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Iraq’s – and America’s – Existential Challenge

by William Spence Spencer, executive director, Institute for International Law and Human Rights. Original Commentary for Middle East Bulletin.

On April 14th, Iraq’s Council of Representatives began their spring legislative session. The Council faces a number of pressing challenges: selecting a new speaker, fixing budgetary problems caused by a steep decline in oil revenues and planning for the departure of American forces. Members are coping with the new political environment created by provincial elections in January; coalitions and relationships are rapidly shifting. These issues are important, but the Council risks focusing on them at the cost of a much larger problem that touches almost all of its work: the lack of any consensus on the shape of the Iraqi constitutional order. This existential question about the structure of the Republic of Iraq must be answered for U.S. troops to withdraw and for Iraq to have the durable institutions it needs for the long term.

The basic problem is that since no one can agree on the very definition of what the Iraqi state will look like, the parliament has had to postpone addressing basic legislative questions. The lack of progress on hydrocarbons legislation is only one example; many other important pieces of legislation are being held hostage to these existential questions, including key judiciary framework legislation, revenue sharing with regions and provinces, and dozens of other important questions that must be addressed if Iraq is to be a viable state over the long term.

Iraq’s political leadership has done little to address the constitutional order. Depending on how you count, 58 of 144 specific articles in Iraq’s Constitution require implementing legislation. A Constitutional Review Committee was established as way to build a more inclusive revised document; it submitted recommendations in May 2007. Since then, the Council has made little progress in either implementing the review committee’s recommendations or developing new ones in their stead.

Although some see a constitution as an essential tool to forge a national compact, in Iraq, the reality is more mundane. When Iraq’s Constitution was being drafted in 2005, most Iraqis were perfectly willing to give the Kurds the freedoms and institutions that they won and built in the 1990s. Iraqis understood the sacrifices the Kurds made over the decades, and so the idea of regional government took hold as a way to protect Kurdish autonomy. But almost four years later, the dynamic has subtly shifted away from protecting existing Kurdish institutions to the overarching need to give Iraq the tools necessary to function as a viable, unitary state.

Kurdish politicians call this effort “centralism,” and tout the need to implement the Constitution as drafted. But their argument is based on the assumption that Iraq’s Constitution is a viable document – which, given the CoR’s failure to adopt implementing legislation – is at best a weak claim and at worst highly disingenuous. Meanwhile, members of the Kurdish Alliance in parliament continue to generally block any and all legislation that could infringe on an expansionist view of regional authorities – meaning that the Kurds often are in the position of blocking implementing legislation in the name of preserving a document whose viability depends on the adoption of such measures.

To be clear, Kurdish concerns are rational, legitimate and fair. But they are tied to a deep constitutional standoff. For instance, one idea emanating from the Kurdish Alliance is to maintain the Presidency Council, which gives the Kurds a veto but which is now scheduled to be phased out coinciding with upcoming parliamentary elections.

Meanwhile, many other parliamentarians from a wide range of political parties have concluded that the federalist solution as outlined in the constitution is a recipe for continued governmental disarray. Many Iraqi citizens equate the term federalism with the anarchy of the past few years. Parliamentarians increasingly see federalism and ethno-sectarian quotas as a threat to the continued viability of the Iraqi state, and argue for an inclusive Iraqi nationalism.

So building a viable state - an essential aspect of Iraq’s soft landing – has for all intents and purposes reached an impasse. Key players are dodging fundamental questions, and continued delay is only increasing the stakes. The price for this immobility is national confusion, and frequently a vacuum of authority, on matters where there is no constitutional competency. Basic issues including federal law enforcement, natural disaster coordination, air traffic control and human rights protections may not grab the headlines like hydrocarbon legislation or even judicial framework, but they are no less essential to the successful functioning of the state.

One foreign observer recently quipped that one way to get parliament to act is to have the Director General of the World Trade Organization write a letter outlining the dozens of ways Iraq does not meet WTO membership criteria. Only then, he suggested, would the Iraqi government understand the practical reasons to start paying attention to some of the critical legislative challenges at hand.

Of course, there are political forces at play as well: parliamentary elections are scheduled for December 15 (though they probably will be postponed), and Kurdistan will hold its own provincial elections on May 19. To offer just one illustration of the severity of the current problem, Kurdish President Massoud Barzani announced in February that the Iraqi High Electoral Commission would not be allowed to supervise these elections. Meanwhile. the reverberations from the provincial elections will continue as bordering provincial councils are seated. At the same time, the U.S.-supported Awakening Councils have not yet been fully integrated into Iraqi security and political structures.

In addition, the area between the parts governed by the Kurdish Regional Government and the rest of Iraq – especially Kirkuk – will continue to cause more than its fair share of headaches. Just last August, Iraqi Army units and Kurdish Peshmerga nearly engaged in open hostilities in Diyala province.

Optimists would argue that these problems, no matter how challenging, represent progress over a time when these issues were litigated on the streets with mortars, IEDs, and suicide attacks. Although that is true, the issues remain no less explosive—and a failure by the government, including parliament, to address them could do as much if not more damage than anarchy in the streets. Instead of insurgents and random violence, we could see rival organized military units engage one another over disputed territory, as was nearly the case in Diyala.

As the Obama Administration begins to move U.S. forces out of Iraq, it should work to revitalize the constitutional review process and use it – among other strategies – to build a functional Iraqi state responsive to the needs of its citizens. It will be much harder for the United States to withdraw if certain state institutions do not exist or function properly.

The alternative is to wait passively, react to events as they happen and hope for the best. But that is neither sound strategy nor good tactics; it would merely replicate some of the worst mistakes of the Bush Administration.

The United States, for better or for worse, maintains strong leverage on all of Iraq’s political factions. It still is in a position to be a voice of moderation and compromise, and convince all parties that they need to resolve these matters and that they need to do it now. It should use the tools it has to foster a realistic, practical discussion about how the state will function.

What should the United States do? Iraqis will view direct U.S. involvement in the nuts and bolts of amendments or legislation with suspicion, while other governments and non-governmental organizations are perceived as more honest brokers. Thus, the United States should recognize that this is an Iraqi process, but make robust diplomatic engagement and technical legal assistance a policy priority. It is not so much “boots on the ground” as much as it is “wingtips on the ground.”

Such an effort can also be a comparatively easy way to further bring our European allies and other regional governments to engage and be part of a solution. The State Department and White House should demarche and otherwise jawbone our European partners and Middle Eastern governments to highlight that this should be a diplomatic and assistance priority. The United States should also demonstrate direct support for United Nations efforts and a reinforced, revitalized Office of Constitutional Support at the United Nations Assistance Mission to Iraq.

Meanwhile, the United States should engage its Iraqi interlocutors on practical steps to mitigate the logjam. One option could be for initial passage of constitutional changes already agreed on, and then a clearer focus on the remaining, more controversial issues such as the powers of regions and the center. Another option could be more focus on smaller pieces of legislation that enjoy comparatively broader support, such as human rights legislation, as a way to build confidence and consensus on the bigger, more contentious issues.

No matter what, the United States should work with others in the region to promote moderation. It should send a clear message to all factions that compromise is an essential component of any solution. And it should support continued efforts by its own aid agencies, the UN, EU, and local and international NGOs to build an effective democratic state responsive to its citizens.

If the Obama Administration fails to do so, it will risk a return to the chaos of 2006. The current government of Iraq is too feeble and too divided to survive, should events spiral out of control. But even if they do not, it is in the best interests of the United States – and more importantly of Iraq – to build institutions capable of bringing peace, prosperity and civil society to all of Iraq’s citizens. A clearer constitutional order is a prerequisite.