Baghdad obstructs Kurdish referendum but is Iraq’s constitution now void?

As Kurdistan’s historical independence referendum draws near, Baghdad continues to argue the Kurdish drive toward independence is illegal and against the Iraqi Constitution.

ERBIL, Kurdistan Region (Kurdistan 24) – As Kurdistan’s historical independence referendum draws near, Baghdad continues to argue the Kurdish drive toward independence is illegal and against the Iraqi Constitution.

However, over a decade of failure to implement key articles of the Iraqi Constitution such as Article 140 that determines the future of Kirkuk, oil sharing, payment of Peshmerga salaries, and Kurdistan’s share of the national budget, is the Iraqi Constitution now void?

The Iraqi Constitution has become a double-edged sword to confine Kurds. On the one hand, Iraqi politicians argue it prevents the Kurds from independence and, on the other hand, Baghdad refuses to implement it fully.

Iraqi Prime Minister Haider al-Abadi stated again this week that no article in the Iraqi Constitution mentions a referendum on independence while warning of the negative effects of such a move.

Former Iraqi Prime Minister Nouri al-Maliki continued this line, stating in a recent interview, “Kurdistan cannot become an independent state from the point of view of the law or from the point of view of the constitution.”

“The Kurds determined their fate when they voted for the constitution and decided that Iraq is a federative state,” he continued.

The Kurds may have been willing signatories in 2005, but the Iraqi Constitution is a legal framework.

If Iraq fails to implement any aspect of the constitution or if politicians fail to adhere to its terms then, ironically, Baghdad would be the one on illegal grounds.

Kurdistan Region President Masoud Barzani, who accused the Iraqi leadership of having “the same culture” of genocide as past Iraqi governments, hit back and blamed Baghdad of violating the constitution.

“It was the Iraqi governments who neglected Article 140 for 10 years and didn’t allow the establishment of a federal council,” President Barzani stated.

“In Iraq’s diplomatic institutions, Kurdistan’s share is decreased dramatically, Kurds were isolated, forcing Kurds out,” the President added.

In a recent letter to the Kirkuk Provincial Council (KPC), the Iraqi government claimed the government “cannot implement” Article 140 of the Iraqi Constitution in Kirkuk.

Rebwar Talabani, the Head of the KPC, recently told Kurdistan 24 the Iraqi government had “no intention” of implementing the constitution, before concluding there is “no option left for [Kurds] but to use other means outside of the constitutional framework” to determine the future of Kirkuk.

If Iraq refuses to implement Article 140 of the constitution, then the Kurds have a strong case to counteract the lack of application of the constitution with their referendum.

Furthermore, the international principle of self-determination is not bound to any state constitution. When Kosovo separated from Serbia, or when South Sudan ceded from Sudan, the respective countries had a constitution.

The United Nations Charter states that nations, based on respect for the principle of equal rights and equality of opportunity, have the right to freely choose their sovereignty and international political status with no external compulsion or interference.

Self-determination is also protected under the International Covenant on Civil and Political Rights as a right of “all peoples.”

The independence of Kosovo set a legal and moral precedence that strengthens the Kurdish case.

Kosovo was the first case of secession raised before the International Court of Justice who ruled in 2010 their declaration of independence was legal and did not contravene international law.

World powers at the time including the US, EU, and the UK defended the move.

Then US Secretary of State Condoleezza Rice called the situation “a special case” for reasons such as “Yugoslavia’s breakup, the history of ethnic cleansing and crimes against civilians in Kosovo, and the extended period of UN administration.”

More specifically, they argued Serbia’s repression had forfeited their right to govern Kosovo by “breaching its responsibility to protect” its civilians under international law, and thus the Kosovars were free to determine their destiny.

Like Serbia, Iraq has forfeited the right to rule the Kurds after decades of genocide and repression under the hands of successive Iraqi governments, but also due to the failure of Iraqis to adhere to the constitution of the new Iraq.

In spite of the rhetoric around the importance of Iraq’s unity, once the Kurds achieve independence, US, EU, and even regional powers, will quickly realize the benefit of strategic relations with the world’s newest state.

Russia is already a step ahead, warming to the idea of a secular Kurdistan as a key strategic partner in the Middle East.

Russian Foreign Minister Sergey Lavrov recently emphasized his country’s mutual interests with Kurdistan.

“It is important for us that the Kurds like all other people of the world achieve their ambitions and legal rights and political goals,” he said.


Editing by Karzan Sulaivany