Make-up or Break-up? The Impact of the Draft Constitution on Iraq's Divided Communities
Presentation by Joost R. Hiltermann, Middle East Project Director of the International Crisis Group, at a conference organized by Women for Women International, “Our Constitution, Our Future”, Erbil, 25 September 2005
First of all, I would like to thank the organizers of this conference for giving me the opportunity to speak at this event.
I regret that at a conference entitled “Our Constitution, Our Future” I will have to make a presentation that presents a rather bleak picture of the future.
Something about my organization, the International Crisis Group: Crisis Group is an independent non-governmental organization that seeks to assist political actors in preventing – or managing, or finding peaceful solutions to – deadly conflict through research, analysis and policy recommendations. You will find our reports, including many translated into Arabic, on our website.
My organization has followed the constitutional process over the past two years, and issued two reports on it. Tomorrow, a third report will appear, which you will also be able to find on our web site. Our new report will state that this draft constitution, as written, will increase rather than decrease the possibility of civil war in Iraq and may well contribute to the violent break-up of the country.
There are two main bases for this conclusion: One, the fact that the draft has been embraced by only two of Iraq’s three principal communities – Shiites, Kurds and Sunni Arabs – and has generally not benefited from significant input from civil society, and therefore may lack popular buy-in. And two, the fact that the text itself has a lot of language that is ambiguous and that otherwise leaves a lot of gaping holes.
Before I continue I want to make two important notes. The first is that I don’t wish to denigrate the intention and effort of the drafters of this constitution. I know that they worked very hard and in good faith to accomplish a draft that would be acceptable to all. I wish, secondly, to apologize for using categories such as “Shiites” and “Kurds” and “Sunni Arabs”, as I realize that these are not homogeneous communities, and that these identities, and their designation, are a relatively recent, and I would say, highly damaging development. Yet today, we are forced to use these terms.
At the basis of the current constitution lies a drafting process that was exceptionally short by international standards, with various forces conspiring to get the job done by the arbitrary deadline of 15 August. The formation of the government after the January elections took more time than many had expected; it took some additional time to establish a constitution drafting committee; there were then further discussions over the need to add representatives of the Sunni Arab community to the committee; and when all was said and done, less than three months’ time remained. The deadline of 15 August was then missed to allow for further efforts to reach consensus but, as we all know, these efforts failed and a final constitution was approved by the Transitional National Assembly (TNA) a month later, on 18 September.
The attempt to get the draft completed by the deadline caused three casualties. One is the fact that there was no time to fill in some of the important detail or to re-negotiate and re-phrase some of the language that was vague and therefore open to interpretation. The most important example of this is the description of Iraq’s new federal system. There is a lot of ambiguity in the description of who has exactly what powers (the federal government or the regions), for example with respect to taxation and oil revenues, and it has been left for a future national assembly to create the critically important mechanism by which regions can be established.
The problem with this is that interpretation of the constitution and important decisions will be left to institutions yet to be created by a future legislature. A future national assembly, however, is likely to be dominated by the Shiite community, given its demographic majority, and in the current climate this is likely to increase rather than decrease sectarian tensions.
The second casualty is popular support for the constitution. The Iraqi people have barely had the opportunity to voice their concerns and express their opinions about the various drafts that circulated prior to 13 September, when the final draft was presented to the TNA, through institutional channels, and to be taken seriously. Moreover, because the original deadline was missed, the Iraqi people will have only one month the time instead of two to read the draft and form their own opinion about it ahead of the popular referendum on 15 October. This means less time for discussion over vital issues that will affect this and future Iraqi generations. Even if the constitution is accepted in the referendum, as I predict it will, this fact should not be interpreted as a public embrace of this document, but rather as a willingness to follow the call of political and religious leaders to go to the polling stations and vote in its favor. It is a very dangerous thing when a state’s foundational document lacks popular buy-in.
The final casualty is consensus. By failing to accommodate a handful of existential concerns of the Sunni Arab community, Shiites and Kurds will ensure a Sunni Arab “no” vote on 15 October. Absent consensus, the insurgents, some of whom have not shied away from attacking innocent civilians and have even expressed a willingness to attack Shiites simply because they are Shiites, will be able to draw on the disaffected Sunni Arab community for further support and therefore be able to grow in strength. The restraints that existed previously on the government and ordinary civilians not to retaliate against these extreme provocations by attacking Sunni Arabs rather than fighting the insurgents have started to erode – an extremely disturbing development that could easily lead to further sectarian fighting and civil war.
The situation in Iraq has, I regret to say, been deteriorating over the past few months. The drafting of the constitution, while never seen as sufficient to re-stabilize Iraq, was nevertheless seen as a necessary component of a political plan to bring Sunni Arabs, who absented themselves from the January elections, back into the fold for the sake of national consensus. Instead, the drafting process and its result, the draft constitution, have had the opposite effect. Rather than drawing Iraq’s principal communities closer together, they have driven them further apart by encouraging sectarianism and creating a federal system that is likely to leave one of them landlocked and without resources.
What, at this date, can be done to prevent a further slide into civil war? Very little probably, but we cannot afford not to try, as the consequences of failure will be too horrifying to imagine. In our view, a last-ditch effort should be made by the leaders of the three principal communities before the 15 October referendum, not to amend the referendum (we agree that it is too late for that), but to reach a political agreement on the two most important issues of Sunni Arab concern. These are the issues of federalism and the Ba’ath party. The compromises we propose are an agreement to limit to four the number of governorates that could become a region through fusion, as this may assuage Sunni Arab fears of a Shiite super-region in the South; and an agreement that Iraqis will not be excluded from public office or managerial positions on the basis of mere membership in the Ba’ath party.
The United States government would have to sponsor negotiations to reach such a political agreement and to guarantee it, once accomplished. Parties to the agreement would have to commit to taking the necessary steps after the 15 December elections, whether through legislation or constitutional amendment.
Without such an agreement -- that will have to substitute for the political compact that the constitution should have been – I think that civil war may prove very difficult to prevent, and along with it the violent and painful dissolution of Iraq.
Thank you.