Governing (in) Kirkuk: resolving the status of a disputed territory in post-American Iraq

Abstract

This article focuses on the dynamics of the process of settling the status of Kirkuk, principally within the framework of the current Iraqi constitution of 2005 and the United Nations Assistance Mission for Iraq proposals of 2009, taking into consideration the broader local, national, regional and international context in which such a settlement has to be achieved. The article proceeds in four steps. Beginning with a conceptual clarification of the stakes and remedies associated with territorial disputes, it gives a broad overview of the three principal forms in which such disputes occur and illustrates this with pertinent examples of past disputes and their settlement, using this as an empirical basis for discussing the general dimensions of territorial dispute settlements and the factors that determine their precise nature in different cases. This is the background against which the following section contextualizes the situation in Kirkuk. Based on personal interactions with key interlocutors from all of Kirkuk's communities and key Iraqi and external players and analysts, the article examines the three (im-) balances of grievances, demands and power in and around Kirkuk that are essential for understanding the dynamic underlying any efforts to resolve the dispute in and over the province. Taking as a baseline the options currently available under the 2005 constitution of Iraq and the recommendations of the 2009 UN Report on Disputed Territories, it offers some observations on areas of possible compromise centred on power sharing in Kirkuk and status of Kirkuk vis-à-vis Baghdad and Erbil.

Footnotes

• 1

  On the role of Turkey see, among others, Bülent Aras, ‘Turkey, northern Iraq and Kirkuk’, Foreign Policy Bulletin 5, 2007, pp. 6–9; Philip Giraldi, ‘Turkey and the threat of Kurdish nationalism’, Mediterranean Quarterly 19: 1, 2008, pp. 33–41; International Crisis Group, Turkey and Iraqi Kurds: conflict or cooperation?, Middle East report 81 (Brussels: ICG, 2008); Robert Olson, ‘Relations among Turkey, Iraq, Kurdistan—Iraq, the wider Middle East, and Iran’, Mediterranean Quarterly 17: 4, 2006, pp. 13–45;Robert Olson, ‘Turkey's policies toward Kurdistan—Iraq and Iraq: nationalism, capitalism, and state formation’, Mediterranean Quarterly 17: 1, 2006, pp. 48–72;Thanos Veremis, ‘The transformation of Turkey's security considerations’, International Spectator: Italian Journal of International Affairs 40: 2, 2005, pp. 75–84.

• 2

  See Ted Galen Carpenter, ‘Middle East vortex: an unstable Iraq and its implications for the region’, Mediterranean Quarterly 20: 4, 2009, pp. 22–31.

• 3

  The author served as an expert consultant at three rounds of negotiations on power-sharing arrangements in Kirkuk (in Jordan in May and December 2008, and in Berlin in April 2009) and thus experienced at first hand as part of a small mediation team—the Initiative on Conflict Prevention through Quiet Diplomacy—the dynamics of compromise and confrontation that led to the Dead Sea Declaration and Berlin Accords. In addition to these three meetings, he had the opportunity to discuss issues related to Kirkuk with observers, analysts, and UN and government officials in a variety of other locations, including The Hague (Feb. 2009), Colchester (Feb. 2009), Istanbul (April 2009), New York (April 2009), Exeter (May 2009) and London (June and July 2009).

• 4

  Subsequent to the Munich Agreement, the two Vienna Arbitration Awards of 1938 and 1940, respectively, compelled Slovakia and Romania to cede territories to Hungary which the latter had lost under the provisions of the Treaty of Trianon in 1920 and had sought to regain ever since. The awards were part of a joint German and Italian strategy to consolidate their alliance with Hungary.

