A referendum would also decide the fate of multi-ethnic Kirkuk, which has been under Kurdish control for the past month. Photo: AFP
ERBIL, Kurdistan Region – As Iraq reels, legal experts remain divided over the legality of a planned Kurdish referendum in the so-called “disputed territories,” which will decide whether these want to be incorporated into the Kurdistan Region or with Iraq.
Kurdistan Region President Massoud Barzani last week called on the Kurdish parliament to make preparations for a referendum in the disputed territories.
These are vast swathes of Kurdish-populated areas outside the formal borders of the autonomous Kurdistan Region in northern Iraq. Over the past month Erbil has deployed its Peshmerga forces there, after a retreat by Iraqi troops who are now battling jihadi-led insurgents and a popular Sunni rebellion. Especially important is Kurdish control over immensely oil-rich Kirkuk, which Iraq’s Shiite government has vowed to snatch back.
Barzani also said in a BBC interview that a referendum on Kurdish statehood was expected within months.
Tariq Harb, an expert in law and the Iraqi constitution, said that a referendum in the undecided lands is “permissible and constitutional” under articles 58 and 140 of the Iraqi constitution: but the constitution permits only the federal government in Baghdad to hold a plebiscite.
“Article 140 stipulates that the caretaker Iraqi federal government, and not any other authority, should carry out the procedures of normalization and referendum in Kirkuk and the disputed areas,” Harb said.
He added that the Kurdistan Regional Government (KRG) is not mentioned in any of those articles, but that Iraq’s Independent High Electoral Commission (IHEC) has the right to grant authority.
Harb also noted that Article 140 outlines three steps: reversing an “Arabization” process carried out by previous Iraqi regimes; holding a census; and finally a referendum. According to Harb only the first of these has been implemented.
“Skipping the second stage and implementing the third would render the referendum illegitimate,” in Harb’s legal opinion.
Barzani has called on the United Nations to help with a referendum, but Harb said he was doubtful that international organizations would cooperate.
“I do not believe that the United Nation or any international organization would agree to supervise the referendum.” He added that “any unilateral actions regarding the disputed areas are illegitimate, unless done through a decision of the Security Council.”
Harb emphasized he was commenting only on the legality of a referendum: “Any expert of Iraqi affairs knows that the people of the disputed areas, especially Kirkuk and Khanaqin, support joining the Kurdistan Region. This is not disputed.”
Wail Abd al-Latif, a legal expert who was on the committee that drafted the Iraqi Constitution, said that Baghdad’s agreement for a referendum was imperative.
“In order to hold a referendum in the disputed areas in a legal and constitutional manner, and not through force and on de facto grounds, the Kurds need Baghdad’s agreement,” he said. “The referendum must be held with the supervision of the Iraqi government.”
Latif concurred with Harb about no international recognition of unilateral action by the Kurdish government in areas that have been under Peshmerga control for a month: “No international organization – or the UN -- would agree to supervise the referendum in the disputed areas without the consent of Baghdad, because that would violate the sovereignty of Iraq.”
But Marf Omar Gul, another legal and constitutional expert, disagreed with Harb and Latif, saying that Iraq’s current turmoil which threatens to break up the country makes a compelling case for speeding up the process.
“In light of the current situation the security of the disputed areas is provided by the Peshmerga forces. Holding a referendum is a very valid step in order to decide the fate of these areas. Only the people living in those areas can decide the future of their regions,” he said.
According to Gul the approval of the Kirkuk provincial council would legalize the whole process. “They should also obtain the consent of the Provincial Council of Kirkuk to add legitimacy to the process.”
Gul said that the KRG should brief the UN, the European Union and individual countries “about the situation in the disputed areas and explain the importance of this process, so they would understand and participate in supervising the referendum and acknowledge its outcome.”
“Kurdistan must make the necessary preparations and inform the international community,” he said.