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Are We Forgetting the Kurds?

JURIST Guest Columnist Anthony D'Amato of Northwestern University School of Law says that amidst all the attention focused on security problems likely to be associated with an eventual US withdrawal from Iraq, the legal and practical impact of withdrawal on Iraq's millions of Kurds, mostly concentrated in the north of the country, needs to be considered...

Now that President George Bush of the United States and President Jalal Talabani of Iraq, together with Senators Barack Obama and John McCain, have agreed upon a speedy withdrawal of American troops from Iraq (sixteen months is the figure most often heard), we may have on our hands a case of "withdraw in haste, repent at leisure." In the rush to pull out, security issues are forefronted while other issues, which may be more important may be bypassed so long as they appear to be under control.

The main casualty of the rapid withdrawal could be Kurdistan. It would indeed be hard for Bush Administration to justify staying in Iraq a little while longer for the reason that the security of the Kurds needs to be reinforced. The public doesn't know much or care much about the Kurds. When foreign policy is run by the public, we can expect major blunders ahead.

Kurdistan — "the land of the Kurds" — straddles four countries: Iran, Iraq, Syria, and Turkey. It has a population of thirty million. After the collapse of the Ottoman Empire in World War I, the Allies intended Kurdistan to be one of the emerging countries. For various reasons—military, political, indifference — Kurdistan did not happen. It remains a virtual state.

Today the Kurds in the Iraqi part of Kurdistan have good reason to be worried. Although they approve of the new Iraqi Constitution, they are afraid that after the Americans withdraw, the Shiite majority will start to construe and reconstrue the Constitutional constraints until they are transformed into grants. It is hard for American readers to appreciate how this can happen on a wholesale basis since we are imbued with the resilience of our own Constitution.

But there is a world of difference between the contexts of the two Constitutions. The founders of the American Constitution were fearful of governmental power; they did not want the President to morph into King George. Not only did the framers provide for separation of powers, checks and balances, federalism, and individual rights, but they and their fellow citizens firmly believed in the propriety and necessity of structural constraints upon governmental power.

By contrast, the new Iraqi government will want and need all the power it can get. They will face threats from religious factions at home and terrorists infiltrating from abroad. The Shiite majority will sooner or later start enacting emergency legislation to "save the Constitution by temporarily disregarding it.".

If the Kurds do not quickly become proactive, their autonomy may be at risk. One easy step would be to request observer status as "Kurdistan" at the UN General Assembly. More important would be to start taking steps toward statehood. This is the most auspicious time to do it because of the rush and confusion accompanying the American military withdrawal. A Kurdistan statehood plan might be drafted and filed with the UN General Assembly. The UN could also be asked to set up a consultative committee to monitor the Kurdistan question for the duration of the plan, which could be for five years. The Iraqi constitution would have supremacy throughout the five years; Iraq's authority would only be expected to be relinquished as the final step at the end of the plan. A draft Constitution for Kurdistan would be attached, with the proviso that it is a draft-in-progress.

More important for Kurdistan's security, in my opinion, would be to set aside a tract of land near Mosul and lease it to the United States for 200 years. An airforce base could be constructed, with the latest bomb-proof underground facilities. It could be the most important American base in the Middle East. The proximity to Mosul would ensue that Kurdish entrepreneurs could establish stores and services at the perimeter of the base. Interaction between Kurds and Americans should be encouraged at all levels.

This is of course a fairly radical suggestion. The Iraqis want to get rid of the American bases in Iraq. However, the Kurds should make decisions in their own self-interest without assuming that it is congruent with Iraqi self-interest. A major US airbase in the heart of Kurdistan might be the best long-term investment in security that the Kurds could ever make.

On the Turkish side of Kurdistan, the problem is what to do with the PKK. The Kurdistan Workers Party, founded in the 1970s, is a revolutionary separatist movement responsible for thousands of deaths. The PKK has moderated its goal from separatism to autonomy. Nevertheless Turkey, the United States, and the European Union, brand the PKK as a terrorist organization. Of course, labels are manipulated for political purposes. If the PKK under international law is a terrorist organization, then under the Bush no-safe-haven doctrine, the Kurds themselves would have an obligation to seek out and destroy the PKK guerrillas who are hiding in the Kurdish mountains. But the case for legally describing the PKK as terrorists is weak. The PKK is a self-proclaimed, identifiable political organization with a clear goal of separatism and independence. Such organizations in international law have always been accorded a presumptive legality so long as they attain a reasonable critical mass that differentiates them from bands of criminals. Under general rules of international law pertaining to civil war, other states may legitimately contribute arms and money to such organizations.

If Kurdistan-within-Turkey were eventually to secede, it should pay indemnity to Turkey for having protected its people and lands for many decades. This indemnity could take the form of a substantial royalty payable to Turkey against all future oil production in the region. This guarantee, made enforceable by the United Nations, might go a long way to moderating Turkey's loss of its Kurdish lands.

Experts in Kurdistan, of which I am not one, may find my proposals naïve or unattainable. No matter; I have no expert reputation to lose! What I am hoping for, however, is that a set of radical proposals may stimulate thoughtful consideration.

Anthony D.Amato is Leighton Professor of Law at Northwestern University, where he teaches international law and human rights.


Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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Academic Commentary is JURIST's platform for legal academics, offering perspectives by law professors on national and international legal developments. JURIST Forum welcomes submissions (about 1000 words in length - no footnotes, please), inquiries and comments at academiccommentary@jurist.org

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