Kurdistan Region: Federalism, Confederation, or Independence?

Brendan O'Leary

ERBIL (K24) - In an interview with K24 aired on Monday, the Lauder Professor of Political Science at the University of Pennsylvania (USA), Dr. Brendan O'Leary spoke with K24 anchor Omed Jaff in Erbil about the challenges ahead for the Kurdistan Region of Iraq and its aspirations for independence and statehood. An experienced observer of Kurdistan, he advised the Kurdistan Regional Government and assisted the Kurdish negotiating team during the 2005 Iraqi Constitution draft process.


Some of the questions have been changed for clarification purposes.


K24: There are two opinions about Kurdish independence. The first one is that it is too late because Kurdistan got many opportunities and lost them, like in 1991, 2003, and now. The second one is that Kurdistan has many problems, both internally and with our neighbours and other countries that are [generally] not supportive. What do you think?

Brendan O'Leary: It is certainly not too late, I think there is, in fact, a very good opportunity for Kurdistan, right now, to hold a referendum. The question in the referendum in my view should allow Kurdistan's leaders to declare Kurdistan an independent sovereign state with the right to negotiate a confederal relationship with Baghdad. That would give Kurdish people a choice. Either reconstruct the relationship with Baghdad in a confederation, not a federation, or independence if that doesn't work. I think that opportunity is open.

K24: You say it is an opportunity. A year ago President [Massoud] Barzani brought up the issue of independence. Who, do you think supports Kurdish independence?

O'Leary: There was very significant, quiet support in the United States and elsewhere. Lots of people expected Kurdistan to go for independence. But obviously the difficulties created by ISIS put that off [sic] the agenda for a while. Now I think with the consolidation of security inside the Kurdistan region and the with opportunities created by US presidential contest, there is a moment in which Kurdistan can, in my view, go for a referendum. But I don't think the choice should simply be independence or a status quo. Instead, Kurdish leaders should give themselves the opportunity to negotiate a confederation. And the reason I think that is that if Kurdistan says South Kurdistan [Kurdistan Region of Iraq] will be a sovereign state, if it renegotiates its relationship with Baghdad to that of a confederation, it means, there is no change in the external boundary of Iraq.

K24: You mean confederation should be the first step [toward independence]?

O'Leary: You should, first of all, try confederation. If it doesn't work, then independence. The argument for confederation is that you develop a proper relationship with Baghdad. Baghdad recognises your right to become independent. That's part of the constitutional deal between Erbil and Baghdad. We have seen in many other parts of the world that confederations when they break up, the constituent components are then recognised at the international stage. By contrast, if you secede without the cooperation of Baghdad, you face the danger of being an unrecognised state for a long time. And there are lots of costs attached to non-recognition. Kosovo, which became independent in Europe quite recently, is not recognised at the United Nations. Russia blocks its submission.

K24: You mean it should happen under the observation of the UN?

O'Leary: The observation of the UN is important. But it is even more important to ensure that whatever your state is, whether be in a confederation or independent, that you have the cooperation of your neighbours, and you have the cooperation of Baghdad.

K24: But two of the neighbours are against the Kurdish independence.

O'Leary: Right. That's what they say. But if you renegotiate your relationship with Baghdad, if the constitution of Iraq and Kurdistan defines Kurdistan and Iraq as a confederation, in which Kurdistan is a sovereign entity with the right to secede, that's part of your internal bargain. On the point of view of the international law, Turkey and Iran would have to recognise that. And if Baghdad is recognising that you have the right to secede, that means your neighbours have no legitimate objection in international law to your status.

K24: If powers like Russia and China, and also the USA support Kurdistan [regarding independence], will that influence Turkey, Iran and other countries?

O'Leary: It very much matters how the big five powers will behave. We know there is a pattern here, where the central state recognises the right of secession then there is no problem. If we take Sudan for example, in Sudan they had an agreement in which after six years there would be a referendum, in which South Sudan had the choice to remain in Sudan in a federation or they could secede. Likewise, I think, Kurdistan can negotiate, renegotiate, its relationship with Baghdad. The constitution of 2005 hasn't worked. It is broken in many ways. But if you renegotiate that relationship emphatically as a confederation, then you have achieved sovereign status. Then you will have a choice. You'll have the choice to stay in that confederation if it works, enjoying all the advantages of independence without any of the costs but you will also have the opportunity in future, if you wish, to vote to become an independent state.

