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In
early June last year, I sat with four members of the
Iraqi Kurdish military high command in Baghdad,
discussing their disappointment that the U.N.
resolution endorsing the new American-led
dispensation in Iraq had not mentioned Iraq's
current constitution, the Transitional
Administrative Law. Even in Iran and Syria the TAL,
with its promises of federalism and thus its brief
guarantee of Iraqi Kurdish hopes, had been greeted
by Kurds with dancing in the streets.
Above the heads of Brushka Nouri Shaways and his
lieutenants, tough veterans of the struggle against
Sunni Arab aggression in their multi-ethnic state, I
saw a pair of wooden-handled flails. Splayed against
the white wall, the chains of the flails had a
coating that looked eerily like dried blood. I
thought maybe the implements were old torture
weapons from Saddam's days, hung there by the Kurds
to remind them of the aspirations of their people
far to the north. "No, no," said the hard men.
"Those are the things the Shiites use to whip
themselves at their religious festivals." Blood,
indeed. How, I wondered, could such a country stick
together: an Arab sect, the Sunnis, divided mortally
from the Arab majority, the Shiites, with a large,
mountainous minority, the Kurds, recoiling against
the lash of one and the flail of the other?
It might not be fashionable to admit that Iraq, 14
months later, still has not succumbed to civil war,
communal violence, theocracy, or even a moderately
popular uprising against the U.S.-led occupation,
but nobody can say that the Iraqis have failed thus
far to conduct a responsible constitutional process.
Their leaders are still at the table, and for all
the frankness with which the various sides, so
unusually in the Middle East, are able to present
their priorities, the rhetoric of their politicians
continues to reflect a restraint that Americans
would welcome from Howard Dean or Tom DeLay.
The remaining challenges at stake in the current
constitutional negotiations in Baghdad deserve a
closer look. Islam, federalism, and oil are the main
issues.
While it might seem strange to some students of
history and Middle Eastern culture that women's
rights have been adopted as a principal litmus test
for the success of the U.S. project in Iraq, the
role of Islam in that country's future is, in fact,
a very practical issue in the current debates.
Coverage of the issue, however, has focused on a
canard. Whether or not Islam is "a," or "the only,"
or "a principal," or "the principal" source of law
in the proposed new constitution is not the point.
Islam and Shariah have been interpreted in many ways
over the last 14 centuries, and if there is one
thing on which neocons and MoveOn.org can agree, it
is that there is nothing scary about Islam per se.
Meanwhile the new Iraqi document will certainly
include, as do the constitutions of even the most
repressive states, language guaranteeing the gamut
of human and civil rights. What really matters as we
assess the new Iraqi document is how it provides for
the inevitable clash between these various promises.
For this reason, it is the new draft's language
about Iraq's high courts that counts most as we
assess Islam's proposed role in the country's legal
affairs. Who appoints the judges on the highest
court? Who fires them? What are the powers of the
bench vis-à-vis the executive and judiciary
branches? Constitutions, like holy books, are about
interpretation, and Americans and Iranians alike
know that their rights, or at any rate their
freedoms, can hinge on the opinion of a handful of
bewigged sages.
The matter of federalism is also not as simple, or
as vexed, as it looks. Iraq is already a federal
country, de facto and de jure. Iraqi Kurdistan is
already autonomous, and the Shiite south, east and
center represent 65% of the population. When push
comes to shove and the time for rhetoric has passed,
Iraq's Sunni leadership, such as it is, is unlikely
to agree with Western critics of Iraqi democracy
that a return to the centralized nightmare is
practicable. For centuries under the Ottomans, Iraq
existed relatively harmoniously in a federal form,
with the three vilayets of Basra, Baghdad and Mosul
(which was mostly composed of what is now Iraqi
Kurdistan) under the loose administration of the
Pashalik of Baghdad. That is how it is now, and it
will not change between today and Monday, when the
final document is due.
History and current realities aside, the federal
question in Iraq is subject to two other truths that
ultimately will deliver compromise from the Sunni
Arabs. Both are overlooked in the current analysis.
The first is the fact that if the current process
fails to deliver a new constitution -- either
because a new draft does not emerge, or because it
is rejected in October -- then it is the current
constitution, the TAL, that will be the law of the
land. And the TAL, which in terms of representative
genesis and U.N. approbation is probably the most
legitimate constitution in the Middle East,
explicitly states that Iraq is "republican, federal,
democratic and pluralistic." It goes on to refer to
the "federal" nature of the state 26 times and to
say, "Any group of no more than three governorates .
. . shall have the right to form regions from
amongst themselves." So the Sunni Arabs or any other
group that blocks the desires of Kurds and many
Shiites for a federal system in the new constitution
will instead get the same result from the current
one.
The Sunnis know this. Their practical beef with
federalism is about the last main unresolved issue:
oil. Iraq's oil is in the Shiite south and the
Kurdish north, and while the Sunni Arabs might yearn
for a return to their old ascendancy in a
centralized state, they know they won't get it. They
know that the most they can play for is a fair cut
of hydrocarbon wealth. When the new document is
produced, look for a guarantee of this as the key
that unlocks a Sunni acceptance of the federal
reality. The robustness of this guarantee will be a
major determinant of the success of the new
arrangement.
On a broader level, the key subtext to these
negotiations is about what has happened since I
spent time with the Kurdish commanders 14 months
ago. Back then, it was the supreme Shiite leader
Ayatollah Ali al-Sistani who had, via a personal
letter to Kofi Annan, very nearly driven the Kurds
out the entire project of a unified Iraq by seeing
to it that the TAL was not even mentioned in the
Security Council Resolution that ratified the
current incarnation of the Iraqi state. Since then,
much has changed. For one thing, the TAL has emerged
as a real document. Its schedule for Iraq's
democratic process, initially considered by many to
be a mere paper formality, has proved to be more
real in terms of practical politics than the car
bombs of the Baathists and Wahhabis.
Perhaps more important, the leadership of Iraq's
Kurds and Shiites, who only a year ago were so at
odds that the Kurds very nearly abandoned the entire
enterprise, have come to agreement on the basic
principle that there can be no Iraq if any major
group is forced to give up its present freedoms. If
the Sunnis don't sign up to this dispensation, with
its long and successful precedent under the
Ottomans, they will be stuck with the status quo or
left in an oil-less, landlocked Sunnistan of their
own making, with little succor to expect from an
America that is as weary of war as it is of Sunni
intransigence.
Mr. Bull is writing a book about Iraqi history.
www.wsj.com
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