ARTICLE 140: UNCERTAINTY FUELS ARAB-KURD TENSION

C O N F I D E N T I A L SECTION 01 OF 03 BAGHDAD 003768

SIPDIS

SIPDIS

E.O. 12958: DECL: 11/14/2017
TAGS: PGOV PREL IZ
SUBJECT: ARTICLE 140: UNCERTAINTY FUELS ARAB-KURD TENSION

REF: A. BAGHDAD 2763

B. BAGHDAD 3693

Classified By: Ambassador Ryan C. Crocker for reasons 1.4 (b) and (d).


1. (C) Summary: Article 140 High Committee Chairman (and
Minister of Science and Technology) Raid Fahmi gave Senior
Advisor an overview on November 12 of committee developments
since Fahmi took office at the end of July. Fahmi asserted
that the committee's recent progress will help alleviate
Kurdish concerns about the inevitable referendum delay past
December 31, although he admitted Kurdish leaders have done
little to prepare their public. He characterized the
committee's approach as fair and transparent, with a
deliberate focus on technical preparations and not political
deal-making. The committee is exploring the use of the 1957
census as a method to develop a voter registry for a
referendum, as well as beginning to address key issues such
as the referendum question itself. However, he acknowledged
that internal boundary change recommendations being developed
by the committee did not address fundamental Sunni Arab
concerns, e.g. on Ninewa Province, and will eventually face
political opposition. We want a lasting solution to Article
140 implementation, Fahmi said, with "consensus and not
coercion." But while the process he outlined may narrow the
issues in play, it will likely stall out, due to the
opposition of Sunni VP Tariq al-Hashimi, when the committee
refers its recommendations to the Presidency Council. In
that case, the law provides for recourse to a neutral
arbitrator or UN mediation. And meanwhile, uncertainty over
how the sensitive provincial border/Kirkuk issues are to be
resolved is not only fueling Arab-Kurd tensions in the north,
but also the insurgency. End Summary.


Chairman's Approach to Implementation
--------------


2. (C) Fahmi said he was hesitant when first approached by
Kurdistan Regional Government (KRG) President Barzani and
others in July to consider becoming Chairman of the Article
140 high committee. The committee was established in August
2006 by Prime Minister Maliki to implement Article 140 of the
Iraqi Constitution (and Transitional Administrative Law (TAL)
58),articles intended to redress Saddam-era Arabization
policies. The committee had been without a chairman since
March when then-Justice Minister Hashim al-Shibli resigned,
complaining of a lack of political will to implement Article

140. Fahmi asked whether there was a willingness to move
forward politically and was assured by PM Maliki that he was
serious about implementation and that the commitment of the
GOI was
clear. Article 140 is part of the Constitution, and the GOI
has the duty to implement it even though it is a difficult
problem, Fahmi asserted. PM Maliki appointed Fahmi (Iraqqiya,
Iraqi Communist Party) on July 31 (ref a).


3. (C) He works on the principle of transparency and
dialogue, Fahmi noted; there is a problem of trust on all
sides and he does not want anyone to accuse him or the
committee of hidden agendas. Fahmi's approach is to avoid
using the committee for political positioning, and to keep
matters to a technical level only. The question, he said, is
how to satisfy all sides. If the process stagnates, it will
be very dangerous -- tensions and distrust will only
increase. Fahmi believes the committee needs to move ahead,
but in a way that does not make the situation more
complicated; priorities are necessary. The committee focused
first on accelerating relatively non-controversial
normalization aspects like compensation for that reason.


4. (C) Emphasizing the need to be clear with all about the
committee's work, Fahmi noted he met with all political
parties and leaders, including Vice President Tariq
al-Hashimi (Tawafuq, Sunni Arab). He invited Hashimi to
nominate an observer to the committee, an invitation Hashimi
has not taken up to date. Fahmi claimed that Hashimi's only
criticism was that the committee is only dealing with Kirkuk
and not other disputed territories (i.e., Ninewa). (Note:
The committee currently has three current and one former
Kirkuk Provincial Council members (one each representing
Sunni Arabs, Turkmen, Assyrian Christians and Kurds),three
GOI ministers (one Shia, one Kurd and Fahmi),one member of
the Council of Representatives (Shia),the head of the
Commission to Resolve Real Property Disputes (Shia) and one
KRG minister. End Note).


