US embassy cable - 05BAGHDAD2981

C O N F I D E N T I A L SECTION 01 OF 05 BAGHDAD 002981 
 
SIPDIS 
 
E.O. 12958: DECL: 07/18/2015 
TAGS: PREL, PGOV, KDEM, IZ, National Assembly, Kuristan Regional Government 
SUBJECT: AN AMBITIOUS KURDISH PROPOSAL SHARPENS THE 
CONSTITUTION DEBATE 
 
Classified By: Charge d' Affaires David M. Satterfield for reasons 1.4 
(b) and (d) 
 
1. (C) SUMMARY: The Kurdish delegation to the Constitution 
Drafting Committee has put together a detailed list of 
constitutional demands that is sharpening the debate on the 
future of federalism as delegates attempt to forge a draft 
document by 1 August.  The draft document calls for stronger 
limits on the size and authorities of Iraq's armed forces, 
wider rights for provincial guard forces, a clearer 
delineation of minority rights, and a set of conditions for 
dissolving the union.  The document lays out an ambitious 
vision of Kurdistan's authorities, including detailed 
provisions on natural resource ownership, guarantees on 
federal funds, and control of telecommunications and wage 
policies.  The document calls for a Kurdistan interest 
section in the Foreign Ministry and in all foreign embassies, 
and it seeks to guarantee four Kurdistan-nominated seats on 
the Supreme Court as well as a soft veto on national 
legislation. 
 
2. (C) SUMMARY CONTINUED: Sunni Arab delegates and several 
Shia leaders are balking at this thick packet of Kurdish 
demands.  TNA Deputy Speaker Shahristani told Charge July 18 
that the proposals went too far and was relieved to hear we 
are weighing in.  Other Shia politicians like Qasem Daoud is 
also concerned, although he appeared willing to talk about 
parts of it. Spooked Sunni Arab delegates are now looking to 
postpone the issue of federalism altogether and simply 
maintain the status quo.  As a compromise some Sunni Arabs 
have suggested decentralization to the governorate and 
regional level provided all current provincial boundaries 
remain unchanged.  Other debates continue over provisions on 
religious freedoms, but the details of federalism are clearly 
the largest obstacle between the committee and an agreed 
draft by August 1.  We are pushing all sides to stick to the 
deadline, continue their daily negotiating sessions, and 
achieve a federalism compromise that reassures those who 
suffered under totalitarianism 
 without threatening the territorial integrity and solvency 
of the country. END SUMMARY. 
 
3. (C) The Kurdish Alliance List delegation to the 
Constitution Drafting Committee has put together a detailed 
list of constitutional demands that is sharpening the debate 
on the future of federalism.  The document offers amendments 
to the TAL and entirely new provisions to the constitution, 
many of which are annotated with supporting rationale or 
examples from relevant foreign political systems.  Taken 
together, and laid out below, the presentation represents an 
ambitious vision of Kurdish provincial rights in Iraq: 
 
-- A BROAD MAP OF "KURDISTAN PROVINCE": The list of 
proposals, all presented in the name of the Kurdish Alliance 
List, was attached to a shaded map identifying "The Kurdistan 
Province of Iraq" with dramatic border amendments.  The map 
shades in all of Kirkuk province and all of northeast and 
northwest Ninewa province, stopping just short of 
encompassing Telafar and the west side of Mosul (the east 
side of the city would be in Kurdistan).  The map even makes 
a claim to a non-contiguous northern slice of Wasit Province 
including the town of Badra. 
 
-- ADDING OVERVIEW LANGUAGE ON RESOURCE DIVISION:  The 
document calls for a subtle amendment to TAL Article 4, which 
states that "powers shall be shared between the federal 
government and the regional government, governorates, 
municipalities and local administrations."  The Kurdish 
document amends that sentence to note that both "powers and 
resources" shall be shared. 
 
-- STRONGER LIMITS ON MILITARISM:  The document calls for a 
detailed exposition of military authority and its limits 
where TAL Article 5 simply states that Iraq's armed forces 
shall be subject to civilian control.  That article then 
refers the reader to chapters three and five, both of which 
restate the principle of civilian control without 
considerable elaboration.  The Kurdish document attempts to 
establish that Iraq's military expenditures not be higher 
than four percent of the total budget; that a legal ceiling 
be set for the quantity and quality of Iraq's armaments; and 
that the forces be forbidden from deployment outside of Iraq 
or inside any province without a three quarters majority in 
the National Assembly.  The Kurdish document also offers a 
provision that states, "Loyalty to Iraq is the basic standard 
for acceptance into the armed forces, without distinction on 
the basis of gender, race, religion or sect." 
 
