Identifier
Created
Classification
Origin
05BAGHDAD2981
2005-07-18 12:41:00
CONFIDENTIAL
Embassy Baghdad
Cable title:  

AN AMBITIOUS KURDISH PROPOSAL SHARPENS THE

Tags:  PREL PGOV KDEM IZ 
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C O N F I D E N T I A L SECTION 01 OF 05 BAGHDAD 002981 

SIPDIS

E.O. 12958: DECL: 07/18/2015
TAGS: PREL PGOV KDEM IZ
SUBJECT: AN AMBITIOUS KURDISH PROPOSAL SHARPENS THE
CONSTITUTION DEBATE

Classified By: Charge d' Affaires David M. Satterfield for reasons 1.4
(b) and (d)

C O N F I D E N T I A L SECTION 01 OF 05 BAGHDAD 002981

SIPDIS

E.O. 12958: DECL: 07/18/2015
TAGS: PREL PGOV KDEM IZ
SUBJECT: AN AMBITIOUS KURDISH PROPOSAL SHARPENS THE
CONSTITUTION DEBATE

Classified By: Charge d' Affaires David M. Satterfield for reasons 1.4
(b) and (d)


1. (C) SUMMARY: The Kurdish delegation to the Constitution
Drafting Committee has put together a detailed list of
constitutional demands that is sharpening the debate on the
future of federalism as delegates attempt to forge a draft
document by 1 August. The draft document calls for stronger
limits on the size and authorities of Iraq's armed forces,
wider rights for provincial guard forces, a clearer
delineation of minority rights, and a set of conditions for
dissolving the union. The document lays out an ambitious
vision of Kurdistan's authorities, including detailed
provisions on natural resource ownership, guarantees on
federal funds, and control of telecommunications and wage
policies. The document calls for a Kurdistan interest
section in the Foreign Ministry and in all foreign embassies,
and it seeks to guarantee four Kurdistan-nominated seats on
the Supreme Court as well as a soft veto on national
legislation.


2. (C) SUMMARY CONTINUED: Sunni Arab delegates and several
Shia leaders are balking at this thick packet of Kurdish
demands. TNA Deputy Speaker Shahristani told Charge July 18
that the proposals went too far and was relieved to hear we
are weighing in. Other Shia politicians like Qasem Daoud is
also concerned, although he appeared willing to talk about
parts of it. Spooked Sunni Arab delegates are now looking to
postpone the issue of federalism altogether and simply
maintain the status quo. As a compromise some Sunni Arabs
have suggested decentralization to the governorate and
regional level provided all current provincial boundaries
remain unchanged. Other debates continue over provisions on
religious freedoms, but the details of federalism are clearly
the largest obstacle between the committee and an agreed
draft by August 1. We are pushing all sides to stick to the
deadline, continue their daily negotiating sessions, and
achieve a federalism compromise that reassures those who
suffered under totalitarianism
without threatening the territorial integrity and solvency
of the country. END SUMMARY.


3. (C) The Kurdish Alliance List delegation to the

Constitution Drafting Committee has put together a detailed
list of constitutional demands that is sharpening the debate
on the future of federalism. The document offers amendments
to the TAL and entirely new provisions to the constitution,
many of which are annotated with supporting rationale or
examples from relevant foreign political systems. Taken
together, and laid out below, the presentation represents an
ambitious vision of Kurdish provincial rights in Iraq:

-- A BROAD MAP OF "KURDISTAN PROVINCE": The list of
proposals, all presented in the name of the Kurdish Alliance
List, was attached to a shaded map identifying "The Kurdistan
Province of Iraq" with dramatic border amendments. The map
shades in all of Kirkuk province and all of northeast and
northwest Ninewa province, stopping just short of
encompassing Telafar and the west side of Mosul (the east
side of the city would be in Kurdistan). The map even makes
a claim to a non-contiguous northern slice of Wasit Province
including the town of Badra.

-- ADDING OVERVIEW LANGUAGE ON RESOURCE DIVISION: The
document calls for a subtle amendment to TAL Article 4, which
states that "powers shall be shared between the federal
government and the regional government, governorates,
municipalities and local administrations." The Kurdish
document amends that sentence to note that both "powers and
resources" shall be shared.

-- STRONGER LIMITS ON MILITARISM: The document calls for a
detailed exposition of military authority and its limits
where TAL Article 5 simply states that Iraq's armed forces
shall be subject to civilian control. That article then
refers the reader to chapters three and five, both of which
restate the principle of civilian control without
considerable elaboration. The Kurdish document attempts to
establish that Iraq's military expenditures not be higher
than four percent of the total budget; that a legal ceiling
be set for the quantity and quality of Iraq's armaments; and
that the forces be forbidden from deployment outside of Iraq
or inside any province without a three quarters majority in
the National Assembly. The Kurdish document also offers a
provision that states, "Loyalty to Iraq is the basic standard
for acceptance into the armed forces, without distinction on
the basis of gender, race, religion or sect."

