saddam Iraq. Although the fact that Sunni Arabs (approximately 20% of the Iraqi population) mostly voted against the new law in 2005 proved worrisome, there was probably no way to reconcile Sunni Arab opinion with that of the Kurds, Shi’a and others at the time. Sunni political leaders had boycotted the drafting process, leaving Kurdish and Shi’i leaders (whose communities, whether or not they primarily identified as such, constituted some 80% of the population) to hammer out the new constitution: “In 2005 there were just not enough key Sunni Arab elites, or voters, who were democratic, let alone federalist pluralist, who were capable of being viable negotiating partners. There was therefore no workable political inclusion strategy for the other groupings in Iraq, short of outright surrender of their vital interests to the traditionally dominant ethnoreligious community.”
The resulting 2005 constitution offered the possibility that Iraq might break away from an 80-year-old tradition of authoritarianism. Its structure, articles, logic, and language placed Iraq within the best tradition of liberal, democratic states. The Constitution did not enshrine ethnic federalism either: although it recognized the Kurdistan Region within the borders the main Kurdish factions controlled in March 2003, it envisioned the formation of other regions (not necessarily ethnically defined) and also viewed Iraqi govemorates as enjoying the possibility of extensive autonomy. The Constitution never applied quotas for the representation of various ethno-sectarian identities, nor did it mandate a certain ethno-sectarian identity for the president, prime minister, Speaker of parliament, or other important posts. Although many of the Constitution’s articles suffered from ambiguities that later engendered disputes, such was the necessary price to achieve consensus within the time frame available to draw up the agreement. Such ambiguities also offered the advantage of allowing Iraqi federalism and governance to evolve as the country progressed.
Federalism and decentralization enjoyed little popularity at the time, especially among Sunni Arabs, who resented having it forced upon them by the Kurdish parties and SCIRI. In the Arab lexicon, “federalism” was nearly synonymous with “division.” Most Shi’a, who count themselves as some 60% of Iraq’s population, also looked forward to a rule of the majority as soon as possible (with Ayatollah ‘Ah Sistani, the most important Shi’i religious figure in Iraq, especially pushing hard for a prompt transition from the US-led Coalition Provisional Authority and the succeeding Iraqi Governing Council rule to “one man, one vote”). SCIRI support for decentralized federalism at the time nonetheless acted as an insurance policy in case the elected government failed to democratically control Baghdad. Many Sunni Arabs and secular opponents of SCIRI in turn seemed to believe that they could somehow maneuver to regain control of the Iraqi state—in which case it made good sense to want a strong government in a Baghdad that they envisioned running. They, along with some Shi’i groups such as the populist movement led by the militant cleric Muqtada al-Sadr, were Iraqi nationalists who envisioned leading Iraq.
Many different kinds of federalist systems exist, of course. In multiethnic societies pluralist federal systems are generally meant to keep the state together via institutionalized means of power sharing between the most relevant communities. This was the intent in Iraq, a country whose different ethnic and religious communities had been traumatized by decades of authoritarian misrule and a legacy of colonial control. Demanding a very decentralized form of federalism represented the only way Kurds—who had controlled an autonomous area since 1991 and were traumatized by decades of oppression, exclusion, attempted assimilation, and even genocide at the hands of Arab-led Iraqi regimes—could accept to remain part of the new Iraq. Only by having enough autonomy in their own region could Iraqi Kurds resign themselves to never leading the government in Baghdad. The Kurds thus maintained that secession was not their intention as long as a federal constitution reigned supreme, and “an autonomous Kurdistan in a democratic Iraq” would satisfy their aspirations for the foreseeable future. From an Iraqi nationalist point of view, the fear nonetheless remained that these same extensive autonomy provisions would facilitate the disintegration of the state.
As Sunni Arab leaders and their communities saw themselves increasingly sidelined and even persecuted by the Maliki government in Baghdad, however, they changed their view of the Constitution and increasingly sought succor in its federal provisions for power sharing and decentralization. Sunni Arabs, who had once lambasted the new law of the land as a Kurdish and American imposition meant to destroy Iraq, now joined their Kurdish brethren in demanding that the Constitution’s provisions be respected. The analysis below describes the key features of the Constitution, focusing on elements of the law that various communities and political actors, increasingly alienated from the Maliki government, have attempted to use in order to maintain some level of autonomy and establish some distance from the power holders in Baghdad.
Central Provisions of the 2005 Iraqi Constitution
In its preamble, the Constitution describes the new Iraqi system as “republican, federal, democratic” and “pluralistic.” The Constitution recognizes Islam as the official religion of the state and a source of legislation while also guaranteeing “full religious rights to freedom of religious belief and practice of all individuals such as Christians, Yazidis, and Mandean Sabeans” (Article 2). Shi’i religious parties originally preferred stronger wording of Islam as “the source of legislation,” but compromised with secularists on the issue. Articles 3 and 4 recognize “multiple nationalities, religions and sects” as belonging to the country, which at the same time is “a founding and active member in the Arab League and is committed to its charter, and it [Iraq] is part of the Islamic world.” This too represented a compromise between Arab and Kurdish negotiators, since the Arabs originally wanted wording recognizing Iraq as an Arab state. Article 4 recognizes Arabic and Kurdish as the two official languages of Iraq, but also guarantees other groups such as Turkmens, Assyrians, and Armenians the right to educate their children in their mother tongue in government schools. Article 13 establishes the Constitution’s preeminence throughout Iraq and states that “No law that contradicts this Constitution shall be enacted. Any text in any regional constitutions or any other legal text that contradicts this Constitution shall be considered void.”
