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

B.A New UN Role

The premise was that the great majority of Iraqis living in these districts would have voted according to their ethnicity, given that most parties are either predominantly Arab or Kurdish or Turkoman. In so doing, it was believed, they would indirectly have suggested their preference for that district’s territorial and political status.⁴⁹ The district-based results have not been made public but were available to UNAMI through its association with the Independent Electoral Commission of Iraq (IECI) that organised the 2005 elections.⁵⁰

The way forward had two stages: formal expansion of UNAMI’s mandate and a more prominent UNAMI role once the referendum deadline had passed. On 10 August 2007, the UN Security Council adopted Resolution 1770, instructing UNAMI and the special representative for Iraq, “at the request of the Government of Iraq”, to “advise, support, and assist … the Government of Iraq and the Council of Representatives … on the development of processes acceptable to the Government of Iraq to resolve disputed internal boundaries”.⁵¹ A month later, Secretary-General Ban Ki-moon appointed Sweden’s Staffan de Mistura to replace Ashraf Qazi of Pakistan as his special representative for Iraq. De Mistura’s first public act was to persuade Iraqi leaders to delay implementation of Article 140 given that they were going to miss the deadline. This cleared the way for a fresh approach.

UNAMI could not have assumed this new role without active U.S. backing. As part of the surge, Washington’s strategy had undergone a remarkable makeover in 2007, including an alliance with former Sunni Arab insurgents, who set up awakening (sahwa) councils.⁵² This alliance had consequences for U.S. relations with its post-2003 allies, the ruling parties. The Kurds in particular felt the impact keenly. A series of events in the second half of the year suggested that the U.S. began to shift from supporting the Kurds’ approach on Kirkuk (ie, that the issue should be resolved via Article 140) to backing a negotiated settlement.

The Security Council resolution was the first such event. It instructed UNAMI to identify “processes” (ie, not solely the Article 140 process) that were “acceptable to the Government of Iraq” (no mention of the KRG) to resolve “disputed internal boundaries” (ie, rather than the status of disputed territories, as the constitution demands). In permitting processes other than Article 140, the international community, and particularly Washington as the resolution’s lead author, appeared to signal a departure from exclusive reliance on the constitution.

The Kurds thus took two hits: rhetorically, the UN did not feel bound to a constitution that the Kurds, in its operative clauses on the disputed territories, had phrased in their self-interest; practically, the outcome of UN efforts would be unpredictable, unlike the Article 140 process, which the Kurds had carefully designed to produce incorporation of all the disputed territories they claim into the Kurdistan region. For example, negotiations could force a territorial compromise in which the Kurds would obtain only some of the disputed territories, perhaps excluding Kirkuk; or they could perpetuate the status quo. Moreover, negotiations would take time, while the Kurds had hoped to rush the process based on Article 140’s deadline.

The Kurds suffered a second setback in early December, when the parties’ representatives in Kirkuk were led to accept a U.S.-mediated, limited power-sharing agreement with local Arab politicians.⁵³ In an apparent quid pro quo, the U.S. brought these politicians, whom it had mistrusted for being allied with insurgents, into the political process after leaders of the Al-Jabour tribe set up an awakening council in the Hawija district in November and began attacking local members of al-Qaeda in Iraq.⁵⁴ Kurdish leaders had long resisted coming to an accord with Arab or Turko­man parties that did not reinforce the paramountcy of Article 140. The 2 December agreement, however, made no reference to that article.

In part, this could be explained by its focus on power sharing rather than territorial status, but this had never before prevented the Kurds from inserting Article 140 language. Delighted by the first locally negotiated compromise agreement in all of Iraq since the start of the surge, Secretary of State Condoleezza Rice travelled to Kirkuk to congratulate local leaders. To the Kurds, the very fact they had been brought to sign it indicated an end to the no-questions-asked alliance with the U.S. over Kirkuk.

