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Iraq in a stage of post-federalism

Gulan Media December 30, 2012 Reports
Iraq in a stage of post-federalism

While Kurds have no right to impose a federation on the rest of Iraq, they have every right to insist on federacy arrangements for Kurdistan as one means through which they can exercise national self-determination.
Brendan O'Leary
The necessity of separation as a result of violence is not the only logic regarding the resolution of conflict, however. . . . Conflict endings are reliant on the intervention of outside mediators, or the depth of hostile perceptions held by the two sides, or the balance of military power between them.
R. William Ayres

If Iraq Violates Federalism,
What will the Kurds Decide?
Post-federalism as a term is not used in this report to mean after federalism. Since the prefix "post-" is used in political and philosophical terminologies to denote the end of the stage, most of the modern theorists prevent using it when they want to refer to the end of a stage and the beginning of another stage, and they prefer using "late" instead. For instance, when it is said post-Saddam, it means the stage after his reign, or when it is said postmodernism, it means, according to French school of thought, modernism ends and another stage begins. Accordingly, this report intends to say that federalism as political philosophy to organize multi-ethnic and multi-national states, and as a self-rule and shared-rule system within a state, comes to a standstill. Moreover, any attempt to modify this process is likely to fail and it seems impossible to make the post-Saddam Iraq a state of pluralism and federalism.
Multi-national Federalism and Vetoing Restrictions
Kurds in Iraq have no right to impose federalism on Arabic Iraq. Yet, they have their right to set out conditions regarding concord and remaining within the state of Iraq. The conditions that the Kurds provide to remain within the structure of Iraq should be respected by both the federal government of Iraq and Kurdistan Region as it is mentioned in the constitution. The question arises here is what are the conditions that the Kurds insist on so as to remain within Iraq? The Kurds insist on the following conditions:
1. Recognizing that Iraq consists of both Arabs and Kurds as two main nations and respecting the rights of other ethnic minorities.
2. The system of governance must be multi-federalism. At least, there should be both Iraqi government and Kurdistan regional government. If another region is created, it is better; if not, Kurdistan region should be recognized within its historical and geographical boundaries and should include all the areas that are regarded as Kurdistan. This means that there should be a kind of unity between Arabs and Kurds in Iraq and each, within its own historical and geographical boundaries, has a right to have cultural, national, and political specification and develop its own economic interests.
The conditions are written in the constitution, yet both of them are threatened by the authority of the federal state in Iraq. Since the people of Kurdistan have had a bitter history with the previous Iraqi regimes, they have right on their side to worry about this history in order not to suffer the genocide again, and to insist on the principles that protect the federal system in Iraq. Moreover, they have a right also to be in full alert so as to challenge all the attempts that are taken in order to back Iraq to the one-party and totalitarian state. Hence, it is important to shed light on the elements that protect the federal system in Iraq:
First, in the main, living within federal states is free and by choice, rather than by force. For instance, the French people of Québec have voted in two referendums so far to decide whether they should pursue a path towards sovereignty. However, these actions have not been interpreted by the Canadian government as a threat to the unity of the country, but rather they have been seen as the Québécois rights to determine their future. Both the English and the French speakers of the country realize that it is better to be united and also to coexist in a single, powerful, and prosperous state. Unfortunately, the Kurds are not entitled to freely choose their self-determination as they were forced to live with the Iraqi Arabs by historical and international circumstances. This imposition makes the Kurds feel that they are not part of Iraq and that they are not free. After the fall of Saddam in 2003, Kurdistan's political leaders hoped that the new Iraqi leaders would think differently and compensate for the losses that the Kurds have suffered in Iraq so that the people of Kurdistan, like the people of Québec, could live with the Arabs in Iraq peacefully. Yet, over the past decade, they have tried to play out the same scenarios that the former Soviets and Yugoslavian leaders did in their countries. What we have learned from these countries is that they were disintegrated and faded out on the world's political map.
Second, violating democratic principles and moving towards authoritarianism and a one-party rule are evidences of the failure of multi-federalism. This can be seen apparently in the Iraqi government's policy. History shows that these policies will lead a state to disintegration, e.g. Pakistan and Yugoslavia.
Third, another reason which makes a state disintegrated is the belief that one nation is the main and another is the minor, e.g. though the south of Sudan agreed to live within the state of Sudan, it is ultimately separated and gains its independence.
Fourth, there should be a fair distribution of income and a balance in economic development. Kurdistan Region agreed in the constitution to return the income of the natural resources to the federal government of Iraq so as to be distributed fairly among all Iraqi peoples. Yet, the central government creates difficulties for the Kurdish share of the country's income, does not provide the annual budget for the ministry of Peshmarga, and argues that the Kurdish are getting an unfairly large share of the income. This kind of maltreatment is another reason for the failure of multi-national federalism and it may lead to separation and disintegration of the country, e.g. Czechoslovakia.
Fifth, the continuation of the policy of erasing ethnic identity and the insistence on the policy of invasion and maneuvering to terrorize the people create a feeling, on the part of the minority, that concord with this kind of mentality is impossible. For instance, when the Iraqi prime minster changes the disputed territories—which are also defined as such in the constitution—into mixed areas, it means that the government violates a constitutional article 140. Rejecting this article, for the people of Kurdistan, means returning to Arabizatin and forced migrations that the former Iraqi regimes did against the Kurds, Turkmen, and Christians. Thus, this move creates a threat to the unity of Iraq and the Kurds will not agree on this.
Each of what is stated above is an indicative of the failure of federalism and all of them are present at the same time in Iraq, which create by itself the main threat to the unity of the country and the future of its federations. Yet, the question arises here is if there is an attempt to modify the political process in the country, how does one manage to move Iraq in the right direction of Federalism?
Federal system or multi-national federalism needs some kinds of preparatory measures and a kind of veto, on the part of minorities, to remain within this unity. These preparatory measures can be summarized as follows:
1. Multi-national federalism must be a free unification between Kurds and Arabs in Iraq. That is, both nations should know that this unification is for the advantage of both. It is not possible to be suggested or imposed by the third party.
2. There should be a referendum on the part of the minority over the agreement that unified both nations in terms of federalism.
3. It is important for the central government to believe that one of the ways for the success of federalism is democracy and a strong infrastructure based on the principles of liberal democracy. That is, the implementation of constitution and the sovereignty of law should be taken as priorities. Then, the state should provide the means for a free election and freedom of thought and expression.
4. The relationship between the two nations, Kurds and Arabs, must be on the basis of mutual understanding and mutual respect to each other.
5. There must be an agreement on the distribution of incomes in which both sides agree on oil and gas law as it is one of the elements that created a tension between the two, and because the central government wants the law to serve its interests, rather than the interests of all the groups and sects of Iraqi people.
6. Above all, there should be a kind of constitutional measures to prevent any attempt which intends to back Iraq to centralism.
7. The power-sharing must be both horizontal and vertical and the different sects and ethnic groups should have their given share in the ruling process of the country according to the size of their population.
8. The central government must adhere to the constitution and must not be allowed to make changes in the size of the different sects and groups in the process of power-sharing. If it did this, the groups should have a veto right to reject it.