Section Two of the Constitution lays out civil and political rights of individuals in Iraq comparable to that of any Western state. Articles 22-36 detail economic, social, and cultural liberties that go further than those of some Western states, including “the right to health care” (Article 31 ) and provisions for “the handicapped and those with special needs” (Article 32). High levels of corruption and the state’s failure to deliver basic services everywhere except in the autonomous Kurdistan Region meant that these rights have largely remained abstractions on paper. For this, a large number of Iraqi politicians and officials are no doubt responsible, of course, rather than just Prime Minister Maliki and his cohorts. Real decentralization of power in Iraq might have helped rectify this problem however, or at least spread the proceeds of corruption more widely.
Article 37 lays out injunctions against unlawful detention and torture of any kind, while Article 38 guarantees “freedom of expression using all means”—including “freedom of assembly and peaceful demonstration”—provided that the exercise of these freedoms does not “violate public order or morality.” Amnesty International’s March 2013 report on Iraq paints an unflattering picture in regard to these rights,18 and Al Jazeera’s 2013 headline on the issue was “Maliki’s Iraq: Rape, Executions and Torture.” The abuses appear to go far beyond what one might call “the grim necessities” of dealing with an insurgency, especially given that the insurgency in question was largely contained by the time the United States withdrew its forces from Iraq in December 2011.
When Sunni Arabs attempted to exercise their right to peaceful demonstration in Ramadi, Falluja, Mosul, and other cities following the December 2012 arrest of Finance Minister Rali’ al-Tsawi, Iraqi Army vehicles began running over protesters to disperse them and eventually—beginning in late January 2013—Baghdad’s troops began firing on protesters. As dozens were killed by live fire, protests began including gunmen as well, who fired on Iraqi troops. In April 2013, government forces fired into protest crowds in the northern town of Hawija and killed civilians, leading a number of Sunni Arab parliamentarians to resign and their Kurdish colleagues to boycott the parliament in solidarity. As a result, Foreign Minister Hoshyar Zebari, a member of the united Kurdistan List, was for a time suspended from his post by Prime Minister Maliki. When the Maliki government ordered the mostly Kurdish 16th Brigade of the Iraqi Army to help suppress the Sunni Arab protesters, the commander of the unit refused the order—leading to his dismissal, followed by the brigade’s defection to the KRG’s security force, known as the peshmerga (literally, those who face death). In any case, the violent treatment of what were initially peaceful protests by Sunnis provided a justification for a resumption of the Sunni Arab insurgency, culminating in the recent events of summer 2014. This was predicted some time ago. For instance, following the killing of Sunni protesters in April 2013, The Wall Street Journal quoted Nada Ibrahim al-Juburi, a politician from the predominantly Sunni, but nonsectarian opposition Iraqi National Movement, known as Traqiyya: “I think it will be the beginning of a civil war and the beginning of the country falling apart. It won’t fall apart in an easy way, it will be thousands of people dying.”
Sunni Arabs’ protests occurred in response to the continuing arrests of their political leaders, but both the arrests and the protests of them were symptomatic of the ongoing and worsening marginalization and exclusion of Sunnis under the Maliki government. As Prime Minister Maliki sought to concentrate more and more power into his office, he was forced to circumvent the elements of the 2005 constitution that addressed the division of powers, independent committees of Iraq, and various checks and balances written into the law.
Section Three of the Constitution describes the federal powers. Article 48 states that “The federal legislative power shall consist of the Council of Representatives and the Federation Council.” The former of these is the Iraqi parliament, while the latter was supposed to function as a senate for regional administrations. The Federation Council has yet to come into existence, however, especially since Iraq still only has one region (Kurdistan). According to Dr. Sherzad Nejar, an expert on constitutional law and federalism and former chancellor of the University of Kurdistan Hewlêr (Erbil), Iraq cannot properly function as a federal state as long as it lacks this Federation Council. In countries like Canada, Switzerland, and India, three or more regions together make up federal systems that work. If Iraq had several regions as the 2005 constitution intended, alliances of these regions could have emerged. Besides fostering intercommunal and interregional cooperation, such alliances could have checked the power of the federal government as it tried to overstep its bounds.
Article 65 of the Constitution also envisioned both regions and governorates making up the Federation Council. Such a council was never created. Although a complicated array of factors he behind the continuing failure to create this second chamber of federal government, part of the responsibility lies with Prime Minister Maliki and his coalition partners: they preferred that legislation only originate from the Iraqi parliament rather than from both the parliament and a Federation Council over which they might hold less influence. Iyad ‘Allawi and his ‘Iraqiyya bloc, along with the Kurdistan List, appeared to have been the biggest backers of this constitutional article that never saw the light of day. Although the Constitution said little about what exactly the powers of the Federation Council would be, or how it would be formed, good leadership in Baghdad should have been able to craft the needed arrangements. One could, for instance, have set up the council in a way that would have helped mollify ‘Iraqiyya members after they won the 2010 general elections but were denied the first opportunity to form a government. Sharing power in this way requires trust, however, which the Maliki Administration never demonstrated towards other groups.