Work on Boundary Change Recommendations Still Ongoing
-------------- --------------


5. (C) Moving to boundary changes, Fahmi said that even
though Transitional Administrative Law 58 calls for the

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Presidency Council to submit internal boundary adjustment
recommendations to the Council of Representatives (CoR),
al-Hakim and Itelaf asked the committee to develop
recommendations for areas around Kirkuk and in the south.
The committee is looking into all Saddam-era boundary changes
to determine which changes were political and which were
technical, Fahmi said; the committee will only deal with
boundaries that were originally adjusted for political
reasons. PM Maliki appointed Itelaf-member Hanan al-Fatlawi
to the committee specifically to work on boundary issues
related to the south, Fahmi commented. Once the committee
agrees on its recommendations, they will be sent to the PM
and the Presidency Council (and then the CoR) for a political
decision.


6. (C) Fahmi said recommendations on revising Kirkuk
province's boundaries are complete and work on Karbala is
almost done. For Kirkuk province, the committee generally
agrees that the districts of Kalar and Chemchemal in
Sulaymaniyah, Kifri in Diyala and Tuz Khurmato in Salah ad
Din should be restored to Kirkuk province (since renamed
Ta'mim),which would bring it back to its pre-1976 borders.
The committee is still collecting technical information about
the southern part of Anbar province, which is being studied
for a possible move to join Karbala province. Fahmi opined
that once these two areas are addressed with the agreement of
the two major governing political blocs (Kurd and Shia),it
would be easier to deal with Ninewa province later. The
committee is not discussing Ninewa boundary changes now. He
asserted that if these recommendations are sound and fair
when they get to the political level, opponents (i.e., the
Sunnis) will not have a leg to stand on. He is trying to
narrow opportunities for political problems in his approach,
he said. It is possible the boundary changes package would
be ready to forward to the political level soon, Fahmi opined.


Normalization Not As Controversial
--------------


7. (C) Since the committee began meeting again in August,
Fahmi said it gave priority to moving ahead on normalization
-- rectifying Saddam-era displacements of persons and
property, a relatively non-controversial piece of the puzzle.
All groups agree with the "legal and moral need" to resolve
the voluntary return and movement of persons (and
particularly their compensation) in a way that will not
create more injustice, Fahmi commented. Since August, the
committee has coordinated with relevant ministries, such as
Interior and Trade, to resolve remaining glitches in the
return of wafadeen Arabs to their original provinces and in
the distribution of their compensation. Fahmi noted good
progress, citing 3000 applications approved and more than
2000 checks cut (Note: Actual distribution of checks lags
behind this number of signed checks, according to Kirkuk PRT.
End note.)


8. (C) The Commission to Resolve Real Property Disputes
(CRRPD) needs to accelerate its work on property disputes,
Fahmi asserted; it is taking too long. The committee wanted
to rescind several Saddam-era Revolutionary Command Council
(RCC) decisions to address the slow pace, but the Council of
Ministers (COM) legal advisor told Fahmi that the CRRPD
process was the constitutional one, and changing the process
would require a different approach than rescinding RCC
orders.


Census Should be Simultaneous, although
Referendum Deadline Will Still Be Missed
--------------


9. (C) For a census, according to Fahmi, there are two
possibilities: conduct a census in its normal definition
sequentially after normalization is complete or conduct what
amounts to a voter registration simultaneously as
normalization continues. Waiting for normalization to be
complete is not acceptable, Fahmi said; therefore, the
committee is looking at alternatives using 1957 census data
from before Arabization policies changed demographics. He
said the committee is consulting with Ministry of Planning
(MOP),Ministry of Interior and the Independent High
Elections Commission (IHEC) on how to move ahead. The MOP
said it did not have the capacity to do a census within the
next year, Fahmi stated, and even so, it would not provide
what we need for a referendum, which is really a voter
registry. The 1957 census could be used, Fahmi said. The
MOI has the original registration data used in the census, he
said, which could be amended to add descendants and subtract
the deceased to develop a voter registry that reflects those
originally living in Kirkuk province before Saddam-era
Arabization and their descendants. (Note: See ref B for why
this approach is problematic. End Note.)

