Kurdish Referendum: Legitimacy and Policy Implications

Introduction

On Monday, September 25, 2017 Iraqi Kurds voted on a referendum for independence, and on Wednesday results came in with an overwhelming approval (92.73% as Wikipedia cited a KHEC URL which cannot be accessed from the United States) of an independent Iraqi Kurdistan. While Kurds in Iraq were cheering, the central government in the Iraqi capital Baghdad had already expressed its disapproval of the referendum, mainly on constitutional grounds, while Iraq’s neighbors – Iran and Turkey – who also have Kurdish minorities – over fear that their Kurdish minority populations will demand independence as well, did not approve of the referendum either. Syria, the other country with Kurdish minority in the Middle East, was also opposed to the referendum on the grounds that it is a unilateral action – and understandably so, since Kurdish leaders in Syria were quoted by Reuters as saying that the referendum could “bolster their cause for autonomy in negotiations with the Damascus government”.

In fact, Turkish President Recep Tayyip Erdogan warned about negative consequences for the Kurdistan Regional Government (KRG) and its people should the referendum take place – mainly of economic nature such as closing its border with Iraq, including blocking oil exports from the KRG through a pipeline that goes through Turkey and ordering military intervention. Meanwhile, the Iraqi army and the Turkish army held joint military exercises in Turkey in what appears to be an indirect warning to the KRG.

The Iraqi constitution, adopted in January 2005, is located in two URLs: here (as a result of a Google search) and here (as linked by Wikipedia).

Iraqi Prime Minister Haider al-Abadi expressed opposition to the referendum in Iraqi Kurdistan on the grounds that it is unconstitutional. What he likely referred to is Article 117 of the Iraqi constitution which states that it, the constitution, “recognize the region of Kurdistan, along with its existing authorities, as a federal region”.

Is the referendum illegitimate?

One can argue that the constitution does not recognize “the region of Kurdistan” as a foreign country – therefore, a referendum for independence of the region of Kurdistan would be unconstitutional. The constitution of Iraq provides the opportunity to change the country’s composition of governorates and regions in a referendum as stated under Article 119. However, that opportunity appears to be reserved to governorates only: “One or more governorates shall have the right to organize into a region based on a request to be voted on in a referendum” by a request from either a third of the council members of each governorate or a tenth of the voters in each of the governorates intending to form a region. Therefore, if Kurdistan was a governorate, it would have an opportunity to expand its territory while at the same time “upgrade” to a region. Technically Anbar, Saladin and Nineveh – three big Sunni-majority governorates – could organize into a region, but as a region it appears that Iraqi Kurdistan cannot expand its territory as a bigger region, nor can it secede from Iraq.

On the other hand, one can also argue, most constitutions describe how a country is set up, including how centralized its governmental system is with relation to its regions, not which countries would be recognized as foreign countries, or which regions would have a path to independence should they choose it. It should also be noted that Kurdish leaders – while claiming that independence of Iraqi Kurdistan is eventually imminent – emphasized that the referendum is non-binding. It is not followed by a declaration of independence but instead will likely serve as a tool to negotiate independence, deeper autonomy, and even a final verdict on the disputed territories, including oil-rich Kirkuk which, contrary to Article 140 of the Iraqi constitution, haven’t had a referendum to determine their status – whether they want to be part of Iraq separate from the Kurdistan Regional Government or part of Iraq within the KRG – as per “the will of their citizens,” as stated in Article 140 of the Iraqi constitution. Others have argued that the referendum is simply an attempt by Iraqi Kurdish leader Massoud Barzani to consolidate his power within the KRG, since independence is a popular idea within Iraqi Kurds.

Conclusion

The referendum for a possible independence of Iraqi Kurdistan is likely unconstitutional even though it does not follow a declaration of independence of the Kurdistan Regional Government. It is likely used as a means to renegotiate the Kurdistan Regional Government’s status within Iraq, including the size of its territory, the extent of its autonomy, its relationship with the rest of Iraq, or possibly a further decentralization of Iraq where not just the KRG but also governorates will have more powers within Iraq. It is also likely that the Iraqi Kurdish leadership uses the referendum as a means to consolidate its power within the KRG while marginalizing the opposition.

And, not necessarily related to the Iraqi constitution, the timing of the referendum – after the Pershmergas (the Iraqi Kurdish army) with the help of the U.S.-led coalition and with a questionable level of coordination with the Iraqi army (conflicting reports cite both strong and weak coordination) contained and repelled the Islamic State and contributed to the liberation of Mosul – a time when the Iraqi army is still focused on the fight against the Islamic State is arguably the best time for the KRG to hold a referendum.

It is difficult to predict what the aftermath of the referendum will be.

1 Comment

Filed under Books, Movies and Analyses, Politics, The Law

One response to “Kurdish Referendum: Legitimacy and Policy Implications

  1. Pingback: Is the Independence Referendum in Catalonia Unconstitutional | Evolution is the key!

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