K24: Will the US support the idea of confederation, if Kurdish people decide so?

O'Leary: Yes, I think they would.

K24: What if Baghdad doesn't agree with that?

O'Leary: The question is how do you bargain with Baghdad. Baghdad may well say no initially if Kurdish delegations go to Baghdad and say we would like to have a confederation, most of the Baghdad politicians would just say no. If however you have a referendum--

K24: After the negotiations?

O'Leary: Before the negotiations. If you have a referendum in which you ask your people, do you want Kurdistan to become and independent sovereign state with the right to negotiate confederation with the rest of Iraq, and you get a yes vote, you are going to Baghdad saying our people has given us two choices; confederation with you or independence, which would you like it to be? Then you put the onus on them. If they say no, we reject that, then you do have to go for independence. But you have, in the eyes of the world, legitimated your claim to a referendum. There are multiple pieces of evidence that the Constitution of 2005 has been systematically violated by the Iraqi Government. So you have an unquestionable just cause. But it matters how you conduct yourself in the period ahead. So all I am suggesting is that the first stage of renegotiating your status is that you have the referendum to empower your leadership with the right to negotiate [a new] relationship with [Baghdad].

K24: After independence Kurdistan will have many problems. One of them is being landlocked.

O'Leary: There are many countries in the world which are landlocked. Most of the countries of Central Asia; Tajikistan, Turkmenistan, Kazakhstan as a whole range. There is also a range of countries in Africa that are landlocked. There are problems with being landlocked. To achieve successful independence or confederation, you need to have good relationships with at least some of those neighbours. In my view, the relationship with Turkey is one that can be built on, and it has been built on by Prime Minister Nechirvan Barzani. It would be vital whether South Kurdistan goes for confederation or independence to make it absolutely clear that there is no ambition on the part of South Kurdistan to expand to create a greater Kurdistan. So we have to be clear. Kurdistan's leaders will have to make it clear that they simply want South Kurdistan to be independent. They will recognise the territorial integrity of Turkey. They will recognise the territorial integrity of Iraq and I think on Syria because Syria is in a civil war. They will recognise the outcome of whatever the international peace negotiations produce inside Syria. That will be the poster. That will be relaxing the neighbours. You will be telling them you have no claim on their territory. In addition, Kurdistan would commit itself to entirely peaceful constitutional relationships with its neighbours. It would not support on its soil any armed movement by any Kurdish organisations intent on a change in Iran or in Turkey. Those are vital the confidence building steps that a sovereign Kurdistan will have to take.

K24: Kurdistan has four neighbours: Iraq, Iran, Turkey and Syria. Two of them are failed states--Syria and Iraq. And two of them are still strong, Turkey and Iran. They both are against Kurdish independence.

O'Leary: Let's start with Iran. Iran has just successfully negotiated and important international agreement with the United States.

K24: Is it good for Kurds?

O'Leary: It is good for Kurds. Iran will want to keep that deal. And United States regards Kurdistan as its most reliable ally in the region and its most reliable ally against ISIS. Therefore, provided Kurdistan's leaders behave prudently and carefully, I think they will have US support. And Iran will have to recognise that as a reality. Turkey is a United States ally in NATO. If Turkey and the US were to disagree, it would have long-term implications for the stability of Turkey. Turkey does not want to lose its relationship with NATO. And Turkey also realises that the Kurdistan Regional Government is its best regional neighbour. Iraq has been in a state of anarchy, civil war and chaos. They do not want that spreading into Turkey. The best way of having stability in Turkey is to have stability in here, in South Kurdistan. The best way of achieving that stability, if Turkey thinks sensibly, will be to recognise the unfolding reality. Turkey will want reassurances. It will want to know that the Turkoman population is treated well.

K24: You mean Turkey will agree to Kurdish independence?

O'Leary: I think it will come to live with it, provided South Kurdistan gives them necessary reassurances. So Turkey will care about what happens to minorities, particularly the Turkomen minority.

K24: Is Iraq a failed state?

