Wednesday, November 17, 2004

* The Dilemma of Nation-Building and State Formation in Post-Saddam Iraq


1- Introduction
2- The process and Concept of Nation-Building and State Formation
3- Unitary versus Federalist Political Structure in Iraq
4- Competing Forces and Conflicting Aims in Iraq’s Political Arena
5- The U.S. Plan for Transfer of Iraq’s Sovereignty:
The Paradox of Democracy
6- The Wider Ramification of Democratic Iraq for the Middle East
7- Conclusions
Post Scriptum

1- Introduction

Whatever the reasons behind the American military intervention in Iraq and the collapse of the dictatorial rule of Saddam Hussein, the truth of the matter now is that with the downfall of the Baathist regime, history of the Middle East has turned an unprecedented bloody page, which will have widespread ramifications for the whole region.
Indeed, the importance of the second phase of the American intervention in Iraq, (i.e. the reconstruction phase) is much more vital than the collapse of the Baath Regime. Because, if the Americans fail to establish a viable democratic government, and if law and order is not restored and the bloodshed is not stopped, then this will create a negative precedent for the American strategy in the Middle East.
Given the fact that a long lived brutal regime has suddenly fallen apart and was ousted from the political scene in Iraq, we should expect that a power vacuum will be created during the transition period, until a new legitimate and viable power structure is established. But, the lack of democratic culture and a civil society in Iraq , will make it most difficult for whoever intends to embark on creating new democratic institutions with a view to establishing law and order in this terror-ridden country.
* Professor Kazemi holds Ph.D. in International Law and Relations from The Fletcher School of Law and Diplomacy, Tufts University, Medford: Massachusetts U.S.A. He is author of many books and articles. He is legal advisor on matters of International Law of the Sea. Currently, he is Dean of the Faculty of Law and Political Science, Islamic Azad University (Science and Research Campus). For more detail please consult Academic Site of Dr. Kazemi:

In other words, at the outset, we face the problem of “ Nation-Building” and “State Formation.” Since, with the collapse of the old regime, all the social, political, economic and military institutions vanished overnight with the people who used to run them under the dictatorial rule of Saddam Hussein.
The much intriguing question now is, who actually should be charged with the responsibility of rebuilding this disintegrated war-torn nation and bring together the peoples from various ethnic and religious background as a whole, and induce them a new national identity while establishing an appropriate governmental apparatus, in order to respond to the wishes and democratic aspirations of the peoples.
A unitary versus federal political structure, meaning a direct democratic election (one man one vote), or a sort of regional autonomous government, for certain ethnic population such as Kurds Shiites or Sunnis, for instance, may change the whole picture of new Iraq. These are the main issues now facing the American policy makers and their allies on the one hand, and the Governing Council on the other. Of course, there are other interested players who should be taken into account. The United Nations and its various subsidiary bodies and the role that they should play in the whole affairs, the regional actors neighboring Iraq, and most importantly the various religious and ethnic leaders and groupings inside Iraq, each of which pursuing its own objectives and wishes. The immediate question now before the Americans is what is to be replaced by the old regime and how it shall be established in order to respond simultaneously to the following preoccupations:
1-The overall American strategy to establish a democratic government in Iraq;
2-The true expectations of Iraqi peoples with diverse religious and ethnic backgrounds and objectives;
3- An adequate political structure and governmental institutions in order to maintain internal peace and security and establish friendly relations with other States;
4-A viable democratic regime, which could serve as a model for other countries in the region.
This paper shall endeavor to address briefly the above questions with a view to find a path through the existing bottlenecks and to describe the appropriate means and ends for achieving the objective of nation-building and State formation future Iraq.

