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Constitutional tempest in Iraq

- The Washington Times - Monday, March 29, 2004

V olcanic. That characterizes a heated symposium I attended in Ankara, Turkey, last week sponsored by the Foreign Policy Institute and Bilkent University to appraise "Iraq on the way to its new Constitution." The attendees included Iraqi participants in the March 8, 2004, interim constitution promulgated by the 25 member Iraqi Governing Council (IGC). Other attendees hailed from Turkey, the United Kingdom and the United States.

The symposium exposed numerous fault lines destined to fracture Iraq soon after the Coalition Provisional Authority and United States sovereignty dissolve on June 30, 2004:

• An interim constitution and Iraqi Transitional Government devoid of legitimacy.

• A legal system denuded of legal principles.

• An irreconcilable conflict between the universal tenets of Islam and fundamental democratic freedoms.

• Implacable embitterment of Kurds toward Arabs born of their wretched oppression and genocide under Saddam Hussein.

• A demand by Turkmen to the same language and autonomy privileges enjoyed by Kurds.

• And exchanges and monologues that smacked more of belligerence than of fraternity.

Within days after conclusion of the symposium fireworks, a representative of Iraq's most influential Shi'ite voice, Grand Ayatollah Ali-al-Sistani, warned the cleric would issue a fatwa or religious edict prohibiting participation in the Iraqi Transitional Government and mandating resistance through popular demonstrations and sit-ins.

To avoid such pandemonium and chaos, according to Ayatollah Sistani's representative in Kuwait, Ayatollah Muhammad Baqr al-Mohri, the interim constitution must delete the special authority of Kurds to thwart a final constitution and must strengthen the power of a Shi'ite-dominated presidency.

The staggering blunders of the Bush administration in governing post-Saddam Iraq have left no satisfactory post-June 30 denouements. The least bad option is a managed partition into statelets for Kurds, Turkmen, Sunnis and Shi'ites to escape a reprise of Yugoslavia's blood-stained disintegration.

Symposium participants challenged Iraqi representatives to defend the legitimacy of their constitutional handiwork, soporifically styled the "Law of Administration for the State of Iraq for the Transitional Period." No member of the IGC was elected. All were appointed by the United States. None enjoy more than a crumb of popular support.

A favorite of the Defense Department, Ahmed Chalabi, is more reviled than Saddam Hussein. The interim constitution was neither drafted nor debated in a public forum before its promulgation. The document turned precepts of self-government on their heads.

The defenders fatuously retorted that the interim constitution and the IGC deserved legitimacy because both were superior to Saddam Hussein and Ba'athist tyranny. By that yardstick, a restoration of the King Feisel dynasty would be defensible. It was further urged that the IGC featured members from all of Iraq's major ethnic and religious groups.

But Turkmen are underrepresented in proportion to their numbers, and women occupy but one seat of 25. Moreover, the general unpopularity of IGC members convincingly demonstrates they do not embody the wishes of the ethnic or religious constituents they purport to represent.

Drafters and supporters of the interim constitution readily conceded its celebration of contradictory principles. Article 4, for example, declares Iraqi's federal system shall not pivot on "ethnicity." Yet Article 53 makes Kurdish ethnicity the foundation for the "Kurdistan Regional Government," i.e., the Kurdistan National Assembly, the Kurdistan Council of Ministers, and the regional judicial authority in the Kurdistan region.

Article 7 enshrines both the universal tenets of Islam that subjugate women and strict gender equality as the supreme law of the land. A challenge by one of two female conferees (neither from Iraq) to harmonize the loud clashing was met by answers that Islam granted equality among men.

Nothing was said to deny Article 7's grim risk of bringing honor killings in Jordan and female stonings in Afghanistan to Iraq.

The tenets of Islam also war with the freedom of expression guaranteed in Article 13, for example, in mandating fatwas against Salman Rushdie's "Satanic Verses" or similar irreverences about the Holy Koran or the Prophet Mohammed. The tenets also punish conversion from Islam with death, a punishment at war with Article 7's protection of religious freedom.

Iraqi conferees insisted on the unity of the nation and the eagerness of Arabs to join hands with other nationalities. Yet Article 7 proclaims that, "the Arab people are an inseparable part of the Arab nation," with the tacit corollary that non-Arab nationalities are separable.

When asked to justify the constitutional hierarchy between Arabs and non-Arabs, an Iraqi participant pleaded a defense of necessity to appease Arab sentiments, a plea reminiscent of Prime Minister Neville Chamberlain's appeasement of Adolf Hitler over the Sudetendland at Munich.

Saddam's persecution of Kurds, including the use of chemical weapons and the notorious Anfahl campaign, was recited chapter and verse by several conferees to justify a unique Kurdistan state and muscular Kurdish safeguards. Those who suffered most under Saddam, it was hotly maintained, deserved the most under a new dispensation. Spokesmen for Turkmen, on the other hand, vehemently complained of maltreatment by Kurds. They insisted on Turkish as an official language and Turkmen autonomy equivalent to that of Kurds.

The seminar changed no minds. Differences were more aggravated than softened. Contemplating Iraq's future evoked visions of civil war featuring rocket propelled grenades and AK-47s, not free and fair national assembly elections monitored by United Nations observers.

The United States should declare its post-Saddam nation-building enterprise a failure. It should begin immediately to arrange the partition of Iraq by regional self-determination plebiscites. To paraphrase Winston Churchill, it would be the worst imaginable last chapter of Operation Enduring Freedom, except for all the plausible alternative scripts.

Bruce Fein is a constitutional lawyer and international consultant at Fein & Fein and the Lichfield Group.