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Another Iraq Deadline Passes

By Reidar Visser (http://historiae.org)

17 September 2006

According to the Iraqi constitution adopted in October 2005, legislation pertaining to the implementation of federalism in areas south of Kurdistan was to be completed “within six months of the first meeting of the new Iraqi parliament”. The first session of the Iraqi parliament was held on 16 March this year; hence the deadline for passing legislation on federalism expired on 16 September. Last week, Iraqi legislators came up with a rather dubious excuse for prolonging the deadline to 22 October: the first parliamentary meeting, it was claimed, had in fact lasted until the second one, on 22 April. (The parliamentary session on 16 March was actually completed in a matter of hours; at the time all the focus was on internal negotiations within the United Iraqi Alliance about who should be prime ministerial candidate.)

With the civilian death toll from political violence in Iraq still at an alarmingly high level, it may seem pedantic to quibble over arithmetic and the finer points of the Iraqi constitution. The delay is however hugely significant. It indirectly relates to the fundamental process of establishing a national compact where Sunni Arabs can be reintegrated into the Iraqi body politic – a process that in itself will be key to bringing an end to sectarian violence. The link is the October 2005 last-minute constitutional amendment that was designed to address Sunni concerns and that allows for a one-off batch of constitutional revisions to be completed in the first parliament, without the standard threshold of a two-thirds majority for making changes. Although the text does not say so explicitly, there was always the expectation that this process of revision would above all tackle the federalism issue, which topped the list of Sunni objections to the text of the new Iraqi charter. Thus, according to the spirit – if not the letter – of the October 2005 constitutional compromise, legislation on the implementation of federalism would follow after the more fundamental issue of federalism as a principle had been revisited during the revision process, or at the very least in conjunction with that revision.

But constitutional loopholes exist, and these are now being exploited in full by leaders who do not have compromise uppermost in their minds. The text of the Iraqi charter is less explicit when it comes to the timing of the one-off revision, specifying only that the committee charged with this task should be formed “at the beginning” of the first parliamentary session (and then complete the revision within four months of its formation). As of today, the committee has not even been constituted. Even more worryingly, there are signs that certain Shiite and Kurdish leaders are becoming more and more conservative with regard to the constitution. They tend to belittle the article that enables constitutional revision (even though it is as integral to the document as the rest of the text), and seem prepared to walk away from the entire promise to the Sunnis of future constitutional reform as a vital element in a national reconciliation package. Instead their goal may be to decouple the two issues, by rushing through legislation on federal regions early in this autumn’s parliamentary session and thereby creating a fait accompli before the revision process has even started. In that sort of scenario “revision” would be limited to adjustments of small details only.

There is now every sign that legislation on the formation of federal entities has indeed been under preparation for some time. The big question will relate to its exact wording. Under the Iraqi constitution, the demarcation of any new federal entities – whether there will be two, three, seven or for that matter sixteen federal entities – is to be carried out from below, with initiatives from the popular level or by local assemblies. But several key issues were not addressed by the constitution drafters and have been left over for specific legislation on implementation. They include questions about the permanency of the federal system established by referendums and its immunity from future referendum challenges; how to geographically define entities that are eligible for a regional referendum; and not least what to do in the case of several competing regional visions for one particular locality – will there be one referendum, or two? Will they be held simultaneously or at separate dates?

If these issues were addressed in a careful manner, the new Iraqi system could prove to be an exciting (if risky) exercise in federalism from below, with parallels to what happened in Spain in the late 1970s and the early 1980s. But, as in Spain, there is also the danger that the project may be hijacked – possibly on the pretext of security concerns – by political elites who stand to lose from too much grassroots interference with their own schemes. In Spain, local control of the federalisation process was effectively aborted in 1981, when politicians reduced the role of the local population to saying “yes” or “no” to packages finished at the elite level, within the parameters of an agreed arrangement of a maximum number of potential federal entities. Is there a danger that Iraqi parties are attempting to do something similar?

The Iraqi political party that has so far invested most energy in a particular outcome of the decentralisation process is the Supreme Council for the Islamic Revolution in Iraq (SCIRI). For the past year, they have been advocating the establishment of a single Shiite federal unit of nine provinces, extending from Basra to south of Baghdad. But they are facing opposition from within, partly from Shiites in the far south around Basra who would prefer to limit any new federal entity in the region to three governorates only (Basra, Maysan and Dhi Qar), and partly from Shiites who take no interest in federalism at all. The issue is potentially explosive in terms of geopolitics: SCIRI currently has no control over local government in Basra and Maysan and are under pressure in Dhi Qar; together these three governorates account for some 98.5% of the oil of Shiite Iraq. In other words, in case SCIRI should fail to convince the population in these areas about the virtues of their own particular vision, they would structurally be in a position quite similar to that of the Sunnis of Anbar province.