In the Fifth Section of the Constitution, Article 61 states that parliament must approve the appointment of “the Iraqi Army Chief of Staff, his assistants, those of the rank of division commander and above, and the director of the intelligence service, based on a proposal from the Council of Ministers.” Under the Maliki government this law was increasingly ignored, as commanders were appointed to new special units such as the Tigris Force that were answerable only to the prime minister. In general, competent military commanders of other units were replaced, without parliamentary approval, by ones whose greatest virtue was political loyalty to Maliki. This process provides part of the explanation for the performance of the Iraqi Army during the summer of 2014.
Article 92 also establishes the Federal Supreme Court as “an independent judicial body, financially and administratively.” The court was supposed to oversee the constitutionality of all new laws and regulations, and to settle “disputes that arise between the federal governments of the regions and governorates, municipalities, and local administrations,” as well as disputes between “governments of the regions and governments of the governorates.” Instead of independently fulfilling these functions, the court increasingly fell under Prime Minister Maliki’s sway, with its chief justice attending political meetings and events. It was this court which issued the arrest warrant for Vice President Tariq al-Hashimi, a Sunni Arab, on charges of running death squads (he fled to the Kurdistan Region and then abroad). Iraq risk analyst Kirk Sowell describes the court’s increasing politicization thusly:
The judiciary set a troubling precedent last September when it issued an arrest war- rant for MP Sabah A1 Saidi, an independent Shia Islamist and longtime critic of Mr A1 Maliki. The action came after Mr A1 Saidi took a risk, going beyond his normal allegations of corruption to claim that a leaked intelligence report showed that Mr A1 Maliki was setting him up.
Mr A1 Maliki sought to prosecute him under Criminal Penalties Law No 111, a Baath-era statute which allows prosecution for criticism of the state. And as if that weren’t enough, the arrest warrant was announced at a press conference by a politician, Ali Al Shilah of Mr Maliki’s State of Law Coalition, not by a legal officer.
Since then, the court has obliged Maliki in his efforts to go after a number of additional political enemies, including the aforementioned finance minister whose arrest sparked widespread protests.
Section Four of the Iraqi constitution describes the functioning of independent commissions: The High Commission for Human Rights, the Independent Electoral Commission, and the Commission on Public Integrity are considered “independent commissions subject to monitoring by the Council of Representatives, and their functions shall be regulated by law” (Article 102). Prime Minister Maliki complained in December 2010 to the high court that Article 102 was ambiguous about what “monitoring [of the independent commissions] by the Council of Representatives” actually meant. In January 2011 the court issued a ruling that agreed with the prime minister’s complaint and placed the “independent” commissions under the authority of his cabinet. According to a Reuters report:
Legal experts and analysts decried the supreme court decision, which a judicial spokesman said could not be appealed. “Prime Minister Nuri al-Maliki is seeking more powers to control his government. He wants to have a strong government,” said a prominent lawyer, Tariq Harb. Amman-based researcher Yahya al-Kubaisy of the Iraqi Center For Strategic Studies called it an “unforgiveable mistake.” “It’s a clear bid by Maliki to monopolize powers,” he said.
Maliki responded to the criticisms through his media advisor, “who claimed the criticism was an attempt to cast the government in a bad light and undermine its efforts to be strong.” When, in April 2012, the widely respected head of the Electoral Commission, Faraj al-Haydari, complained about having his commission made directly answerable to Maliki, he was arrested on what many viewed as spurious corruption charges.
In contrast to the “independent” commissions, more people may be familiar with the Supreme Court’s curious ruling in the spring of 2010, following the general elections of that year. After Iyad ‘Allawi’s ‘Iraqiyya list won a plurality of the parliamentary seats in the election, the Supreme Court reinterpreted the law giving the largest seat winner the right to try to form a government first. The court mied that the law actually meant “the largest bloc of parliamentarians” rather the single party with the most elected parliamentarians. This meant that, as the leader of the largest National Iraqi Alliance (or Watani) bloc, Maliki was permitted to try to form the next government when enough other parties aligned with his State of Law Coalition party, despite having been the runner-up in the election. After Maliki gathered enough support to form the next government (a process that took almost a year and a lot of promises to Kurdish leaders in Erbil), ‘Iraqiyya leaders reluctantly accepted an offer to join Maliki’s new “national unity” government. At the time, Maliki promised to form a National Council of Strategic Policies that ‘Allawi would head. The new council would have significant powers ceded to it by the prime minister, which was supposed to soften the blow of ‘Allawi being denied the premiership despite his party’s having won the most seats. The council was never formed, however, and the aforementioned campaign of judicial intimidation of ‘Iraqiyya politicians took its place.
