JURIST Contributing Editor Haider Ala Hamoudi of the University of Pittsburgh School of Law says that a comprehensive solution to the status of Kirkuk must be reached soon lest it become for Iraq the type of intractable and fundamentally corrosive problem slavery had become for the United States by 1861….

As is commonly reported, when faced with the intractable problem of slavery while drafting the Constitution, the Founding Fathers were not able to come up with a solution that would please both the North and the South. So they submitted to the most natural of human impulses, that of procrastination, and punted the question so that it could be dealt with at a later time. Yet the longer the problem of slavery was permitted to fester, the more difficult it became to address and soon the question began to subsume all others, paralyzing legislative work in areas only remotely related to it.

While I don’t profess to be an expert in American history, by most accounts there was no reason that Kansas’ status as a free or slave should ever have been contested; it was not suitable for the type of agriculture upon which the southern states were built and where slavery thrived, and eventually this became rather clear. But, it seems, the slavery question had been allowed to fester for so long, feelings had become so strong, that something approaching an intrastate civil war erupted over this in Kansas before it was resolved. A similar situation exists now with Kirkuk.

Almost since the day that Saddam’s Ba’ath regime fell, the question of what to do about Kirkuk has remained unanswered. The Kurdish authorities in Iraq’s north claim (correctly) that Saddam Hussein engaged in a process of forced Arabization of this historically multiethnic city. They therefore call for this process to be reversed, for the population to revert back to what it was in 1957, and then for a referendum to be held in Kirkuk to determine whether or not its population would choose to join the Kurdish autonomous zone in northern Iraq, a referendum that the Kurds would almost certainly win if held on that basis. The extent of Kurdish influence in the Iraq constitution is apparent by the fact that there is an Article in the Constitution, Article 140, that calls for the implementation of the Kurdish solution.

Naturally, this notion of turning back the clock, and reversing decades of population change, has not sat well with those who would have to be forcibly removed in order to realize it, mainly the Arab and Turkoman populations. They have resisted the implementation of Article 140 largely successfully, to Kurdish dismay. What has resulted has been something of a de facto “Kurdization” of Kirkuk, with tens of thousands of Kurds returning to Kirkuk over the past half decade, but with no substantive implementation of Article 140. The question of Kirkuk has arisen several times, most notably in the provincial elections last year, but for the most part the problem has been met with procrastination rather than decision making on what to do about it by forming committees to study an issue or by delaying an election pending further developments and the like.

In the meantime, to say the least, views have hardened to the extent that the issue of Kirkuk is threatening to delay crucial national elections. The Arab and Turkoman populations of Kirkuk, supported by mostly Sunni nationalist forces in the Council of Representatives, have argued that the forced Kurdization cannot be permitted to stand, and the Kurds who have moved to Kirkuk since 2004 should not be allowed to vote there, but should instead vote in the province from which they came. The Kurds will accept nothing less than a vote in Kirkuk that is no different from the vote in any other province in the country, on the basis of the 2009 voter registry. Attempts to delay the issue one more time, whether via another commission or multiple polling districts- some for voters registered since 2004, others for voters registered thereafter, have not proven fruitful. The Council of Representatives has already missed its self imposed deadline for an election law by more than two weeks, and the United Nations is indicating that if no law is passed soon, the election cannot be held on time.

Much like Kansas, the issue of the national elections is only tangentially related to the fate of the city. The voter rolls for this election have nothing to do with the voter rolls for any future referendum on the city’s joining the Kurdish region, and various draft laws have made that amply clear. Equally importantly, the Kurdish faction in the Council of Representatives is a reflection of the Kurdish population, and it tends to vote uniformly on national issues. So if Kurds left the Kurdish city of Suleymania for the contested city of Kirkuk in 2007, for example, that merely reduced the number of Kurdish representatives in one place and added them in another. It barely affects the actual workings of the Council of Representatives because of the highly ethnic and sectarian stratified matter in which the Council operates (i.e. Kurdish representatives from Suleymania do not vote differently from Kurdish representatives from Kirkuk when they are in Baghdad).

Yet compromises have become difficult, because all sides to this dispute have become frustrated with the procrastination. The Kurds are frustrated by the national refusal to implement Article 140 of the Constitution, the nationalist Arabs and the Turkomen, have become frustrated by clear recent population shifts in favor of Kurds which they claim have been achieved by force. All sides seem to have made this into a litmus test of sorts, and none are willing to compromise, or, more importantly, to procrastinate further.

This is not to say the will to impose one more delay on Kirkuk’s fate will not be found. With the United States, the United Nations, Iraq’s clerical authorities, and the broader Iraqi population all clamoring for some sort of solution to break the impasse, it may well be that all sides will find something to reach an agreement on, a Missouri compromise of sorts, that delays the issue one more time. Even if this is the case, however, it has become abundantly clear that time is running short. A solution, a comprehensive one, must be reached, and compromises must be made soon, or Kirkuk may become to Iraq what slavery became to the United States in 1861.

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, experiences he describes in his book, Howling in Mesopotamia (Beaufort Books). He has a blog on Islamic law at http://muslimlawprof.org.
——–