Oil for soil: toward a grand bargain on Iraq and the Kurds

I.Introduction

After propelling their peshmerga fighters into these territories ahead of U.S. forces and establishing de facto control in April 2003, the Kurdish parties’ chief strategy for formally incorporating them into the Kurdistan region has been mostly – albeit not entirely – peaceful and legal.⁷ At key points during the country’s constitutional and political development, the Kurds inserted operative clauses designed to facilitate their quest. In the process they created a legal record attesting to the legitimacy of their claim and the non-violent means deployed to realise it.

Their strongest weapon has been the constitution, which the vast majority of the electorate approved in a referendum in October 2005. Article 140, in particular, provides for successive steps – “normalisation”,⁸ a census and a referendum no later than 31 December 2007 – whose full implementation the Kurds believed would fulfil their ambition.⁹ Qader Aziz, the Kurdistan regional government (KRG) presidency’s Article 140 envoy, identified three guarantees that helped allay the Kurds’ deep distrust of the Iraqi government (in which the Kurdish parties are represented, but as a minority): Article 22 of the 2006 governing accord, which set deadlines for “normalisation”, census and referendum, and which was approved by the council of representatives;¹⁰ the preamble to the constitution, which arguably gives the Kurds an opt-out-of-Iraq clause in case the constitution is not implemented;¹¹ and the December 2007 referendum deadline contained in the article itself.¹²

Kurdish leaders chose this path because they believed that through their alliance with the U.S. and their presence in the principal state institutions they could force Article 140’s implementation. They also strongly consider that theirs is a just cause to which any reasonable person should subscribe,¹³ whose realisation has suffered unnecessary and unfair delays¹⁴ and which requires no compromise.¹⁵

The Kurds’ chosen method has not brought them the intended results, however. The December 2007 deadline passed without a referendum. Following mediation by the UN Assistance Mission for Iraq (UNAMI), headed by the Secretary-General’s special representative for Iraq, Staffan de Mistura, five top Iraqi leaders agreed to delay Article 140 and accepted UNAMI’s offer to facilitate its implementation during the following six months.¹⁶ No progress was made in the subsequent period, so the 30 June 2008 deadline not only passed without any result, but also without a new extension or even a public statement of any sort. The Article 140 process had died in the eyes of most actors, save the Kurds, who insisted this was merely another delay, not a cancellation.¹⁷

Faced with a political debacle at home,¹⁸ the Kurdish leadership pulled out its trump card: its veto power over legislative progress, and even over the government, in Baghdad. A Kurdish official said, “the Kurds could withdraw from Iraq. But Kurdish leaders are not ready to do that. Still, we could put pressure on the federal government as a tactic. We could agree to form a new government only on the basis of its agreement to implement Article 140”.¹⁹ Another official put it even more bluntly: “If I can’t have it my way, I’m going to block your way. If there is no solution to Kirkuk, then there will be no provincial council elections in Kirkuk, no review of the constitution and so on”.²⁰

Even before the June 2008 deadline had passed, the unresolved question of Kirkuk and other disputed territories had started to contaminate negotiations over both critical pieces of legislation, such as the long-awaited hydrocarbons law and the electoral law, as well as the constitutional revision, which has been at a standstill since 2006.²¹ The most dramatic example came with the deadlock over the provincial elections law in July 2008. When the council of representatives tried to pass a bill that would have paved the way for governorate-level elections by 1 October, an ad hoc coalition of legislators headed by members of the minority Turkomans inserted an amendment that sought to remove Kirkuk elections from the mix. They proposed that such elections be held only once parties there had agreed that the three largest communities would divide provincial council seats equally among them, setting aside some for the Christians.²²

