Turkish Foreign Policy Institute and Bilkent University organized a symposium entitled “Iraq on the Way to Its New Constitution” in Ankara on March 22nd and 23rd, 2004. Academics, legal experts and experts of the region from Iraq, US, UK and Turkey participated. The situation in Iraq in the post-war period, political and social demography of Iraq and the constitutional models for Iraq were discussed.

Participants at the symposium enumerated the difficult conditions the people of Iraq were facing. It was emphasized that the basic aim was the democratization of Iraq, enhancing the rule of law and guaranteeing human rights. While the devolution of powers to local authorities and decentralization was felt necessary to prevent the repetition of centralized authoritarian rule, it was argued that it was also important to prevent dismemberment of the country on ethnic or religious grounds. Many criticisms were made on the recent Transitional Administrative Law for Iraq citing lack of transparency and representation in its preparation, singling out one region on ethnic basis while envisaging a non-discriminatory federal structure and putting emphasis on religion which may eventually encourage a division on that ground as well. Many pointed out the various contradictions and inconsistencies prevalent in the Law. Some claimed that nothing in the Law was permanent, that contradictions were inevitable since the aim was to please as many as possible and appease the emotions of certain radicals, that the Law was revolutionary in respect of defining the role of women allocating them a 25% quota and limiting the role of the armed groups integrating them under one command. While one participant claimed that this Law would serve as the model of the new constitution and nothing much different could be achieved in the current process for the preparation of the new constitution, many others insisted that improvements could and should be made. It was also pointed out that regional concensus building was important at this stage and that unless the region sees the new restructuring as an endeavour it can live with, it will be difficult for Iraq to be at peace.

It was pointed out that before having general elections, a census to determine the numbers and significance of different groups in Iraq was necessary. Estimates on Iraqi population and different groups were made based on earlier censuses. One participant calculated the Turkoman population as being around 2.2 million, another calculation indicated the number as 750 thousand around the Mosul-Telafer regions in the North and 1.5 million around the Kut region in the South, excluding those in and around Baghdad. As the figures indicated the Turkoman population in Iraq to be around 10-12% of the whole population, it was indicated that they should have been represented in the Provisional Governing Council by at least two members.

As the idea of a viable federation was not well understood in the region, fears were expressed on the possibilities of dismemberment of Iraq, alluding the experience of Yugoslavia. One participant suggested the Canadian model, which he thought could work and keep the country united.

ASSESSMENTS ON THE SITUATION IN IRAQ

What has happened to Iraq is being and will in the future be discussed by historians and academics from widely different perspectives. Certainly what has happened has been a tragedy for a young nation that was born after the First World War and that tragedy costing human lives is still continuing while efforts are being deployed to reshape the country's socio-political structures.

Yet, reshaping a country after a war is a very difficult task and may be more difficult than waging a war. In Turkey we have gone through similar difficulties about 80 years ago. At that time we had to create a modem republic out of the ashes of a defunct empire. Now Iraq and its people having come out of a tyrannical dictatorship are looking forward to a democratic and cohesive future.

The Foreign Policy Institute has maintained great interest in the affairs of Iraq since the first Gulf War and before as Iraq is a very close neighbour with historical and demographic ties to Turkey and is a valuable partner. During the first Gulf War Turkey has helped to about 300 thousand people of Iraq who sought asylum in Turkey to escape from massacre. After the first Gulf War Turkey has done its best to provide all types of assistance particularly to the people of Northern Iraq to survive, to establish their own administration and to prevent their internal conflicts. We also have very close economic links with Iraq. A major oil pipeline that has a capacity of 100 million tons has been and still is a life line for Iraq in these days of hardship.

The unity, democracy, and well-being of the people of Iraq being a matter of close interest to Turkey we are also interested in the current situation, trends and the future political system of that country. Whatever happens in Iraq which is situated in a highly strategic part of the Middle East will have positive or negative impact in the entire region.

Social Demography

Facts concerning the ethnical setup of Iraq, may be summarised as follows:

Iraq was established after the First World War over the three provinces (Mosul, Baghdad and Basra) of the Ottoman Empire. It is constituted mainly of 3 ethnic groups (Arabs, Kurds and Turkomans). The undertakings by the Iraqi Government to include Kurdish and Turkish languages side by side with Arabic in certain regions as stated in the Declaration on the 3 0th of May 1932 on the occasion of the termination of the British mandatory regime and Iraq's accession as a member to the League of Nations constitute a reflection of this fact.