O'Leary: Yes. By any reasonable definition, Iraq is a failed state. The federal government does not have a functioning federal army. It does not control its territory. Most of western Iraq is [currently] occupied by ISIS. The relationships between the Baghdad government and Erbil are dysfunctional. Amazing things are happening from the point of view of international perspectives. The government in Baghdad has been paying salaries in Mosul, allowing ISIS to tax the population and at the same time not been paying the Kurdistan government, its entitled [share of budget], this is bizarre behaviour.

K24: Both governments say they are trying to solve these problems. Can they reach a solution?

O'Leary: I think it is conceivable. There could be a temporary bargain. But the relationships are so dysfunctional that I think it is time for a fresh start. The constitution of 2005 has been systematically dishonoured, particularly by the Dawah Party. The federalisation programme of creating regions hasn't happened. The rights of governors have not been respected. Article 140, all the transitional arrangements have not been implemented. The Prime Minister of Iraq since 2006 has behaved like a dictator rather than a member of the collegial power-sharing government. The constitution of 2005 which I advised on, it was a very good deal for Kurdistan, hasn't worked. It is time for a fresh start.

K24: [US Vice President] Joe Biden had a suggestion of partitioning Iraq into three regions, Sunni, Shia and Kurdish---

O'Leary: There is a lot of merit in that idea. I don't think it is for Kurdistan to decide how the rest of Iraq organizes itself internally. Kurdistan is fully entitled to say the federation of 2005 hasn't worked. It is time for a fresh start. To product work, Kurdistan needs to establish southern boundary. And that means in my view, that the disputed territories in the West and in the East out side of Kirkuk, those have to be settled by a referendum. Then you have to have, because Kirkuk is more complicated than the rest, you have to negotiate about Kirkuk.

K24: Peshmerga is there now, after ISIS.

O'Leary: Kirkuk has a significant non-Kurdish population. That's a special case. In most of the other disputed territories, the overwhelming majority of the population wants to be a part of Kurdistan, is happy with the security provided by the Peshmerga. But there are divisions in Kirkuk. So you will have to negotiate a power-sharing arrangement over Kirkuk.

K24: Kurds, Shia and the Sunnis have different aspirations. But the USA insists on the unity of Iraq.

O'Leary: The United States state department has never seen a state [inaudible] to keep together, no matter how bad. The most important thing from the point of view of US foreign policy is they will want any steps towards confederation, or towards an independent Kurdistan not to threaten the exterior territorial order of Iraq. If Kurdistan moves towards independence or towards confederation, it is not changing the external boundary of Iraq. And I think the United States will be pleased by that.

K24: But the US policy is vague. Behind the scenes, they might support the Kurds. But on the TV they insist on the unity of Iraq.

O'Leary: Their [Americans'] policy is incoherent at the moment. They are the ally of Iran against ISIS in Iraq. And they are the adversary of Iran inside Syria. Those are logically contradictory positions. I think American policy will have to shift over time and the way it shifts is very clear.

K24: Hasn't it started shifting?

O'Leary: I think it is shifting. The priority is to defeat ISIS. That has taken a greater priority than the removal of Assad regime. And that means that, from a logical point of view, as we see US policy on fault, they are going to have to shift to the following position; they are going to favour confederalizing both inside Iraq and inside Syria.

Because their problem is they have to keep Turkey calm. How do you keep Turkey calm? If Turkey sees another Kurdistan, an independent Kurdistan emerging in Syria, Turkey will behave very badly. So the United States needs calm that down. What is it doing? It is supporting the Kurds of Syria against ISIS. What is the price of the Kurds of Syria? It is autonomy. And the autonomy they will demand will be confederal autonomy. They would have learnt lessons from what has happened here [Iraqi Kurdistan]. They know that federation won't work. Confederation will. So I think the US is going to be pushed into confederal reconstructions of both Syria and Iraq.

K24: The US is happy with Peshmerga fighting against ISIS. They support it. But when it comes to Iraq, they support Iraqi unity.

O'Leary: The US has a serious problem. It wants the Peshmerga to participate in the defeat of ISIS. From a Kurdish point of view, one has to fear that the US will allow the Peshmerga to help the defeat of ISIS and then wash its hands and the Kurds still trapped inside a dysfunctional relationship with Baghdad. That is precisely why now is the moment for Kurdistan's leaders to have a referendum to resolve the internal constitutional disputes, and to have a referendum making it clear that their price for the defeat of ISIS is the consolidation of sovereignty of South Kurdistan.