Section Four of the Constitution enumerates the exclusive authorities of the federal government in Iraq. The list is not long and many of these powers consist of fairly mundane issues dealing with fiscal and monetary policy, regulation of citizenship, formulating and implementing national security policy, and other responsibilities, like customs policy, issuing currency, regulating commerce drawing up the national budget, formulating monetary policy, running the central bank, managing antiquities, drawing up the general and investment budget bill, regulating weights, standards, measures, citizenship, naturalization, residency, asylum, broadcast frequencies, mail, population statistics and a census. Additionally, the federal government enjoys the exclusive rights of:
Formulating foreign policy and diplomatic representation; negotiating, signing, and ratifying international treaties and agreements; negotiating, signing, and ratifying debt policies and formulating foreign sovereign economic and trade policy.
Formulating and executing national security policy, including establishing and managing armed forces to secure the protection and guarantee the security of Iraq’s borders and to defend Iraq (Article 110).
Article 111 then goes on to specify that “Oil and gas are owned by all the people of Iraq in all the regions and govemorates.” Article 112 explains how these resources should be managed, and stipulates that the federal government share revenues with govemorates and regions, in addition to paying reparations for the deprivation of funds under Saddam Husayn. It further mandates that these policies be formulated in conjunction with regional and govemorate governments to ensure an equitable distribution of resources to the Iraqi people.
This is the extent of exclusive federal powers elaborated in the Constitution. As the language in Article 112 makes clear, however, even federal authority over oil and gas is not exclusive, but rather collaborative with the “producing govemorates and regional governments.” Article 115 then goes on to enshrine extensive decentralization of power in Iraq:
All powers not stipulated in the exclusive powers of the federal government belong to the authorities of the regions and govemorates that are not organized in a region.
With regard to other powers shared between the federal government and the regional government, priority shall be given to the law of the regions and govemorates not organized in a region in case of dispute.
Critics of this level of decentralization argued that as a result, the central government was eviscerated, lacking sufficient power to keep Iraq together and functioning. Prime Minister Maliki often complained about this, claiming there were too many constitutional limitations to his power and that the parliament was “hostile.”
Different interpretations of and feelings about Articles 110-12 and 115 thus led to enduring disputes between Baghdad and the govemorates—with the KRG in par- ticular, but also with local leaders in Sunni regions and oil-rich majority Shi’i governorates. From the point of view of the Kurdish parties, though Article 110 regards the exclusive competencies of the central government, it says nothing about oil and gas. Article 112 in turn only says that the federal government has a role, “with the producing govemorates and regional governments,” in the management of oil and gas extracted from “present fields”—a somewhat vague term which could most reasonably be interpreted to mean “fields that were in production when the Constitution went into effect” (in 2006). New fields discovered after this time, therefore, would fall under the exclusive authority of regional governments and govemorates (especially given Article 115 and its deference to regional authority). At the time the Constitution was drafted, most people seemed to think Iraqi Kurdistan and the other oil-rich govemorates did not contain much in the way of undiscovered oil and gas deposits, but this quickly proved false as speculators discovered very significant reserves in the Kurdistan Region and likely indications of such in the Anbar govemorate . Even the actual discovery of new fields proved contentious, as authorities in Baghdad claimed that the KRG in Erbil was not allowed to invite oil companies into to the Kurdistan Region to prospect for oil.
In any case, the new oil and gas finds quickly led to more vociferous disputes between Erbil and Baghdad. The KRG began signing separate contracts with oil companies, while the Maliki government insisted that all contracts had to pass through the Iraqi ministry of oil for approval, blacklisting any company that would do business with Kurdistan. For the KRG, such a procedure would translate into a federal government veto over anything they did regarding new fields in Kurdistan, and would mean complete financial dependence on Baghdad—especially given the Maliki government’s stipulation that all hydrocarbon exports and revenues go through the central government first. Lack of financial autonomy would threaten Iraqi Kurdish autonomy in general. This seemed unacceptable given the traumatic Kurdish history with Baghdad—which has included severe repression, chemical weapons attacks, and even the genocidal Anfal campaign of 1987/88. While the KRG accepted an interpretation of Article 111 of the Constitution (“Oil and gas are owned by all the people of Iraq in all the regions and govemorates”) that required them to share the proceeds of their hydrocarbons with the rest of the country, they saw no justification for Baghdad’s monopolization of every aspect of the oil and gas industry. In a 2012 interview with A1 Jazeera, KRG president Mas’ud Barzani stated that:
After spending $27bn on the electricity sector—can [the Iraqi central government] tell the Iraqi people what happened to that money and what is the condition of the electricity sector in the country? They should answer these questions instead of spending time on working against the Kurdish people. They should spend their time providing services to the people of Iraq. I would say the best way forward would be for talks to continue in order to have the oil and gas law passed in the parliament … if we wait for the temperament of a personal decision by someone in Baghdad that would not help the problem.
