The Birth Pangs of Iraqi Sovereignty

This is a study about the transfer of sovereignty in Iraq, which is a work in progress. There are many imponderables that could enter the final calculus, and it would be premature to suggest that the process under way will lead to the final edifice visualized by its architects, who seek to complete it in a timely and orderly fashion.

The recent capture of Saddam Hussein introduces even more imponderables, whose ultimate impact remains uncertain. The following is a review and analysis of the main components in the process of restoring Iraqi sovereignty to the Iraqis:

I. The 'November 15 Agreement'

In an attempt to accelerate the transfer of power from the Coalition Provisional Authority (CPA) to the Iraqi people, the Civil Administrator for Iraq, Ambassador L. Paul Bremer, and the rotational president of the Iraqi Government Council (GC), Kurdish leader Jalal Talabani, signed on November 15, 2003 an "Agreement of Political Process." [1] The Agreement has five key provisions, as follow:

1. The "Fundamental Law" to be drafted and approved by February 28, 2004. It is intended to provide the legal framework for the future system of government and the protection of basic human rights. It is meant to include:

a. Bill of rights (freedom of speech and religion, and a statement of equal rights for all Iraqis).

b. Federalist arrangement for Iraq.

c. Independence of the judiciary.

d. Civil control over the military.

f. Timetable for drafting Iraq's permanent constitution by a body directly elected by the Iraqi people.

2. Reaching an agreement with the Coalition on security, including the status of Coalition forces in Iraq. This provision is to be completed by the end of March 2004.
3. Selection of the Transitional National Assembly (TNA), akin to a transitional parliament. This provision establishes the procedure of selection of TNA members. It states that in each of the 18 governorates, the CPA will supervise a process by which an "Organizing Committee" of Iraqis will be formed. In turn, the Organizing Committee will convene a "Governorate Selection Caucus" of notables from around the governorate, including representatives from political parties, NGOs, and tribal and religious groups. Finally, each caucus will elect representatives to the new transitional assembly to be elected not later than May 31, 2004.
4. Restoration of Iraq's Sovereignty to be completed by June 30, 2004.
5. Process for Adoption of Permanent Constitution. This article in the Agreement calls for elections for a constitutional convention by March 15, 2005. The convention will prepare a draft constitution to be voted on by the people (no date was indicated). Finally, elections for a new Iraqi government will be held by December 31, 2005, at which point the Fundamental Law will expire and a new government will take power under the new constitution.

II. Reactions to the Agreement

As might be expected, the agreement has its supporters and detractors. The following is a summary of views from both sides:

A. In Support of the Agreement

The overwhelming majority of the GC hailed the agreement as a significant step toward terminating the occupation and restoring sovereignty to the Iraqis. Statements of support were issued by Ahmad Chalabi, leader of the Mu'tamar [Congress] Party, Adnan Al-Pachachi, leader of the Independent Democratic Movement, the Communist Party, the Al-Da'wa Party, and others.

In a statement to the press, Jalal Talabani said: "We agree with the CPA on establishing a unified, federal, democratic system and on forming an Interim Government." As for the difference between the GC and the interim government, Talabani said, "There is a big difference, since the interim government will be elected by a Transitional National Assembly that will comprise representatives from the provinces. It will enjoy full authority and not be controlled by any party." [2]

After the GC finishes its duties in supervising the selection of the TNA and the subsequent formation of the interim government, the GC members will have completed their duties and the GC will cease to exist. The occupation will end and Iraqi independence will be restored. Then, the TNA will manage the formation of the government. [3]

B. Opposition to the Agreement

The Agreement, however, was not received well by representatives of the Shi'a community, which remains suspicious of the selection of the TNA by means other than direct elections. The Shi'a are concerned that such a process would deny them their legitimate share of the power for which they have yearned for so long and of which they were deprived by successive Sunni-controlled governments, since the emergence of modern Iraq in 1920, and even earlier, in Ottoman times.

