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1. Judicial Independence in Afghanistan: Legal Framework and Practical Challenges

Author:
Shoaib Timory
Publication Date:
02-2021
Content Type:
Policy Brief
Institution:
Afghanistan Research and Evaluation Unit (AREU)
Abstract:
In a government with a separation of powers, independence is an indispensable feature of the judiciary. An independent judiciary gives credibility to political systems and is also the force behind reinforcing democracy and the rule of law. This watching brief briefly maps out the existing legal framework that ensures the independence of the judicial branch in Afghanistan and the reasons for the weak utilis ation of this feature which puts the judiciary in an uneven position compared to the other two branches of government. Moreover, the watching brief presents a set of recommendations for the enhancement of judicial independence in the country.
Topic:
Democracy, Rule of Law, Judiciary, and Independence
Political Geography:
Afghanistan and Middle East

2. The Securitisation of Kurdish Self-Determination as A Challenge for the Sectarian Balance of Power in the Middle East

Author:
Marek Musiol
Publication Date:
01-2019
Content Type:
Journal Article
Journal:
Polish Political Science Yearbook
Institution:
Polish Political Science Association (PPSA)
Abstract:
The article addresses current questions concerning the Kurdish situation before and after the invasion and expansion of ISIS. It applied the theory of securitisation to study the tangled circumstances and frameworks of Kurdish claims, underlining their attempts at gaining their much-desired independence. This elaboration enables one to recognise the genesis and the local, regional and global context of international actions vis-à-vis Kurdish interests, and the possible supporters and opponents of the Kurdish project of statehood in the Middle East. It portrays also the current perception of Kurdish efforts to establish their own national and legal subjectivity that must be recognised by the majority of state actors in order to meet the indispensable criteria of international law. This article is particularly important in the context of recent developments in the Middle East. First of all, it refers to pressures, as well as openly offensive actions targeting the inter- ests and territories controlled by the Kurds in Turkey during the existence of the so-called Islamic State. Secondly, it reflects on actors’ reactions in the international arena, including the countries of the Middle East, towards the independence referendum in Iraqi Kurdistan, as well as on direct actions aimed at shaping a new geopolitical order after the fall of ISIS (attack by Iraqi troops in Kirkuk or the Turkish army in Afrin).
Topic:
Terrorism, Self Determination, Democracy, ISIS, and Independence
Political Geography:
Middle East

3. The Kurdish Referendum – A Strategic Mistake

Author:
Efraim Inbar
Publication Date:
10-2017
Content Type:
Working Paper
Institution:
Jerusalem Institute for Strategy and Security (JISS)
Abstract:
It would have been better for the Kurds to settle for strengthening their autonomous region in Iraq rather than challenging their stronger neighbors.
Topic:
Military Strategy, Natural Resources, Conflict, and Independence
Political Geography:
Iraq, Middle East, Syria, and Kurdistan

