Two areas remain in doubt, what will the reaction of the region be in accepting the vote and what form of government will we see in Erbil. The governments in Baghdad and Ankara have made no secret of their opposition to the referendum and concern of a new country forming.
Does Baghdad have the constitutional authority to refuse the Kurds independence. They just voted to reject the referendum as unconstitutional as well as voting to remove Kirkuk Governor Najmaldin Karim from office. The question is then does the Iraqi constitution allow parliament to do anything about the referendum or have the power to remove a governor without cause. The answer is that constitutional experts who have read the constitution have said they do not. Baghdad has no authority to impede a referendum in a designated federal region nor can it remove an elected official without specific charges.
Regardless of the specific legal authority, the actions do not bode well for any fair and open negotiations between Baghdad and Erbil. Baghdad has violated the proscriptions of their constitution that any argument as to unconstitutionality is to ignore reality. Even had Baghdad not violated its own constitution so egregiously, the constitution itself does not allow Baghdad to interfere in the referendum. According to Professor Branden O’Leary, Lauder Professor of Political Science at the University of Pennsylvania, “By virtue of the conjunction of Articles 141, 110, 115 and 121 (2) (of the Iraqi constitution) it is entirely lawful and constitutional for Kurdistan to hold a referendum on any subject it pleases.”
Regardless of the legal arguments and diplomatic work, it is unlikely that Kurdistan will have the pleasure of a Czechoslovakian style “velvet” divorce. To what degree Baghdad is willing to try to use force to retain the Kurdish region is unknown. Another fear is to what degree Turkey and Iran are willing to go to stop Kurdish independence.
The actual actions others may take will be dependent on the actions of the western nations. The statement by US Special Presidential Envoy for Global Coalition to Defeat ISIS, Brett McGurk, that the referendum is “not something that we can support” must be taken with a large grain of salt as McGurk is not likely empowered to make such pronouncements. It must be pointed out to McGurk that such statements are counterproductive and will lead to the problems he supposedly is there to stop.
The second part of “What Happens on September 26th” is what form of government the new Kurdistan will adopt. The current Kurdistan Regional Government is a good place to start, however over the years some objections have arisen. To understand as well, the KRG does not have a constitution. The constitution that was written is only a draft as it was never ratified. The new Kurdish government will have an opportunity to start fresh and move forward. Some of the concerns are valid some are not. A political consideration that has been raised in the past is to change the way the president is elected. Currently it is by direct election of the people, some want to change that to parliamentary appointment.
President Barzani has also indicated that the new Kurdistan will be a federalist system with much power devolved to the governates. This is a tricky problem and can work, provided enough power is retained in the central government or it can be a disaster if there is no clear authority between the various localities. For clarity on this I suggest the reader study the United States under the Articles of Confederation.
A new constitution can help define the new government and should be worked on primarily with Kurds and limited assistance from the outside. This government must be Kurdish in mind, body and soul to work. The best-intentioned outsider will not fully understand the culture and needs of the population.
I hope that when September 26th comes a new day will dawn and a new country will be born. It will take work and solidarity and a little luck, but it can and will happen.
Paul Davis is a retired US Army military intelligence and former Soviet analyst. He is a consultant to the American intelligence community specializing in the Middle East with a concentration on Kurdish affairs. Currently he is the president of the consulting firm JANUS Think in Washington D.C.
The views expressed in this article are those of the author and do not necessarily reflect the position of Rudaw.
