Wednesday 19 December 2007

• Opening Session • Session I: “The Current Status of the Implementation of Article 140” • Session II: “Resolving the Political Status of Disputed Areas - Local Perspectives from Iraq”

Two points of broad agreement framed the discussion of the ongoing process to implement Article 140 of the Iraqi Constitution, and the broader considerations of the issues associated with the political status of disputed areas in Iraq:
 
1. All of Iraq’s communities have suffered extensively during the past decades. They are all victims of policies aimed at demographic manipulation, including forced resettlement, discrimination, as well as killings and violence. Though this troubled past must be remembered in order to ensure it is not repeated, revenge will not facilitate a return to stability and prosperity. More injustice could never hope to repair past injustices, and this must be born in mind during the ongoing process of normalisation.
 
2. Regardless of what mechanisms are used to resolve the political status of Iraq’s disputed areas, its diversity will remain a fact and an important challenge for local and national administrations to manage. Any political process aimed at resolving outstanding disputes must therefore make efforts to acknowledge and guarantee the rights of all Iraqi citizens and communities, regardless of their size and political influence. An open and inclusive democratic dialogue committed to human rights and the rule of law is the only means of achieving this.
 
Article 140 of the Iraqi Constitution was presented as the legal framework within which efforts to resolve the political status of Iraq’s disputed areas must take place. It was widely acknowledged that the constitutional deadline of 31 December 2007 for its implementation will not be achievable.
 
A number of arguments were presented against the implementation of Article 140:
 
Unclear: The Article is not well defined and leaves a number of crucial questions unanswered, for example:
·    What is an “area?”
·    Who determines which areas are “disputed?”
·    What will be the question asked in referendum?
·    Will the referendum be throughout the Province or separately in each disputed area, and who can decide?
 
Legal Deficit: If the deadline stated in the Iraqi Constitution is missed, what is the legal status of Article 140? In response it was argued that an obligation is not invalidated simply because it is not met in time.
 
Political/Security Situation: It was argued that a voting process can only be considered free and fair where there is sufficient security in place to allow citizens to vote without fear. Referendums should therefore be delayed until the security situation has improved. Similarly, others suggested that Iraq’s fragile political state was not conducive to discussing highly controversial issues such as those associated with Article 140. It would instead be more beneficial to continue the process of building and strengthening Iraq’s democratic institutions before addressing these questions.
 
Drafting Process: The Iraqi Constitution was drafted at some speed during a time at which not all political factions were well represented in Iraq’s political institutions.
 
“Normalisation” has not been completed: Many participants noted that the process of “normalisation,” intended to precede referendums, was clearly not complete. A number of communities continue to feel excluded from the local political process, and relatively few property claims have been resolved. Any referendums should therefore be delayed until this process is complete.
 
Against these arguments, a number of positions were presented advocating the implementation of Article 140 as soon as is possible:
 
Problems Need Solutions: The disputed areas of Iraq are not a theoretical problem, but a serious political issue affecting the lives of thousands of people. It is therefore the responsibility of Iraq’s leaders not to postpone this problem, but to give the citizens of these areas their democratic right to determine their own political status.
 
Respect for Constitution: Regardless of arguments against, Article 140 is part of a Constitution endorsed by the vast majority of the Iraqi people in a democratic referendum. Respect for their decision demands it be implemented in its entirety. Postponing the implementation of any articles can only set a dangerous and undesirable precedent.
 
Presentations also detailed the work and progress of the federal Committee charged with facilitating the implementation of Article 140. This Committee is the main mechanism by which the various components of the Article are to be implemented. Further to a delay of several months, the Committee has been able to open three offices and has establish a number of sub-committees tasked with considering a specific aspects of the normalisation process. These include:
·        Addressing property claims
·        Compensation for victims
·        Incentives for the voluntary resettlement of those wishing to return to their original areas
·        Examining disputed areas beyond Kirkuk
·        An investigation committee has also been established to verify the veracity of all claims
 
The membership of each sub-committee aimed to be representative and inclusive, and the work of the federal Committee has throughout aspired to be conducted in an open and transparent manner that makes it accountable to all affected citizens.
 
The Committee was unable to complete its work within the deadline outlined by the Constitution. It was suggested this was in part due to a number of technical obstacles, some blamed on limited cooperation from the federal government.
 
Central to the normalisation process has been the process of allocating the funds designated for the victims of the previous regime’s policies. Efforts have been made to identify those eligible for compensation, and a large number of claims have been received.
 
The achievements of the Property Claims Commission were however challenged, in particular with the suggestion that it has been able to settle only around five percent of all claims. Many participants noted that this was a serious problem, as the restoration or compensation of seized property and land is a central component of the normalisation process. It was acknowledged also that the Iraqi judicial system still affords insufficient support to those with outstanding claims.
 
It was suggested that Turkmen and Kurdish communities in particular have a large number of outstanding claims. Others, including the Ezidi, also noted that they and other communities continue to feel excluded or underrepresented in the political process associated with normalisation.
 
The rights of those displaced by the previous regime has also been a large part of the work of the Committee, much of which has focused on outlining the criteria for compensation and evaluating the large number of claims. The Committee has committed to a principle of “voluntarism” whereby only those who volunteer to resettle will be included in the process, with no-one obliged to accept compensation or incentives.
 
The aim has been to include only those affected by the “Arabisation” process in the normalisation process, ignoring therefore anyone who moved voluntarily during the time of the previous regime.
 
With respect to Kirkuk, the 1957 census was widely accepted as a suitable basis for determining who would count as a citizen of the city, and so be eligible to vote in any referendum.
 
It was noted also that it is important to remain realistic about the normalisation process given the extent of the damage inflicted by the previous regime. Whole villages were destroyed, with thousands killed, and this will be impossible to reverse.