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Brown: Kurdish, Islamic Issues Key Questions for New Iraqi Government

Interviewee: Nathan Brown, Senior Associate, Carnegie Endowment for International Peace
Interviewer: Bernard Gwertzman, Consulting Editor
April 7, 2005

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Nathan Brown, an expert on Arab politics, says Iraq’s new government probably won’t make an August 15 deadline for drafting a new constitution. The two thorniest issues to resolve: the degree of Kurdish autonomy and Islam’s influence over national law. Iraq this week named a Presidency Council and a prime minister, Ibrahim al-Jaafari, moves that Brown applauds, but he cautions, “there’s an awful lot more work left to do.”

A senior associate at the Carnegie Endowment for International Peace on leave from George Washington University, Brown was interviewed by Bernard Gwertzman, consulting editor of cfr.org, on April 7, 2005.


More than two months since the elections, the Iraqi National Assembly has finally chosen a new interim leadership. What does this signify?

It’s certainly a positive development, but there’s an awful lot more work left to do. They’ve settled some of the basic personnel questions, but it is not clear whether they’ve hammered out agreements on some of the matters of principle that divide them. They’ve made some headway there, but there is still a lot of work to do.

What are the “matters of principle?”

Perhaps the one that’s emerged as the most important in the negotiations has to do with the status of Kurdistan and, related to that, the status of [the city of] Kirkuk. Kurdistan already has some recognition as an autonomous entity within Iraq, but there are basic issues about division of revenue and about integration of Kurdistan into a federal Iraq. There is also the question of the autonomy of the Kurdish militia known as peshmerga.

Those things I’m sure kept them busy in negotiations, but it is not clear that they have an agreement. On Kirkuk, it seems they’ve basically decided to postpone the issue. Kirkuk has a mixed population, but it is regarded by the Kurds as part of Kurdistan. According to the Kurdish reading of the Transitional Administrative Law (TAL), what has to happen is the non-Kurdish populations that moved into the area under Saddam Hussein should be encouraged to move out and the Kurds should be encouraged to move back in. And then the status will be settled. For the non-Kurdish parties, that sounds like, “Give us Kirkuk, and then we’ll negotiate about it.”

Kirkuk was at one time a Turkmen city that the Kurds then populated, until they were thrown out by Saddam?

Yes. It’s got a mixed population. The protagonists there are the Kurds, Arabs, and Turkmen. The Turkmen feel edged out by the Kurds.

Why is everyone interested in Kirkuk? Is it mostly the nearby oil reserves?

There’s oil, so it’s certainly connected with that. It’s connected perhaps with the viability of an independent Kurdish state. A lot of people think the Kurds are pressing it so heavily because they want to eventually link Kirkuk to an autonomous Kurdistan. If they could keep Kirkuk and control the oil revenue, an independent Kurdistan would be a more viable proposition.

The Turks have an interest in this, too. They’re wary of too much independence for Kurdistan.

Yes. The [Iraqi] Kurdish leadership seems to have decided to downplay its interest in independence for the present. That’s because they don’t have much international support. None of Iraq’s neighbors would be very enthusiastic about that, and it doesn’t seem like they have American support either. What it seems they’re doing is setting up the possibility- not necessarily as an outcome of this constitutional process, but at some point down the road when the international situation is more favorable- that the Kurdish leadership could again raise the option of breaking off from Iraq.

What’s the next issue?

The Kurdish issue was probably the thorniest. Islam is one on which it is clear there is passionate division. It’s much less clear how that debate will break down in practical terms; that is, what changes the various groups want to see. But there is a division between more secularly oriented Iraqis and those who wish to see a much more Islamic coloration to their political future.

How do you think it will play out?

The contest so far has been fought at the level of very general constitutional language for the most part, rather than on the level of detail. Nobody seems to dissent from the position that Islam should have some kind of official standing and some kind of official recognition, so a completely secular state is out of the question. And at the other end of the spectrum, a completely Iranian model under which clerics exercise some rule in day-to-day politics, is off the table as well. But almost anything in between is a possibility. It could be that laws are given a greater Islamic coloration. It could be that clerics, if not ruling day to day, are still consulted in important matters. It could be that you would have, especially in personal-status matters, a reversion to a situation in which religious law- as determined by religious scholars rather than by the state- plays a much greater role.

Prime Minister Jaafari, a Shiite, has been talking about the need to bring Sunnis, Kurds, everybody into the government. Do you think that sentiment will prevail at least for the writing of the constitution?

It has to prevail for the writing of the constitution, because so many people are given so many different points at which they can exercise a veto. It’s a process of virtually enforcing a consensus. So the question is: can a consensus be developed? Without a consensus, the process breaks down. If any three provinces vote against the adoption of the constitution, it is rejected. So, in effect, Sunnis, Shiites, and Kurds all have a veto.

That requires a major effort to bring Sunnis into day-to-day politics.

Yes. On a constitutional level, I think that’s a little less difficult than it is with the Kurds, because most of the Sunni demands don’t focus on the content of the constitution. They focus on [pressing for an end to the] American presence, they focus a little bit on procedure. I don’t think, when writing the constitution, it’ll be that hard to make it more palatable to a Sunni audience. The trick will be to get Sunni leaders and the Sunni population on board in the process.