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10. (C) The committee asked the MOI and IHEC if such an
approach could work but neither has replied yet, Fahmi
continued. The IHEC told the committee it could organize a
referendum, but several questions must be addressed,
including a budget, the referendum question and who votes,
when and where. Fahmi said the IHEC sent a letter to the
Prime Minister outlining these issues, which the PM passed to
the committee to draft a reply.


11. (C) Fahmi acknowledged that meeting the December 31
deadline as outlined in the Constitution is not possible but
that it should not be a political problem. The point, he
asserted, is for the committee to get everything moving ahead
and to show it is doing all that it can. That way, a delay
can be viewed as technical and not political, an outcome that
is acceptable to the Kurds. He admitted, however, that the
Kurdish leadership has not done enough to prepare its public
for the delay. Fahmi said he thought there was a consensus
among the main political parties that April or May might be a
feasible timeframe to hold a referendum.


But, Political Problems Are Unavoidable,
Especially Regarding Boundary Changes
--------------


12. (C) Senior Advisor said it was obvious to him from a
recent trip to Kirkuk, Irbil, and Mosul that communities like
Sunni Arabs are fearful of the Article 140 process. So it
was difficult to see how there could be any prospect of
agreement, when the committee referred its recommendations to
the Presidency Council, if Sunni concerns about Kurdish
inroads in Ninewa Province were not also addressed, in
addition to the recommendations on Kirkuk and Karbala. Fahmi
said the committee will do the best that it can, but once the
issue becomes political it will get caught up in the balance
of power struggle in Iraq. Fahmi asserted that VP Hashimi
will oppose any boundary proposal, even if Ninewa was
included, and the matter will have to go to arbitration or an
international mediation.


13. (C) He claimed the Arabs in Kirkuk proper are not too
concerned about Article 140, especially if they can see a
democratic process leading to a solution and if we give no
excuse to the Kurds to justify any Kurdish heavy-handedness.
Fahmi said the Turkmen are split into Sunni and Shia camps,
and political leaders like the Iraqi Turkmen Front will never
accept Article 140. He is working towards allaying the fears
of those not in the Turkmen leadership. For example, the
last resolution issued by the committee (number 6)
specifically addressed the dispossession of Shia Turkmen
lands by Saddam outside of Kirkuk city, in part to gain
traction with the Shia Turkmen community to support the
overall process. Fahmi opined that if the committee could
solve the Shia Turkmen issue, perhaps even the Sadrists would
fully support implementation.


14. (C) The key is a fair and transparent process, Fahmi
repeated. If we can define a fair solution, we can adapt it
to what is happening on the ground. In Ninewa, Fahmi said
there are Christians, Arabs, Kurds and other minorities and
we will need to talk to everyone. We want a lasting
solution, with consensus and not coercion.


Comment
--------------


15. (C) The committee's technical progress over the last few
months will help alleviate concerns about a referendum delay
past December 31, but boundary issues will remain the primary
political obstacle to implementing Article 140.
Concentrating on Kirkuk province and Karbala province
boundary changes and deliberately leaving a likely flashpoint
like Ninewa province from committee deliberations guarantees
that Sunni Arabs will feel squeezed out of the process. It
also means any technical recommendations to the Presidency
Council will fail to gain agreement from VP Hashimi, which
would mean arbitration or UN mediation would be necessary (as
outlined in TAL 58). In short, the Article 140 Committee may
manage to narrow the issues in play, but it will likely stall
out at the political level, due to the opposition of Sunni VP
Tariq al-Hashimi. In that case, the law provides for the
Presidency Council to have recourse, by unanimity, to a
neutral arbitrator or, failing that, to the UNSYG for
mediation. Meanwhile, uncertainty over how these sensitive
provincial border/Kirkuk issues will be sorted out has fueled
not only Arab-Kurd tensions in the north, but also the
insurgency. Ambassador will discuss next steps with newly
arrived UNAMI envoy De Mistura.
CROCKER