Kirkuk: Constitutional Promises of Normalization, Census, and Referendum Still Unfulfilled

Originally posted July 2008

Many people view Kirkuk as a microcosm of all of Iraq. The ancient city counts among its inhabitants significant numbers of almost all of Iraq’s ethnic and religious groups — Arabs, Kurds, Turkmen, Assyrians, Chaldeans, Sunnis, and Shi‘ites. The last semi-reliable census of Kirkuk’s population, from 1957, indicated a slight majority of Turkmen in Kirkuk City and a majority of Kurds, followed by Arabs, in the province as a whole.

1957 Kirkuk Census Figures¹

Kirkuk province (officially al-Ta’mim Governorate) also contains around one-third of Iraq’s known oil deposits, which makes the area a geostrategic concern for actors otherwise far removed from Kirkuk’s inhabitants. In an effort to solidify Arab control over this oil-rich multi-ethnic region, the Iraqi Ba‘thists began pursuing Arabization policies in Kirkuk and the surrounding areas in1968, culminating in mass deportations and ethnic cleansing in the late 1970s, 80s, and 90s. In 1970, competing claims over Kirkuk also played an important role in scuttling a peace and autonomy agreement between Kurdish rebels and the government in Baghdad, since neither side appeared willing to relinquish the area. In the years following the crushing of the 1975 Kurdish insurgency, an estimated 200,000 to 300,000 people were expelled from Kirkuk Governorate. Most of the deportees were Kurds, but many Turkmen and Christians also were expelled. The majority of the deportees ended up in the governorates of Sulaymaniya and Erbil, which since 1991 have formed a large part of the Kurdish Autonomous Region.

Now that the Ba‘thist regime in Iraq has been overthrown, the question of how to resolve the injustice of forced displacement and correct the ethnic cleansing of the previous regime has emerged front and center. Many fear that a sectarian contest over Kirkuk could draw all of Iraq into the fray. Some 200,000 Internally Displaced Persons (IDPs) already have returned to Kirkuk, sometimes due to a certain amount of pressure from Kurdish leaders anxious to strengthen Kurdish claims on the area. Most of the returnees are Kurdish, poor, and unemployed, given that IDPs who made good in cities such as Sulaymaniya and Erbil remain much less inclined to leave everything and return to an uncertain future in Kirkuk. Although a property restitution system — the Commission for the Resolution of Real Property Disputes (CRRPD), formerly the Iraqi Property Claims Commission (IPCC) — was established to deal with property disputes between IDPs and settlers (mostly poor Shi‘ite Arabs that Saddam brought in from the south) and has done some good work recently, most of the returnees may not qualify for property restitution, given that they did not own property at the time of their expulsion. Nonetheless, returning Kurdish IDPs have high expectations that they will be given jobs and homes and that Kirkuk will become part of the Kurdish Autonomous Region. Most of them feel that only by being part of the Kurdish region will their security be assured.

Wisely, the Iraqi government has begun encouraging Arab settlers (who should not be confused with Kirkuk’s indigenous Arab population) to return south, providing them with a number of incentives. However, some settlers, especially the second and third generation children of settlers, as well as the many families that experienced intermarriage between settlers and indigenous Kirkukis, will not want to leave Kirkuk, and even Kurdish leaders have not suggested any plans to force them to do so.

Despite the positive effect of property restitution and resettlement with good incentives and compensation, a number of daunting problems continue to bedevil any resolution of the Kirkuk question. Although many indigenous Kirkuki Arabs could accept becoming part of the Kurdish Autonomous Region,2 in general, Arabs fear that Kurds will use control the of Kirkuk to lay claim to the oil of the area, refuse to turn over oil revenues to Baghdad, and use the financial windfall to separate from Iraq. Some Turkmen are also amenable to joining the Kurdish administration,3 although the most prominent Turkmen community spokespersons have expressed deep aversion to such a possibility. Turkmen may believe that their interests and rights can be better pursued in a more multi-ethnic Baghdadi political arena than as part of the Kurdish Autonomous Region. Or they may be following suggestions from Ankara to oppose the expansion of the Kurdish Region’s borders.

In an effort to avoid conflict over Kirkuk, a number of international observers and organizations have made several suggestions. In 2006, the International Crisis Group (ICG) suggested making Kirkuk into its own federal region and waiting approximately ten years before trying to decide whether or not it would join the Kurdish region. More recently, the United Nations Assistance Mission to Iraq (UNAMI) proposed a kind of “grand bargain between elites” approach, wherein disputed territories throughout northern Iraq would be apportioned according to their demographics and whatever Iraqi leaders could negotiate between themselves. Both these proposals and others should be received as well-intentioned efforts to assist Iraqis in finding a political settlement and a final resolution for forced displacement problems around Kirkuk and similar areas. Unfortunately, few international organizations and observers have suggested ways of following the envisioned legal and constitutional formula for dealing with Kirkuk and its displaced population. There exists a real danger from reneging on constitutional promises, given that a constitution forms the very basis of a state’s legitimacy and the willingness of its various communities to reside together under one political umbrella. While Iraq’s constitution may contain provisions that favor Kurdish claims over Kirkuk, the Kurds obtained these provisions through a very difficult negotiation process that included concessions on other issues, such as an explicit role for Islam in Iraqi jurisprudence.

Discussion of displaced persons and return questions, especially as regards the contested Kirkuk region, needs to recognize the difficult process that led to the enactment of Iraq’s first democratic and viable constitution. The 2005 Permanent Constitution contains a number of articles dealing specifically with displaced persons as well as the status of Kirkuk. Most importantly for the Kirkuk question, Article 140 of the Permanent Constitution (Article 58 of the Transitional Administrative Law) lays out a series of three steps to resolve the Kirkuk issue: 1) normalization, meaning the return of people forcibly displaced by Saddam’s regime and the undoing of administrative border changes (“gerrymandering”) that the Ba‘th enacted in order to increase the Arab proportion of Kirkuk’s population; 2) a census; and 3) a referendum to determine if Kirkuk should become part of the Kurdish Autonomous Region.

The constitutionally mandated deadline for holding a referendum on Kirkuk was December 31, 2007. When it became clear that even a census, much less a referendum, would not be held by that date, the Iraqi Parliament extended the deadline by six months. The new deadline of July 2008 seems certain to be missed as well. New plans to address the Kirkuk issue, including suggestions from organizations like the ICG and UNAMI, should try to incorporate the three steps promised in the constitution, lest the whole post-Saddam national pact unravel. It also might be reasonable to assume that most Kirkukis want the constitutional program to be adhered to, given that 63% of Kirkuk’s population voted in favor of the constitution in 2005.4