The Kurdish Referendum and the Kosovo Problem

Almost thirty years ago, the sound of MIG and Mirage fighter jets filled the air above Iraqi Kurdistan. A warm day in early March would mark the occasion of one of the modern era’s worst crimes. The jets, menacingly circling above began to drop familiar ordinances to locals including bombs and napalm. But as the whirling clap of helicopter rotor blades joined the cacophony, huge pillars of white, black, and yellow smoke towered above the town like roman columns ascending 150 feet in the air. Residents, first smelling the scent of sweet apples, found only poison around them. By the time night fell thousands were dead and tens of thousands would never fully recover. After that bloody Friday the name of the town, Halabaja, would carry a different meaning forever after.

Since the post-war imperialist division of the former Ottoman Empire, the Kurds have been the consummate losers. Under a commonly recognized definition of “nation”, Kurdistan can contend for the title.[1]  The 1920 Treaty of Sèvres between Britain and the new nation of Turkey that emerged from the ashes of the Ottoman Empire provided “a scheme of local autonomy for the predominantly Kurdish areas” and the right to petition for independence from turkey contained in Articles 62 – 64. However, the post treaty period would be marked by a reversal of policy due to, as Robert Olsen explains, British fears of French involvement in the northern part of any new autonomous or independent Kurdish territory. Thus, imperialism denied the Kurds the right to have a piece of the Asia Minor pie that had been cut.

2.gifDespite what imperial French or English planners put down on maps, Kurdistan has remained a nation, even if only in idea and desire, for thousands of years. In his famous Sharafnama Kurdish Emir and historian Sharafkhan Bitlisi outlined the borders of Kurdistan in 1797, that being from the Strait of Hormuz in the Persian Gulf and stretch on an even line to the end of Malatya and Marash. As well as defined borders, Kurdistan has a defined language. Kurdish (کوردی) is a unified tongue, it is part of the Northwestern Iranian language group with three dialect groups Northern, Central, and Southern, spoken by tens of millions of people in modern day Turkey-Iraq, and Syria. Interestingly, in most of Iraq and Iran it is written using an Arabic script, but in some northern areas of Iraq and in Turkey, Kurds use the Latin alphabet.

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In the face of continued repression of their language and other identifying features of Kurdish culture, including forced assimilation campaigns that outlawed their language and customs, Kurdish people around the world have maintained rich traditions. These include epic poetry, or lawj (think the Iliad and The Odyssey in ancient Greece) and Woodie Guthrie-esque folk musicians, the Dengbej, who perform traditional Kurdish music – most iconic being the “stran” or song of mourning. Other aspects of identifiable Kurdish culture include rugs with floral and geometric designs as well as cirit, a traditional sport that involves throwing a javelin while mounted on horseback.

United and Divided

Given that Kurdistan fulfills the prerequisites for being a nation like any other, why do globes and world maps contain no mention or announcement of these people and this land? Generally, the reason is that the power in the area, usually kept in place by war and repression, has yet to tilt in their favor. However, recent events in Asia Minor are remaking the balance of power, with both positive and negative consequences for the Kurdish people.

Kurdistan, though still a nation, is not fully united. This, however, has less to do with internal Kurdish struggles and more to do with the struggles they have with the national authorities in the Sykes–Picot states in which Kurds live. In Turkey, the Kurds have waged and insurgency against the Turkish state since 1978. The main group in this insurgency is the PKK, or Kurdish Workers Party, whose unorthodox brand of socialism, advocated by imprisoned leader Abdullah Öcalan, guides the fight.

In Syria, repression of Kurds has kept dreams of independence quelled until fighting erupted in 2011. In the Rojava area of Syria, the Kurdish groups, organized under the People’s Protection Units (YPG) have fought a multi-front conflict against both ISIS (Daesh) and government troops under command of President Bashir Al-Assad. The success of the YPG campaign and its administration of the Rojava area during the conflict has given its independence dreams a foundation on which to stand. The Assad regime, which is not in danger of being toppled by the YPG, has made it clear it opposes a confederated state with Syrian Kurdistan having autonomy like its Iraqi cousin.

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Two Kurdish Fighters Holding a Portrait of Abdullah Öcalan

In Iraq, the Kurdish dominated north had always been a sore spot for the federal government in Baghdad even before the regime of Saddam Hussein. As a result, Iraqi Kurdistan has had more autonomy and independence than any other Kurdish area. However, as aid and training of the Kurdish PUK and eventually Peshmerga fighting groups threatened the stability of federal control, the regime struck and the name Halabaja was etched into history. In September of 2017, another event marked another turning point in the larger Kurdistan movement: a referendum for independence.