During the reign of monarchy the regime in Baghdad leaned towards the 'Iraqfirst' idea. Thanks to this policy, the non-Arab communities of Iraq experienced a relatively peaceful atmosphere for a very short period of time. The first Iraqi constitution of 1925 and the 1932 Declaration of the Iraqi government had made it clear that all Iraqi citizens would become equal before the law irrespective of their religion, language, race, colour and ethnicity. Both the Kurdish and Turkoman peoples were allowed to use their mother tongues in education for a very short period.

Particularly since the late 1960s, when the Baathist Party came to power, the regime started to invest in the idea of Arabism on two main fronts. Internally, the regime tried to change the Kurdish and Turkoman character of the traditionally Kurdish and Turkoman regions by forcefully implementing an Arabization policy. The idea was to pave the ground for the establishment of an Arab nation-state. It has exerted pressures on both communities to leave their homelands. It was hoped that if they had been mixed with the Arabic communities in mainly Arab-dominated parts of the country, their ethnic self-consciousness would have eroded. Even though the Baathist rule granted regional autonomy to the Kurds and allowed the Turkomans a limited right to use their language in education in 1970, they had soon forgotten their promises and speeded up their efforts to further Arabise Iraq from the mid 1970s onwards. The fact that the July 1970 constitution of Iraq recognises the Arabs and the Kurds as the two main nations reflects the spirit of the March 1970 agreement whereby the Baathist rule in Baghdad agreed to the autonomy of the Kurdish people to the detriment of the Turkomans. This was somehow a political bargain between the Capital and the Kurds, which assumed that the latter would support the former in its struggle with Iran. However, this climate did not last long. When Baghdad reached an accord with Iran and the United States, it did no longer feel the necessity to court the Kurdish and Turkoman communities.

Externally, the Baathist rule, particularly following Saddam's ascendancy to full power in 1979, has pursued a 'Greater Arab-Iraq' policy in the region. It is in accordance With this spirit that Iraq fought with Iran in the 1980s and tried to annex Kuwait in 1990.

Iraq as source of instability

The acts that made Iraq a source of instability:

• Iraq had been under an authoritarian regime

• The ethnic groups in Iraq have been suppressed under the guise of Arab and Kurdish nationalisms.

• The Baathist governments had created many problems with Iraq's neighbours (Iran-Iraq

war, invasion of Kuwait)

• This situation resulted in internal divisions

Turkey's concerns

For Turkey, Iraqi situation created many problems:

• Iraqi territory presented a safe haven for the Kurdish terrorists from Turkey, which

prompted the Turkish governments to use its right of hot pursuit.

• The assimilation policy of the Arabs and Kurds provoked the flight of the Turkomans into

Turkey and other countries.

• Kurdish groups in Iraq benefited from the no-flight zone in Northern Iraq to create the

infrastructure for a Kurdish State.

• The promises of the Iraqi governments for the protection of minorities have not been

fulfilled.

State-building in Iraq

The primordial objective should be the democratization of Iraq. In view of the

minority dominated despotic recent past of Iraq the instrument to achieve a pluralist democratic society, to enhance rule of law and human rights appears to be decentralization and ensuring as much autonomy to the local authorities to oppose any centralized

authoritarian rule but in the mean time maintaining a certain authority preventing dismemberment on ethnic or religious grounds.

Before the creation of a new state structure in Iraq, the following indispensable pre-

conditions must be fulfilled:

1 .     All political and ethnic groups, other than the central government, which possess weapons, military and paramilitary forces, should be disarmed and their military and paramilitary organizations should be disbanded. The central government of the new State should have the monopoly over armed forces.

2.      The rights of all Iraqi nationals, who were deported or not from their original places and whose properties were confiscated or expropriated under various laws, including land reform laws, need to be re-established and justly compensated.

3.      An international Commission should be established to carry out a census all over the country with a view to allowing all Iraqi people to freely express their ethnic identities and their will where to live.

4.      Prior to the census, all Iraqi people who were forced to leave their original homeland for other parts of Iraq or abroad should be allowed to come back.

What kind of an Iraq is required for regional security and stability?

For Iraq not to pose serious threats to the international and regional security and stability, the following conditions need to be met in parallel to the initiation of a new political-administrative system in the country.

1 .     A peaceful regime should come to power in Baghdad, which should become both democratic and at peace with its people and neighbours.