4. Is Kurdistan Independence Inevitable?

Author:
Yerevan Saeed
Publication Date:
09-2017
Content Type:
Working Paper
Institution:
Middle East Research Institute (MERI)
Abstract:
On 25 September, residents of the Kurdistan Region of Iraq (KRI) will cast their votes in a referendum that may trigger an official process of separating Kurdistan from Iraq. International friends and foes alike have opposed the controversial Kurdish move, contending that the referendum will fuel further instability in Iraq, and cause repercussions across the Middle East. The Kurdish bid for independence is not unique, however. Ethnic groups in Asia, Europe, and Africa have in the past pursued their own dreams of statehood — some with success, while others ended in failure. Whatever the outcome, the process is often costly in terms of both its human toll and economically. For that reason, the secession of any region from its parent state has to be justified on strategic, political, and economic terms. For their part, Kurdish leadership asserts that Baghdad’s mentality of power monopoly has not changed and the long-term potential for future violence against Kurds remains high. For them, the only viable, albeit risky, path is to seek complete sovereignty. The stakes are high all round, and the international community could have a constructive role to play. Conversely, international disengagement leaves both Baghdad and Erbil exposed to greater uncertainty in the near future. Iraq and Kurdistan could follow the model of Kosovo, East Timor, or South Sudan, all of which realised their statehood but to varying degrees of stability; or, instead, the catastrophic pathways taken by the Biafra region of Nigeria and Katanga in Congo (now the Democratic Republic of the Congo). Though South Sudan is still reeling from its civil war and ongoing territorial disputes, international intervention has been key in preventing clashes between Khartoum and the new state. Some important steps included the signing of the North/South Comprehensive Peace Agreement (CPA) in 2005, and the active participation of the United Nations in the referendum process in 2011. Likewise, international support was a determinant in amicable separation of East Timor from Indonesia in UN-sponsored referendum in 1999, as well as the separation of Kosovo from Serbia in 2008. By the same token, instead of mounting further pressure on Erbil to cancel the poll, it could be more constructive for all stakeholders to assist Baghdad and Erbil to reach a mutually acceptable agreement. This is likely to be beneficial for all sides. A deal would mitigate the chance of violent conflict between Kurdish forces and the Iraqi army, and could save the UN and major powers from investing blood and treasure in case of a potential later conflict. It would also remove Kurdistan from international legal limbo and provide a more viable route for diplomatic recognition. In contrast to these experiences, the anticipated absence of international engagement means a unilateral declaration of independence by Erbil could prove costly for all sides. This is evidenced by the declaration of independence of the Biafra Region in Nigeria in 1967–1970. The Igbo-dominated region of Biafra did not hold a referendum to pursue its dream of statehood. Instead, the 300 members of the joint Consultative Assembly of chiefs and elders voted in favour of secession from Nigeria on 26 May, 1967. The following day, the same Consultative Assembly passed a binding resolution, forcing the head of the Eastern region of Nigeria, Colonel Emeka Ojukwu, to declare independence unilaterally on 30 May, 1967. Despite some international support from African and European countries, the move was met with harsh military and economic warfare against the infant republic by the Nigerian government, leading to a three year conflict. One million people, including many civilians Biafrans civilians died, primarily from starvation. Further evidence of the potential danger can be found in the case of Katanga. When Moise Tshombe declared Katanga province as an independent republic from Congo on 11 July, 1960, the move was initially supported by Belgium, and came just two weeks after the Congo’s independence. Tshombe famously said, “We are seceding from chaos,” referring to the messy state of affairs of postcolonial Congo. However, the republic, located in the mineral heartland of Congo, failed to receive diplomatic recognition — even from Belgium, and faced strong opposition from Congo and the international community. The events descended into political turmoil, and forced the UN to deploy peacekeeping forces. In addition, the competing interests and support for different groups from the US, Soviet Union, Belgium, and other powers further complicated the crisis from 1960–1965. It took three years to defeat Tshombe and reintegrate Katanga into Congo, with a high human and economic toll . Beyond these examples and above all, the right of the Kurds to pursue statehood can be historically and legally justifiable. At the dawn of the last century when the Ottoman Empire crumbled, Kurds were deprived of statehood by the Great Powers. They were subject not just to marginalisation, but to genocide as well. Even so, following the 2003 invasion of Iraq, Iraqi Kurdish leaders actively participated in the political processes in Baghdad, helping rebuild the Iraqi state and contributing to the defeat of terrorism. From their point of view, Baghdad has not lived up to its commitments to the 2005 constitution. Furthermore, the Kurds in Iraq believe they have strong grounds legal for a Kurdish state. Under the UN Charter, they have the right to self-determination. Finally, legal scholars argue that the principle of “territorial integrity” — enshrined in the UN Charter — is not unbreakable, should a country oppress a particular ethnic group and refuse to provide equal citizenship. International and regional powers have expressed understanding for the Kurdish aspirations for statehood, but are concerned the result could lead to violence. However, if instability is the concern, they are well-positioned to facilitate an amicable outcome between Erbil and Baghdad. Kurdish leaders have said that they have reached a point of no return with regard to their status quo within Iraq. Yet, they have shown flexibility in a willingness to postpone the referendum, should the international community offer alternatives or agree to officially support a legally binding referendum in the future. Indeed on 14 September, 2017, envoys of the US, UK and UN, in coordination with Baghdad, presented an ‘alternative to the referendum’ to the KRG President. Details of the ‘alternative’ is not known but short of providing political and economic incentives and security assurances, it is hard to see the current momentum for the referendum coming to an end
Topic:
United Nations, Election watch, Conflict, and Independence
Political Geography:
Africa, Iraq, Middle East, and Kurdistan