• 5

  The definition of self-governance has been adapted from S. Wolff and M. Weller, ‘Self-determination and autonomy: a conceptual introduction’, in M. Weller and S. Wolff, eds, Autonomy, self-governance and conflict resolution: innovative approaches to institutional design in divided societies (London: Routledge, 2005), pp. 1–25. The same definition is used in Z. Csergo and S. Wolff, ‘Regions of nationalism in Europe’, paper presented to American Political Science Association meeting, Toronto, 2009, http: //ssrn.com/abstract=1449082, accessed 10 Feb. 2010.

• 6

  C. Hartzell and M. Hoddie, ‘Institutionalizing peace: powersharing and post-civil war conflict management’, American Journal of Political Science 47: 2, 2003, pp. 318–32; C. Hartzell and M. Hoddie, Crafting peace: power-sharing institutions and the negotiated settlement of civil wars (University Park, PA: Pennsylvania State University Press, 2007).

• 7

  U. Schneckener, ‘Making powersharing work: lessons from successes and failures in ethnic conflict regulation’, Journal of Peace Research 39: 2, pp. 203–28.

• 8

  A. Lijphart, ‘Consociation and federation: conceptual and empirical links’, Canadian Journal of Political Science 12: 3, 1979, pp. 499–515 at p. 506.

• 9

  J. McGarry and B. O'Leary, ‘Territorial approaches to ethnic conflict settlement’, in K. Cordell and S. Wolff, eds, The Routledge handbook of ethnic conflict (London: Routledge, 2010, pp. 249–65).

• 10

  M. Weller and S. Wolff, ‘Recent trends in autonomy and state construction’, in Weller and Wolff, Autonomy, self-governance and conflict resolution, pp. 262–70 at p. 269.

• 11

  See C. Kettley, J. Sullivan and J. Fyfe, ‘Self-determination disputes and complex powersharing arrangements: a background paper for debate’, Centre of International Studies, Cambridge, 2001, http://www.intstudies.cam.ac.uk/centre/cps/download/backgroundi.pdf, accessed 4 March 2009; M. Weller, ‘Settling self-determination conflicts: an introduction’, in M. Weller and B. Metzger, eds, Settling self-determination disputes: complex powersharing in theory and practice (Leiden: Nijhoff, 2008), pp. xii—xvii; S. Wolff, ‘Complex power-sharing and the centrality of territorial self-governance in contemporary conflict settlements’, Ethnopolitics 8: 1, 2009, pp. 27–45; S. Wolff, ‘Peace by design? Towards complex powersharing’, in R. Taylor, ed., Consociational theory: McGarry and O'Leary and the Northern Ireland conflict (London: Routledge, 2009), pp. 110–21. These authors refer to the phenomenon, albeit in somewhat different ways, as ‘complex powersharing’. Brendan O'Leary uses the term ‘complex consociation’. See B. O'Leary, ‘Debating consociational politics: normative and explanatory arguments’, in S. Noel, ed., From powersharing to democracy (Montreal and Kingston: McGill-Queen's University Press, 2005). Caroline Hartzell and Matthew Hoddie conceptualize it as ‘highly institutionalized negotiated settlement’: see Hartzell and Hoddie, Crafting peace.

• 12

  See e.g. D. Brancati, Peace by design: managing intrastate conflict through decentralization (Oxford: Oxford University Press, 2009); J. McGarry, B. O'Leary and R. Simeon, ‘Integration or accommodation? The enduring debate in conflict regulation’, in S. Choudhry, ed., Constitutional designfor divided societies: integration or accommodation? (Oxford: Oxford University Press, 2008), pp. 41–88; D. Treisman, The architecture of government: rethinking political decentralization (Cambridge: Cambridge University Press, 2007); Wolff, ‘Peace by design?’.

• 13

  This problem can be, and frequently is, also addressed through strong state-wide human and minority rights legislation and institutions empowered to enforce it.