2- The Process and Concept of Nation-Building and State Formation
“State” and “nation” are two distinct concepts in political and legal writings; yet, they might be used interchangeably in common journalistic jargon. The term “nation” denotes a community of people bound together by a general sense of belonging owing to common sharing of certain historical memories, traditions, language, religion, culture and common political aspirations1. Though, in some cases, not all of these elements are necessarily present in order to build or create a nation . Therefore, a nation, which is territorial in nature, does not involve territorial sovereignty and, unlike State, is not an organized government.2 The key element here is the existence of a strong sense of belonging together of a group of people in order for a nation to become into being. Furthermore, the individual members of this group shall place a certain loyalty to the group as a whole over any conflicting loyalties. However, it should be noted that although a nation implies common culture, symbols and world views, what makes it different from other social, cultural and ethnic groups , is the territorial and geographical unity of the nation. For this reason, most writers in the field believe that the concept of “nation” is primarily a geographical or spatial one. 3 While, there are others who contend that as the people move forward to acquire maturity in political experience in a civil society, their feeling of belonging together becomes less dependent on language, ethnic or religious ties, and more on adherence to particular values associated with political concepts, democratic ideals and institutions. This however, may happen only when the people learn to devote their ultimate loyalty to the State, which materialize their ideals and wishes in institutions and the legitimate authority.
On the other hand, a State must own to certain characteristics without which a fully sovereign and independent political entity may not materialize. It must, first of all occupy a fixed territory over which it exercises exclusive jurisdiction (to use a legal terminology). And within this territory, stability of organization and administration must prevail; and the entity must be able to fulfill its international duties and obligations. The two other prerequisites of a state are: population on the one side, and a government, which insures internal stability and fulfills international obligations of the State.4 The presence of all three factors would not, however, necessarily guarantee the existence of a State in the legal sense.5 A State that has lost its status as a sovereign entity and a legal person under international law - either through normal disintegration or occupation and absorption by other State, which is the case of Iraq-, may regain that status only when it is again able to carry on its own internal and external affairs.6
Thus, the concept of nation-building may be viewed as the process through which a legitimate authority is established for the purpose of maintaining law and order and achieving political stability within sovereign nation-State, created by the common will people. In other words, nation-building require political integration in the context of nation-State, by bringing together diverse cultural, and social discrete groups into an organic functional system with a unique strong national identity.
The process of nation-building has four dimensions:
a) progressive development among members of political community of a sense of identity with the State and its political philosophy and ideals;
b) Broadening of social communication among the constituent communities, subgroups and subcultures spread out in various regions;
c) Gradual erosion of the old social, economic and psychological commitments and acquisition of new patterns of socialization and behavior attuned with new values ;
d) Improvement of infrastructure facilities, lines of communication and rules for greater flow of goods and services between various regions of the State.7

Nation-building is therefore a process which paves the way for inducing a sense of political identity and creating a sentiment of territorial nationality, which helps to gradual elimination of subordinate parochial attachment to particular values, and establishing a democratic State, emanating from the common will of the people. Once the nation succeeds to maintain its cohesion and integration throughout the territory, the people can then embark on the difficult process of State formation, which is a complementary step in gaining sovereignty for the purpose of execution of legitimate power and authority. We shall examine below the process for the particular case of Iraq.

3- Unitary versus Federalist Political System for Future Iraq
Broadly speaking, States that have the legitimate supreme and permanent authority in a country may be organized either as a unitary body, in which the power is centralized, or as a federal, where authority and power are distributed among several regional entities. Usually, in both cases we have the same branches of government, but their actual work, functions and structure are quite different.
Since its independence from the British mandate under the League of Nations in 1932, until the collapse of the Baath regime by the American military intervention in the year 2003, Iraq has been ruled by undemocratic and dictatorial regimes. This is to mean the people of Iraq have never had the experience of a civic culture- as it is understood by Western standards and democratic values. During this long interval, Iraq has experienced many coups, civil and foreign wars and permanent unrest among various religious and ethnic groups. In the latter part of the recent history of Iraq, it was ruled supposedly by Revolutionary Command Council, but in fact by Saddam Hussein reign of terror. This proves that the people of Iraq never had the chance to express their free will and loyalty to a representative political system or a “nation” as a whole. Thus, they preferred to keep their loyalty to their ethnic or religious particular values and not an all-encompassing entity called “ nation-State”. Therefore, the first and foremost important problem now, is to find ways and means to educate Iraqi people with the rudimentary norms and practice of nationhood and democratic values. This is of course a difficult task that cannot be achieved overnight.

