Minorities & the Iraqi Constitution

 

What Next?

17 February   |   2006   |   Subject  Middle East & North Africa (MENA)

It has been a long, gruelling and at times challenging period. But the multiple phases of elections and referenda in Iraq seem to be well and truly over as the dust begins perhaps to settle and Iraqis start the hard slog that would translate those results into a stable government with concrete orientations, defined structures and efficient institutions.

Compared with other elections in the larger Middle East, the vote for the 275-seat Parliament was impressive both in terms of its nascent exercise in democracy as well as for the 70% overall turnout of registered voters. Foreign monitors asserted also that the elections met international standards despite some markedly partisan irregularities. Now, most efforts are directed at putting together a government that would hopefully represent the Iraqi people - from the Kurds in the north, to the Shi'as and Sunnis in the central and southern regions, to the other minority groups across the whole country - that together constitute the fertile fabric of society in this country.

Yet, writing this article today, I am still not confident that the problems associated with the new Iraq have been sorted out, or that the profound tensions and contradictions inherent in its Constitution would not threaten the very existence of the 'new state in the making'. Indeed, many signs suggest that this document, if not fine-tuned properly, could become a catalyst for the fragmentation of Iraq and for long years of internecine strife.

It is true that 78% of the Iraqi population endorsed the Constitution on 15 October 2005. However, that is not the end of the task, since the elected Parliament should now address itself, inter alia , to the task of amending those provisions of the Constitution that impact unfavourably the tenets of regional devolution and federalism. Otherwise, the central Iraqi state would be sapped further - and with it the multi-faceted rights of all Iraqi men, women and children. In spite of the rhetoric in the law-inscribing document about the unity of the "homeland of the apostles and prophets" and the "values and ideals of the heavenly messages and findings of science" that have played a role in "preserving for Iraq its free union", the unity of the Iraqi people in a cohesive and coherent format remains troublingly unclear.

In the midst of all the current efforts at securing Iraq its rightful place in the comity of nations, such a review of the Constitution would also ensure a better harmonisation of rights and responsibilities and a more equitable distribution of the riches of the country. Moreover, any Iraqi coalition government that comes out of the current negotiations must also clearly include within its Constitution the rights of under-represented groups, including those of minorities, in order to protect the country against further communal conflict. After all, according to the last official census in 1997, the population of Iraq of just over 22 million [then] had the following demographic breakdown: 55% Shi'a Arabs, 17% Sunni Arabs, 15-22% Kurds, 3-4% Turkomans, as well as 3-4% Assyrians, Chaldeans, Armenians and other Christian minorities. It is inevitable that those statistics have altered to some extent over the past decade of demographic shifts, relative population growth and emigration - including those of minorities who would together possibly level at 5% today.

Without adequate constitutional, and therefore juridical, guarantees, the social makeup of Iraq could splinter further. After all, I fear that an u nrepresentative government that pays, amongst other things, lip service to minority concerns could cause already strained inter-religious and intra-political relations to fray further in the future. There is a need for any future government, through its Constitution, to respect and protect minority and women's rights in order to ensure that communities can live and cooperate together in a climate of mutual and equal rights, participation and respect.

So what about the minorities of Iraq?

As I underlined earlier, some commentators and NGO's lend their support to the viewpoint that the recent constitutional process has exacerbated the divisions between Iraq's different ethnic and religious groups. For instance, a report published in December 2005 by the London-based Minority Rights Group International (MRG) entitled The Constitution of Iraq: Religious and Ethnic Relations suggests that the text of the constitution - whilst ahead of many other such documents in the region - was compromised by a drafting process characterised by haste, pressure from external actors and the exclusion of women and minority representatives. The report underlines, for example, the need to avoid the entrenchment of communally-based politics, which have proved a source of continual division in states such as Bosnia and Herzegovina. The composition of key institutions including the Supreme Federal Court, Human Rights Commission and Union Assembly, will be essential in guaranteeing their legitimacy and expertise.

In fact, this broadband opinion is scientifically vindicated by a new "threat index", the centrepiece of the State of the World Minorities 213-page report, released also by MRG last week, showing that Iraq topped the list of areas where minorities are under threat. It scored the highest total from a combination of factors that include "major armed conflicts" and the "rise of factionalised elites". The group collating the threat index for the report used data from the World Bank, conflict prevention institutes and the Organisation for Economic Cooperation and Development. Using a basket of ten indicators such as measures of conflict, governance and economic risk, the group compiled a list of seventy countries where minority groups were under threat for diverse reasons including the war on terror.