-- LOOSENING THE MILITIA BAN: The Kurdish document offers
alternative language that adds nuance to and detracts from
the force of the TAL Article 27 B prohibition of all armed
forces and militias "not under the command structure of the
Iraqi Transitional Government." The Kurdish document reads,
"Provinces that border foreign countries will have forces for
self-defense with the mission of defending the international
borders of the Federal Republic of Iraq, preventing terrorism
in the provinces, and helping the armed forces when
necessary. The size, bases, organization, and armaments of
these forces, along with their relationship with the Defense
Ministry, will be set by the provincial assemblies."
Marginalia on the document indicate that the Kurds are ready
to have the National Assembly share authority with the
provincial assemblies in legislating these provisions. A
side-note on the Kurdish document cites U.S. Constitution
Article 2 Section 8 as an inspiration for this suggestion.
That section of the U.S
. Constitution puts certain military authorities in the hands
of the states by laying out congressional authorities as
follows: "To provide for organizing, arming, and disciplining
the militia, and for governing such part of them as may be
employed in the service of the United States, reserving to
the states respectively the appointment of the officers and
the authority of training the militia according to the
discipline prescribed by congress."

-- SPELLING OUT RELIGIOUS FREEDOMS: The Kurdish document
meets a major minority group demand by offering each religion
its rights by name. The proposed text echoes TAL Article 7
(A) language on Islam as the official religion before delving
into deeper detail on religious guarantees in a way the TAL
never did. The proposed text reads, "Islam is the official
religion of state and is a source of legislation. This
constitution respects the Islamic identity of the majority of
the Iraqi people and guarantees all religious rights for
Christians, Yezidis, Sabean Mandeans, and Kaka'is in the
freedom of belief and the practice of religious rituals."

-- SPELLING OUT ETHNIC IDENTITIES: The Kurdish document also
meets a demand from minorities and asserts Kurdish rights by
spelling out Iraq's ethnic composition in more detail. TAL
Article 7 (B) currently simply reads, "Iraq is a country of
many nationalities, and the Arab people in Iraq are an
inseparable part of the Arab nation." The proposed text
would read, "The state of Iraqi is made up of a voluntary
union of two principle nationalities, Arab and Kurdish, and
this constitution establishes their rights on the principle
of equality. The Arab people in Iraq are a part of the Arab
ummah (nation) and the Kurdish people in Iraq arte part of
the Kurdish ummah, and this constitution also establishes the
legitimate rights of the Turkmen, Chaldo-Assyrians, and
Armenians." An appended observation on the Kurdish document
notes that the Kurds are prepared to erase the reference to
the Kurdish ummah if the Arabs are ready to erase the
reference to the Arab ummah.

-- ENSURING "KURDISTAN'S" DIPLOMATIC REPRESENTATION: The
Kurdish document recommends an addition to TAL Article 25 (A)
which lists the Iraqi Transitional Govenrment as having
"exclusive competence in... formulating foreign policy,
diplomatic representation, negotiating, signing and ratifying
international treaties and agreements, formulating foreign
economic and trade policy and sovereign debt policies. . ."
The Kurdish amendment would add, "The province of Kurdistan
will be represented in a bureau in the Foreign Ministry and
in embassies for the oversight of its affairs."

-- LIMITING FEDERAL ECONOMIC, COMMUNICATION AUTHORITY: The
Kurdish draft recommends eliminating the provision of TAL
Article 25 (D) that allows the central government to
"formulate a general policy on wages." The Kurdish document
notes that differences in supply and demand and living
standards in the provinces, in addition to the labor force,
make this matter best handled on the provincial level. The
Kurdish document also proposes eliminating central government
control of telecommunications policy established in TAL
Article 25 (G). A later recommended article seeks to
establish provincial supremacy in the administration of
federal offices located outside of Baghdad. The provision
reads, "The provincial government will administer the federal
apparatus within the provincial borders in consultations with
relevant federal authorities."