4- Competing Forces and Conflicting Aims in Iraq’s Political Arena

The ethnic composition and population distribution in Iraq have always mired the formation of a unitary system in this country. Arabs constitute about 75% of the population; Kurds are estimated about 20%, and the remaining 5% is composed of various minorities. Historically, Kurds have always been in quarrel with the central government, because of their arduous desire to be independent or otherwise to gain some sort of regional autonomy. The militant Kurdish minority in the north has log been hostile to Iraqi central authority. After years of sporadic guerrilla warfare, they have finally succeeded in acquiring a degree of internal autonomy in 19748. But even this did not satisfy the expectations of Kurdish leaders (PUK, and KDP). Thus, the fighting and resistance continued on large scales even during the final phases of Iran-Iraq war and until the last days of the Ba’ath regime.9
About 95% of the population in Iraq is Moslem. However, a much larger number, and at any account, the majority of them, are Shi’a.10 Historically, the Sunnis, who maintained the power by the inner core of the Ba’ath Party, have always subjugated Shi’a Moslems of Iraq, despite their majority.11 In fact, now that the Shi’a Moslems have found this golden opportunity to express their wishes, they do not seem to be prepared to forego their majority rights to form a democratically elected government in Iraq. This is indeed a source of major preoccupation, not only for the Americans, but also more seriously for the Kurds and Sunnis. Since, as we mentioned above, the Kurdish population had long fought for its autonomy even during Saddam’s reign of terror in Iraq; and very probably they would not concede to a unitary system of government under the majority leadership of the Shiites12. For the Sunnis also, who have always been embedded with political power in Iraq, it would be very hard to compromise on the issue of power distribution.
This is indeed the hard part of the process of nation-building and State formation on the basis of democratic criteria. In fact, this is the paradox of the current situation in Iraq. While the international community arduously tries to promote democratic values throughout the world, in this particular case, the process does not seem to be of any appeal to anybody. Since, most observers fear that a direct democratic election, on the basis of one man one vote, will end up with the emergence of a fundamentalist anti-Western Islamic regime in Iraq. Furthermore, the apprehension of the Kurdish movements to resume hostilities and fight for independence or autonomy against a centralized unitary government puts the future of a stable Iraq into serious doubt.
Those who suggest federalist system of government in Iraq, in fact, have a close eye on the potential troubles that may occur by a majority rule. In practice, federalism requires a consensus by all the factions on democratic principles and tolerance between diversities of regional and local values. For this reason, the necessity of balancing between unity and multiplicity makes a federal system very difficult to operate effectively. Nonetheless, in the particular case of Iraq, one has to make a delicate calculation as to the benefits and vices of each system. Although federalist institutions require a fully democratic system-which is lacking in present Iraq, there seem to exist no other practical solution which could restore order and stability in this war-torn country.
We have to bear in mind that too much freedom for a country that has suddenly fallen on the path of democracy, may well end up to chaos and instability, as we are witnessing now in Iraq. The power vacuum after the collapse of the Ba’ath regime and the lootings of hospitals, museums and government offices under the eyes of occupying forces, are good examples of the limits to freedom and democracy. Too much democracy or too much concentration of power can result to stalemate. However, neither solution may guarantee to handle the problem of daily violence in Iraq.
The alternative is to induce promotion of more opportunities at a level so great as to effect a net increase in the satisfaction of all contending parties in Iraq. However, all these ideals shall depend on the future constitution of Iraq, which is to be drafted by an elected convention no later than March 15, 2005.13