The 2007 hydrocarbon law to which President Barzani referred was an attempt to elaborate on the shared responsibilities described in Article 112. It was prepared with American mediation and the participation of officials from Erbil, Baghdad, and the govemorates, but collapsed under the weight of political infighting (Sunni Arab groups in particular, who still harbored a “strong central government” view at the time, worked against its passage and the Maliki government obliged them). A subsequent 2011 attempt at a hydrocarbon law that would have centralized all oil and gas authority in Baghdad was drafted by the Maliki government without KRG participation but, unsurprisingly, rejected by the KRG. That same year, the energy committee of the Iraqi parliament—in which Kurds (along with various Sunni and Shi’i political groups) had representation—drafted a different compromise hydrocarbon law, but this was rejected by Maliki’s cabinet.
The Maliki government believed that even in the absence of a hydrocarbon law, all oil contracts, management of fields, and all exports of oil must pass through the federal oil ministry. Adviser to Iraq’s deputy prime minister for energy affairs ‘Abdullah al-Amir claimed that in 2013, only one-third of the KRG’s oil revenues (from unsanctioned tanker trucks going from Iraqi Kurdistan into Turkey and Iran) are being transferred to the central government: “There is no record of what is happening to the [other] two-thirds of production, where the revenues are going, what prices the oil is sold at.” The Maliki government claimed that Article 112 of the Constitution gives it the lead role in formulating “the necessary strategic policies to develop the oil and gas wealth in a way that achieves the highest benefit to the Iraqi people.” If KRG officials were not signing the best possible contracts with oil companies, or not forwarding some of their revenues to the rest of Iraq, then this part of Article 112 was being violated. This worry appeared quite legitimate to the Iraqi central government. A hydrocarbon law that genuinely instituted a shared management of oil and gas between Baghdad, the regions, and governorates (rather than leaving any actor with monopolistic control of the industry) would have addressed such risks.
Abdullah al-Amir summed up more of his government’s perspective in the following way:
If you have one part of the country producing and exporting and selling the oil, then Basra, the southern part, will do the same, and the other governorates will do the same, and this will have no government planning … There will be no [central] government revenues because each governorate will do whatever it wants. This is against the constitution of Iraq.
The Maliki government thus interprets Article 111 of the Constitution (“Oil and gas are owned by all the people of Iraq in all the regions and governorates”) as meaning that Baghdad controls the oil and gas industry, since only the federal government represents “all the people of Iraq.”
Such a view enjoys wide popularity both inside and outside Iraq, including amongst US government officials, but this is not what the Constitution actually says or appears to intend in Articles 110-112 and 115. If oil and gas were supposed to be controlled exclusively by the federal government, they would have joined the list of these powers in Article 110, and Article 112 would not limit itself to the language of “present fields” or “The federal government, with the producing governorates and regional governments, shall undertake the management of oil and gas extracted from present fields” (Article 112, emphasis added). As Brendan O’Leary made clear in 2009, “present fields” offer the federal government ample resources and:
There will be a sufficient revenue base, from present oil and gas fields, for a work- able federal government, including enough for it to meet its significant security obligations. Iraq’s present fields have long lives ahead of them. As and when regions other than Kurdistan develop, there will be a corresponding reduction in the necessary revenues for the federal government to execute its functions, especially if the regions exercise their constitutional right to monopolize internal security … The Constitution spells the death warrant of a highly centralized Iraq, but it delays the execution—to enable the regions and provinces to grow.
Allowing regions and governorates physical control of revenues from new oil and gas fields (with the proviso that these revenues be shared across the country as per Article 111) would have created a check on Baghdad’s power and provided Kurds, Sunnis, and southern local leaders a greater stake in Iraq. Although fiscal federalism can involve many different kinds of arrangements, this sort of decentralized revenue mechanism could have mitigated local distrust of central government authorities, disappearing funds in Baghdad, federal indifference towards the development of some govemorates’ oil and gas fields, and a tendency towards renewed authoritarianism. Such reasoning appears to have helped bring Sunni Arabs around to the KRG’s position on federalism and decentralization. In September 2013, the Nineveh govemorate’s provincial council granted Governor Athil al-Nujayfi “the power to sign deals with foreign oil firms independently of Baghdad, which immediately rejected the move.” Nujayfi had already begun talks with various international oil companies (IOCs) and the process of drawing up model product sharing contracts (PSCs). According to Reuters, he stated that “We are not ready to wait for decades until the CMDE runs out from the south to start energy investment in Nineveh province.” An unnamed senior Maliki administration official responded that “The government will not tolerate such a decision, whether from Nineveh or any other province,” to which Governor Nujayfi responded that “Neither the central government nor the oil ministry” have the right to stop him from developing the energy resources of the governorate. Leaders in other govemorates have likewise clamored for rights similar to what the KRG is claiming, and the Constitution’s language appears to support their claims.