Grand Ayatollah Ali Al-Sistani [4]

The main spokesman of this Shi'a position is Grand Ayatollah Al-Sistani. Ironically for Iraq, which has traditionally been secular, the one figure that has emerged in recent months as an authentic and powerful leader is the Iranian born 73-year-old Grand Ayatollah Ali Al-Sistani. The taciturn Ayatollah has never appeared on television nor has he given press interviews. Thus, much of what is known about his views on the ongoing political debate over the process of sovereignty transfer to the Iraqis has emanated from statements of GC members who have negotiated with him on these issues, or from his website. [5]

Grand Ayatollah Al-Sistani has made four principal demands regarding the implementation of the November 15 agreement:

1. Election, Not Selection/Appointment: The Agreement has stipulated that the general elections should be postponed until 2005. Al-Sistani demands that the elections should be held in spring 2004. This demand conflicts with the November 15 Agreement regarding the selection of the TNA.
2. Elections Only in Safe Areas: Elections should be held next spring but only in the safe areas of Iraq, mainly the Shi'a south, the Kurdish north and some quarters of Baghdad. The CPA and the GC have rejected this proposal because it would exclude a large segment of the Sunni community from the election process, thus driving them further into the resistance movement and political estrangement.
3. Iraq an Islamic State: The Fundamental Law to be issued by February 2004 should stipulate that Iraq is an Islamic state, and also that no law contradicting the Islamic Shari'a law will be enacted.
4. U.S. Forces to Remain after Plebiscite: The stay of the U.S. forces in Iraq after its independence is restored must first be approved by the provisional government and then submitted to a plebiscite. [6]

In return for these demands, Grand Ayatollah Al-Sistani has told intermediaries that a) he would continue to provide implicit but undeclared support for the current GC-U.S. cooperation as long as this cooperation benefits the Iraqis; and b) he was prepared to keep the door open to negotiations and dialogue with the GC, and through it with the Americans, to reach an understanding over contentious issues raised by him.

Despite his insistence on direct election of the "Interim Council," which runs contrary to the position of the CPA, Al-Sistani has not threatened to issue a fatwa declaring Jihad against the Americans. In fact, he said that he had resisted many appeals to issue a fatwa requiring his followers to fight Americans. However, he added that his refusal cannot last forever. [7]

Echoing Al-Sistani's views is Shi'ite GC member Abd Al-Aziz Al-Hakim, who became a member after the assassination of his brother Ayatollah Baqir Al-Hakim last August, and who is serving as president of the GC for December 2003. Al-Hakim, leader of the major Shi'a political party the Supreme Council of the Islamic Revolution in Iraq (SCIRI), which for years was nurtured by Iran, insists that he could not support the November 15 Agreement because it did not take into consideration Al-Sistani's views and reservations. [8]

Al-Hakim has taken even a more strident approach than Al-Sistani, and has threatened "real problems if our reservations are not taken into consideration." [9] Al-Hakim's position may reflect his displeasure with the CPA's refusal to approve a new nationality law that would have restored Iraqi citizenship to hundreds of thousands of Shi'ite Iraqis currently residing in Iran, after they were stripped of it by Saddam's regime. [10]

Criticism has also come from the young extremist Shi'a leader Muqtada Al-Sadr, who exercises considerable influence in Al-Sadr City (previously Saddam City) with its two million impoverished Shi'ites. But even Al-Sadr has been careful not to stretch the CPA's patience too far. More importantly, he said his movement would not be interested in a regime like the Taliban or Iran's theocracy. He said: "We will not permit those wearing turbans to be imposed upon the government if we were to set it up." However, he did not exclude placing clerics in advisory roles in some ministries, such as the Information Ministry and the awqaf [Religious Endowments] Ministry. [11]

The CPA's position regarding Al-Sistani's reservations was expressed by Ambassador Bremer, who has warned the GC that hasty elections without peaceful conditions could bring in a Ba'athist and Islamist majority, which would put an end to the vision of a free and democratic Iraq. He added that the Fundamental Law will confirm the Islamic identity of the Iraqis. At the same time, the CPA would insist on others' rights to freedom of worship. [12]