The index highlighted the threat in fifteen countries: in Iraq, topmost on the list, the chief concerns were the violent repression of Sunni Muslims and those considered opponents of the US-supported government, as well as the forced displacement or intimidation of smaller minorities.

During the launch of the report in January 2006, Mark Lattimer, Director of MRG, admonished the world community that Iraq "is sliding further and further into civil war. Clearly, we have very grave violence both on the part of the Sunni insurgents, but also on behalf of government forces against Sunni civilians. At the same time, the smaller minorities in the country, including the Turkmen and Christians and others, have almost no effective political representation."

Gay J McDougall, lawyer, Washington-based Executive Director of Gobal Rights and a renowned UN independent expert on minority issues, also commented that this report would give a clearer picture of the problems faced by minorities. She further stated that 'When minority rights are violated and minority issues ignored, the entire society is really at risk. Further along the spectrum, minority rights violations may ultimately lead to the crimes of genocide, crimes against humanity resulting in the targeting of minorities in situations of armed conflict."

Despite its clear problems over a stretch of many years, I do not believe that Iraq had succumbed to any "minority-majority" conflicts as classical scholars in the Middle East would understand such an anthropological - albeit hazy - term. Whilst it is true that the variables, as much as dynamics, of the country have changed since the fall of Saddam Hussein, Iraqis should ensure that the rights of all communities - from the largest to the smallest - are not only protected in practice but also enshrined within the Constitution. Whether in the Kurdish north, the Shi'a south, or other parts of the country, there should be a focus on the rights of minorities so that any potential for conflict, segregation and discord is expunged before it develops into any growth that would factionalise, and as such weaken, Iraqi society as a whole.

This socio-political context metamorphoses into a legal environment when one also considers the various UN treaties that are meant to protect the rights of minorities. One such major instrument is the International Covenant on Civil and Political Rights 1966 that focuses on the rights of persons belonging to ethnic, religious and linguistic minorities (with Article 27 being of key relevance) and that Iraq ratified in 1978. This CCPR Covenant in fact inspired the purportedly persuasive but admittedly toothless Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, that was adopted by the UN General Assembly in 1992. However, another fundamental international instrument that Iraq ratified in 1970 is the International Convention on the Elimination of All Forms of Racial Discrimination 1965 (again, with Article 14 being of key relevance) whose monitoring and reporting mechanisms through the CERD Committee include early warning procedures, as well as inter-state and individual complaints.

Such concerns about minorities, incidentally, should also be placed within the framework of the new United Nations special mechanism on minorities that was approved by consensus of the Commission on Human Rights (CHR) at its 61st session in Geneva (from 14 March till 22 April 2005). A UN Independent Expert on Minority Issues will now engage in dialogue with governments and minorities worldwide to promote and protect minority rights. This was a promising departure for all minorities' issues worldwide, and it might well help the process in Iraq in the future.

One test determining the jurisprudential development of any society is the nature of its relationship with its indigenous minorities ( al-aqaliyyat al-qawmiyya , as some Middle Easterners at times overlap the two conceptual terms of minorities and indigenous peoples) and the powerful tools that in place to ensure non-discrimination and expose violation. Indeed, if minorities are used as scapegoats for the troubles besetting a country, or worse as fodder to create new realities in peoples' minds or on the ground, the future would become perilously far less certain tomorrow than it is today. I am referring, for instance, to the recently reported targeting of some minority groups and their institutions - largely Christian - across the world as a riposte to the insulting and offensive cartoons that depicted the Prophet of Islam in some newspapers. Such behaviour is ill-judged and ill-informed let alone ill-fated. But narrowing the case to the specific future of Iraq, it becomes necessary for any coalition government to undertake the task of promoting the rights of minorities. Otherwise, the fragile model of governance would falter - and that would consequently rebound upon the whole country and further destroy the future of Iraq in terms both of its domestic and international obligations.

With the Kurdish parties having secured 53 seats in Parliament, and with their ever-burgeoning institutional experience to date in the northern regions, one would hope that they would lend their considerable experience, leverage and expertise in the first constitutionally-elected government to help move the discourse in the right direction - and in the process counteract any attempts to dilute the rights-based platform upon which Iraq should sketch its future.

This, in my view, is one way forward in order to help reunify the country, rebuild the economy and draw nearer the new dawn that all well-meaning and hard-working Iraqis surely deserve after so many testing years of trials and tribulations.

© Dr Harry Hagopian   |   2006   |   17 February