2.      The political system of the country should prevent the eruption of any future crisis over Iraq's territorial integrity.

3.      The new political system should be based on the following two conditions. First, Iraq's territorial integrity and single international personality need to be guaranteed. Second, all Iraqi citizens belonging to different ethnic and religious groups need to be assured of their equal rights before the law. The legal and political arrangements need to be devised in such a manner that the first allegiance of the Iraqi nationals should be directed to the Iraqi State rather then to their different ethnic-religious identities. A federal structure based on the established administrative division of the country could better serve the harmony among the different ethnic-religious groups and eliminate the possibility of one such group dominating the others. It will also reduce the role of ethnic-religious politics which may be detrimental for the integrity of the country. Federated units thus established does not preclude the possibility that a particular ethnic community may constitute the majority in one such unit while the same ethnic community may hold a minority status in another.

4.      The political, cultural, social and economic rights of ethnic-religious communities should be guaranteed to the extent that neither of them would be able and justified to alter the new status quo.

5.      All Iraqi citizens should become equal before the law, with the possibility of discrimination on the basis of their religion, language, ethnicity, race, colour, etc., being eliminated.

6.      The official language of the state should remain Arabic.. In addition to Arabic, Kurdish and Turkish languages can also be freely used for educational and judicial purposes in case the users of those languages invoke such a right wherever they are located in Iraq.

7.      The exploration and exploitation of Iraq's energy resources, including those of the Mosul-Kerkuk area, should remain under the full control and management of the central government. The central government should take all the necessary measures to ensure an equitable distribution of the revenues.

8.      The new State in Iraq should see the neighbouring countries as friendly countries, with which cooperative economic interactions could be exploited to the possible maximum levels.

Intervention by Seyfi Taşhan, President of the Turkish Foreign Policy Institute at the Symposium on “Iraq on the Way to Its New Constitution” organized by the Turkish Foreign Policy Institute and Bilkent University on March 22-23, 2004 in Ankara

 

Shortcomings of the Transitional Law of Administration for the State of Iraq

I would like to take this opportunity to say a few words on the New Iraqi constitution which is ironically called transitional administrative law. While we must accept that an interim basic law was indispensable, the product seems to be neither temporary nor fair. Let me summarize the concerns this law has created in Turkey under three headings: the method, the content and what it foresees:

a.      The United States occupied Iraq to bring democracy and freedom to the people of

that country. Admittedly, the Provisional Governing Council was not elected democratically but in the preparation of the Transitional Administrative Law it was very difficult to find traces of the democratic necessity of transparency. Instead of making different sections of the Iraqi society represented in the preparation of this important document which will guide the destiny of the people of Iraq for a considerable time and some of its features will remain untouched forever, the whole preparation was kept to only a limited number of people, and it was even kept away from some members of the Iraqi Provisional Council.

b.      While the aim of the Law is stated to create a united Iraq, the Law, in practice,

divides Iraq into two parts, one is named Kurdistan and the other unnamed but presumably Arab.

c.      Another important outcome of TAL will be its differentiated perception by the

people and the impact of these different perceptions on its implementation. The dynamics these different perceptions may unleash outcomes that may not have been compatible with the declared objectives of the Law.

d.      There are flagrant inconsistencies in the Law:

i.      Article 4 of the Law states that the Federal system shall be based upon

geographic and historical realities and separation of powers, and not upon origin , race, ethnicity, nationality or confession. In reality however the Federation to be established will openly be one based on ethnicity. Furthermore allowing three provinces outside the Kurdistan region to form regional unions among themselves will also create the risk of dividing the country on the basis of religious confession.

ii.     While it is stated that Islam will be the official religion of the state and one

of the references for legislation, it allows federal structures formed by law to develop their own legislation. It is therefore highly probable that the Shiites that may not be happy with the federal legislation can develop their own Islamic jurisprudence. As the state structure in the North is different, the South may also have a different system of government.

Islamic tendencies in the Center may push the Kurds in the North further away and the Islamists in the South may think they can realize their agenda more easily without the Kurds. Hence separatist tendencies in Iraq on sectarian grounds may also gain momentum.

As regards the future of Iraq, it should be noted that the law has been prepared by the Provisional Council which definitely lacks legality and representation. It is certainly important for the people of Iraq that this Provisional Council should be replaced by another supreme institution in which all population sections would participate and no specific group would feel excluded.

Even for the National Assembly which will be elected before 31st January 2005, it will be extremely difficult to change any of the provisions of the law and it would be impossible to change several articles.