In a meeting with Iraqi journalists, Ambassador Bremer reiterated the impracticality of holding elections in Iraq at this time. He reasoned that the previous regime did not provide for electoral process, since there was no laws regarding establishing political parties, no reliable census, and no geographically drawn electoral districts. [13]

The CPA has also insisted that an agreement on keeping U.S. forces in Iraq should be negotiated next March with the existing GC, and has refused to adopt a new timetable that would delay the transfer of sovereignty to Iraq until after June 2004. [14]

IV. Confrontation with Al-Sistani Avoided

Despite the risk of offending Grand Ayatollah Al-Sistani, who is capable of instructing his supporters to actively reject the November 15 Agreement, the majority of GC members, including the Kurds, the Sunnis, and secular Shi'ites such as Ahmad Chalabi, have decided not to grant him power of veto of political decisions, but they continue to negotiate with him.

GC Sunni member Ghazi Ujail Al-Yawor said: "We cannot deny that there is an attempt by Al-Sistani to establish a precedent. The matter transcends the issue of elections. It is whether we would allow one man to determine the conditions of our sovereignty." He added, "The more active political forces in the GC did not wish this result, and decided to confront the question of religion in politics. It is a complex question that ought to be suspended until a draft constitution [for Iraq] is prepared." He concluded that the large parties did not wish to break with Al-Sistani, but neither did they want a regime where clerics have the ultimate decision. [15]

However, it appears that Al-Sistani has accepted an American compromise. According to current GC President Al-Hakim, America will transfer more powers to the Iraqis, and Al-Sistani will not demand direct elections as a condition for transferring political power in accordance with the November 15 Agreement. [16]

A more dramatic change in Al-Sistani's position was announced by GC member Mawafaq Al-Rabi'i, who visited Al-Sistani in Najaf on November 12, together with GC Member Ahmad Al-Chalabi. After what they described as difficult negotiations, Al-Sistani indicated that he would give up his insistence on elections if a neutral committee appointed by the U.N. Secretary-General were to visit Iraq and declare that elections are unfeasible under Iraq's current security conditions. [17]

The media have reported a December 18, 2003 statement to that effect by Kofi Annan. [18] Al-Sistani, on his part, insists that a neutral UN-designated committee must assess the situation.

V. The Sunni Position

Historically, the Sunni minority has been the dominant political elite in Iraq. This has been true from Ottoman times through the monarchy and up to the end of the Saddam era. The Iraqi Sunnis are fearful that general elections in Iraq could politically marginalize them.

The secular Sunnis are represented by the most senior Sunni GC member 'Adnan Al-Pachachi, head of the Democratic Liberal Group which comprises mostly urban and upper and middle class Sunnis who support the November 15 Agreement. A Sunni GC member expressed satisfaction that the GC did not see the Sunnis necessarily as Ba'athists, and that it intends to bring the Sunni community into any future political calculations. [19]

In an interview with the London Arabic-language daily Al-Hayat, held in the city of Samaraa, which was a center of the pro-Saddam Sunni triangle, the most senior Sunni cleric, Al-Sherif [an indication of Hashemite lineage] Abbas Al-Samara'i Al-Hussein Al-Naqshabandi threatened to issue a Fatwa that would turn every Iraqi into a ticking bomb should the occupation forces not leave Iraq quickly. However, he did not indicate that he was calling for the establishment of an Islamic state. [20]

Similarly, Dr. Ahmad Al-Qubaisi, one of the leading, and more intriguing, Sunni clerics, who is currently serving as president of the Sunni Ulamaa (clerics) Association of Iraq, has repeatedly refused to support the idea of an Islamic state in Iraq. He said such a demand is "outbidding and deceit." This is a major departure from his April 18, 2003 sermon at Al-A'dhamiyya Mosque after the fall of the Ba'ath regime, in which he called on the Americans to depart. He characterizes his present position as tactical, and similar to moves by the Prophet Muhammad in many of his battles, saying that sometimes retreat is better than attack.