In a country that derives some 90% of its revenues from oil and gas, the hydro- carbon issue remains central, but complicated. The issue bedeviled Baghdad-Erbil relations throughout Maliki’s terms in office. When the Maliki government failed to scare off IOCs from investing in the Kurdistan Region (some 50 IOCs have now done so, including giants such as Exxon, Chevron, and Gazprom), it withheld payments to the companies from Kurdistan’s share of the national budget, after which the KRG stopped pumping oil into the national export pipelines and began developing its own export infrastructure. In November 2013, KRG leaders arrived at an “understanding” with Turkey to export their oil and gas in large quantities, and they completed their independent pipeline to Turkey (relying in part on a federal government pipeline they requisitioned) shortly thereafter. Baghdad responded to the first large-scale KRG oil exports in January 2014 by cutting off the Kurdistan Region’s 17% share of the national budget, although the Kurds had offered Baghdad full access to their metering station to ascertain how much oil was being sold. The KRG repeated its willingness to forward 83% of revenues to Baghdad (after deducting IOC payments and operating expenses, the same way Baghdad does before calculating Erbil’s 17% share of the national budget), but refused to have the payments for their oil deposited into a bank account in New York controlled by the Maliki government. Disputes over how Baghdad calculates its expenses before determining Erbil’s 17%, along with constitutionally sanctioned KRG claims for reparations from Saddam-era crimes likewise continued to fester.
By the time Sunni insurgents captured Mosul and much of central and northwestern Iraq in June 2014, the KRG had already loaded its first oil tankers at the Turkish port of Ceyhan with several million barrels of cmde oil destined for the international market. The United States had joined the Iraqi central government in pressuring potential international buyers against purchasing oil from the KRG, and at the time of this writing, only Israel had come forward to purchase one shipment of the tankers’ cargo. Ironically, the Maliki government’s attempts to force the KRG into submission on the oil and gas issue pushed it towards a more independent stance, lessening the incentive to remain within Iraq. Prior to 2013, the KRG would have likely remained content with exporting its oil through federal government channels, and with receiving its payments for oil and gas through some national level committee on which Kurds had an important role—if Baghdad had recognized Erbil’s management of its own fields and the agreements the KRG signed with IOCs. The same local powers enjoyed by the Kurdistan Region could have applied to the remaining govemorates in Iraq, giving politicians and communities there more autonomy and helping to reconcile them with the Maliki government.
Regarding the issue of creating new regions, leaders of some majority-Shi’i and Sunni Arab govemorates tried to pursue their rights under Article 119 (which concerns the creation of regions within Iraq) after 2010, to disastrous results. Although not the only incident of its sort, events that followed the Diyala Governorate’s attempt to become a region exemplified how this article of the Constitution was being respected by the central government:
Baghdad-controlled security forces were quickly mobilized to the province, thou- sands of Shia demonstrators stormed the provincial government headquarters, unidentified armed groups blocked major highways and members of the mainly Sunni political bloc that sponsored the measure fled the province ahead of arrest warrants. Almost simultaneously, serious disputes erupted between Maliki and two of the most prominent national Sunni politicians who had supported Salahuddin’s and Diyala’s calls for federalism. One of them, Vice President Tariq al-Hashimi, fled to the Kurdistan region to escape his own arrest warrant for alleged involvement in assassination plots. The other, a deputy prime minister, has had his cabinet participation frozen.
Prime Minister Maliki justified his response to Diyala leaders’ actions under Article 119 by claiming he could not accept initiatives that are “based on sectarianism.” He had no legal basis to refuse them on these grounds (the Constitution does not give such powers or discretion to the prime minister). Maliki then announced new justifications for ignoring the Diyala and other regional initiatives, based on the inclusion in their boundaries of as yet unsettled “disputed territories” described in Article 140. In effect, the judiciary “declined jurisdiction” over the case, purportedly at the behest of the Maliki government. This action demonstrated Maliki’s ability and willingness to “close off legal channels for addressing local frustration over excessive central control” by using whatever branch of government necessary.
As a result, other than Kurdistan, no additional regions have come into existence in Iraq. The new regions that political leaders in the governorates of Diyala, Salah al- Din, Basra, Wasit, and Kut tried to form were not ethnically defined—they simply represented local efforts to carve out more space, away from an increasingly narrow, unresponsive, and even repressive regime in Baghdad. By permitting the creation of regions on any basis people preferred, the 2005 Constitution allowed for a kind of federalism that could comfortably house “stans” (such as Kurdistan) with other kinds of regions not based on ethnic or religious identities.
Articles 120 and 121 give regions the right to determine their own structures of governance as long as they do not contradict the Constitution. In case of a contradiction in legislation on matters outside the exclusive domain of the federal government, regional law takes precedence. Regions are also “responsible for all the administrative requirements of the region, particularly the establishment and organization of the internal security forces of the region such as police, security forces, and guards of the region” (Article 121 ). This provision allowed the Kurds to retain the peshmerga. Although the retention of troops outside the the federal government’s monopoly of force has elicited a lot of criticism, all the constitutional promises on paper meant little to most Kurds (given Kurdish history in Iraq) without some additional means of restraining central power in Baghdad. However, the juxtaposition of an armed Kurdistan Region determined to guard its autonomy and extend its writ into disputed territories with a prime minister in Baghdad determined to consolidate power was often described as the most dangerous issue facing Iraq. This author knows of no other federal state in the world wherein a regional security force serves as an independent counterweight to that of the central government, yet the arrangement under the circumstances nonetheless proved wise in hindsight: as the Iraqi army fled southwards in the summer of 2014, it was the Kurdish peshmerga that remained in the area to fight ISIS.