-- DIVIDING NATURAL RESOURCES: The Kurdish draft document
recommends a far more detailed delineation of natural
resource divisions than anything offered in the TAL. Draft
language reads, "1. Ownership of natural resources will be in
the hands of the provinces. 2. Ownership of the oil and
mineral resources will be in the hands of the provinces, and
the provincial government will exploit, administer, and
distribute these raw products of investment in these
resources in the following manner: A. Five percent of the
oil or minerals will go to the producing governorate. B. 60
percent of the raw oil and mineral products extracted from a
province will go to the provincial government. C. 35 percent
of the remaining raw output of oil and minerals will go to
those provinces and governorates that lack these resources."
Here the Kurdish document observes that the Sudanese central
government and southern Sudanese government split resources
approximately 50/50 and monitor their exploitation and
distribution through a
jointly-run "National Independent Petrol Commission."

-- ENSURING PROVINCES RECEIVE FEDERAL FUNDS: The Kurdish
draft document attempts to guarantee that money from the
central government will reach provincial coffers. One
provision reads, "Each province should have its own character
and independent budget funded directly from federal revenue,
international loans given to the provinces via the central
government, and provincial resources. The percentage of the
federal budget directed to Kurdistan shall be decided on the
following principles: 1. It shall be a fair percentage not
less than the percentage of Iraq's population found within
the province. 2. No less than 5 percent of the national
budget should be provided to Kurdistan as compensation for
destruction from the war imposed upon it since 1960 and the
injuries to its citizens from the use of chemical weapons and
policies of genocide and scorched earth."

-- ESTABLISHING A PROVINCIAL RIGHTS INSTITUTE: The documents
calls for the formation of an "Institute for the Guarantee of
Provincial Rights." The body, it states, should be formed in
cooperation with the institutions and ministries of the
federal government. It should conduct research projects and
trips to attend and hold provincial and international
conferences. Representation at such events should be split
between the provincial and central governments. The
institute should be led by a rotating presidency.

-- ESTABLISHING A MONITORING BODY ON BUDGET AFFAIRS: The
Kurdish document attempts to put a closer watch on federal
government distributions through the establishment of a
monitoring body to be called the "Supreme Institute for the
Monitoring and Allotment of Federal Revenues." Membership
would be drawn from experts from the provinces and from the
central government. The body would have the following
responsibilities: "1. Check the just distribution of
international grants, aide, and loans in accordance with
provincial entitlements. 2. Check the optimum use of
federal revenue and its division. 3. Check the transparency
and justness in the distribution of government money to the
provincial entities in accordance with the percentages found
in the constitution."

-- SETTING CONDITIONS FOR DISSOLVING THE UNION: The Kurdish
document seeks to ensure that the Kurds are not locked into a
destructive union by establishing the ways the constitution
can be undermined. One extensive provision reads, "The
people of Iraqi Kurdistan have the right to decide their fate
through a referendum to be established under the constitution
8 years after the introduction of this constitution or
(immediately) in the following circumstances: 1. A change to
the federal democratic system. 2. Their exposure to
aggression or persecution. 3. The partition of a region known
according to geography and historic fact to be a part of
Kurdistan. 3. Failure to reconnect those areas that were
separated and institution of demographic changes to those
areas or any other areas." Here too the document points out
that the people of southern Sudan have the right to determine
their fate at the end of a six-year transitional period.

-- A SOFT PROVINCIAL VETO ON FEDERAL LEGISLATION: One
recommended provision seeks to establish a vague provincial
veto right on federal legislation. It reads, "Any legislation
passed at a national level in Iraq that affects one of the
provinces must be based on consensus and respect for the
privileges of the citizens of the province. And any
legislation that differs from this (principle) will not be
considered effective in the provinces. " Here too the text
references the Sudanese peace agreement as a model.

-- ENSURING A KURDISH VETO IN THE SUPREME COURT: The Kurdish
provisions go so far as to establish assurances of a Kurdish
veto on the Supreme Court. One provision states, "The
Supreme Court will be composed of 11 members. The Kurdistan
Judicial Council in agreement with the Kurdistan Regional
Assembly will nominate four of them. A three-quarters
majority is needed for all decisions in the court."

--------------
Sunni Arabs Balking
at a Wide Federalist Vision
--------------


4. (C) Faced with that thick packet of Kurdish demands,
several Sunni Arab delegates have reportedly called for
postponing a settlement on the details of federalism. TNA
Constitution Committee Member Ali al-Dabagh and Sunni
negotiator Mijbel Shaykh Isa told PolCouns July 17-18 that
the Sunnis have responded with a choice of three
counter-proposals:

-- Maintain the status quo, treating Kurdistan as the only
federal entity in Iraq and enabling other regions only to
exercise "administrative" authority, not "political
authority" or

-- give each of the eighteen governorates "political
authority," to include control over local legislation and
courts, but not allowing them to form separate regions or

-- delay any decision on federalism until after the December
2005 elections.