-- LOOSENING THE MILITIA BAN:  The Kurdish document offers 
alternative language that adds nuance to and detracts from 
the force of the TAL Article 27 B prohibition of all armed 
forces and militias "not under the command structure of the 
Iraqi Transitional Government."  The Kurdish document reads, 
"Provinces that border foreign countries will have forces for 
self-defense with the mission of defending the international 
borders of the Federal Republic of Iraq, preventing terrorism 
in the provinces, and helping the armed forces when 
necessary.  The size, bases, organization, and armaments of 
these forces, along with their relationship with the Defense 
Ministry, will be set by the provincial assemblies." 
Marginalia on the document indicate that the Kurds are ready 
to have the National Assembly share authority with the 
provincial assemblies in legislating these provisions. A 
side-note on the Kurdish document cites U.S. Constitution 
Article 2 Section 8 as an inspiration for this suggestion. 
That section of the U.S 
. Constitution puts certain military authorities in the hands 
of the states by laying out congressional authorities as 
follows: "To provide for organizing, arming, and disciplining 
the militia, and for governing such part of them as may be 
employed in the service of the United States, reserving to 
the states respectively the appointment of the officers and 
the authority of training the militia according to the 
discipline prescribed by congress." 
 
-- SPELLING OUT RELIGIOUS FREEDOMS:  The Kurdish document 
meets a major minority group demand by offering each religion 
its rights by name.  The proposed text echoes TAL Article 7 
(A) language on Islam as the official religion before delving 
into deeper detail on religious guarantees in a way the TAL 
never did.  The proposed text reads, "Islam is the official 
religion of state and is a source of legislation.  This 
constitution respects the Islamic identity of the majority of 
the Iraqi people and guarantees all religious rights for 
Christians, Yezidis, Sabean Mandeans, and Kaka'is in the 
freedom of belief and the practice of religious rituals." 
 
-- SPELLING OUT ETHNIC IDENTITIES: The Kurdish document also 
meets a demand from minorities and asserts Kurdish rights by 
spelling out Iraq's ethnic composition in more detail.  TAL 
Article 7 (B) currently simply reads, "Iraq is a country of 
many nationalities, and the Arab people in Iraq are an 
inseparable part of the Arab nation."  The proposed text 
would read, "The state of Iraqi is made up of a voluntary 
union of two principle nationalities, Arab and Kurdish, and 
this constitution establishes their rights on the principle 
of equality.  The Arab people in Iraq are a part of the Arab 
ummah (nation) and the Kurdish people in Iraq arte part of 
the Kurdish ummah, and this constitution also establishes the 
legitimate rights of the Turkmen, Chaldo-Assyrians, and 
Armenians."  An appended observation on the Kurdish document 
notes that the Kurds are prepared to erase the reference to 
the Kurdish ummah if the Arabs are ready to erase the 
reference to the Arab ummah. 
 
-- ENSURING "KURDISTAN'S" DIPLOMATIC REPRESENTATION:  The 
Kurdish document recommends an addition to TAL Article 25 (A) 
which lists the Iraqi Transitional Govenrment as having 
"exclusive competence in... formulating foreign policy, 
diplomatic representation, negotiating, signing and ratifying 
international treaties and agreements, formulating foreign 
economic and trade policy and sovereign debt policies. . ." 
The Kurdish amendment would add, "The province of Kurdistan 
will be represented in a bureau in the Foreign Ministry and 
in embassies for the oversight of its affairs." 
 
-- LIMITING FEDERAL ECONOMIC, COMMUNICATION AUTHORITY:  The 
Kurdish draft recommends eliminating the provision of TAL 
Article 25 (D) that allows the central government to 
"formulate a general policy on wages."  The Kurdish document 
notes that differences in supply and demand and living 
standards in the provinces, in addition to the labor force, 
make this matter best handled on the provincial level.  The 
Kurdish document also proposes eliminating central government 
control of telecommunications policy established in TAL 
Article 25 (G).  A later recommended article seeks to 
establish provincial supremacy in the administration of 
federal offices located outside of Baghdad.  The provision 
reads, "The provincial government will administer the federal 
apparatus within the provincial borders in consultations with 
relevant federal authorities." 
 
-- DIVIDING NATURAL RESOURCES: The Kurdish draft document 
recommends a far more detailed delineation of natural 
resource divisions than anything offered in the TAL.  Draft 
language reads, "1. Ownership of natural resources will be in 
the hands of the provinces.  2. Ownership of the oil and 
mineral resources will be in the hands of the provinces, and 
the provincial government will exploit, administer, and 
distribute these raw products of investment in these 
resources in the following manner:  A. Five percent of the 
oil or minerals will go to the producing governorate.  B. 60 
percent of the raw oil and mineral products extracted from a 
province will go to the provincial government.  C. 35 percent 
of the remaining raw output of oil and minerals will go to 
those provinces and governorates that lack these resources." 
Here the Kurdish document observes that the Sudanese central 
government and southern Sudanese government split resources 
approximately 50/50 and monitor their exploitation and 
distribution through a 
jointly-run "National Independent Petrol Commission." 
 
