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Are We
Forgetting the Kurds?
JURIST
Guest Columnist
Anthony D'Amato
of Northwestern University School of Law says that amidst all the attention
focused on security problems likely to be associated with an eventual US
withdrawal from Iraq, the legal and practical impact of withdrawal on Iraq's
millions of Kurds, mostly concentrated in the north of the country, needs to
be considered...
Now
that President George Bush of the United States and President Jalal Talabani
of Iraq, together with Senators Barack Obama and John McCain, have agreed
upon a speedy withdrawal of American troops from Iraq (sixteen months is the
figure most often heard), we may have on our hands a case of “withdraw in
haste, repent at leisure.” In the rush to pull out, security issues are
forefronted while other issues, which may be more important may be bypassed
so long as they appear to be under control.
The main casualty of the rapid withdrawal could be Kurdistan. It would
indeed be hard for Bush Administration to justify staying in Iraq a little
while longer for the reason that the security of the Kurds needs to be
reinforced. The public doesn’t know much or care much about the Kurds. When
foreign policy is run by the public, we can expect major blunders ahead.
Kurdistan — “the land of the Kurds” — straddles four countries: Iran, Iraq,
Syria, and Turkey. It has a population of thirty million. After the collapse
of the Ottoman Empire in World War I, the Allies intended Kurdistan to be
one of the emerging countries. For various reasons—military, political,
indifference — Kurdistan did not happen. It remains a virtual state.
Today the Kurds in the Iraqi part of Kurdistan have good reason to be
worried. Although they approve of the new Iraqi Constitution, they are
afraid that after the Americans withdraw, the Shiite majority will start to
construe and reconstrue the Constitutional constraints until they are
transformed into grants. It is hard for American readers to appreciate how
this can happen on a wholesale basis since we are imbued with the resilience
of our own Constitution.
But there is a world of difference between the contexts of the two
Constitutions. The founders of the American Constitution were fearful of
governmental power; they did not want the President to morph into King
George. Not only did the framers provide for separation of powers, checks
and balances, federalism, and individual rights, but they and their fellow
citizens firmly believed in the propriety and necessity of structural
constraints upon governmental power.
By contrast, the new Iraqi government will want and need all the power it
can get. They will face threats from religious factions at home and
terrorists infiltrating from abroad. The Shiite majority will sooner or
later start enacting emergency legislation to “save the Constitution by
temporarily disregarding it.”.
If the Kurds do not quickly become proactive, their autonomy may be at risk.
One easy step would be to request observer status as “Kurdistan” at the UN
General Assembly. More important would be to start taking steps toward
statehood. This is the most auspicious time to do it because of the rush and
confusion accompanying the American military withdrawal. A Kurdistan
statehood plan might be drafted and filed with the UN General Assembly. The
UN could also be asked to set up a consultative committee to monitor the
Kurdistan question for the duration of the plan, which could be for five
years. The Iraqi constitution would have supremacy throughout the five
years; Iraq’s authority would only be expected to be relinquished as the
final step at the end of the plan. A draft Constitution for Kurdistan would
be attached, with the proviso that it is a draft-in-progress.
More important for Kurdistan’s security, in my opinion, would be to set
aside a tract of land near Mosul and lease it to the United States for 200
years. An airforce base could be constructed, with the latest bomb-proof
underground facilities. It could be the most important American base in the
Middle East. The proximity to Mosul would ensue that Kurdish entrepreneurs
could establish stores and services at the perimeter of the base.
Interaction between Kurds and Americans should be encouraged at all levels.
This is of course a fairly radical suggestion. The Iraqis want to get rid of
the American bases in Iraq. However, the Kurds should make decisions in
their own self-interest without assuming that it is congruent with Iraqi
self-interest. A major US airbase in the heart of Kurdistan might be the
best long-term investment in security that the Kurds could ever make.
On the Turkish side of Kurdistan, the problem is what to do with the PKK.
The Kurdistan Workers Party, founded in the 1970s, is a revolutionary
separatist movement responsible for thousands of deaths. The PKK has
moderated its goal from separatism to autonomy. Nevertheless Turkey, the
United States, and the European Union, brand the PKK as a terrorist
organization. Of course, labels are manipulated for political purposes. If
the PKK under international law is a terrorist organization, then under the
Bush no-safe-haven doctrine, the Kurds themselves would have an obligation
to seek out and destroy the PKK guerrillas who are hiding in the Kurdish
mountains. But the case for legally describing the PKK as terrorists is
weak. The PKK is a self-proclaimed, identifiable political organization with
a clear goal of separatism and independence. Such organizations in
international law have always been accorded a presumptive legality so long
as they attain a reasonable critical mass that differentiates them from
bands of criminals. Under general rules of international law pertaining to
civil war, other states may legitimately contribute arms and money to such
organizations.
If Kurdistan-within-Turkey were eventually to secede, it should pay
indemnity to Turkey for having protected its people and lands for many
decades. This indemnity could take the form of a substantial royalty payable
to Turkey against all future oil production in the region. This guarantee,
made enforceable by the United Nations, might go a long way to moderating
Turkey’s loss of its Kurdish lands.
Experts in Kurdistan, of which I am not one, may find my proposals naïve or
unattainable. No matter; I have no expert reputation to lose! What I am
hoping for, however, is that a set of radical proposals may stimulate
thoughtful consideration.
Anthony D.Amato is Leighton Professor of Law at Northwestern University,
where he teaches international law and human rights.
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