A similar logic arguably might have prevented the Sunni Arab rebellion in summer 2014. Had the Sunni governorates been permitted to become a region or regions, they could have become responsible for their own security. This was precisely the sort of arrangement that tamed the Iraqi insurgencies plaguing the country until 2008. Beginning in 2005, the US-led Multi-National Force—Iraq (MNF-I) under General David Petraeus began recmiting, arming, and paying Sunni Arab tribes to turn on al-Qa’ida in Iraq and support the government in Baghdad (al-Qa’ida’s brutality and misdeeds helped convince them as well, of course). The strategy proved even more important to stabilizing Iraq than the arrival of a surge of additional American troops, effectively bringing a state many thought was lost back under control. When they agreed to join the Iraqi government and coalition forces in fighting the insurgents, Sunni Arabs also demonstrated a willingness to try to trust the central government. They were promised a continuing role (and salary) in providing security for their communities after the Americans withdrew their forces from Iraq. These promises were broken by the Maliki government; salaries stopped being paid and, with a few exceptions, the Sahwa, or Awakening, Councils (also known as Sons of Iraq), Sunni tribal militias loyal to the central government, were not integrated into the Iraqi security forces. Instead, campaigns of arrests of Sunni leaders and repression of Sunni protests began.
Article 122 addresses the powers of governorates that are not incorporated into a region (which includes 15 of Iraq’s 18 governorates given that the Erbil, Sulaymaniyya, and Dohuk governorates constitute the Kurdistan Region). Governorates are to elect both a governor and govemorate councils to run themselves, which “shall not be subject to the control or supervision of any ministry or any institution not linked to a ministry.” The councils will also enjoy “independent finances” and those govemorates not incorporated into a region “shall be granted broad administrative and financial authorities to enable them to manage their affairs in accordance with the principle of decentralized administration …” Article 123, however, adds that “Powers exercised by the federal government can be delegated to the governorates or vice versa, with the consent of both governments …” Still, such language is fairly vague and Article 123’s provisions seem to foresee a dynamic process in which governorates, unwilling or unable to handle some issues, can turn to Baghdad for help.
Although some observers expressed cautious optimism regarding how these laws might, under the right conditions, empower local governments, others describe a result clearly at odds with the intent of Articles 122 and 123:
… consider how centralized administration of the governorates by Baghdad works at present. Governors and provincial councils have limited direct budgets, no control over local public-sector hiring and no formal say over projects undertaken by federal ministries within their provinces. In many cases, the bulk of the security forces operating in the governorates report directly to the prime minister’s office, and access to the minority share of capital-investment funds given to provincial councils requires a laborious series of approvals from multiple ministries in Baghdad.
Article 140, along with aforementioned articles on oil and gas resources, shares the distinction of having created the most controversy in post-Saddam Iraq. Known as “the disputed territories law,” Article 140 stipulates that: 1) people expelled from Kirkuk and other regions during previous governments’ Arabization campaigns be allowed to return and be compensated for their losses, and settlers brought in under previous regimes return to their places of origin in the south—a process called “normalization;” 2) a census be conducted in the disputed territories; and 3) a referendum be held to determine if the people of these areas wish to remain under Baghdad’s federal authority or become part of the autonomous Kurdistan Region. The issue here relates to the accidental but now official boundaries of the Kurdistan Region, which were deter- mined by how far Saddam’s military forces retreated after the creation of the northern no-fly zone in 1991. At the time, Saddam’s forces retained control of many oil-rich and predominantly Kurdish-inhabited areas. These districts ended up just south of the constitutionally recognized borders of the Kurdistan Region, which wanted to incorporate the majority Kurdish-inhabited areas (and presumably much of the oil there as well) into their administration. Most Arab and Turkmen residents of these disputed territories strenuously rejected such inclusion, however. Successive governments in Baghdad promised to carry out Article 140’s provisions, but the issue remained politically toxic within the Arab Iraqi electorate.
In late 2010, Prime Minister Maliki nonetheless promised the Kurdish parties again that Article 140 would be enacted as a condition for their support of his new government following the March 2010 national elections. In Maliki’s defense, he had little choice at the time but to accept Kurdish demands if he wished to form a government. Being seen to “surrender Kirkuk” to the KRG would have likely amounted to political suicide for Maliki, however, so he remained unable to fulfill this promise even had he wanted to. None of the article’s provisions were carried out as a result, and the disputed territories continued to create tension within the Iraqi political system like a sword of Damocles. When the Iraqi military fled southwards in June 2014, however, the KRG simply advanced its forces into the territories, promptly claiming virtually all the land in dispute with the central government. With the extent of their territorial claims in hand, Kurds now feel prepared to secede from Iraq if necessary.