We’ve seen mixed signals recently, haven’t we? Some Sunni leaders are saying people should join the army and the security forces, but some others say that is meant to subvert those forces.

And, unlike the Kurdish population and the Shiite population, who have a set of clearly identifiable leaders, it’s much less clear who is speaking authoritatively for the Sunni population.

Is the National Assembly going to be a rubber-stamp body, or will there be divisions within it?

I think the National Assembly will be a real body. First, it’s given this important task of writing the constitution. That doesn’t mean every single member will be involved in drafting every single clause, but it means the most fundamental task Iraq has to face is the one that is given to the National Assembly. Even though the majority in the assembly comes from the Shiite-led United Iraqi Alliance, that electoral alliance is a shaky affair that was put together for the purposes of an election and not for the purposes of governing.

And you’ve also got a sort of unhappy experience in viable parliamentary life in Iraq. You don’t have a clear cadre of expert parliamentarians. You don’t have a clear sense of who the leaders and followers are. So, I would expect the National Assembly to be a little bit of an inchoate body as it begins this process. It’s clearly a critical one, but it’s not one that is going to be able to act very cohesively.

There aren’t too many constitutions in the Arab world, are there?

That’s not quite true. At this point, there is a century and a half of experimentation with constitutional texts in the Arab world, so there is considerable experience on which to draw. Some of that experience is negative. That is, anybody who looks at other Arab countries might discover what not to do or how to close certain loopholes, and that sort of thing. The legal training in Iraq will be largely Arab in nature, so I would expect those people who are involved to at least be bringing in some of that Arab experience.

What previous constitutions in the Arab world would you point to that have some relevance? Were there some good constitutions written along the way?

There are sections of constitutions that might be worth looking at. If I were to point to the most liberal Arab constitution, I would probably point to the Palestinian one, one that has not been promulgated because they don’t have a state yet. But what they tried to do in that document is take some of the Arab constitutional tradition and steer it in a liberal direction.

For the most part, the Arab constitutional tradition is borrowed from Europe. And so it’s a question of taking structures and language that, over the last 50 to 75 years, have been steered in a very authoritarian direction. In those constitutions, there are all sorts of loopholes opened up for the president or the king to do whatever he wants.

Is Egypt’s constitution a good model?

Egypt has a very strong constitutional tradition. But its current constitution, which was passed in 1971, is an unwieldy document because it was created during a liberalizing moment, although Egypt was still a socialist state [under President Gamal Abdul Nasser]. It is fundamentally authoritarian, so you can find pretty much anything you want to in that document. In addition to its constitution, Egypt probably has the richest expertise in constitutional law in the Arab world. So, if the drafters of Iraq’s constitution are going to look for other Arab experts, Egypt might be one of the most likely places to turn to.

The Iraqis are supposed to have their constitution drafted by August 15. Do you think it’s likely they will seek an extension?

Yes. But I think they’ll be under domestic and international pressure not to do so, because everything has gone so slowly up to this date. But what the Transitional Administrative Law promises is not simply a constitution handed down from above, as is a pattern in the Arab world, but one that is supposed to be written as part of a participatory and public process. To jump-start discussions and expect any clear outcomes and all debates to be resolved by August 15 is, I think, very ambitious. If they try to stick to that deadline, my guess is we’ll wind up with a very skeletal constitution or perhaps a converging of the Transitional Administrative Law into a permanent constitution.

How long of a postponement is allowed by the TAL?

They can ask for one six-month postponement. They have to do so by the beginning of August.

All this presupposes a period of calm, but the country is still wracked by the insurgency.

Yes. What we’re essentially seeing is techniques for post-conflict situations being applied before we’re in a post-conflict stage.

Is this unusual?

Yes, but not unprecedented. Most countries that have perfectly calm politics don’t decide to rip up their constitution and start over again; it’s perfectly standard to have a constitution written in a period of crisis. The Iraqi situation is probably more extreme than most of its counterparts, however.

You’ve been studying moves toward reform in the Arab world. If the Iraqis can approve what seems to be a good constitution and go ahead with elections by, say, the middle of next year, is this going to have an impact on other Arab countries?

It probably will have an impact, but I don’t think it will have a tremendous one. Most Arab states, when you get to the reform issue, look inwardly. They’re certainly going to be aware this is going on in Iraq, but the agenda for reformers varies from country to country. I don’t expect any massive wave as a result of a successful Iraqi outcome. Maybe just a little bit of quiet jealousy.

Middle East expert Juan Cole has said the small Sunni representation in the assembly is going to be a big problem for this government. Is there a way around this?

There’s no way around it in the assembly itself. That body is elected and there are very few Sunnis in that body. The ways around it would be in the cabinet- but they’re not at the bargaining table to express their desires- and on the commission that writes the constitution.

I should add that the position of speaker of the National Assembly may turn out to be fairly significant, because in most Arab parliaments, the speaker is a fairly powerful agenda-setter. And it’ll be the National Assembly that’s writing the constitution. Speaker Hajim al-Hassani is a Sunni without a lot of party support in the body, so it’s not clear that he can act as a kind of dictatorial speaker that occurs in some Arab parliaments, but he still might be an influential figure.