Kirkuk’s Arabs and Turkomans oppose provincial elections in Kirkuk, fearing they would lose as a result of what they term demographic manipulations by the Kurds since April 2003. They have learned the consequences of defeat – the Kurds have succeeded in advancing their interests since gaining control over the provincial council in January 2005 – and do not want to repeat the exercise.²³ Instead, they insist on a pre-agreed 32-32-32-4 per cent power-sharing formula that would divide senior executive positions in Kirkuk governorate as well as seats on both the provincial and city councils equally among Arabs, Turkomans and Kurds, with a small share for the minority Christians. Moreover, they claim that Jalal Talabani, the Iraqi president and an ethnic Kurd, agreed to such a formula when he visited Kirkuk in January 2008.²⁴

By contrast, Kurdish leaders are neutral on whether to hold or postpone elections in Kirkuk; either way, they calculate, they would come out ahead. If elections are conducted, they are convinced they will win; if they are postponed the current council, which the Kurds dominate, would continue to perform its duties. And while they accept the power-sharing formula proposed by Arabs and Turkomans in some instances, they adamantly oppose it as it pertains to the provincial council and accept it for the governorate’s administration only if it pertains to all positions, not just senior ones.²⁵ The Kurdish chairman of the provincial council, Rizgar Ali, said he would consider power sharing on the council but not under the formula proposed by the Arabs and Turkomans: “Yes, we agree with power sharing, but the Kurds should not lose the majority they gained [in the January 2005 elections]”.²⁶

The council passed the law with the Kirkuk amendment over a Kurdish walk-out on 22 July. Subsequently, it was vetoed by two members of the presidency council, Talabani and Vice-President Adel Abd-al-Mahdi (a senior official in the Islamic Supreme Council of Iraq, ISCI, which is allied with the Kurdistan Alliance), who sent it back to the council. There it remained stuck on the Kirkuk clause, and the council went on summer recess without setting a firm date for provincial elections, despite enormous pressure from the Bush administration.

In late September, UNAMI brokered a compromise. Legislators passed the law, setting elections for fourteen governorates no later than 31 January 2009²⁷ and (in Article 23) stipulating a separate process for Kirkuk without prejudging the eventual power-sharing arrangement. However, while this solved the problem of provincial elections in the rest of Iraq, it did little to break the deadlock over Kirkuk: Arabs and Turkomans continue to press for the 32-32-32-4 formula on the provincial council, which Kurds will be able to block in the yet-to-be-created committee charged with reaching a consensual decision.²⁸

The original proposal to take the Kirkuk question out of the electoral law, which delayed successful passage for more than two months, came from Turkey. Ankara pushed the initiative through its Turkoman allies in the council of representatives. This is an index of the degree to which the Kirkuk question has become internationalised and the influence countries such as Turkey (and, on other occasions, Iran)²⁹ can bring to bear.³⁰

In August, amid growing tensions over the elections law, Prime Minister Nouri al-Maliki’s government, which had begun to assert itself vis-à-vis non-state actors (Muq­tada Sadr’s Mahdi Army, al-Qaeda in Iraq (AQI), the Sunni “awakening” councils), turned its sights on the disputed territories. Claiming the state’s sovereign rights throughout Iraqi territory, and using an on-going offensive against al-Qaeda in Iraq fighters in Diyala governorate as cover, federal troops pushed into three sub-districts that the Kurds consider disputed and had been under the KRG’s de facto control since April 2003; they threatened to displace the KRG in the disputed Khanaqin district as well. If the three sub-districts (Jalawla, Saadiya and Qara Tepe) have a mixed population of Arabs, Kurds and Turkomans,³¹ Khanaqin is heavily Kurdish and is viewed by Kurds as a symbol of Saddam Hussein’s expulsion campaign.³²

Maliki’s move stunned the Kurds, who saw it as a harbinger of a resurgent central state intent on suppressing them.³³ Moreover, they feared that if they made any concessions in Diyala governorate, Maliki would challenge them next in Ninewa and Kirkuk. Some saw an Iranian hand behind Maliki’s offensive; others decried the apparent bystander role assumed by the Kurds’ U.S. ally.³⁴ But what the two events – severe legislative hiccups over the Kirkuk question and federal military inroads into disputed territories – demonstrated was how central the territorial question has become in Iraqi politics and the risks it poses to longer-term stability.