K24: What are your expectations for Kurdistan for the next couple of years?

O'Leary: Compared to a lot of places which [sic] have become independent, Kurdistan is in much better shape. I worked for the United Nations.

K24: Is it in a better shape than South Sudan?

O'Leary: A lot better. In the case of South Sudan, it had 64 kilometres of paved roads when it became independent. Sixty-four. Not six thousand four hundred. They were a one-party state with very little experience of democratic competition. Kurdistan does have problems. It has two big problems. Problem number one, there is not a unified Peshmerga army under the command of the President. That problem has to be resolved. You have to have common security institutions and a common security policy. The second problem is disagreements over the presidency and the relationship of [the] presidency with the Parliament. Those questions have to be resolved before you can successfully go for [statehood].

There is another problem which is smaller but I think it is significant. And it is related to the presidency and the parliament. The draft constitution which you have was drafted on the supposition that Kurdistan would stay inside the [Iraqi] constitution of 2005. In my view, you have to modify the draft constitution to make it work for you in all possible futures. And you have three futures. There are only three futures; the federation of 2005 continues, confederation or independence. And it is possible to draft the constitution so it fits all three scenarios. And you need to have that [resolved]. Because if you do become independent or if you do become confederal, you will be so busy dealing with the consequences that you won't have time to attend to change the constitution. So now is the time to get the final agreements amongst the parties over how Kurdistan is internally governed.

K24: You worked for South Sudan at the UN. What have you done so far for South Kurdistan?

O'Leary: I worked for Kurdistan in 2005 as an advisor [in drafting the Iraqi constitution]. And in my role there was to assist in the development of power-sharing arrangements in the [Iraqi] federation, maximising the autonomy of Kurdistan. I think we collectively, the advisors plus Kurdistan's negotiating team achieved the most that could be accomplished in 2005. Our disappointment is that the bargains that we made have not been honoured and have not been kept. That is why in my view we have to move to the next step which [sic] is to go for confederation. If I could go back to the case of South Sudan: South Sudan became independent but then immediately it has had a civil war. And there has been deep divisions among---

K24: Do you think a civil war might reoccur in Kurdistan as well?

O'Leary: I think it is a danger. I don't think it will happen. But it is [still] a serious danger. That is why it is vital that there be a unified Peshmerga.

K24: South Sudan's neighbours played a role in its post-independence civil war. How about Kurdistan's neighbours? Do you think they will try to provoke a civil war in South Kurdistan?

O'Leary: They may try that. I don't think that was the case in South Sudan. The main problem was that the parties had not negotiated their differences before they became independent.

K24: Kurdish parties say it is the nature of politics to have disagreements.

O'Leary: Of course. It is perfectly fine to have disagreements. But you need to agree on what institutions you are going to have. That is why it is vital that the question of the presidency and its relationship to the Parliament needs to be successfully negotiated.

K24: One of your books is about North Ireland. You are from [the Republic of] Ireland. There is another book of yours about Kurdistan. They have similar names; "the Future of Kurdistan in Iraq" and "the Future of Northern Ireland.

O'Leary: Partly because there are four Kurdistans as in Kurdistan in Turkey or Northern Kurdistan, Kurdistan in Iran, Kurdistan in Iraq and Kurdistan in Syria. So for the Western readers it is talking about the Kurds who are in Iraq. I did not, however, assume that the future of South Kurdistan has to be permanently in Iraq. The supposition of that book was that it was possible for Iraq to be remade as multi-national, power-sharing federation.

K24: Is it still possible to remake Iraq?

O'Leary: I am now very, very doubtful. Almost certainly, no credible Iraqi politicians, Arab Iraqi politicians are available to make binding commitments to Kurdistan that then constitution of 2005 will work. There is a decade-long record of systematic failure to implement profoundly important agreements, agreements ratified by the people of Kurdistan. So any wise Kurdish leader cannot tell his people that the constitution of 2005 will work. That is why it is time for a fresh start, press negotiations, move towards confederation. And if that doesn't work [Kurdistan should] go for independence.

(The interview has been transcribed by Ari Khalidi)