The recent ruling of the Iraq Federal Supreme Court that secession violates the Constitution is in and of itself a worthless exercise. If a constitution is considered a contract between the government and the people, then it can be argued that the Iraqi government has violated a number of articles and has rendered the constitution null and void.
Following the referendum, the first thing Baghdad did was to invade and capture Kirkuk. The justification was that Kirkuk was a disputed territory and therefore not part of the Kurdish region.
While in fact true, it is only true because the central government failed to implement Article 140 which would have forced a referendum in Kirkuk and the other disputed territories on who should represent them. With a majority Kurdish council and governor, there was little doubt as to which way the vote would have gone in Kirkuk.
Failure to implement Article 140 within the contractually-obligated time – by the end of 2007 – was a first step in voiding the contract.
The court that ruled on the secession question is itself a violation of the constitution. Article 92 called for a new court to be designated by a vote in the Iraq Parliament, constituting a free and independent court whose makeup and authority would “be determined by a two-thirds majority vote.”
Since this vote never happened, the sitting court is from the Saddam era, and its chief justice is a member and open supporter of the Dawa party. By allowing this court to continue to function and review the law and pass judgments, the constitution is once again violated.
Leading the fight against the Islamic State (IS) as well as the attack on Kirkuk were private militias, which are prohibited by Article 9, paragraph B of the constitution. It clearly prohibits “militias or any armed forces” which are not under the control of the government.
An attempt to circumvent this prohibition was by claiming the Popular Mobilization Forces (PMF), also known as the Shia Hashd al-Shaabi militia, were under control of the central government.
This lie was exposed recently when Muqtada al-Sadr ordered his militia out of Kirkuk. If he still had control, then the force was not under the command of the central government. The contract is once again broken.
Finally, the constitution in Article 4 declares Kurdish as one of the two official languages of Iraq. Following the Kirkuk invasion, Kurdish was removed, and only Arabic was spoken in press conferences and news releases. There are other indications there were violations of Article 4, such as when Kurdish education was stopped.
The contract was and is once again violated.
While there are numerous other violations, these are the most egregious. Arguing the point of Iraqi sovereignty misses the point that Iraq is not a functioning country.
The government has lost legitimacy through the violation of its own laws. The existence of IS does not give any country a pass on acting against the welfare of all its people.
If Iraq wants to reestablish itself as a legitimate country, it needs to come up with a new contract between itself and its people.
The first part of any contract is offer and acceptance. With this understood, Baghdad may make the offer but Kurdistan does not now need to accept.
Paul Davis is a retired US Army military intelligence officer. He has been a consultant to the American intelligence community specializing in the Middle East with a concentration on Kurdish affairs. Currently, he is the President of the consulting firm JANUS Think in Washington D.C.
The views expressed in this article are those of the author and do not necessarily reflect the position of Kurdistan24.
Editing by Nadia Riva