The Referendum

On September 25, 2017 Iraqi Kurds went to the polls to vote on an independence referendum. The decision to take the vote reaches back to the tenure of Nouri Al-Maliki as Iraqi Prime Minister. Maliki, the Shia prime minister who watched as his sectarian and corrupt administration sowed the seeds for the eventual rise of Daesh in the western and northern areas of Iraq, had irritated the Kurdish leadership including Kurdish president Masoud Barzani who announced his intention to call a referendum in July of 2014, just a month after the first ISIS-led assaults which were famously characterized by the withdrawal of the American-trained and equipped Iraqi.

In place of that faltering army stepped in the Peshmerga, who, like their Syrian cousins, took the fight to Daesh, halted their advance, and began the long march to Mosul. In September of 2014, Maliki was replaced as prime minister by Haider al-Abadi. Abadi had, at least compared to Maliki, much more support in Iraqi Kurdistan and so the referendum was delayed, delayed again, and again delayed until the defeat of Iraqi Daesh in Mosul – a feat only accomplished two years after Maliki’s ouster.

The Kurdish authorities as well as the people were not naïve in what the referendum meant and the international pressure it created. The measure is non-binding, meaning that even a successful yes vote would not automatically mean a declaration of independence. A peaceful independence would also need buy in, not only from the central government in Baghdad, which has called the vote “unconstitutional”, but as well as at least tacit support from Turkey who, in response to the successful vote, threatened armed conflict and economic reactions.

However, an interesting development has come out of Syria where Reuters reported that Syrian diplomat Walid al-Moualem had not closed the door to negotiations with Syrian Kurds in Rojava for a post-conflict autonomy.

“This topic is open to negotiation and discussion and when we are done eliminating Daesh (Islamic State), we can sit with our Kurdish sons and reach an understanding on a formula for the future,”

-Walid al-Moualem, Syrian Diplomat.

The story was careful to note that Syrian Kurds say their aim is to preserve that autonomy as part of a decentralized Syria, and they do not aim to follow the path of Kurds in Iraq. Indeed, Moulem went on to reiterate the Syrian government’s opposition to the referendum and that the Syrian Kurds want only autonomy within a unified Syrian Arab Republic. While certainly limiting, the experience of Iraqi Kurdistan and its vote is surely in the minds of the Syrian leadership as it, along with the Kurdish YPG and allied Syrian Democratic Forces are currently engaged with Daesh around their capital of Raqqa in eastern Syria. Though the forces have not engaged one another with regularity, challenges remain in the fight around Deir al-Zor after an alleged Russian air attack on SDF forces in the area, something Moscow denies, may spoil the shaky alliance.

The Right of Self Determination

President Barzani has stated that the right of the Kurdish people to vote for independence is a human right afforded to all people’s under the notion of self-determination. US Congressman Trent Franks joined that sentiment and proposed legislation to that effect in congress.

After the Great Imperialist War of 1914-1918 where the Great Imperial Powers of Europe threw their military might at one another in a hopeless and useless menagerie of horror, President Woodrow Wilson, a man gifted in his ability to say one thing and do another, proposed as part of his famous 14 points the entrenchment of the notion of self-determination of peoples – something that had first come into legal parlance with the American Colonial Declaration of Independence. However, the great powers, shaken but not yet dissuaded of the folly of empire, did not enshrine this principle into the League of Nations. Instead, the League adopted a Mandate system contained in Article 22 of the League’s Charter, which solidified, rather than destroyed, the nature and notion of colonial rule. Instead, the mandate system gave imperialism an international body to enforce its rule. It was not until the failure of the League, and another bloody world war, that the idea would come back with a fervor.

Learning the mistakes of League, the new post-war international body – the United Nations – formally adopted the principles as a foundational aspect of the role of the UN. Indeed, Art. 1 (2) UN Charter states that it is one of the purposes of the UN to “develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”. In Chapter Nine of the UN Charter on International Economic and Social Cooperation, Art. 55 lists several goals the organization should promote in the spheres of economics, education, culture, and human rights with a view, as is noted in the introductory clause, ‘to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’.

The UN Charter also implicitly refers to the principle of self-determination in the part concerning colonies and other dependent territories. Art. 73 UN Charter affirms that:

“[m]embers of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories.”