During this summer, there have been signs of considerable efforts to enforce Shiite sectarian unity south of Baghdad. Basra was quickly forgotten by the international media after Nuri al-Maliki’s much-publicised visit in late May, but the city experiences a continuing tug of war between local regionalist forces and the central government, with obvious attempts by the Maliki government to reduce the power of the Fadila party, a key protagonist of small-scale regionalism in the south. In May, Fadila called for the resignation of the commander of the tenth division of the Iraqi army; in June Maliki confirmed him in power. Also in June, Maliki at first tried to sideline Fadila in his “emergency committee”, filling it instead with Sadrist, SCIRI and independent representatives. In the latest developments, the interior ministry in July objected to a proposal from the local council in Basra for a new police chief, and Maliki in August took away all security powers from local authorities by handing responsibilities over to another emergency committee, this time made up of centrally appointed members of the Iraqi armed forces and the ministries of interior and defence. (Are these dramatic developments being dismissed as “internal ethnic affairs” by the international community?) Elsewhere in Iraq, those Shiite forces who remain sceptical to any form of federalism have come under pressure too; they include the Fadila party (whose branches in central Iraq tend to be more anti-federal) and followers of Mahmud al-Hasani (another radical preacher with roots in the Sadrist milieu). The exact mechanisms at work are not always clear – sometimes, as in Basra, it is the central government, including the armed forces, that spearheads the confrontation, in other areas security forces accused of links to SCIRI are involved. There is a danger of overstating the conspiracy factor in all of this (and claims and counter-claims about militia embroilment may be inaccurate), but it is quite conspicuous how over the last few months almost every Shiite movement that is anti-Iranian and/or opposed to the vision of a single Shiite federal entity has had a hard time.

Leaked information on the new draft law also suggests that it is largely a SCIRI enterprise. Some reports – possibly exaggerated ones – have even suggested that the text is bluntly titled “the law on the formation of the Region of the Centre and the South”! Any sort of move along such lines (i.e. with a stated preference for a particular demarcation of federal entities) would effectively pre-empt any competing federal schemes for the Shiite areas and would mark a brazen attack on the Iraqi constitution itself, which so boldly envisages a popular role in the process of defining new regions. It would mean suppressing regionalist as well as Iraqi nationalist proclivities internally among the Shiites and create a latent danger of future Shiite on Shiite violence. Not least it would alienate the Sunnis, who fear the nine-province scheme more than any other federal model and associate it with Iranian domination. Proponents of the single Shiite region may be calculating that they can capitalise on the poor security environment to win a referendum (since the February 2006 Samarra incident anti-Shiite terrorism has become the prime argument in favour of Shiite federalism), but they simultaneously run the risk of corrupting their own project if they press ahead without the special legitimacy that would accrue from a genuinely bottom–up process. If parliament should decide to go ahead with implementation at this stage, it might be wise to take extra care to create a procedure in which competing regional visions receive a fair hearing, so as to avoid dormant regionalist grievances simply being transferred to the new federal system. Perhaps the best way of communicating with popular opinion on the issue would be to keep the definition of regional entities open, but with slight adjustments to the referendum thresholds currently in the constitution: today’s arrangements allow small factions (a tenth of the governorate population or a third of the governorate council members) to stage referendums; tightening up these requirements would make for greater stability without sacrificing the democratic dimension altogether. Any federal regions emerging from this kind of procedure – whether a Shiite mega-canton or “regionalist” and non-sectarian entities – would enjoy a greater degree of popular resonance than units defined at the elite level.

To what extent an elite-level bid for instant federalism stands a chance of succeeding at all remains unclear though. Seen in isolation, Maliki’s manoeuvres in Basra could perhaps raise suspicion about an ongoing government attempt at clearing the path for SCIRI’s assertion of power in an area currently beyond their direct influence. But elsewhere in Iraq, there are signs that Maliki and some key Shiite ministers (like Jawad al-Bulani at interior) are acting more even-handedly, sometimes challenging SCIRI influences in the security apparatus established under Bulani’s predecessor, Bayan Jabr of the SCIRI-affiliated Badr organisation. And during initial parliamentary discussions about the prospect of legislation on new regions, there were indications of a re-emergence of many of those internal cleavages of the United Iraqi Alliance seen this spring during the premiership contest. Sadrists have signalled adherence to a more national, anti-federal platform, and members of Fadila from central Iraq – some of whom earlier supported SCIRI’s candidate, Adil Abd al-Mahdi as prime ministerial nominee – have now apparently realigned themselves with the Sadrist mainstream at least in the question of state structure. (Fadila explicitly criticises SCIRI for employing “security” as a federalism argument and for advocating sectarian federal units; among supporters of Muqtada al-Sadr there has been a slight shift of emphasis over the past year and they are now focusing on resistance to “federalism under occupation”. Additionally, members of parliament from the far southern governorates will want to know what chances for articulation their own small-scale regionalist vision is accorded in the draft.) The whole issue may prove to be a tough balancing act for Maliki personally: on the one hand SCIRI have clearly been courting individual Daawa members over the summer to win them over; on the other hand it should be clear that compromise on federalism represents the most promising option for future dialogue with the Sunnis. Maliki’s plan for national reconciliation launched in late June was never particularly meaty and has generated few real results – a large summit-style Arab convention to address Sunni grievances has repeatedly been promised but so far has proven elusive, with repeated postponements. In the federalism issue, Shiite moderates and centrists close to Maliki now have the possibility for using the legislative arena to achieve real political rapprochement with the Sunnis, instead of focusing exclusively on the security track. The Sunnis have gradually come to accept the idea of federalism for the Kurds, and might also be prepared to consider other models as long as the wholesale partition of the country along ethnic and sectarian lines is avoided. (A possible scheme along such lines would be asymmetrical federalism where administratively defined small-scale units, perhaps of no more than two or three governorates, can achieve status as regions, and where the option for governorates to remain within the unitary state framework is given greater emphasis – i.e. a combination of the current constitution and the Transitional Administrative Law of 2004, but with further refinement of the dualism between “governorate” and “region” status.)