5- The U.S. Plan for Transfer of Iraq’s Sovereignty:
The Paradox of Democracy

The continued violence in Iraq after the capture of Saddam Hussein, who was supposed to conduct resistance against the American occupation, forced the United States to request help from the United Nations14. This was in line with the American created Iraqi Governing Council’s position for a transfer of sovereignty under the supervision of the UN. At the core of the idea of the American plan is that assemblies of notable regional and religious representatives – something alike caucuses- would select a parliament with a number of delegates (of course friendly to Americans.) The parliament then would elect the provisional government to which State power would be handed over by June 30, 2004. The Shiites however, did not go along with the plan, and protested against it on the demand of Grand Ayatollah Ali Sistani, a prominent religious leader of Iranian origin.15 Ayatollah Sistani has demanded that a direct election should be carried in Iraq and supervised by the United Nations. The Bush administration had no other choice than to call upon the UN Secretary General to intervene in the affair before the violence and bloody attacks on American and allied forces get out of control and affect president Bush’s campaign in this election year.
The present US appointed Iraqi Governing Council has 24 members and its main task is to draft before February 28 a “ fundamental law” or a “Provisional Constitution” to govern a transitional period running from July 1 until the end of 2005. This period starts with the handover of political power from the US led coalition to an Iraqi transitional government. This body shall cease to function with the establishment of an elected government on the basis of a new constitution, which shall be drafted by an elected convention by March 15, 2005.16
The most important feature of the constitution would be about the rational and practical distribution of power among various regions and groups. As a basic document, the constitution shall have the last word. It is the essential embodiment of State legitimacy. In the special case of Iraq, which has little democratic experience, the future constitution shall spell out all rules, which directly or indirectly affect the distribution or exercise of the sovereign power. This may include all rules, which define relations among regional governments, as well as their representative members in the central government, and the pattern in which sovereign power of the State is executed.
We should bear in mind that no single institutional or constitutional model, no matter how much democratic, from a theoretical or practical point of view, can be logically imprinted from outside and applied to the case of Iraq. This is to mean that a sui-generis type of constitutional document shall be tailored for Iraq, taking into consideration many indigenous factors, including ethnic and religious diversities, social, cultural, political, economic and strategic concern. This constitution must not only specify the division of legitimate authority between branches of government, but also it shall indicate relationship between the people and the State, between their freedom, or autonomy and the overall conditions of local and central governments on their behalf.17
Of course, it is not possible here to explain the detail of the operating principles that should be included in a plausible Iraqi constitution. But, some of the essential lines can be briefly alluded to. One major point that should be rigorously taken into account is the strict separation of State and religion. This means the principle of secular State, where the legitimate power emanates from the people. Otherwise, in a country like Iraq, we should expect upheaval and turmoil in future. This is actually the main reason behind the argument that only a federalist democratic system can reasonably respond to the expectation of a stable Iraq in the years to come. As we mentioned earlier, a direct mass democracy in Iraq will end up to the situation where the Shiite majority may embark on creating some sort of religious State, which is the worst alternative that can be visualized.
The idea of secularism is not interpreted the same way in the West and among the traditional Moslem countries of the Middle East. In some places, secularism is considered as the residue of Western influence and imperialism; thus a return to religious ideas is perceived synonymous to anti-imperialistic movement. In other cases, religion is gaining momentum as an ideological drive for salvation, independence, freedom, social justice and other ideals normally attributed to Western democracy.18 This is exactly the trend that we witnessed during the rule of Taliban in Afghanistan and their peers (Al-Qaeda), and is still spreading throughout the world.19
It is true that religion - in this particular case Islam, has always attracted hopeless people and has given hope and fear to competing and opponent political factions in traditional societies. But, we are not quite sure how much it is capable in helping to alleviate the burden of the new challenge and respond to the demands of modern world of the 21st century. The vision of a unified Moslem world (Ummah) to which the new revolutionary generation of religious leaders in Iraq and elsewhere in the Islamic world adheres, is a system presumably independent from the existing world order, plagued by the September 11 events. Their strategic objectives are inherently incompatible with the established norms and structure of the existing international system and in total disaccord with democratic principles. Few of them may give lip service to the demands of the average Moslem believers for the sake of acquiring political power, but once they get it, they will not be accountable to anybody.
For these reasons, the United Nations, the Americans and their allies must be very careful of the paradox of mass democracy and the vices of eventual direct elections in war-torn Iraq. This is the case where democracy decays either because of the stupidity of leaders or because of the cupidity of the masses.20 Indeed, nobody wishes to see in future the Iraqi people regret the times when Saddam Hussein, the so-called butcher of Baghdad, was in power. There are of course a handful of ill wishers in the region, who feel quite happy with the present chaotic situation in Iraq. They are those who fear the wider implications of a stable and democratic State in their contiguity.