This message was brought home even more jarringly, in Kurdish eyes, by the start of a mid-December Turkish bombing campaign targeting suspected hideouts of the Kurdistan Workers Party (Partiya Karkerên Kurdistan, the PKK) in the Kurdistan region.⁵⁵ While Turkey declared it had only the PKK in its sights, Kurdish commentators alleged that the KRG was the real target,⁵⁶ and that Washington must have agreed to the bombing.⁵⁷ The Kurds saw the event as a signal the U.S. was setting limits on Kurdish autonomy and thus reaffirming Iraq’s territorial integrity, as well as a reminder that U.S. support was contingent on Kurds’ willingness to subscribe to America’s agenda, for example with respect to the awakening councils.⁵⁸ U.S. officials routinely deny the existence of a grand plan to dampen Kurdish ambitions in the disputed territories and have stressed the need for all parties to act within the constitutional framework.⁵⁹ At the same time, the U.S. also has asserted its strong backing for the UN’s efforts to find a solution that, by force of circumstance, will differ dramatically from the Kurds’ favoured course.⁶⁰

In June 2008, three weeks before the new referendum deadline expired, UNAMI presented the Iraqi government with what it termed phase one of a three-step process “regarding possible processes to resolve disputed internal boundaries”. Still testing the waters, UNAMI selected four “sample” districts as part of a strategy “to develop a methodology which could be applied to these and other disputed areas for the consideration of the Government of Iraq”. And it emphasised, in de Mistura’s words, “the Government of Iraq alone has the sovereign responsibility to decide on the process and methodology used to address disputed internal boundaries. UNAMI’s aim in preparing and presenting this analysis is merely to contribute to the development of processes to resolve these complicated and sensitive issues”.⁶¹

The proposal was interesting for its selection of districts, its choice of criteria that would yield the data for assessing their appropriate status, its judgment in each specific case and, not least, its style of presentation, which sought to avoid conflict over UNAMI’s role through diplomatic ambiguity. For example, rather than making express recommendations, UNAMI chose indirect phrases that showed deference to Iraqi sovereignty and awareness of its own limited mandate.⁶² More­over, its proposals involved the four districts’ administrative affiliation with governorates, not (at least explicitly) their territorial status under either the federal government’s or the KRG’s authority; by proposing administrative arrangements, it steered clear of highlighting, and potentially exacerbating, the toxic Arab-Kurdish conflict. Nevertheless, UNAMI’s suggestions were indeed recommendations, which in the Kurdish street were widely interpreted as decisions.⁶³

The four “initial” districts were Aqri (or Akre), Hamdaniya, Makhmour and Mandali. Of these, Aqri lies within the Kurdistan region, and as such the KRG does not deem it disputed (see below). UNAMI chose it because, while it has been administered by Dohuk governorate since 1991, it belongs formally to Ninewa governorate; UNAMI’s view was that its administration should be transferred formally to Dohuk, a belated procedure of no material impact, a simple codification of existing reality. The other three districts were under Iraqi government control until April 2003 and as such are more typical of disputed territories (especially as defined by the Kurds). Since the Baathist regime’s fall they have experienced varying degrees of Kurdish control: direct and formal in the case of Makhmour, which is heavily Kurdish and administratively belongs to Erbil governorate (even if it was administered by Ninewa in 1991-2003), and less so in highly mixed Hamdaniya and Mandali.⁶⁴

UNAMI recommended that Makhmour district be administered by Erbil, except for its sub-district of Qaraj, which has a significant Arab population and which, it suggested, could be attached administratively to a neighbouring district and governorate (presumably either Ninewa or Kirkuk).⁶⁵ And UNAMI proposed that Hamdaniya continue to be administered by Ninewa governorate and Mandali by Diyala governorate.

The choice of districts indicated a preference, in the first stage, for areas that could be considered non-controversial: on their merits their assignation would be unlikely to provoke a strong backlash, mainly because they were either clearly and predominantly Kurdish (Aqri and Makhmour minus Qaraj) or decidedly not so (Hamda­niya and Mandali). Moreover, in an effort to present a semblance of balance, UNAMI chose two districts that it assigned, in effect, to KRG and two to federal government authority.

UNAMI’s criteria included (in the order in which it listed them): a district’s administrative history, changes since March 2003, government service delivery, demographics and the December 2005 parliamentary elections, socio-economic conditions (as indicators of control), claims and compensation (as indicators of previous manipulation), and security conditions. They focused on the extent to which Arabisation (rather than non-ethnically-based state-building processes) had changed administrative and demographic realities. While they included recognition of the December 2005 election results as at least suggestive of the local population’s political preferences, UNAMI played down the utility of past electoral data in predicting voting behaviour in a referendum on a given area’s status.⁶⁶ And instead of a referendum, for which UNAMI felt it had not been given sufficient time and which raised serious security concerns, it polled the population’s preferences via a series of local consultations.