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Constitution Process Risks a Civil War

Author: David L. Phillips, Executive Director, The Elie Wiesel Foundation for Humanity
August 26, 2005


President George W. Bush called the drafting of Iraq's constitution an "amazing event." But instead of fostering consensus, the process has actually increased chances for civil war.

The constitution pits Islamists against secularists, Shia against Sunnis, Arabs against Kurds, and women against men. The "new Iraq" is a far cry from what President Bush had in mind when he promised freedom to the Iraqi people.

In 2003, the United States thought it could simply decapitate Saddam Hussein's Ba'athist regime and easily establish a liberal democracy in the heart of the Arab world. Since then, the Bush administration has continually lowered expectations. Today it is embracing a constitution that lays the groundwork for theocratic rule. The constitution also is undemocratic and out of step with human rights norms.

For example, the constitution enshrines Islam as the official religion of Iraq; establishes Shari'a, or Islamic law, as "a primary source of legislation"; and affirms that no law shall contradict the "basic beliefs of Islam." The constitution also mandates clerics serve on Iraq's Supreme Federal Court and gives judges the right to ban laws that contradict Islamic tenets.

By envisioning religious courts adjudicating family law, the constitution also imposes serious infringements on the rights of women - especially when it comes to marriage, divorce and inheritance.

Bush keeps repeating that progress on the political track is the best way to undermine the insurgency. For that to occur, all of Iraq's ethnic and sectarian communities must buy into the constitution as a vehicle for upholding their interests. That is not the case. Arab Sunnis, who live where the insurgency is most intense, are alienated from the political process and incensed about being excluded from constitutional negotiations.

Most Arab Sunnis were too scared or chose not to vote on Jan. 30. When the newly elected Shia- and Kurd-dominated government created a constitutional commission, it appointed only two Arab Sunnis to the 55-member body. To placate concerns about legitimacy, 15 Arab Sunnis were later included.

Facing obstructionism from Arab Sunnis, other Iraqis lost patience and excluded them from the talks. A draft text of the constitution was finally presented to Arab Sunni members of the commission just a day before the deadline. Although they objected to 20 points in the text, the commission ignored their concerns and sent an incomplete draft to the National Assembly. Rather than substantively amend or ratify the text, the assembly plans to submit the current draft to Iraqis in a referendum Oct. 15. The constitution can be vetoed if two-thirds of voters in at least three provinces vote against it.

A leading Iraqi politician recently confided to me that Arab Shia are planning to register in Sunni provinces in order to skew the ballot in favor of ratification. The insurgents are also marshaling their forces. Likening the referendum to jihad, al-Qaida in Mesopotamia is calling on Arab Sunnis to vote against the constitution.

Instead of rapprochement between Shia and Sunni, the constitution has turned into a flash point for increased violence. No matter what happens, Abu Musab al-Zarqawi and the terrorists are going to keep blowing things up.

The Kurds got almost everything they wanted - rightly so, given their suffering and sacrifice. But special privileges to the Kurds have angered Arab Sunnis, who resist federalism.

The Bush administration applied enormous pressure on Iraqis to meet the extended deadline for drafting a constitution. Absent a political process restoring full sovereignty to Iraq, the United States has little hope of pulling off its exit strategy and reducing the number of its troops in Iraq.

U.S.officials should tone down their exuberance. After this torturous phase of the political transition, Iraqis may yet veto the constitution in October. Even if it is approved and a new government elected, the government will not be able to implement the constitution in territories where it lacks control.

The constitution will not be worth the paper it's printed on if Iraq descends into civil war. It would be untenable for the United States to have 138,000 troops in the middle of such conflict. In this event, the Bush administration should have a plan in its hip pocket for managing the deconstruction of Iraq in order to salvage something from the postwar fiasco.

David L. Phillips, a senior fellow at the Council on Foreign Relations, is the author of "Losing Iraq: Inside the Postwar Reconstruction Fiasco."

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