5. After the Kurdistan Referendum: Iraq’s Road to Reconciliation

Author:
Yasir Kuoti
Publication Date:
10-2017
Content Type:
Working Paper
Institution:
Middle East Research Institute (MERI)
Abstract:
On 25 September 2017, the Kurdistan Regional Government (KRG) held a historic, if contentious, referendum in the three Kurdistan Region’s provinces (Erbil, Duhok, and Sulimanyiah) and disputed territories, including Kirkuk. Notwithstanding the moral grounds for Kurdish self-determination, and despite the Kurds having voted overwhelmingly in favor of independence, the unilateral move was met with strong backlash form varied opponents, for varied reasons. The Iraqi government, parliament and Supreme Court in Baghdad come out against the referendum calling it “illegitimate,” “unconstitutional,” “destabilizing” and “untimely”, as did Turkey, Iran, many western countries and international institutions including the United Nations and European Union. In a retaliatory response, Baghdad moved to impose a host of punitive measures against the KRG. These included the decision by the civil aviation authority of Iraq to halt international flights to and from Erbil and Sulimanyiah airports on September 29, 2017. Now a month into the referendum, Iraqi Prime Minister, Haider al-Abadi, a perceived moderate Shiite, continues to face a mounting pressure from Iraq’s parliament and political parties to take tougher measures against the KRG. In exact, the issue of disputed territories took a center stage as the Iraqi Security Forces (ISF), backed by the Popular Mobilization Unit (PMU), moved to reinstitute federal authority in Kurdish-held areas in Kirkuk, Nineveh, Salahddin, and Diyala governorates. The referendum and post-referendum events grew fast over the past few weeks, and it is difficult to undo them for a host of legal and political considerations. Playing the blame game now is not only frustrating, but also impeding to progress. Therefore, it is more constructive that Baghdad and Erbil take steps to calm down emotions and pave the path for meaningful dialogue. Irrespective of what Baghdad leaders think of the referendum or its legality, they cannot take away from the fact that millions of Kurds cast their votes in favor of independence. The Kurds have legitimate fears about the sectarian direction in which the country is heading, a view that is also shared by non-Kurdish Iraqis, particularly Sunni Arabs and many Shiite Arabs, including Shiite cleric Muqtada al-Sadr. Such fears need to be acknowledged and dealt with, not dismissed. Baghdad should also take measures to improve communications with the KRG, to mitigate future fears by Kurds. Certainly, a drive behind the timing of the referendum was the fear, real or perceived, by some Kurds that with the defeat of IS, Baghdad will turn focus to the Kurdistan Region of Iraq (KRI) to deprive it of its gains. Erbil must recognize that Iraq’s constitution of 2005, which Kurdish voters have largely backed, gave a broad autonomy to Kurdistan Region and unequivocally affirmed that federal authorities have the constitutional duty to “preserve the unity [and] integrity…of Iraq and its federal democratic system.” Kurdish leaders, and many Iraqis too, have issues with the constitution and the political process it stipulated, but in the absence of a better framework, it remains the law of the land. Erbil should also take a leading role in mitigating the fallout from the referendum. The KRG leaders should accept that the referendum has backfired where the best outcome, for the short term at least, is negotiations with Baghdad for a democratic and federal Iraq. Therefore, the KRG might choose to publically demand the implementation of Iraqi constitution. This does not take away from the strategic and aspirational value of the referendum, which is expedient for pushing Kurdish demands over disputed areas, broader autonomy, and other issues. Meanwhile, the KRG leadership would benefit form focusing on its internal challenges including the need to address intra-Kurdish rivalries among political parties, empowering institutions, strengthening the rule of law, and initiating economic reforms. Such political and economic reforms will improve KRG’s negotiating positions with Baghdad. The referendum has given rise to unprecedented political and military tensions between the federal government of Iraq and the KRG. With the mobilization of the ISF, backed by the PMUs, to reclaim federal control over disputed territories, the situation risks igniting an armed confrontation between the two sides in one disputed area or another, especially if Baghdad decides to swing the pendulum too far. Given these developments, the only sensible way forward is for Baghdad and Erbil to make negotiations a priority. It is essential that talks focus not only on procedural and technical issues such as budget, oil sales, and fair distribution of resources, but, more importantly, on the primary issue that divided Baghdad and Erbil and helped trigger the referendum: corruption and sectarianism in the Iraqi state. Iraq’s political system is increasingly turning into an ethno-sectarian battle, which has been the feature of post-2003 Iraq except that it has become much more abrasive in recent years. Political parties throughout Iraq are structuring themselves to whip up sectarian and ethnic divisions to varying extents of extremism. Under the system, each party has become associated with its identity where there is little to no space to an overarching Iraqi national identity. Parties have become accustomed to not only make their constituents polarized along ethnic and sectarian lines, but also make them fearful of fellow countrymen. This state of affairs calls for an urgent action; else cycles of disputes and violence are likely to resurface. Interestingly, the fallout from the referendum has also provided opportunities for dialogue between the KRG and Baghdad. Indeed, the KRG Cabinet in its meeting of 19 October reemphasized the need for negotiations without pre-conditions and that the KRG is ready for dialogue. If and when reconciliations efforts take place, it is critical they address revising the constitution and structure of government. Negotiations are far better when they are outcome-driven with defined timelines, addressing the need for a non-sectarian and non-divisive arrangement. Prime Minister Abadi must seize on his successes to steer the country’s ship toward a unified vision that can bring about the will to address problems rooted in the political system, which feeds on ethno-sectarian divisions and is the greatest barrier to development. The international community, particularly the United States, has historic opportunities to positively influence the future of Iraq by articulating a peaceful settlement to the crisis and encouraging meaningful negotiations between Baghdad and the KRG. Furthermore, the U.S. should promote dialogue within the major political parties in the KRI while leveraging its influence to redirect attention toward liberating remaining IS strongholds in western Iraq. The U.S is also encouraged to provide Iraq with legal and technical assistance needed to launch reforms and national reconciliations initiatives. The U.S and Iraqi leaders need to work together to dispel fears held by minorities, encouraging them to integrate into a better version of federal and democratic Iraq. Being part of the coalition government in Baghdad, Kurds have a key role to play in making progress toward national reconciliations and reforms.
Topic:
Self Determination, Democracy, Independence, and Reconciliation
Political Geography:
Iraq, Middle East, Baghdad, and Kurdistan