Since he took office in 2006, Prime Minister Nuri al-Maliki has managed to make many Iraqi nationalists even more distrustful of strong central government than the Kurds. Once ardent centralists like former prime minister Iyad ‘Allawi, Nineveh Governor Athil al-Nujayfi and Deputy Prime Minister Salih Mutlak (all Sunnis or leaders of majority Sunni lists) changed their views during Maliki’s tenure as Prime Minister. In 2012, Mutlak offered the following view:
The way Al-Maliki is dealing with the provinces is pushing the people toward the option of federation. About 99 percent of the people of Al-Anbar had rejected federalism in the past. These days, however, they are asking for it in order to dissociate themselves from the central authority that they consider to be an unjust authority. They know that they will lose on the economic level but the cost is their dignity that they wish to safeguard. They want to be delivered from the raids and detentions and the absolute control of the central authority. I do not support federalism nor am I one of its proponents. However, I understand why the Iraqis insist on it. I am afraid that one day the citizens would want to form a region but would not be able to do so.
Why did Maliki make the choices he did? Ah Khedery, the US official who helped elevate Maliki to the prime minister’s office in the first place, describes a man with a difficult past, extremely distrustful and even prone to conspiracy theories. A Shi’i dissident against Saddam Husayn’s regime, he spent some three decades engaged in clandestine opposition work across the Middle East, all the while worrying about possible government assassins. After 2003, Maliki got his start in government chairing a committee on de-Ba’thification, which Khedery called “an organization privately celebrated by Shiite Islamists as a means of retribution and publicly decried by Sunnis as a tool of repression.” Maliki was put forward for the prime ministerial post in 2006, when the different political parties could not agree on any candidate of stature:
The only man we knew with any chance to win support from all Iraqi factions—and who seemed likely to be an effective leader—was Maliki … Although Maliki’s history was known to be shadowy and violent, that was hardly unusual in the new Iraq.
Although Prime Minister Maliki initially functioned reasonably well in his office, by 2008 he apparently had grown more comfortable with his leadership post and his autocratic tendencies began to manifest themselves. Above all, Maliki refused to trust any of the other political actors in Iraq—leading to political choices and strategies that created a sort of self-fulfilling prophecy. As he consolidated power, opposition around him grew, leading him to perceive needing to further consolidate power.
One might object that despite all the alleged misdeeds of Prime Minister Maliki, his State of Law Coalition nonetheless won a plurality of the votes in the April 2014 general elections. Maliki increased his share of the vote among his Shi’i constituents, gamering 92 seats in parliament. Maliki himself cites this electoral result as justification for another term in the prime minister’s office and for his refusal to form a new, broad national unity government. This, however, poses a more vexing question: If very large numbers of Shi’i voters support Maliki’s behavior during the last eight years, do they lack even the most basic levels of trust and empathy for their Sunni and Kurdish Iraqi compatriots? If so, and especially in light of recent events in Anbar and the Kurdistan Region, the national fabric of Iraq may be tom beyond repair. It seems highly uncertain whether or not other high level members of Maliki’s Shi’i Islamist movement, the Islamic Da’wa Party, would take a much different approach towards the Constitution and its provisions for decentralization of power.
In any case, Iraq’s 2005 constitution was supposed to provide a framework to prevent a return to autocratic rule from Baghdad—no matter how popular the prospect might appear to some segments of society. The analysis here provided an overview of how key elements of that constitution were ignored or subverted since it came into effect in 2006. If the constitution had any fatal shortcomings, they likely had more to do with insufficient safeguards to prevent the kind of political strategies in which Maliki engaged. The law probably invested too much power in the prime minister’s office rather than too little.
There may be no other way to explain a tragedy wherein other Iraqi political actors—Kurds, Sunni Arabs, and other Shi’a mostly—placed their trust in the prime minister the last time he formed a unity government in the wake of the 2010 elections. Instead of keeping the power-sharing promises he made to the other parties at that time, Maliki went on to occupy the posts of not only prime minister, but minister of defense, minister of the interior, minister of state for national security, and commander-in-chief of the armed forces all at the same time. He held these ministerial posts until the crisis of summer 2014. In addition, he created tens of thousands of special “counterterrorism” troops answering only to him, along with a half dozen disparate spy agencies under his command.
Ample warnings about the real problem in Iraq have abounded for some time for those who wished to listen. Narav Salahaddin’s warnings in Al-Monitor from May 2013 provide a good example:
Iraq has a major problem associated with the central government, making the post- invasion state-building process a failed experiment. The Shiite-controlled government in Baghdad adopted a centralist doctrine in contravention to the constitutional federal principle. Isolating the two main minorities, Kurds and Sunnis, from the executive branch in Baghdad has intensified latent ethno-sectarian conflict. The re- cent upsurge in violence is a result of a malfunctioning central government lacking sufficient unity and geopolitical influence.
Yet somehow Washington continued to back Prime Minister Maliki almost unconditionally until ISIS’s growth and conquests forced everyone to look for a new prime minister to promote. In doing so, the US may have shown more commitment to Iraq’s territorial integrity than to its constitutional integrity. The analysis here and recent events suggest that commitment to the latter would have proven more effective at securing the former. Instead, American policy makers seemed to acquiesce to what they worked so hard to end just a few years before: a restoration of the “old ruling formula” in Iraq. The resistance that this style of governance engendered in much of Iraq has brought the country to its present precipice. The threat that ISIS poses to both Shi’i and Kurdish forces today may not even be enough to unite these actors or reconcile more moderate Sunni Arabs to the regime in Baghdad.