While some scholars of international law may have suggested that, although incorporated into the foundational documents of the UN system, the right of self determination remained vauge and aspirational. This changed after the UN General Assembly vote unanimously in favor of the Declaration on the Granting of Independence to Colonial Countries and Peoples (UNGA Res 1514 [1960]) which made the right to self-determination explicit. The international community continued this de-colonizing work by establishing self-determination as a human right with the adoption of the International Covenant on Economic, Social and Cultural Rights (1966) (‘ICESCR’) and the International Covenant on Civil and Political Rights (1966) (‘ICCPR’). In both Covenants, Arts 1 (3) identically restate the right of all peoples to self-determination, as defined in the Declaration on Granting of Independence mentioned above, and call upon the “States Parties…, including those having responsibility for the administration of Non-Self-Governing and Trust Territories”, to promote and respect this right thus making it an obligation on states under International law.

As widely adopted and enforced international instruments, the human rights contained in both documents have risen to the level of a jus cogens norm in international law. This setting out of the right of self-determination as a fundamental human right on which almost all others rest, means that even states, few as they are, who are not party to these covenants, are still obliged to accept their contents. This means that the right to self-determination is a non-derogable right of all human beings.

This likely comes as a shock, as even the UN has stated its dismay with the referendum in Iraqi Kurdistan. Abandoning this fundamental right and principle of the UN Security Council – a body made up of and always designed to give ultimate power to the Great Powers who have permanent membership and veto power on the Council – voiced concern about the referendum stating:

“The members of the Security Council expressed concern over the potentially destabilizing impact of the Kurdistan Regional Government’s plans to unilaterally hold a referendum next week.”

The UNSC, echoed by Secretary-General António Guterres, went further noting that:

“Council members expressed their continuing respect for the sovereignty, territorial integrity, and unity of Iraq and urged all outstanding issues between the federal Government and the Kurdistan Regional Government to be resolved, in accordance with the provisions of the Iraqi Constitution, through structured dialogue and compromise supported by the international community.”

The Kosovo Problem

The underlying argument presented by the UN, as well as by Iraqi and Turkish authorities is that Iraqi Kurdistan is not a colony of Iraq, but a constituent and autonomous part of a federated Iraq and therefore it has no right to unilateral claims of independence. However, the International Court of Justice has already decided the issue of declarations of independence and found them to be lawful under international law.

The issue came before the ICJ when Kosovo unilaterally declared independence from Serbia. On February 17, 2008 the Assembly of Kosovo proposed, debated, and voted in favor of a unilateral declaration of independence from Serbia. Serbia then immediately asked the ICJ for an opinion. In the decision, the ICJ noted that Kosovo, under UN Resolution 1244 (1990), had not exceeded the authority given to the Kosovo Provisional Institutions of Self-Government under the Constitutional Framework (promulgated by UN Mission In Kosovo) because it was made not by that body, but by the “representatives of the people of Kosovo” outside their capacity as KPISG members.

The Court examined the right generally and found that during the second half of the twentieth century, “the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation” and that a “great many new States have come into existence as a result of the exercise of this right”. The Court observes that there were, however, also instances of declarations of independence outside this context and that “[t]he practice of States in these latter cases does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases”.  In short, declarations of independence, even those of autonomous regions in sovereign states, are legitimate under international law.

The ICJ decision on Kosovo Independence is a must read for those, including the UN Secretary-General, who are arguing against the Kurdish Referendum. While not a declaration of independence, the referendum is a legitimate exercise of power by the Kurdish people in Iraq. Yet so little support has been given for this process, legal as it may be. Contrast this with Kosovo, where the day after the declaration, eight nations formally recognized Kosovo, including the United States and Turkey. One can rather easily speculate why these nations, as well as the dozens who followed them in the weeks after the declaration would do so for Kosovors, but not for Kurds.

The reality here is that while the UN and Security Council may be worried about the destabilizing effects of this vote, the destabilization comes from the inability or unwillingness of the great powers and nearby nations to accept that the principle of self-determination is real, even when it doesn’t serve their interests. Sadly, this is yet another example of the hypocrisy of the powerful, where lip service is paid to principles when it serves the right interests, but when power, wealth, and prestige may be in jeopardy, principled positions no longer hold and Kissinger-esque realpolitik re-emerges as the real underlying dynamics of international relations.

[1] Blacks Law defines a nation thus: “A people, or aggregation of men, existing in the form of an organized jural society, usually inhabiting a distinct portion of the earth, speaking the same language, using the same customs, possessing historic continuity, and distinguished from other like groups by their racial origin and characteristics, and generally, but not necessarily, living under the same government and sovereignty.”

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