Al-Qubaisi ridiculed those who argue that the American invasion of Iraq was aimed at controlling its oil. He said that the Iraqi people never benefited from their oil during previous decades, and that whatever revenues it would derive from its oil, "regardless of how much the American might steal," they would still be "greater than what was derived during the Saddam regime." [21]

VI. The Kurdish Position

As indicated earlier, the November 15 Agreement was negotiated with the CPA by Kurdish leader Jalal Talabani, who was at the time rotational GC president. The Kurds support the agreement because it establishes the federation as the form of Iraq's next government, which reflects the Kurds' profound historical and political aspirations. Clearly, anything less than a federation would be unacceptable to the Kurds, who have in any event enjoyed considerable autonomy under U.S protection following the defeat of the Iraqi army in Kuwait in 1991. In fact, the Kurds are the only major ethnic community in Iraq that did not receive ration cards from the regime because they received 15% of oil revenues, earmarked for them under the UN-sponsored Oil for Food program.

The Kurds' insistence on federalism was supported by most of the opposition groups in exile before the fall of Saddam. Any departure from the principle of full federalism that acknowledges the geographic and ethnic uniqueness of the Kurdish minority may drive them to declare their political independence. The Kurds' primary concern is that under Turkish pressure the U.S. might back down on its commitment to offer the Kurds the federalism they seek. [22] The Kurds have no problem with the process of selection or election of representatives, since either would probably yield the same results – Kurdish representatives.

The Kurds have recently amplified their demands by giving a clearer interpretation to the concept of federalism. What they have in mind is not a federalism that would include several Kurdish provinces which may eventually compete with each other, but rather a unified Kurdish province, including the oil-rich city of Kirkuk, within a new Iraqi federation. To strengthen their demands, the two major Kurdish factions under the leadership of Mas'ood Barazani and Jalal Talabani have unified their separate government bodies so that they speak in one voice. [23]

VII. Concluding Comments

This November 15 Agreement presents three fundamental problems regarding its implementation according to the proposed timetable: a) the sequence of the various elements of the transfer of sovereignty; b) the selection method for TNA members, and c) the meaning of "elections for a new Iraqi government."

a) The first step in the process is the formulation of the "Fundamental Law" which is scheduled to be completed by the end of February 2004. Unless the CPA has a template for such a law, it is not clear how the fractious ethnic groups in Iraq could, in the little time left, reach an agreement on this law which will shape the structure of Iraq's future political regime.

b) The idea of a caucus to select representatives from among various political and civic groups is very much an American political concept. On the other hand, the demand for general and direct elections is shared by many groups in Iraq, who question the legitimacy of the GC because its members, some of whom have lived for many years in the U.S. or U.K. and even have citizenship, were appointed by an occupation authority

c) Article 5 of the Agreement calls for "elections for a new government" to be held by December 31, 2005. It is not clear whether the government is to be a parliamentary system, as in the U.K., and hence should come from the ranks of an elected parliament, or a presidential system, as in the U.S., which means the election of a president, not a "government." But these are all issues that will require considerable debate before they can be clarified and resolved, which again brings up the problem of timing.

Yet all these difficulties pale in comparison with other pressing needs:

• Restoring peace and tranquility, which is sine qua non for economic development and reconstruction, to breath new life into a moribund economy.
• Introducing the idea of Western-style democracy and free elections to a skeptical population steeped in a culture of fear and oppression.
• Resolving the inherent disagreement, and often animosity, between competing political and ethnic groups.
• Finding a modus vivendi between the secular elements of the society and those who seek to impose an Islamic-type regime (in the words of a recent Iraqi daily, Iraqis find themselves caught between technocrats and "turbancrats"). [24]
• Taking into consideration a different kind of difficulty: the nexus between the transfer of sovereignty to Iraq and the upcoming U.S. elections.