As for the policy of the United States, the problem has for a long time been that Washington is unable to communicate with those Shiite and Sunni legislators whose visions of Iraq’s future state structure in fact correspond most closely to US interests. Shiite independents, Daawa figures and Sadrists, as well as Sunni Arabs of both Islamist and secularist persuasions all subscribe to the concept of a unified state with a relatively strong if not all-powerful centre and view federalism primarily a concession to the Kurdish areas – but these groups generally are not on working terms with the Americans. To some extent this situation was the result of the demonization of Muqtada al-Sadr that followed his armed uprisings in 2004. But a worrying trend in US policy-making is that the current panacea seems to be the idea of squeezing all of these groups into accepting some sort of all-encompassing federalism formula – the Dayton accord for Bosnia-Herzegovina with its neat territorial divisions is often held up as a paradigm whenever “alternative” US policy in Iraq is discussed. By following that sort of recipe, however, Washington will merely perpetuate its relationship with factions with whom it has already been in touch for almost a decade (roughly the two main Kurdish parties, SCIRI, and a relatively small number of secularists) – without achieving any rapprochement towards key segments of the “domestic” Iraqi political scene outside the Kurdish areas. Successfully converting Sunni Arabs to a pro-federal position (i.e. to make them dream of Anbar province in a federal framework) would probably be the equivalent of turning such centralist former US chief justices as John Marshall and Earl Warren into champions of states’ rights.

The alternative to this kind of Sisyphean exercise would be to do the logically opposite: tapping into existing Iraqi nationalist sentiment. Ideas about a possible four-years moratorium on any federalism south of Kurdistan have circulated for some time among Sunnis and nationalist and Islamist Shiites; this could be justified as an attempt at giving Iraq a chance to get up and running again, to function as a normal, oil-rich, bi-national (Arab–Kurdish) federation, without the perversions of the Baathist regime (the move would be constitutional as part of the special revision process). This sort of “restoration of Baghdad” is regularly called for in newspaper interviews with ordinary citizens who think federalism is merely a politician’s tool designed to facilitate the self-aggrandisement of a tiny elite. Tired of militia strife, even the regionalists in the far south – possibly the Shiite pro-federal current that enjoys the greatest degree of cross-party backing locally – might well be mollified by the emergence of a genuinely national government in Baghdad capable of addressing concerns about regional underdevelopment.

If this trend should continue to grow inside the Iraqi parliament, the United States could find a way of supporting it as a policy alternative, without interfering directly. Washington would be able to expect a vastly improved security situation in the wake of serious Shiite–Sunni rapprochement, and should therefore be in a position to offer an accelerated withdrawal of forces in exchange for postponement of the federalism issue. At the very least, US officials could make an honest attempt at spelling out the security implications (and the likely prospect for a reduced foreign troop presence) of a rapid restoration of an effective unified government south of Kurdistan – versus what can arguably be described as the more risky option of devolution, where terrorists could be tempted to interfere at every single juncture along the road to new regions, and where external stabilisation forces might be required in greater measure. By choosing this sort of approach, Washington would be able to communicate with and build on Iraqi nationalist sentiment that is present among Shiite and Sunni Islamists alike, instead of creating further antagonisms through attempts at hypnotising Iraq’s entire population into a pro-federal trance.

The federalism legislation deadline of 16 September may be insignificant in the wider scheme of things. But the process of revising the Iraqi constitution requires urgent attention, because constructive dialogue on federalism may be the single policy step that has the potential to sway the Sunnis towards reintegration in Iraq.


Other relevant articles from historiae.org on this subject:

Building Federal Subunits by Way of Referenda: Special Challenges for Iraq

(On parallels between the federal models of Spain and Iraq.)

Beyond SCIRI and Abd al-Aziz al-Hakim: The Silent Forces of the United Iraqi Alliance

(On divergent views on federalism within the United Iraqi Alliance after the December 2005 elections.)


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