The recent referendum in the Kurdistan Region, which took place on September 25, 2017, triggered an exaggerated escalation of military and diplomatic acts by the Iraqi Federal Government toward the Kurdistan Regional Government (KRG).
Although it seems the Iraqi government is "simply" implementing provisions of the constitution, as it has convinced the international community, it is explicitly undermining it.
The KRG, whose existence and powers are enshrined and protected in the Iraqi Constitution, was given the prerogative to enforce and implement federal policies in its own territories, through KRG officials and employees.
At the outset, to understand the constitutional and legal status of KRG in the Iraqi constitution, one should observe article 117, section 1 which states that “This Constitution, upon coming into force, shall recognize the region of Kurdistan, along with its existing authorities, as a federal region.”
The “Existing Authorities” clause was understood as all three branches of the KRG: legislative, executive, and judicial, and their jurisdiction.
This understanding was widespread among Kurdish leaders: that the newly adopted Iraqi Constitution would not erode the established administration of the KRG over its territories, including checkpoints, borders, and airports which were obtained through the UN Security Council resolution 688, and subsequent resolutions, to protect Kurds against the Iraqi government’s oppression.
In 2005, when Kurds voted in favor of this new Iraqi constitution, it was understood that this new legal framework constitutionally recognized and protected their status quo.
To put this in perspective, the legal status of Kurds in Iraq, to some extent, is similar to the status of Indian tribes recognized by the US constitution: Indians tribes are viewed as separate from the federal government thanks to international treaties, some which they even signed with the US federal government.
Tribal sovereignty in the US existed before the American Constitution was ratified and enforced. In the same vein, the Kurds' legal status as a separate entity was acknowledged by the UN Security Council Resolution.
Kurds exercised their constitutional rights and sovereign powers for more than 14 years before Iraqi constitution was adopted.
As it is clear for legal experts in Iraq, the UN Security Council resolution, which was a binding decision, precedes the Iraqi Constitution. It should go without saying that those decisions, which included that the human and political rights of all Iraqi citizens be respected, should be respected and honored by the Iraqi Federal Government.
Additionally, the Iraqi Constitution distinguishes between the creation of federal policies and the implementation of said policies within the exclusive powers of central government. It determined which matters were to be solely under the jurisdiction of the Iraqi Government, which were stated and enumerated under article 110 of the constitution, but did not provide them with authority to implement its policies unilaterally.
The only exception is the central bank, for which the Federal Government was responsible for establishing and administering.
The enforcement and implementation of federal policies based on the Iraqi Constitution were always meant to be managed by regional and local employees, much like German federalism.
The Iraqi government is merely finding a pretext to bring employees in line with the ruling Shia party to rule and administer federal policies on the Kurdistan region’s territories, notably in relation to international checkpoints, borders, and airports, even if it requires military action.
The KRG’s opposition comes from its insistence that customs offices, checkpoints, and airports have been managed and administrated by the regional employees who have been implementing federal policies in line with the constitution. The KRG argues it has not violated any constitutional provisions on these matters.
The Iraqi army, which has used both Iran and Turkey to conduct military drills on the border to intimidate the KRG, demands the complete surrender of border crossings to the Iraqi military. This is despite the Iraqi Constitution, in Article 114, section 1, explicitly stating that customs should be managed by both regional and federal governments.
The KRG, of course, suspects the Iraqi government may use its control over border crossings and customs offices to impose a blockade on the KRG and threaten its sovereignty. It would be yet another move to bring the Kurdish leadership to cancel the results of the September 25 referendum on independence and to give up its claim on disputed areas, including Kirkuk.
The Kurdish leadership's reluctance to approach the Federal Supreme Court of Iraq and present all of the abovementioned constitutional violations stems from the fact that the majority which controls the Iraqi parliament is the same majority controlling the Federal Supreme Court of Iraq.
As such, the Kurds face a Madisonian form of government, where in this case, a hostile majority controls all branches of government, and where checks and balances do not work to protect the rights of minorities.
In any case, even if Kurds put forward their complaints and their constitutional claims were sustained, the Iranian hegemony and its Shia armed proxies would not allow the Federal Supreme Court's decisions to be upheld and enforced.
It is not an unlikely scenario, as Kurds have seen article 140, one of the most crucial provisions of the Iraqi Constitution, consistently ignored by the Iraqi Federal Government, which has yet to honor and implement more than a decade later.
Unfortunately, the US and other western superpowers, whom Kurds considered to be true friends and allies of democracy, by refusing to support the Kurdish referendum have allowed the Iraqi Federal Government to proceed with these unconstitutional measures.
With their lack of condemnation and their refusal to stand with the Kurds, they incentivized the Iraqi parliament to enact ordinances that unmake all these preserved, residual, and de facto powers, especially regarding the KRG’s jurisdiction over checkpoints, airports, and customs that the Iraqi Constitution itself protected.
*Zardasht Mohammed holds a Master's Degree in Constitutional Law and Constitutional Design /USA. He also holds a Bachelor’s Degree in Law and Politics from the Indiana University Bloomington and teaches at the University of Suleimani, Law College.
The views expressed in this article are those of the author and do not necessarily reflect the position of Kurdistan 24.
Editing by Nadia Riva