6-The Wider Ramification of Democratic Iraq for the Middle East

There seems to be little doubt that achieving a stable and democratic Iraq is a sublime objective that the international community as a whole should logically pursue. But unfortunately, a number of authoritarian States in the region are not very fond of such event. The reason for that apathy is more or less comprehensible. We may well remember that after September 11, which led to the collapse of Talibans in Afghanistan and then the Ba’ath regime in Iraq, many dictatorial regimes in the Middle East anxiously asked who is the next on the list? In those days the massage to undemocratic rogue States was rather clear: “you are with us or with the terrorists!” Countries that disagreed with U.S, intervention or one way or another cooperated with terrorists, became alarmed and voiced protests about the U.S. president harsh warning.
Some others believed that the only solution to cope with terrorism is to attack at its roots, which are the fertile ground that helps the creation of such phenomenon. It was argued that dictatorial regimes in the region should go through a forced democratization process as a preventive measure to terrorism. Here we do not intend to pass judgment on the rationale of either of these arguments. In a separate paper I explained the legality of American military interventions in the region.21
Thus, those who had some dubious connection with the terrorists became very nervous and for a while kept quiet waiting the development of the matter. But soon after the stalemate in Iraq’s affairs, they regain their nerves and joyfully claimed that the United States was trapped in another Vietnam.
With the mounting daily challenge against the U.S. and allied forces in Iraq, the situation indeed became unbearable22. In fact, one of the reasons for the American requesting a more serious involvement of the United Nations in Iraq was to alleviate the burden of the U.S. unilateralism that had even deranged its close allies in the NATO. Unfortunately, this world organization was not prepared to further pay the price of Iraq’s insecurity, after the decisive blast on UN Headquarters in Baghdad, which claimed the life of many innocent people, including UN representative in Iraq.23
Although the authors behind these seemingly organized violence are not quite known, but with a bit of imagination, one could see the hands of those who get most advantage from these misdeeds. It is certain that the Iraqi people, even those who used to claim resistance against the occupying forces before Saddam’s capture, no longer have any incentive and benefit in these bloodsheds and atrocities. Since, as we are witnessing these days, the main objective of troublemakers is to inhibit the smooth transfer of sovereignty to Iraqi people, who are the main target and victim of violence.
Countries, who are anxious to be on the list of American neo-conservative hawks for the next round of U.S. offensive, are the ones who are wishful to see the United States entangled in Iraq’s muddy ground. Because they think, as long as this superpower’s forces are busy in Iraq, they can breathe freely and be safe from an eventual assault. Therefore, common sense logic dictates that they would do all they have in their capacity to keep the Americans busy in Iraq, Afghanistan and elsewhere in the world.
Therefore, one of the most urgent tasks of American strategists would be the quick round up of the situation in Iraq, not for the purpose of opening another front in the Middle East, but in order to have free hands for handling other crises in this turbulent and unstable region. In fact, there are a number of trouble spots in the Middle East that need to be managed quickly; otherwise, they will emerge suddenly as a volcano that may threaten the regional and world order as a whole.
On the agenda of outstanding critical issues in the Middle East, which have direct impact on the current situation of Iraq, are problems of democracy, human rights, terrorism of all kinds, weapons of mass destruction (WMD) and the plague of despotic regimes. The question of Palestine and the Arab-Israeli conflict is one of those that is susceptible to overshadow the management of other crises in the region, thus needs special attention and has to be settled once for all. The much-debated problem of nuclear proliferation may also be included in the priority list.24 Other marginal issues, such as water, famine, diseases, narcotics substances, organized crimes, money laundering, human and natural environment, ethnic and religious divergence, can too lead to instability and conflicts in the region. This means that terrorism is a multifaceted phenomenon, deep rooted in a variety of causes and factors that have to be recognized and dealt with appropriately. The dilemma of nation-building and State formation in Iraq, after the sudden downfall of the brutal regime of Iraq to the Hobbesian condition of “state of nature,” is an important impediments, in the process of transfer of sovereignty to this war torn country.

7- Conclusions
The road to peace, democracy and stability in Iraq has many turnings beyond which it is difficult to see. Last February 2004, foreign ministers of neighboring States of Iraq, including that of Iraq itself, gathered for an urgent meeting in Kuwait in order to stress their position on the territorial integrity and sovereignty of this country.25 They also reaffirmed the importance of enhancing the role of UN so that it can assume its central responsibilities throughout the transition process in Iraq. This is indeed a good gesture provided it is backed with good intention. Since as we well know, most of the troubles inside Iraq are planed and executed by outsiders (Al-Qaeda or other fundamentalist groups). Some neighboring States pretend that they are not capable of controlling their borders to prevent illegal infiltrators and terrorist groups from sneaking into Iraq. But, how much truth lays in their alleged reason is subject to query.
The United States, as the predominant occupying State, should manage its strategy in a manner to achieve the following objectives in Iraq:
1) Transfer of sovereignty on the scheduled point in time, i.e. June 30, 2004. Because, any temptation to postpone this date would have negative impact on the whole process. It is worth mentioning that some ill wishers prefer that the US stay there for a longer period and to be pushed out of Iraq by forceful means. To them, this will cause US to loose credibility, which will deter it from eventual future interventions in the region;
2) Establish a secular system of State in which political power remains aloof of spiritual authority;
3) Draw up a constitution, which reflects the legitimate demands and wishes of all ethnic and religious interests groups in Iraq;
4) Form a federal system of government, by taking into account the historical, regional and ethnic diversities and population distribution as well as potential political tendency and background of each region;
5) Avoid dealing secretly with or giving any unfair advantage to any faction who is more vocal than the other. We have to bear in mind that things may not remain on the sly and soon will be revealed and may damage the whole situation. This is especially true with the majority Shi’a Moslems who have long been subjugated by their Sunni peers;
6) Insure that countries neighboring Iraq effectively control and block all illegal infiltration into Iraq, and deter eventual deliberate penetration, through bilateral arrangements or UN sanctions;
7) Give primary role to the UN for the preparation of the draft of the new constitution and the supervision on its implementation;
8) Rely more and more on indigenous forces for the maintenance of internal law and order during the transition period. UN forces backed by allied military and intelligence capabilities should secure borders for the prevention of illegal infiltration. In other words, foreign forces should be kept away from public eyes in major cities and towns;
9) Insure that major oil facilities are protected against terrorist attacks and sabotage, conducted by inside mischievous or outside intruders;

