Unmaking Iraq: A Constitutional Process Gone Awry
Unmaking Iraq: A Constitutional Process Gone Awry
Table of Contents
  1. Overview
Briefing 19 / Middle East & North Africa 3 minutes

Unmaking Iraq: A Constitutional Process Gone Awry

Instead of healing the growing divisions between Iraq's three principal communities – Shiites, Kurds and Sunni Arabs – a rushed constitutional process has deepened rifts and hardened feelings.

I. Overview

Instead of healing the growing divisions between Iraq's three principal communities -- Shiites, Kurds and Sunni Arabs -- a rushed constitutional process has deepened rifts and hardened feelings. Without a strong U.S.-led initiative to assuage Sunni Arab concerns, the constitution is likely to fuel rather than dampen the insurgency, encourage ethnic and sectarian violence, and hasten the country's violent break-up.

At the outset of the drafting process in June-July 2005, Sunni Arab inclusion was the litmus test of Iraqi and U.S. ability to defeat the insurgency through a political strategy. When U.S. brokering brought fifteen Sunni Arab political leaders onto the Constitutional Committee, hopes were raised that an all-encompassing compact between the communities might be reached as a starting point for stabilising the country. Regrettably, the Bush administration chose to sacrifice inclusiveness for the sake of an arbitrary deadline, apparently in hopes of preparing the ground for a significant military draw- down in 2006. As a result, the constitution-making process became a new stake in the political battle rather than an instrument to resolve it.

Rushing the constitution produced two casualties. The first was consensus. Sunni Arabs felt increasingly marginalised from negotiations beginning in early August when these were moved from the Constitutional Committee to an informal forum of Shiite and Kurdish leaders, and have refused to sign on to the various drafts they were shown since that time. The text that has now been accepted by the Transitional National Assembly, in their view, threatens their existential interests by implicitly facilitating the country's dissolution, which would leave them landlocked and bereft of resources.

The second casualty was the text itself. Key passages, such as those dealing with decentralisation and with the responsibility for the power of taxation, are both vague and ambiguous and so carry the seeds of future discord. Many vital areas are left for future legislation that will have less standing than the constitution, be more vulnerable to amendment and bear the sectarian imprint of the Shiite community given its likely dominance of future legislatures.

On 15 October 2005, Iraqis will be asked, in an up-or- down referendum, to embrace a weak document that lacks consensus. In what may be the worst possible outcome, it is likely to pass, despite overwhelming Sunni Arab opposition. The Kurdish parties and Grand Ayatollah Ali al-Sistani have a proven ability to bring out their followers, and the Sunni Arabs are unlikely to clear the threshold of two thirds in three provinces required to defeat it. Such a result would leave Iraq divided, an easy prey to both insurgents and sectarian tensions that have dramatically increased over the past year.

The U.S. has repeatedly stated that it has a strategic interest in Iraq's territorial integrity but today the situation appears to be heading toward de facto partition and full- scale civil war. Options for salvaging the situation gradually are running out. Unfortunately, it is now too late to renegotiate the current document before the 15 October constitutional referendum or to set it aside altogether, postpone the referendum and start the process afresh with a new, more representative parliament following new legislative elections. The best of bad options having evaporated, all that may be left is for the U.S. to embark on a last-ditch, determined effort to broker a true compromise between Shiites, Kurds and Sunni Arabs that addresses core Sunni Arab concerns without crossing Shiite or Kurdish red lines. This would require that:

  • the U.S. sponsor negotiations to reach a political agreement prior to 15 October concerning steps the parties would commit to take after the December elections, whether through legislation or constitutional amendment. Should such an agreement be achieved, its implementation would be guaranteed by the U.S.;
  • the parties agree, as part of this process, to limit to four the number of governorates that could become a region through fusion, thereby assuaging Sunni Arab fears of a Shiite super region in the South;
  • the parties also agree that Iraqis will not be excluded from public office or managerial positions on the basis of mere membership in the Baath Party.

With positions having become more polarised and entrenched, there is strong reason to doubt whether such a strategy can succeed. But given the stakes, the U.S. cannot afford not to try.

Amman/Brussels, 26 September 2005

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