How can the ethnic conflicts
be resolved after the failure of Federalism?
In 4/10/1992, only four months after Kurdistan Parliamentary election, the parliament decided to choose federalism as a model to remain within Iraq. This decision had been argued from 1992 to 2003 among Iraqi opposition parties as a step towards separation, rather than unification and concord. Yet, after holding two conferences in both the University of St. Gallen in Switzerland and also in Mustafa Barzani Centre in American University's Centre for Global Peace entitled "Kurds are the Key of Stability in Iraq", Iraqi oppositions agreed that Kurdistan Region be a federal region in Iraq. After the fall of Saddam, Kurdistan Region with its boundaries before 2003 became a de facto federal region within Iraq. Since then, Iraq has been a federal state in appearance, but in reality no step has been taken towards this. However, there is now a tendency to back Iraq to centralism. This means that what the Kurdistan region and its Parliament suggest to solve the problems with Iraq is not taken into account by Baghdad.
After ten years of the fall of Saddam, still Kurds have problems with the centre and the crisis has reached the point that it may lead to military confrontation. This shows that the problems with Baghdad have been more complicated since 2003 and that the prime minister has the intention to make the conflict worse by changing it to Arab and Kurd conflict instead of the conflict between the Kurds and the government in Baghdad. This can be seen as a dire threat in the history of Kurdish conflicts with the Iraqi governments. Hence, we, as the Kurdish People, have the right to ask: How does the conflict end? Can it be solved peacefully by means of dialogue or otherwise? In this respect, R. William Ayres in his study, "Separation or Inclusion? Testing Hypotheses of the End of Ethnic Conflict" maintains that after the Cold war, ethnic conflicts have become a key phenomenon in international relations, and become the subject of inquiry by many scholars and politicians. Some long-running conflicts cannot be solved peacefully, although they made real progress towards peaceful solutions, e.g. Palestine, Kashmir, and Kurdistan can be also included. All of this raised a key question in the minds of both scholars and policy makers: Can these conflicts be resolved peacefully? Or are the participants doomed to cycles of violence and revenge?
Solutions Are Various
But What Will End the Conflict?
To end the ethnic conflicts, there are various solutions, but the question is what kind of solution is better than the others, or how can one, among the others, choose the one that will end the conflict for good? To Ayres, "violent ethnic conflict by its very nature leaves only one possible solution: the permanent separation of warning groups" . Yet, this solution per se entails a logic which may have serious policy consequences as what it is true for one country may not be true for another. Hence, the conflict demands the third party to interfere, e.g. NATO, UN, or USA. Despite the interference of the third party, the solutions more often doom to failure and lead to the emergence of more violence tensions, e.g. Bosnia and former Yugoslavia. If the scales of violence reach to the point of genocide and ethnic cleansing, concord and coexistence will become impossible within one state, e.g. Kurdistan Region. Since, to date, the international community has not left this option open, Kurdistan region has been obliged to look for possible solutions otherwise. This possible solution, which is also suggested by scholars, is the interference of a third party so as to have an effective role to play and provide peaceful solutions to the conflict. Yet, the interference of the third party, in the case of our country, should not be the only option unless the level of violence that is committed against the Kurds should be taken into consideration. Moreover, the solution should guarantee the Kurdish rights. That is, if the Kurdish people are not provided with the right of self-determination, the conflict cannot be solved. On the other hand, in case, our people are not allowed to form an independent state, the authority of their institutions should be at a level that can be used effectively to protect the people from any possible attack from the central government. In other words, the sufferings of the Kurds should be taken into account, when it comes to any agreement that aims at ending the conflict. In this respect, scholars assume possible solutions which can be presented as follows:
1. When the level of violence reaches to mass killings and ethnic cleansing,—for example, what the former Iraqi regime committed against the Kurds in Halabja and the process of Anfal—the possible solution is separation. Although there are nations in Europe who committed many crimes against each other, they are now members in the European Union. Yet, they are unified nation states and have their own sovereignty. Thus, the Kurds may, after gaining independence, seek such kind of unification with Iraq.
2. So far, the Kurdish question in Iraq has been remained unsolved for a century and there has not been a real intention on the part of Iraqi regimes to solve this question fundamentally. If self-determination means pursuing independence for a nation, it can also be seen as the right to live in concord with another nation, e.g. Québec.
3. Another important point which the current government in Iraq intends to scheme against is the destruction of the balance of power between Peshmarga and Iraqi Army. The Iraqi government wants to re-establish the new Iraqi Army based on discrimination and marginalizing the Kurds and other minorities. This can be inferred through its attempts to sign many arms deal which will make the Iraqi Army dominant and may lead to settling the conflicts by force and backing Iraq to the cycles of civil war and persecuting the minorities.
4. Another factor which is brought to the fore in these assumptions is the way of dealing with the question. That is, those approaches that are taken by both sides and the one that is taken by the third party. For example, both sides state that the conflict should be solved peacefully based on the constitution. Yet, the problem is still there. Thus, this kind of situation needs the third party to interfere with its diplomatic and practical forces so as to find a mechanism for implementing the constitution. No one, now in Iraq, believes in judicial authority and the court except Maliki and Islamic Dawa Party as the court is used for their advantages.