To achieve the above objectives, the United States shall draw a long-term plan with the cooperation of all parties involved, including UN, allied, and neighboring States of Iraq.
Furthermore, it should be pointed out that the course of action for democratic change in traditional countries with a long history of authoritarian culture, repressive regimes and tyrannical leaders is not an easy process. The United States, the UN and whoever in charge of this vital task, should bear in mind the fact that the democratization process is very difficult and time-consuming. Those who lack patience may soon get disappointed and discouraged. This is something that should be avoided like pest. Any over-zeal to open the society too quick too soon, as the radicals may claim, might end up to disaster. Those opportunists who instigate emotional masses to take to the streets of major cities in Iraq, to demand a variety of things that usually emanate from a free democratic society, should not necessarily be listened to. Because first, they may not be familiar with democratic process and second, they may not have good intention and third, others who might not seek the true interests of Iraqi people may manipulate them.
One thing that Iraq does not need at this critical juncture of history is that political and democratic process be left to the hands of sloppy masses in the streets. The U.S. and its allies should not be intimidated by such mass protests. This means that they ought to do what is rational and legitimate and which best serve the long-term interests of Iraqi people, the Middle East and the international community as a whole.


Post Scriptum:
After the completion of the first draft of this paper in mid February 2004, a number of important developments took place in Iraq tumultuous political scene. The first was the simultaneous fatal explosions on March 2nd 2004 (which coincide with the Shiite most venerated day of Ashura, the anniversary of Imam Hussein’s martyrdom), in various cities of Iraq, including Karbala, Kazemein and Baghdad. The number of casualties was too high (about 181 killed and many hundreds injured), almost all of them were Shiites from Iraq and Iran.
The second event was the termination of the official deadline for the promulgation of the provisional Constitutional Draft, which would govern the provisional Iraqi State during the transitional period, i.e. until December 2005. Apparently, the Shiite members of the Iraq’s Governing Council still have some differences with the others about some provisions of the Provisional Constitution. It seems that there is a dispute over two elements of the draft document - named the Transitional Administrative Law -, which, until now, had not seemed to be at issue:
a-Shia members of the IGC are ostensibly calling for a collective presidency that includes three Shias, one Kurd and one Sunni Muslim. The draft stipulates a president and two deputies.
b-It is believed Shias also want to change the mechanisms by which a permanent constitution could be ratified, removing safeguards that would give minority groups a veto.
c-Clauses in the draft reportedly say two-thirds of voters in any three provinces can veto the permanent charter in a referendum.
d-The Kurds' self-rule region includes three provinces - and reports suggest the Shias may have now gone back on a pledge to give Kurds constitutional guarantees.26
Nonetheless, the main lines of vital interests included in the Draft are the followings, which are expected to remain unchanged:
1-The draft charter will recognize Islam as one source of legislation rather than the only source. However, it is also said no legislation should be passed that was deemed to contravene Islam. This seems to be an attempt to "strikes a balance between the role of Islam and the bill of individual rights and democratic principles".27
2-The Draft gives autonomy to the Kurdish minority for now .The issue of the Iraqi Kurds' future was essentially deferred. They are to remain autonomous, but a permanent constitution will at a later date determine the exact nature of their self-government.
3-Women can now hope for 25% of seats in a new national assembly, although this is a goal, not a specific quota.
4-The document also stipulates that Iraq will have a president, two deputies, a prime minister and a cabinet. (As mentioned above, the Shias seems to differ on this point.)
5-The bill of rights includes protections for free speech and religious expression.
After several delays due to the consultations of the Shiite members of the Governing Council with the Grand Ayatollah Sistani, the Draft of the Provisional Constitution for the interim government of Iraq was officially signed on 8 March 2004.

