The Time for Kurdish Independence Has Come
By VICTORIA TOENSING
October 1, 2017
TheHill.com
Iraq’s Kurdistan Region voted overwhelmingly — more than 90 percent — on Monday, Sept. 25, to be independent, a status the Kurds were promised 100 years ago in the post-World War I Treaty of Sevres.
As Massoud Barzani, president of the Kurdish region, told cheering supporters at multiple Trump-sized rallies, they were to choose between “a life of subordination or one of freedom in an independent Kurdistan.”
It is a sufficient basis for freedomthat they are the largest ethnic groupon earth without a homeland. But there is another reason for independence: The Kurds have been treated as second-class citizens by Baghdad, which has deliberately, materially and repeatedly violated the 2005 Constitution. Before that, the late Iraqi dictator Saddam Hussein massacred them.
The Iraq Constitution was supported by the Kurdish leadership following Saddam’s ouster only because it guaranteed a federalist relationship. A second legislative chamber was to be created that would have provided the Kurdistan Region with equal representation, in the same way that the U.S. Senate is comprised of two members from every state. Yet, the Shiite-controlled national representative council, which has refused to create this constitutionally mandated body, remains the sole entity passing legislation affecting all of Iraq, including Sunni-dominated Kurdistan. Without a U.S. Senate-like body to check the representative chamber, the Shiite-controlled political parties have absolute control over the Sunnis.
Because Baghdad completely controls all government action, it has also refused to create a judicial system under the Constitution. The Iraq “Supreme Court” (quoted repeatedly by some uninformed media) claimed that the Kurdish referendum was unconstitutional. That Court is itself unconstitutional, having its roots in Saddam’s era. It is not a creation of the 2005 Constitution.
The Constitution provides a process for creating new regions (a la Kurdistan). However, all entities that complied with that process were rejected by Baghdad.
The Constitution requires Baghdad to allocate “in an equitable” manner the government’s share of “national revenues.” Under this provision, Baghdad agreed in 2005 to allocate Kurdistan 17 percent or approximately $20 billion USD, depending on the year. For eight years, Baghdad allocated only about two-thirds of that amount. In 2014, it cut Kurdistan off entirely from receiving constitutionally mandated funds.
Baghdad has continuously obstructed Kurdistan’s constitutional right to develop the oil in its territory by blacklisting companies working there (except Exxon, which is too huge to punish) and by seeking foreign court injunctions against Kurdistan oil sales.
Baghdad has blessed the creation of the Popular Mobilization Forces (PMF), roving militia independent of the constitutionally sanctioned secular Iraqi army, which is required to be composed “of the Iraqi people with due consideration given to their balance and representation without discrimination or exclusion” and under “civilian authority.” The PMF is comprised and directed solely by Shiite religious components that are anti-Kurdish and anti-Sunni.
In further violation of the Constitution, Baghdad refuses to recognize the Kurdish language, providing official documents only in Arabic and demanding that all official documents from the Kurds be translated into Arabic. Baghdad refuses to change the national flag from Saddam’s days, thereby waving a national symbol that does not reflect any Kurdish emblem.
More than 25 years ago, the Kurdistan Region created its own government. It has provided a haven for those escaping the tyranny of other Middle East governments, taking in nearly two million Syrian refugees and displaced Iraqis, many escaping religious persecution by Baghdad. Kurdistan is an open, pluralist society that is home to many non-Muslims, including Yazidis, Christians, Zoroastrians and Baha’is. As an independent state, it would welcome American presence and provide stability in a geographical area in disarray, including the failed state of Iraq.
Inexplicably, the U.S. government has sided with such “allies” as Iran, Syria and Turkey in opposing the referendum. The United States asked Kurdistan to postpone its quest for freedom, but it has done nothing to curb the abuses by Baghdad — nor will it provide assurance they will cease. Now that the referendum has passed, the United States, which was created because its Founders wanted to escape such tyranny, will have to deal with another people’s unalienable right to freedom. The Kurds’ time for independence has come.
Victoria Toensing is a founding partner of diGenova & Toensing, LLP, a Washington law firm which represents the Kurdistan Democratic Party (KDP) in the United States. The KDP, one of the main political parties in Iraq's Kurdish region, has been led since 1946 by the family of the region's president, Massoud Barzani. Before entering private practice, Ms. Toensing was chief counsel for the U.S. Senate Intelligence Committee and deputy assistant attorney general, U.S. Justice Department.