JURIST Guest Columnist Haider Ala Hamoudi of the University of Pittsburgh School of Law says that a recent proposal to turn the contentious northern Iraqi city of Kirkuk into an independent federal regionate could be a starting point for further discussions that could meet the needs of Turkomen, Kurds and Arabs alike…

Last week, in a little reported event, a little known Turkoman representative of the Iraqi National Assembly, Fawzi Akram, offered an ingenious plan to address Kirkuk's future – the creation of an independent federal regionate specifically for Kirkuk, separate and apart from the regionate of Kurdistan Iraq but enjoying the same, broad autonomy from the central government as the Kurdish regionate. The idea seems to have gone nowhere, as it disappeared from the Arab news in less than a day, and so far as I can tell never reached the English speaking media. However, it is to my mind precisely the type of creative, legal thinking sorely needed in Iraq to address the pressing issues of concern that continue to divide the various groups within the country.

The problem of Kirkuk is among the most significant that face Iraq today. Long a city composed primarily of three ethnic groups, the Turkomen, the Kurds and the Arabs, Saddam upset the city's precarious balance through a mass deportation "Arabization" program that removed Kurds from the area, and replaced them with Arabs from the south. Tens of thousands of Kurdish families lost their homes as a result, and tens of thousands of Arab families, not necessarily connected to the former regime, were given those homes. The justice of the cause on behalf of those Kurds so removed, for no reason other than their ethnicity, cannot be questioned.

Nevertheless, apparently unaware of, or unconcerned with, the rather appalling consequences in previous attempted mass population transfers around the world, the Kurdish parties have demanded as the solution, almost from the day that Saddam fell, a "restoration" of Kirkuk to its status prior to Saddam's Arabization program, moving tens of thousands of Arab families out, and replacing them with their original Kurdish inhabitants. The Shi'a parties within the Iraqi government (or most of them, save possibly the Sadrists), more interested in consolidating their power throughout the south than worrying about Kurdish demands in areas of lesser concern to them, promptly acceded to this central Kurdish demand, and from this, Article 140 of the Iraq Constitution emerged.

Article 140 draws on a similar, earlier provision in the Iraqi Transitional Administrative Law and sets forth a three stage process meant to "restore" Kirkuk. First, the Kurdish families are returned, and the "new" Arabs (meant to distinguish them from Kirkuk's long standing Arab population, who are supposed to be unaffected) are sent back to wherever they came from decades earlier, with compensation. Second, a census is taken, and finally, a referendum on Kirkuk's status is held, all of which is to take place by December 31, 2007.

To say that this has not precisely gone according to plan is to understate the matter considerably. The first problem is that the constitution is supposed to be amended to meet certain Sunni demands, one of which concerns precisely Article 140 of the Constitution, to which the Sunnis are nearly uniform in their objection. Secondly, Arabs accuse the Kurdish parties of packing the city with individuals with no connection to it in order to win a referendum. Third, the Kurds have blamed the central government for deliberately causing delays and have grown impatient, and finally, the work of the property claims commission responsible for all of this restoration has been controversial and slow moving. There is therefore nearly in place, if media reports are to be believed, an agreement between the Kurds and the central government to delay the vote for six months.

Now it appears that the most hardline Sunni party in the National Assembly, the Iraqi National Dialogue Front, aware that a vote by the end of the year is all but impossible at this point, has indicated that there can be no delay, and that once the New Year arrives, in the words of the Front's spokesman Haider Al-Mulla, "no power on earth can under the constitution join Kirkuk to Kurdistan." At the same time, Fu'ad Ma'sum, the deputy chairman of the Iraq Constitutional Review Committee, has indicated that significant differences remain among the various factions seeking to amend the Constitution concerning four issues, among them Article 140 and the status of Kirkuk, and that more work, and more direction from the political leaders of each faction, is needed to bridge the differences. As a result, his committee also seeks an extension of the time from the National Assembly for the time allotted to it to finish its proposed constitutional amendments.

So to summarize this rather complicated legal and political tangle, the Kurds and the Shi'a have more or less agreed on the Kurdish formula for Kirkuk, its implementation is proving messy, and the Sunnis, or a fair number of them, are so viscerally opposed to Article 140 in the first place that they seem to be arguing that (i) it must be amended and (ii) even if it is not, once December 31 passes, no referendum is permissible under the Constitution. This is hardly the makings of an elegant, grand political bargain. Moreover, while the New York Times may indicate that the Bush administration prefers to see small steps in place of a grand bargain, this will not work with Kirkuk. The Kurds are impatient and want their referendum, their parliament issues decree after decree concerning it, and even sent a representative to discuss the matter with Prime Minister Maliki. Infinite delays and small steps will not satisfy them.

Enter the Sadrist Fauzi Akram, with a rather simple solution. Create an independent regionate, belonging neither to the Kurdish north nor the Arab south, and bridge the problem by joining it to neither of the two. Problems will still remain concerning the city, and who should or shouldn't be living there. But the need to overpopulate with any particular ethnicity would be dramatically reduced. It was framed precisely as a potential compromise solution.

It should be noted that Akram is a Turkoman, and the Turkomen dominate in no other region than, potentially, Kirkuk, and so there is no question that the solution tends to favor his ethnic group. That said, he does not represent the Turkoman list, but the Shi'i Sadrist list. Moreover, his solution hardly creates the opportunity for Turkoman domination of Kirkuk given that the Turkomen are not a clear majority in Kirkuk at this time (and if they were, they would thwart any move to join Kurdistan in a referendum, making the Kurdish demands moot). The proposal would still therefore require everyone to find a way to get along. And most importantly, it's a new idea, the only new idea I have heard for some time, and therefore a starting point for further discussions that can meet all the parties' needs.

Unfortunately, however, as noted above, the idea died quickly, Kurds whom I know dismissed it as a Turkoman's ploy, and everyone was soon enough back to their old tricks, digging in familiar territory, claiming the inability of any power on earth to do one thing, or blaming the central government for failing to do another, demanding constitutional changes or refusing to consider the same. Speeches abound, delivered with increasing levels of grandiloquence, as if what will lead to
a solution will not be creative legal and political ideas, or compromise, but rather a particularly rousing speech that will cause one faction to realize the entire poverty of its own position and adopt that of its opponents. Such is not the climate in which deals are often struck. We can only hope that the next time someone raises a novel idea, the leadership in the various factions pay more attention to it.

Haider Ala Hamoudi is a professor at the University of Pittsburgh School of Law. The American-born son of Iraqi parents, he has lived and worked in Iraq and has been a legal advisor to the Iraqi government. He has a blog on Islamic law at http://muslimlawprof.org

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