-- ENSURING PROVINCES RECEIVE FEDERAL FUNDS:  The Kurdish 
draft document attempts to guarantee that money from the 
central government will reach provincial coffers.  One 
provision reads, "Each province should have its own character 
and independent budget funded directly from federal revenue, 
international loans given to the provinces via the central 
government, and provincial resources.  The percentage of the 
federal budget directed to Kurdistan shall be decided on the 
following principles:  1. It shall be a fair percentage not 
less than the percentage of Iraq's population found within 
the province.  2. No less than 5 percent of the national 
budget should be provided to Kurdistan as compensation for 
destruction from the war imposed upon it since 1960 and the 
injuries to its citizens from the use of chemical weapons and 
policies of genocide and scorched earth." 
 
-- ESTABLISHING A PROVINCIAL RIGHTS INSTITUTE:  The documents 
calls for the formation of an "Institute for the Guarantee of 
Provincial Rights."  The body, it states, should be formed in 
cooperation with the institutions and ministries of the 
federal government.  It should conduct research projects and 
trips to attend and hold provincial and international 
conferences.  Representation at such events should be split 
between the provincial and central governments.  The 
institute should be led by a rotating presidency. 
 
-- ESTABLISHING A MONITORING BODY ON BUDGET AFFAIRS: The 
Kurdish document attempts to put a closer watch on federal 
government distributions through the establishment of a 
monitoring body to be called the "Supreme Institute for the 
Monitoring and Allotment of Federal Revenues."  Membership 
would be drawn from experts from the provinces and from the 
central government.  The body would have the following 
responsibilities: "1. Check the just distribution of 
international grants, aide, and loans in accordance with 
provincial entitlements.  2.  Check the optimum use of 
federal revenue and its division.  3.  Check the transparency 
and justness in the distribution of government money to the 
provincial entities in accordance with the percentages found 
in the constitution." 
 
-- SETTING CONDITIONS FOR DISSOLVING THE UNION:  The Kurdish 
document seeks to ensure that the Kurds are not locked into a 
destructive union by establishing the ways the constitution 
can be undermined.  One extensive provision reads, "The 
people of Iraqi Kurdistan have the right to decide their fate 
through a referendum to be established under the constitution 
8 years after the introduction of this constitution or 
(immediately) in the following circumstances:  1. A change to 
the federal democratic system. 2. Their exposure to 
aggression or persecution. 3. The partition of a region known 
according to geography and historic fact to be a part of 
Kurdistan.  3. Failure to reconnect those areas that were 
separated and institution of demographic changes to those 
areas or any other areas."  Here too the document points out 
that the people of southern Sudan have the right to determine 
their fate at the end of a six-year transitional period. 
 
-- A SOFT PROVINCIAL VETO ON FEDERAL LEGISLATION: One 
recommended provision seeks to establish a vague provincial 
veto right on federal legislation. It reads, "Any legislation 
passed at a national level in Iraq that affects one of the 
provinces must be based on consensus and respect for the 
privileges of the citizens of the province.  And any 
legislation that differs from this (principle) will not be 
considered effective in the provinces. "  Here too the text 
references the Sudanese peace agreement as a model. 
 
-- ENSURING A KURDISH VETO IN THE SUPREME COURT:  The Kurdish 
provisions go so far as to establish assurances of a Kurdish 
veto on the Supreme Court.  One provision states, "The 
Supreme Court will be composed of 11 members.  The Kurdistan 
Judicial Council in agreement with the Kurdistan Regional 
Assembly will nominate four of them.  A three-quarters 
majority is needed for all decisions in the court." 
 
--------------------------- 
Sunni Arabs Balking 
at a Wide Federalist Vision 
--------------------------- 
 
4. (C) Faced with that thick packet of Kurdish demands, 
several Sunni Arab delegates have reportedly called for 
postponing a settlement on the details of federalism.  TNA 
Constitution Committee Member Ali al-Dabagh and Sunni 
negotiator Mijbel Shaykh Isa told PolCouns July 17-18 that 
the Sunnis have responded with a choice of three 
counter-proposals: 
 
-- Maintain the status quo, treating Kurdistan as the only 
federal entity in Iraq and enabling other regions only to 
exercise "administrative" authority, not "political 
authority" or 
 
-- give each of the eighteen governorates "political 
authority," to include control over local legislation and 
courts, but not allowing them to form separate regions or 
 
-- delay any decision on federalism until after the December 
2005 elections. 
 
According to Mijbel Shaykh Isa, the Sunni Arab negotiators 
are united on this menu.  He said they had put the proposal 
forward in writing and await a response from the other 
members of the committee. 
 
