Iraq’s constitution was adopted 20 years ago. In that time, the country suffered through foreign military occupation, an armed insurgency, an incessant wave of terrorist attacks, mass displacement, government repression and more. Today, the country is very far from perfect, but we are living through a period of near-total peace for the first time in around half a century, and it is beginning to show.
Does the constitution have anything to do with this transformation? The answer is not straightforward. An endless list of factors impacts the fate of nations. There is a convincing argument that some of the constitution’s arrangements have created a balance of power that is contributing to the relative peace and freedom that Iraqis are experiencing. Conversely, the constitution’s content and the manner in which it was adopted very likely contributed to several waves of violence in the intervening 20 years.
When the US invaded Iraq in 2003, Iraq was fractured in many ways. The Baath party’s corruption and brutality and the subsequent invasion left the country severely depleted. It left behind it a population without a binding ideology, and with no history of political discourse. The Kurdistan Region was separated from the rest of the country through a physical border that Iraqis could not cross, and many millions had already been forced into exile, never to return.
As the occupation got under way, a new constitution had to be drafted. Constitutions are legal texts, but they are also eminently political. A constitution captures a country’s defining features, through the political system that it establishes, and through a series of objectives that can be expressed either explicitly or implicitly in the text itself. Iraq’s constitution explicitly states that its purpose is to prevent a relapse into dictatorship, and to establish a new sense of national unity through a federal and parliamentary system of government.
At the time when the constitution was being drafted, Iraq was spiralling into a state of total anarchy. The US military occupied the country’s streets and acted with virtual impunity. Iraqi groups fought a brutal insurgency against it, which encouraged the international jihadi network to join the fight. By the time the constitution was being negotiated, there was so much violence in Baghdad that governing authorities actually erected walls around neighbourhoods to prevent armed groups from attacking each other. Politicians and their advisers were targeted, too – several constitutional drafters and their advisers were killed in just a few weeks.
The context was clearly not conducive to a constitutional negotiation. Quite the opposite, the constitution and the way it was adopted merely contributed to the downwards spiral. Rather than bringing in all sides to engage in a conversation on the future, the US embassy was determined to rush the negotiations by excluding most of the political class from the final negotiations. That left a group that represented far less than 20 per cent of the population to determine the federal system on its own. The referendum was potentially just as problematic: the text was approved by a very large majority, but the 20 per cent that opposed were almost all from a single ethno-sectarian community, which further cemented divisions in the country.
On the constitution’s content, there appeared to be general consensus that a parliamentary system should be adopted, but there were diverging views on federalism. The system that the US led discussions eventually established was motivated by fear and division – rather than reimagine a new sense of solidarity, it encouraged entire communities to withdraw from each other at a time when violence was tearing apart what was left of the social fabric. The country’s main constituencies concluded that the country was disintegrating and therefore rushed to capture territory to establish facts on the ground. The biggest prize was Baghdad, and the fighting in and around it was brutal and lasted for years. At exactly the time when the constitution was entering into force, violence in the capital quadrupled. The violence eventually ebbed in 2008, only to start flowing again in 2011.
Federalism was originally considered a means to encourage Kurdistan to remain a part of Iraq. But federalism is complex and takes time to construct – time that the Iraqi drafters did not have because the US embassy did not allow it. The final text did not include much of the detail that would normally be included on natural resources, leaving the essentials open to interpretation. Even worse, some of the wording that was there was deliberately convoluted in an act of bad faith by self-interested drafters to trick the majority of the population into an arrangement that they were never consulted on and never agreed to. Since then, those arrangements have enriched a small number of consultants and politicians while infecting Iraq’s political system like an unnatural virus over a period of decades.
Even before the constitution was being finalised, the Kurdistan Region started pursuing its own independent oil policy, all with a view to eventually breaking away from the Iraqi state. It entered into independent contracts with providers. It also signed an illegal (and, to this day, secret) agreement with Turkey to allow Kurdistan to export its oil through a pipeline that ran to the Mediterranean, all without Baghdad’s approval. Whenever Kurdistan Region officials would treat with internationals on issues relating to oil and gas, they would point to the constitution in an effort to convince them of the legality of their actions. Baghdad’s response was possibly even worse. On several occasions, it sought to punish the Kurdistan Regional Government by cutting off fiscal transfers to Erbil, which starved ordinary people in Kurdistan from the basic funds they needed to lead their lives. Baghdad undermined the very sense of national unity that the constitution sought to enshrine as a fundamental principle.
In June 2014, ISIS invaded and occupied approximately a third of the country. Tens of thousands were killed, untold numbers were kidnapped, raped, displaced. It was the worst terrorist attack that any country has suffered in modern history. In response, the rhetoric by much of the governing class in Baghdad was almost genocidal in character – there was much talk that entire communities should be wiped away completely or at least reduced to secondary status. Many Iraqis and foreign analysts wondered if the end of Iraq was finally at hand.
Shocks of that nature can create opportunities, but other factors have to be aligned to make that possible. If the constitution had provided for a presidential system, Nouri Al Maliki (who was the most powerful politician at the time by far) would likely have used that office to suspend constitutional institutions, as many others in that position have done in the past (including most recently President Kais Saeid in Tunisia). But the constitution’s parliamentary system, so reviled for its divisions, saved Iraq from either oblivion or a reversion to dictatorship, or possibly both. Despite the fact that he had returned an impressive result in national elections just a few months before, Mr Al Maliki lost the confidence of parliament and was forced from office. That singular and mostly unappreciated moment was a victory for the constitution – the institutions and rules that it established are ineffectual and corrupt, but sufficiently plural to prevent any one side from capturing it completely.
In the years that followed, state institutions in Baghdad recovered sufficiently to start reasserting their authority (albeit with significant difficulty and not without massively repressing popular protests). The government eventually set its sights on Kurdistan – the balance of economic, military and political power was now firmly in Baghdad’s favour. Baghdad won a legal dispute with Turkey which meant that the Kurdistan Region could no longer export any of its oil without Baghdad’s approval. Negotiations ensued over a period of years that eventually yielded some form of compromise but here the constitution was not particularly relevant in those discussions. Rather than create a common basis of understanding, it created new avenues through which division and rivalry could grow and maintained a logic of winners and losers. In that respect, the constitution has been a major failure.
On a different level however, Iraqi society has likely never been more integrated. Millions of Arab Iraqis travel to Kurdistan on holiday every year. Many own properties there now, including summer homes. National sports competitions including at the school level have completely reintegrated Kurdistan. Unions of journalists, doctors and others have led to constant interaction between Arab and Kurdish professionals. Many Kurds are now moving south to look for work – something that would have been completely unheard of 20 years ago.
In that sense, while the constitution and the political class failed to establish a new social contract between its peoples, society has moved on and has repaired much of the damage that was caused by politics, by the constitution and by war. A generous interpretation would be to say that the state’s withdrawn influence from society is the direct result of deliberate choices that were made by the constitution’s drafters. But given how the text was developed and the history of its evolution, it would be wrong to ascribe that much foresight to the drafters. Iraq may be living through (relatively) good times today, but the path it took and the losses it suffered in the meantime should give Iraqis pause to consider whether it was all worth it.