The law envisages the establishment of a presidential council which will be comprised of the President and two vice presidents and decisions will be taken unanimously. The appointment of one of the Kurds as a vice president will grant the Kurdish groups the right of veto on any legislation.

In a statement on March 8, Ayetullah Sistani expressed the view that no legislation prepared for the transition period would be legal if it was not approved by the National Assembly. Sistani rearranges law-assembly relationship as assembly-law relationship. Therefore it would be interesting to see what will happen to the decisions of the Provisional Council and how the Shiites will behave.

Turcomans have not been represented in the provisional administrative structures after the war in proportion to their quantitative and qualitative importance. This deficiency has also been reflected in the formation of the Provisional Council. This deficiency should be eliminated and if the aim is to established a democratic order in Iraq, Turcomans should be enabled to fully represent themselves in the administration.

The dualistic nature of Article 7 may not only endanger the smooth functioning of the state affairs, but also may create serious difficulties for the adoption of laws to implement some of the democratic features of the Law such as gender equality and inheritance, because the interpretation of the term “universally accepted tenets of Islam” is difficult to define and may aggravate confessional schisms in deciding which law conforms with or contradicts Islam. If this clause is incorporated in the final Constitution it may be necessary to subject the adoption of laws to the approval of a Council composed of Religious authorities of different Islamic confessions.

In his concluding remarks, President of the Turkish Foreign Policy Institute,  Mr. Seyfi Taşhan said the following:

 

       “Turkey in the process of integration with the EU, has abandoned the realist model and adopted the liberal model in its international relations. We can say that Turkey has put emphasis in improving and further developing its relations with its neighbours. We can see that it has established cordial relations with its northern neighbours, has attributed importance to its relations with countries to its East, in particular with the newly independent states of the Caucasus and Central Asia, is in the process of ameliorating its relations with Greece and improving them with Syria. The only problematic neighbour remains to be Iraq. Turkey not only has developed its relations with those countries bilaterally but has also achieved big steps in international sphere. It has established the Black Sea Economic Cooperation scheme with its neighbours bordering the Black Sea, has cooperated with countries to its East within the Economic Cooperation Organization and participated in the EU sponsored MEDA programmes with countries of the Mediterranean. None of these could be said of Iraq. Almost 5 thousand PKK militants are still situated in Northern Iraq. Iraq is in a tragedy. It is sad to say that this tragedy has lasted for a long time now and that it is not difficult to predict that it will last for a long time to come. Turkey is prepared to assist in anyway to bring conditions in Iraq to normalcy. We must accept that occupation has opened a new phase in Iraq. Unfortunately, the developments after the First Gulf War have increased the tendencies of separation in Iraq. The present situation is not healthy.

        “In this Symposium, we have focused on how to eliminate this unhealthy situation affecting the future of Iraq. We have elaborated on how the people of Iraq could regain their important place in this geography.

        “Our aim, in this Symposium, was to study the present situation and to see how our normal, peaceful, cooperative relations could be developed. The people of this country are our kins. The many interventions indicated that the present arrangements in Iraq should not be accepted as unchangeable. However, many participants pointed out that the future structure of Iraq should be based on federalism. Some Arab participants opposed this view.

        “Most of the debate, however, has been concentrated on the Transitional Administrative Law for Iraq. First, preparation of this Law was widely criticized. Also many opposed to the contradictions and inconsistencies of the provisions of the Law. It has also been indicated that as the title of the Law is transitory, it should not be binding on the future constitutional structure of Iraq. The work on the new Constitution should start with a tabula rasa. While it was pointed out that the new constitution should contain provisions for democratization and maintaining unity of Iraq, it was not possible to come to agreement on the means on how to reconcile this aim with the fait accompli of a separate administration created in the North of the country after the First Gulf War. Participants have on the whole agreed that the Turkomans who were the constituent peoples of Iraq had not been sufficiently represented in the Governing Council and their rights had been trampled in the Transitional Administrative Law.

        “During the debate at the Symposium many participants questioned how the Islamic character given to the State could be reconciled with the democratization of the country and maintaining gendre equality. This specification, some thought, would hamper modernization of Iraq. As Turkey is a secular country, it will not be possible for us to take any position on this. But if Iraq is going to be a modern, contemporary state, it should accept the international norms. After all, when Turkey becomes a member in EU, Iraq will be a neighbour of EU.”