According to Mijbel Shaykh Isa, the Sunni Arab negotiators
are united on this menu. He said they had put the proposal
forward in writing and await a response from the other
members of the committee.


5. (C) Sunni Arab delegate Shaykh Muhammad Abed Rabbo
al-Jaburi offered a fuller summary of Sunni Arab concerns in
a July 18 meeting with Poloff. He said that he was not
opposed to federalism in principle, but did not want the
committee to bite off more than it could chew. He suggested
preserving Kurdish rights in the north without undertaking an
expansion of Kurdistan or any amendments to the provincial
map in the south of Iraq. A native of Mosul, Jaburi said he
found the Kurdish map "expansionist" not federalist,
particularly in its claims in Ninewa province. (Comment:
Mijbel Shaykh Isa repeated this to us separately. We note
that the Kurdish proposal, if adopted would make such
prominent Iraqis as Shaykh Ghazi al-Yawer and Shaykh Fawaz
al-Jarba citizens of the Kurdish region. End Comment.)
Al-Jaburi said he was particularly concerned about Iranian
influence over the southern provinces if they were given too
much authority at a time when the central government is still
weak. He said that concern applied to the south more than to
Kurdistan. He said the best course of action would be the
creation of a framework for future federal decisions while
limiting the system to "administrative" matters, not
political ones for the time being. Deputy Constitution
Committee Chairman Fuad Ma'asum told PolCouns July 17 that
delaying federalism disputes would merely "put a time bomb
for our future."

--------------
More Unity on Rights
than Previously Perceived
--------------


6. (C) Shaykh al-Jaburi put forward a strong position on
political freedoms that approached ideas favored by the
Kurds. Where Ma'asum painted the Sunni Arabs as opposing the
designation of Kurdish as an official language, Jaburi said
he supported the idea. Jaburi said he further supported any
provisions that banned the government from combating
"thoughts or beliefs," whatever their basis. He aimed, he
said, to extend the guarantees offered to religious groups to
people of all convictions. After all he said, the Ba'athists
"fought the communists like they were infidels." Jaburi said
he had no problem with declaring Kurdish an official language
of Iraq and preferred that the national identity be devoid of
references to Arabism or Islam. Calling citizens Iraqis
should be sufficient, he said.

--------------
Preparing for the Worst
--------------


7. (C) Kurdish negotiator Ma'asum was still preparing for the
worst. He said he remained attached to the idea of holding a
constitutional conference as an alternative way of producing
a consensus on the document in the event that Sunni Arab
delegates back out. Ma'asum said he could think of numerous
Sunni Arab leaders not on the committee who deserved to be
invited to such a conference and he questioned the
constituencies of the men on the committee. He scoffed at
their commitment to language on the Arab "ummah" and said
several of them have taken to referring to a Sunni
"marja'iya," or quasi--religious authority, that is none
other than the hard-line Muslim Ulema Council.

--------------
Comment: A Classic Opening Offer
--------------


8. (C) The Kurdish draft document represents a classic
maximalist opening bid at the start of a heated negotiating
process. Several Kurdish officials have stated more
flexibility on issues of revenue sharing and resource
ownership than those found in this document, but they want to
give themselves room to compromise. The Kurds have told us
they have no intention of redrawing Iraq's borders at this
stage, but that did not stop them from putting forward a
highly provocative and expansionist map of Kurdistan's
boundaries to accompany this document. Here too they are
staking out a maximalist position so that they have room for
future compromises.


9. (C) What the Kurds are forgetting is that their
negotiating theatrics are only confirming some of their
negotiating partners' worst fears. Calls for a Kurdish
interests section in the Foreign Ministry and in foreign
embassies only confirm suspicions that the Kurdish leadership
is fundamentally unprepared to accept its status as equal
plain "Iraqi" citizens of this state. Of more concern is
their call for a detailed set of conditions for dissolving
the union. That set of conditions is more likely to weaken
the constitution than strengthen it. It will open the door
to endless debates from rejectionists pointing out real or
imagined slights that must "constitutionally" dissolve the
agreement. The right way to handle Kurdish fears is to pass
limits on military authority and force structure like those
laid out in these draft provisions. A similar technique
could be used to allay Sunni Arab concerns over Iranian
influence and Kurdish secession: perhaps there could be
clearer language banning provincial governments from seceding
or independently forging relationships with foreign
countries.


10. (C) We will continue pushing all sides to stick to their
deadline and find ways to treat concerns while keeping this
document an expression of hope, not just a hedge against
worst fears and sectarian threats.


11. (U) REO HILLA, REO BASRA, REO MOSUL, and REO KIRKUK,
minimize considered.
Satterfield