5. (C) Sunni Arab delegate Shaykh Muhammad Abed Rabbo 
al-Jaburi offered a fuller summary of Sunni Arab concerns in 
a July 18 meeting with Poloff.  He said that he was not 
opposed to federalism in principle, but did not want the 
committee to bite off more than it could chew.  He suggested 
preserving Kurdish rights in the north without undertaking an 
expansion of Kurdistan or any amendments to the provincial 
map in the south of Iraq.  A native of Mosul, Jaburi said he 
found the Kurdish map "expansionist" not federalist, 
particularly in its claims in Ninewa province.  (Comment: 
Mijbel Shaykh Isa repeated this to us separately.  We note 
that the Kurdish proposal, if adopted would make such 
prominent Iraqis as Shaykh Ghazi al-Yawer and Shaykh Fawaz 
al-Jarba citizens of the Kurdish region.  End Comment.) 
Al-Jaburi said he was particularly concerned about Iranian 
influence over the southern provinces if they were given too 
much authority at a time when the central government is still 
weak.  He said that concern applied to the south more than to 
Kurdistan.  He said the best course of action would be the 
creation of a framework for future federal decisions while 
limiting the system to "administrative" matters, not 
political ones for the time being.  Deputy Constitution 
Committee Chairman Fuad Ma'asum told PolCouns July 17 that 
delaying federalism disputes would merely "put a time bomb 
for our future." 
 
----------------------- 
More Unity on Rights 
than Previously Perceived 
------------------------- 
 
6. (C) Shaykh al-Jaburi put forward a strong position on 
political freedoms that approached ideas favored by the 
Kurds.  Where Ma'asum painted the Sunni Arabs as opposing the 
designation of Kurdish as an official language, Jaburi said 
he supported the idea.  Jaburi said he further supported any 
provisions that banned the government from combating 
"thoughts or beliefs," whatever their basis.  He aimed, he 
said, to extend the guarantees offered to religious groups to 
people of all convictions.  After all he said, the Ba'athists 
"fought the communists like they were infidels."  Jaburi said 
he had no problem with declaring Kurdish an official language 
of Iraq and preferred that the national identity be devoid of 
references to Arabism or Islam.  Calling citizens Iraqis 
should be sufficient, he said. 
 
----------------------- 
Preparing for the Worst 
----------------------- 
 
7. (C) Kurdish negotiator Ma'asum was still preparing for the 
worst.  He said he remained attached to the idea of holding a 
constitutional conference as an alternative way of producing 
a consensus on the document in the event that Sunni Arab 
delegates back out.  Ma'asum said he could think of numerous 
Sunni Arab leaders not on the committee who deserved to be 
invited to such a conference and he questioned the 
constituencies of the men on the committee.  He scoffed at 
their commitment to language on the Arab "ummah" and said 
several of them have taken to referring to a Sunni 
"marja'iya," or quasi--religious authority, that is none 
other than the hard-line  Muslim Ulema Council. 
 
-------------------------------- 
Comment: A Classic Opening Offer 
-------------------------------- 
 
8. (C) The Kurdish draft document represents a classic 
maximalist opening bid at the start of a heated negotiating 
process.  Several Kurdish officials have stated more 
flexibility on issues of revenue sharing and resource 
ownership than those found in this document, but they want to 
give themselves room to compromise.  The Kurds have told us 
they have no intention of redrawing Iraq's borders at this 
stage, but that did not stop them from putting forward a 
highly provocative and expansionist map of Kurdistan's 
boundaries to accompany this document.  Here too they are 
staking out a maximalist position so that they have room for 
future compromises. 
 
9. (C) What the Kurds are forgetting is that their 
negotiating theatrics are only confirming some of their 
negotiating partners' worst fears.  Calls for a Kurdish 
interests section in the Foreign Ministry and in foreign 
embassies only confirm suspicions that the Kurdish leadership 
is fundamentally unprepared to accept its status as equal 
plain "Iraqi" citizens of this state.  Of more concern is 
their call for a detailed set of conditions for dissolving 
the union. That set of conditions is more likely to weaken 
the constitution than strengthen it.  It will open the door 
to endless debates from rejectionists pointing out real or 
imagined slights that must "constitutionally" dissolve the 
agreement.  The right way to handle Kurdish fears is to pass 
limits on military authority and force structure like those 
laid out in these draft provisions.  A similar technique 
could be used to allay Sunni Arab concerns over Iranian 
influence and Kurdish secession: perhaps there could be 
clearer language banning provincial governments from seceding 
or independently forging relationships with foreign 
countries. 
 
10. (C) We will continue pushing all sides to stick to their 
deadline and find ways to treat concerns while keeping this 
document an expression of hope, not just a hedge against 
worst fears and sectarian threats. 
 
11. (U) REO HILLA, REO BASRA, REO MOSUL, and REO KIRKUK, 
minimize considered. 
Satterfield