The Authorities of Kurdistan Regional Government
Are Not Gifts from the Central
Government, Thus They Are Uncompromising
We, as people of Kurdistan, being part of Iraq or not, must have independent authorities separate from the central government's authorities. The difference between an independent state and a federal state is that in the former defense and foreign ministries are independent, while in the latter are shared between the central and the federal regions. Since Iraq chooses a federal system of government in which the power of the central government is limited, it should also accept the fact that the system of governance is based on both power sharing and independent governance. Kurdistan Region should also be able to protect its rights that are mentioned in the constitution. Hence, returning Kurdistan areas outside Kurdistan Region becomes a de facto.
Here, some may ask how can it be possible for Kurdistan Region to be part of Iraq and has an independent governance at the same time? The possible answer for this question is that Kurdistan Region has had eleven years of successful self-rule and now it can protect itself from Maliki's military and diplomatic maneuvering. Moreover, constitutional rights become prerequisites for Kurdish people to remain in Iraq by choice. Hence, the Iraqi government should either reach an agreement with the Kurds, or it may follow what Milosevic did in former Yugoslavia. However, the Iraqi prime minister neither has Milosevic's reputation among the Shiite, nor has the power that Milosevic had in former Yugoslavia. Besides, the former Yugoslavia was not under chapter seven of the charter of the United Nations. Above all, preserving peace and stability in Iraq is the responsibility of the United States and will not allow Maliki to threaten this stability by maneuvering against the Kurds. Thus, there should be an agreement between Kurdistan Region and the central government to settle the conflicts. Brendan O'Leary, who predicts what is happening now in Iraq before drafting the constitution, writes in his study "Multi-national Federalism, Federacy, Power-sharing and the Kurds of Iraq":
Kurds . . . have to consider their options if the rest of Iraq chooses not to accept any mutually agreeable model of a bi-national, multi-regional federation. One option would be for Kurds to insist on a distinctive ‘federacy’ agreement35. They can say that they will accept the rest of Iraq choosing to be unitary, or indeed choosing to be a centralized US-style national federation, provided that Kurds themselves have a ‘federacy’. A federacy is a federal arrangement that is not a part of a system-wide federation; it creates a semi-sovereign territory different in its institutions and constitutional competencies from the rest of the state; it creates a division of powers between the federacy and the central government that is constitutionally entrenched, that cannot be unilaterally altered by either side, and which has established arbitration mechanisms, domestic or international, to deal with difficulties that might arise between the federacy and the central government. Federacy is autonomy that is not devolution; it is not a revocable gift from the central government; it is domestically constitutionally entrenched so that the federacy can veto any changes in its status or powers; and, ideally, its status and powers are internationally protected in a treaty. In short, while Kurds have no right to impose a federation on the rest of Iraq, they have every right to insist on federacy arrangements for Kurdistan as one means through which they can exercise national self-determination. In this scenario they would probably seek looser powersharing arrangements in the central government, especially in foreign relations, while seeking to protect the cultural and human rights of Kurds outside Kurdistan .