A.Territories in Dispute
The Saddam regime’s ouster reignited a dormant Arab-Kurdish conflict rooted in the Kurds’ quest for a homeland with a defined boundary. While the former regime recognised an autonomous Kurdish region in the 1970s, the latter incorporated only three governorates (Suleimaniya, Erbil and Dohuk), whose population was mostly Kurdish, with a smattering of Chaldo-Assyrians and Turkomans. The current conflict concerns the areas in between these Kurdish governorates and Iraq’s Arab heartland, a territory with a profoundly mixed population of Arabs, Kurds, Turkomans, Chaldo-Assyrians and others.
Although this territorial dispute has long antecedents, its current expression is of recent vintage (April 2003).35 The areas in question were not even known as “territories” before the regime’s ouster; they had neither a name nor clearly defined borders. The dispute concerns one entire governorate – Kirkuk – and parts of four others – Ninewa, Salah al-Din, Diyala and Waset – whose boundaries (including of their districts and sub-districts) the former regime manipulated and from which it expelled Kurds and other non-Arabs as part of its Arabisation policies.36
While recognising the historical presence of non-Kurds, the Kurds consider these areas to belong to “Kurdistan”, an aspiring but notional nation-state that Kurds say stretches from Iraq’s borders with Turkey and Iran to a low ridge of mountains, the first one reached when travelling in a north-easterly direction from Baghdad, called Hamrin. The term Kurdistan has clear precedent in history, appearing on various maps from previous centuries. But there never was a state called Kurdistan, nor even a region with that name that had internationally recognised borders or borders with any longevity. Successive Ottoman regions such as Mosul Vilayet and Shahrazour, which the Kurds consider coterminous with Kurdistan, were relatively short-lived and even then fit the Kurdish jacket only poorly.37
Kurds have been in a historical fight to assert their independence in an entity with clearly defined borders that roughly equates with what they consider their traditional homeland by virtue of having a majority, or at least significant, Kurdish presence. Until the present day this has been a struggle over land (who owns it? who rules it?), its people (who has the right to live there?) and its resources (who gets to develop these and profit from them?). Ever since the discovery of oil in the 1920s, the struggle has taken on a violent character marked by recurrent Kurdish insurgencies against central rule. These invariably have been met by brutal counter-insurgencies and insidious, ethnically-based policies designed to reduce non-Arab populations, especially the Kurds, who represent the largest and most potent rival national group. Kurds have been eager to break this cycle; they sensed opportunity in post-Saddam Iraq and their alliance with the U.S.
To the Kurds, there is no question what is meant by disputed territories. These are defined, they say, by the 2004 Transitional Administrative Law (TAL),38 which was incorporated into the 2005 constitution.39 Article 53(A) of the TAL states: “The Kurdistan Regional Government is recognised as the official government of the territories that were administered by that government on 19 March 2003 in the governorates of Dohuk, Arbil, Sulaimaniya, Kirkuk, Diyala and Neneveh”.40 While this does not define the disputed territories as such, it suggests they are territories that lay outside the Kurdistan region prior to the regime’s ouster. Moreover, Article 58 refers to “certain regions, including Kirkuk”, in which the “previous regime” carried out “practices in altering the demographic character … by deporting and expelling individuals from their places of residence, forcing migration in and out of the region, settling individuals alien to the region, depriving the inhabitants of work and correcting nationality”;41 it also mentions manipulation of administrative boundaries for political ends.
While this language, apart from the explicit mention of Kirkuk, may appear vague, Kurdish officials hold that it has had concrete consequences by which the location of disputed territories can be determined:
The disputed territories are areas that were subject to demographic changes or were cut off from Kirkuk. Why is there an Article 140 office in Khanaqin?42 Because it is disputed territory. You could also look at the location of property claims offices, which were established on the basis of a constitutional provision.43 None was set up in Dohuk; it is not disputed territory. The same goes for Hilla [in the mid-Euphrates region]. Dibs [in Kirkuk governorate] does have a property claims office; people living in Altun Kupri go to Dibs to submit their claims.44 These are all realities translated from the constitution.45
This definition-by-criteria is not very helpful because, for one, property claims offices are located throughout Iraq, reflecting the widespread nature of property disputes that do not necessarily bear on the question of territorial status. Moreover, location and staffing of Article 140 offices have not been free of controversy.
A more helpful indicator of disputed territories is the list included in the Kurdistan region’s draft constitution.46 However, this is a one-sided definition that itself is disputed,47 and it only reflects territories claimed by the Kurds, not other territories that potentially fall under Article 140, such as parts of Anbar governorate that are claimed by Karbala and Najaf governorates. Kurdish officials say there are 26 disputed territories.48
Even if one is to accept the Kurdish constitution’s definition as at least indicative of those disputed areas claimed by the Kurds, in each case the question arises: What are the criteria to be employed in determining whether an area originally belonged to a notional Kurdistan? Historical maps and documents have been employed by all sides to boost their contradictory cases, thereby underscoring the indisputable fact that there is a dispute. Iraq’s 1957 population census has been suggested as a scientific basis for deciding who constituted a majority and where at that time, but that was more than 50 years ago and therefore does not cover half a century of natural population growth and migration unrelated to politically-motivated and ethnically-based demographic changes. It is questionable whether an ethnic group’s demographic majority or plurality in a given area so long ago, or at any time in the past, should be the decisive criterion for determining that area’s political status today.
Given the emotive power of ethnically-based conflicts that run across centuries, it is unlikely that the struggle between members of not two but three of Iraq’s ethnic groups – Arabs, Kurds and Turkomans – will be resolved to their collective satisfaction. The most that can be expected under current circumstances is a temporary agreement covering some geographic areas. This in turn could produce agreement on a Kurdistan region boundary that might buy peace for a generation or more. The UN entered the fray in 2007 with this objective in mind.
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