6. Society in the Persian Gulf: Before and After Oil

Author:
Lawrence G Potter
Publication Date:
01-2017
Content Type:
Working Paper
Institution:
Center for International and Regional Studies (CIRS), Georgetown University in Qatar
Abstract:
This essay takes as its focus society in the Persian Gulf over the long term, both before and after oil. In order to understand the transitions society has gone through, it is necessary to review the region’s historical evolution and how society in the Gulf today differs from that of the pre-oil era. The Gulf is presented as a distinct historical region, where a tradition of free movement helped account for the success of its port cities, themselves linked more to the Indian Ocean basin than the Middle East. In the twentieth century, the historic ties that connected the people of the Gulf littoral were curtailed as nationalism became the dominant ideology, and borders and passports were imposed. After oil was discovered and exports began following World War II, the small Gulf shaikhdoms, most of which were under British protection until 1971, experienced a surge in revenues that ushered in the modern era. Newly independent states sought to impose a new identity, manipulate history, and exploit sectarian cleavages to solidify the power of ruling dynasties. The historic cosmopolitanism of the Gulf was ignored by states that privileged the tribal, Bedouin heritage of their leaders. Arabs and Persians, both Sunni and Shi‘a, as well as many other groups have lived with each other in the region for many centuries, during which mutual differences occasionally led to conflict. But the current mistrust, tension, and sense of vulnerability felt by all sides is a product of the modern age.
Topic:
Nationalism, Oil, Regional Cooperation, Religion, Maritime Commerce, and Independence
Political Geography:
Middle East, Persian Gulf, and Indian Ocean