• 14

  Yash Ghai observes correctly that ‘autonomy arrangements … also contribute to constitutionalism. The guarantees for autonomy and the modalities for their enforcement emphasize the rule of law and the role of independent institutions. The operation of the arrangements, particularly those governing the relationship between the centre and the region, being dependent on discussions, mutual respect and compromise, frequently serve to strengthen these qualities.’ See Y. Ghai, ‘Territorial options’, in J. Darby and R. McGinty, eds, Contemporary peacemaking: conflict, violence, and peace processes (Basingstoke: Palgrave Macmillan, 2003), pp. 184–93 at pp. 187–8.

• 15

  The (sad) caveat here is, of course, that the formal existence of institutions does not automatically translate into their proper functioning.

• 16

  The most comprehensive treatment of Kirkuk in the current literature is Liam Anderson and Gareth Stansfield, Crisis in Kirkuk: the ethnopolitics of conflict and compromise (Philadelphia, PA: University of Pennsylvania Press, 2009). Kirkuk is also covered extensively in Brendan O'Leary, How to get out of Iraq with integrity (Philadelphia, PA: University of Pennsylvania Press, 2009). For various other discussions of Kirkuk see, among others, Denise Natali, ‘The Kirkuk conundrum’, Ethnopolitics 7: 4, 2008, pp. 433–43;Aram Rafaat, ‘Kirkuk: the central issue of Kurdish politics and Iraq's knotty problem’, Journal of Muslim Minority Affairs 28: 2, 2008, pp. 251–66;David Romano, ‘The future of Kirkuk’, Ethnopolitics 6: 2, 2007, pp. 265–83.

• 17

  Inter-agency Information and Analysis Unit, Kirkuk Governorate Profile, http://www.iauiraq.org/reports/GP-Kirkuk.pdf, accessed 19 March 2010.

• 18

  Election results from the 2010 parliamentary elections confirm this partially, inasmuch as Kurdish parties obtained just over half of all votes cast.

• 19

  Brendan O'Leary has emphasized the need for a responsible American exit that ensures a sustainably stable Iraq after August 2011: see e.g. Brendan O'Leary, ‘Departing responsibly’, Dissent 56: 2, 2009, pp. 30–35, http://www.dissentmagazine.org/article/?article=1406, accessed 19 March 2010.

• 20

  The Kurdish position in Iraq as a whole has been further weakened by the decreasing share of seats that Kurds have gained over three electoral cycles (Jan. and Dec. 2005, March 2010): from a total of 77 seats in January 2005 (with 75 seats going to the main PUK—KDP alliance list and 2 to a rival party) to 58 seats in December 2005 (with 53 seats going to the main PUK—KDP alliance list and 5 to a rival party) and 57 seats in a significantly enlarged parliament in March 2010 (with 43 seats going to the main PUK—KDP alliance list, and 8, 4 and 2 to other Kurdish parties). Kurdish political power in Baghdad has thus been weakened both in terms of the number and proportion of seats commanded in the Council of Representatives and in terms of intra-Kurdish party political divisions.

• 21

  At present, and until provincial elections are held in Kirkuk pursuant to the Local Elections Law (esp. art.23), the Provincial Powers Law (Law 21/2008) does not apply, but Kirkuk is governed under the provisions of Order Number 71 of the Coalition Provisional Authority on Local Governmental Powers (CPA 71/2004) with regard to local legislative and executive powers.

• 22

  Author's conversation with ICG official, Istanbul, 3 April 2009.

• 23

  Apparently, there was also consideration of a fifth option—dividing Kirkuk—but this was dropped from the final version of the UNAMI report in favour of placing emphasis on keeping Kirkuk province as a single entity.

• 24

  As I am focusing on an interim rather than a permanent settlement of the Kirkuk question, I do not question the integrity of the analysis and proposals of other experts. In particular, O'Leary's and Anderson and Stansfield's proposals for a special status of Kirkuk within the Kurdistan Region of Iraq have significant merit. See O'Leary, How to get out of Iraq with integrity, esp. pp. 47–60; Anderson and Stansfield, Crisis in Kirkuk, esp. chs 11 and 12.