* Dr. Nimrod Raphaeli is Senior Analyst of MEMRI's Middle East Economic Studies Program.

APPENDIX

Agreement on Political Process 1. The "Fundamental Law" To be drafted by the Governing Council, in close consultation with the CPA. Will be approved by both the GC and CPA, and will formally set forth the scope and structure of the sovereign Iraqi transitional administration. Elements of the "Fundamental Law": – Bill of rights, to include freedom of speech, legislature, religion; statement of equal rights of all Iraqis, regardless of gender, sect, and ethnicity; and guarantees of due process. – Federal arrangement for Iraq, to include governorates and the separation and specification of powers to be exercised by central and local entities. – Statement of the independence of the judiciary, and a mechanism for judicial review. – Statement of civilian political control over Iraqi armed and security forces. – Statement that Fundamental Law cannot be amended. – An expiration date for Fundamental Law. – Timetable for drafting of Iraq's permanent constitution by a body directly elected by the Iraqi people; for ratifying the permanent constitution; and for holding elections under the new constitution. Drafting and approval of "Fundamental Law" to be complete by February 28, 2004. 2. Agreements with Coalition on Security To be agreed between the CPA and the GC. Security agreements to cover status of Coalition forces in Iraq, giving wide latitude to provide for the safety and security of the Iraqi people. Approval of bilateral agreements complete by the end of March 2004. 3. Selection of Transitional National Assembly Fundamental Law will specify the bodies of the national structure, and will ultimately spell out the process by which individuals will be selected for these bodies. However, certain guidelines must be agreed in advance. The transitional assembly will not be an expansion of the GC. The GC will have no formal role in selecting members of the assembly, and will dissolve upon the establishment and recognition of the transitional administration. Individual members of the GC will, however, be eligible to serve in the transitional assembly, if elected according to the process below. Election of members of the Transitional National Assembly will be conducted through a transparent, participatory, democratic process of caucuses in each of Iraq's 18 governorates. – In each governorate, the CPA will supervise a process by which an "Organizing Committee" of Iraqis will be formed. This Organizing Committee will include 5 individuals appointed by the Governing Council, 5 individuals appointed by the Provincial Council, and 1 individual appointed by the local council of the five largest cities within the governorate. – The purpose of the Organizing Committee will be to convene a "Governorate Selection Caucus" of notables from around the governorate. To do so, it will solicit nominations from political parties, provincial/local councils, professional and civic associations, university faculties, tribal and religious groups. Nominees must meet the criteria set out for candidates in the Fundamental Law. To be selected as a member of the Governorate Selection Caucus, any nominee will need to be approved by an 11/15 majority of the Organizing Committee. – Each Governorate Selection Caucus will elect representatives to represent the governorate in the new transitional assembly based on the governorate's percentage of Iraq's population. The Transitional National Assembly will be elected no later than May 31, 2004. 4. Restoration of Iraq's Sovereignty Following the selection of members of the transitional assembly, it will meet to elect an executive branch, and to appoint ministers. By June 30, 2004 the new transitional administration will be recognized by the Coalition, and will assume full sovereign powers for governing Iraq. The CPA will dissolve. 5. Process for Adoption of Permanent Constitution The constitutional process and timeline will ultimately be included in the Fundamental Law, but need to be agreed in advance, as detailed below. A permanent constitution for Iraq will be prepared by a constitutional convention directly elected by the Iraqi people. Elections for the convention will be held no later than March 15, 2005. A draft of the constitution will be circulated for public comment and debate. A final draft of the constitution will be presented to the public, and a popular referendum will be held to ratify the constitution. Elections for a new Iraqi government will be held by December 31, 2005, at which point the Fundamental Law will expire and a new government will take power. For the Governing Council: For the Coalition Provisional Authority: Jalal Talabani L. Paul Bremer David Richmond Date: November 15, 2003