Confederalization and Unanticipated Circumstances in Iraq

JURIST Columnist Haider Ala Hamoudi of the University of Pittsburgh School of Law says that a recent survey conducted by the National Democratic Institute reveals changing attitudes regarding federal authority and regional independence in Iraq...

The National Democratic Institute (NDI) recently released a survey [PDF] of Iraqi attitudes toward a variety of political and legal topics. The survey, which was conducted in April 2012, focuses primarily on important, recent shifts among Iraqis as to their near-term political preferences. However, towards its end it also reveals some important realities respecting the nature of Iraqi federalism that deserve greater consideration.

Specifically, the survey asked voters what they felt about recent moves in some of the Sunni-dominated provinces toward a model of state decentralization. Unsurprisingly, the northern, Kurdish-dominated provinces, long committed to the decentralization of Iraq overall and the Kurdish region in particular, overwhelmingly approved of such moves. The Shi'a-dominated provinces, however, overwhelmingly did not. Most interestingly, even the "western" provinces (which, though undefined in the survey, are presumably the Sunni-dominated provinces of Nineveh, Salahuddin and the Anbar — he latter of which held a preliminary vote to start the decentralization process) disapproved of the move by a 60-40 margin. Most Sunnis, in other words, are not in favor of Sunni decentralization.

Only a few years ago, almost none of this could have been predicted. The expectation then was that Iraq was inevitably going to have to be broadly decentralized and that federalism was the only way that then-uncontrollable violence could be reduced. Books were written about the "end of Iraq" and US Vice President Joe Biden and the former head of the Council on Foreign Relations, Leslie Gelb, penned an editorial in October 2007 describing what an effectively divided and confederal Iraq would look like and how best it could be achieved. Even the US Senate issued a resolution urging Iraqi leaders to develop a plan for national division and, ultimately, confederalization.

And precisely in keeping with the sentiment at the time, the Iraq Constitution [PDF] develops a method for confederalization. As most know, it creates a special region for the Kurdish-dominated provinces in which the Kurds enjoy broad autonomy — including the right to nullify legislation enacted by Baghdad except for legislation concerning narrow areas of national sovereignty. Less understood is that the constitution hardly confers such status only to the Kurds. On the contrary, at the demand of one of the leading Shi'a parties at the time, the Islamic Supreme Council of Iraq (ISCI), the constitution gives each province the right to form their own region and, when so formed, such regions would enjoy precisely the same autonomy as Kurdistan. In other words, the constitution's delineation of jurisdiction between individual regions and Baghdad does not depend on the region in question. Each and every region is entitled to the same broad self-governance as Kurdistan. A process of region formation is set forth in the national constitution and is accomplished through "implementing legislation" approved by regional voters. The process involves a request from a province, either from its legislature or directly from voters, followed by a general referendum election. If the referendum passes the region is officially formed.

Yet while the road map for decentralization may well have been present, the will was not. The Kurds certainly wished and, judging from the survey results, continue to wish to see Iraq decentralized. However, that desire is not shared by the balance of Iraqi people. Once it was thought that the Shi'a would demand decentralization next through a province-by-province referendum designed to create a southern, nine-province "superregion." That prospect had been so frightening to the Sunnis that they preferred to boycott the constitutional process upon hearing about it. This fear turns out to have been unnecessary given Shi'a preferences. The NDI survey is only the latest evidence that the Shi'a very much want a centralized state. The earlier evidence is even more compelling — the astounding victory of Prime Minister Nouri al-Maliki's strongly centralist Da'wa party over the more federally minded ISCI in provincial elections in 2009 and the failure of federalism proponents in Basra to gather even the 10 percent voter support they needed to put the matter of region formation to full referendum.

Even the Sunnis have not shifted as strongly to seeking self-rule as may have been believed. As demonstrated by the NDI survey, there is little doubt that Sunnis feel broadly disenchanted with Iraq's government, believe it not to be responsive to their needs and, indeed, regard it in some ways as antagonistic to their community. This is, of course, a problem and a serious one. Yet it is important to note that despite the disenchantment and disaffection the survey shows that Sunnis in the western provinces continue to have a romantic commitment to their nation, which they regard as Iraq — not, as some would have it, "Sunnistan." This Sunni sentiment is decidedly stronger within the substantial part of the Sunni population living in Baghdad, which formed the bulwark of support for the variety of centralized pan-Arab regimes that dominated Iraq before even the Ba'ath Party assumed control of the state.

Naturally, things can change and the constitution takes this into account. It permits confederalization, but does not impose it. The matter is left to the provinces to decide for themselves. However, the constitution is not perfect in this regard. An even more flexible model that varied the specific degree of autonomy of a given region after negotiations with Baghdad would have served better. However, the constitution is sufficiently flexible to manage the rather drastic changes that have occurred — from an assumed, imminent process of confederalization to a state structure that is largely centralized but asymmetrically federal concerning that one region of Iraq inhabited by people dominated by a distinct ethnic group. In this flexibility to deal with unanticipated circumstances, there is much to praise.

Haider Ala Hamoudi is an Assistant Professor of Law at the University of Pittsburgh School of Law. His scholarship focuses on Middle Eastern and Islamic Law, particularly as it pertains to matters of commerce. Hamoudi spent most of 2009 in Baghdad advising the Constitutional Review Committee of the Iraqi Parliament, responsible for developing amendments to the Iraqi Constitution aimed at national reconciliation, on behalf of the US Embassy in Baghdad. He is currently preparing a book on the drafting and subsequent evolution of the Iraqi Constitution to be published with the University of Chicago Press. He also maintains a blog on Islamic Law.

Suggested citation: Haider Ala Hamoudi, Confederalization and Unanticipated Circumstances in Iraq, JURIST - Forum, June 5, 2012, http://jurist.org/forum/2012/06/haider-ala-hamoudi-confederalization-iraq.php.



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