* * * *

1 – See e.g. R. D. Dikshit, Political Geography, A Contemporary Perspective, Tata McGraw- Hill Publishing Company Limited, New Delhi, 1982,pp.160-161

2 – John Stuart Mill(1861) has once given one of the best definition of nation. He defined it as “ A portion of mankind united among themselves by common sympathies which do not exist between them and any other – which makes them cooperate with each other more willingly than other people; desire to be under the same government and the desire that it should be governed by themselves exclusively” ibid. p.161

3 – Reinhold Niebuhr enumerated the following elements as the forces of cohesion for a community to become a nation: common language and a sense of ethnic kinship, geographic unity and continuity, a common historical experience and frame of political thought, a common area of economic mutuality, and sometimes, the fear of a common enemy. According to Niebhur, any of these forces may be defective, but they can not be all defective if the unity of a nation is to be preserved . A common religion was usually regarded as an equally important prerequisite until religiously pluralistic nations refuted the theory. cf. idem

4 – The main characteristics of a State are the ones exposed briefly above. However, the interested reader may refer to any book on international relations or international law in order to find complementary explanations about the term.

5 – There are some entities that have territory, population, and even a government, but are not considered as State in legal term and have no international personality. Such as, for instance, Puerto Rico, which under the United State sovereign control. Some writers believe that the element of recognition of a State by other States and the international community as a whole is also a sine-qua-non for the formation of a sovereign entity.

6 – This is the case of Germany after the Second World War and its occupation by allied forces, which later became a fully sovereign State.

7- Cf. e.g. Dikshit. Op.cit. P.163

8- In 1975 after the conclusion of a reconciliation treaty with Iran, Iraq abandoned its claim over the Shatt al Arab, and Iran also ended its support of Kurdish rebellion. Thereafter, the Kurdish resistance and war against Baghdad also gradually attenuated.

9 -The barbaric attack of Iraqi forces on the people of Halabja with chemical weapons in 1986 is an n example of such atrocities against Kurds.
10- Statistics on the number of Shi’a differs from 65-75 % depending on the sources. Under Saddam’s rule the Kurds, much smaller than the Shia and Sunnis, for a decade, occupied the northern region of Iraq, and had a status close to independence. Although amongst the Sunni, Shia and Kurd triangle, the Kurds had backed an American long term occupation, which allows the Americans to move safely through Iraqi Kurdistan into Iraq, however, just recently the US proposed a plan for the Kurds to have little control in this northern region, but the Kurds rejected US proposal. The Kurds insists on retaining the power they gained under Saddam’s rule. Last year, while the attack on Iraq by America continued, the Kurds had captured the oil province, Kirkuk that is located in the northern region. The question is, will the Americans now betray the Kurds who have supported them all along? Let's follow what happens next. See: A:\Cariwave - Iraq's situation.h
11 – The Ba’ath Party was essentially an ultra-nationalist, left wing, Pan-Arab group, a rival faction of that which still controls Syria.

12 – Mass protests by Shiites in several major cities of Iraq to support the demand of Grand Ayatollah Ali Sistani for direct elections even before the schedule set out by the Americans for transfer of power to Iraqi people, appear to be a vivid indication that they intend to seize the opportunity for a Shiite majority rule. The religious leader even refused to meet with Paul Bremer, the US administrator in Iraq in order to discuss the matter. This indicates that the plan proposed by Washington relating to regional caucus system, otherwise meant a federal political structure, is not acceptable to the Shiite majority. However, Ayatollah Sistani did not rule out the possibility that the issue of popular vote before the American deadline for transfer of power (30 June 2004) must be studied by the United Nations.

13- One of the Shiite leader Abdul Aziz Al-Hakim, who is a member of the Iraqi Governing Council, and who heads the largest Shiite organization, the Supreme Council for the Islamic Revolution in Iraq (SCIRI), recently expressed the view that during the dictatorial regime of Saddam both Kurds and Shiites suffered from injustice, and naturally the Sunnis who were part of Saddam’s circles now fear their retaliation, and think that in a Shiite majority government they might be subjugated of disfavored. He reassured that such thing shall not happen and all the parties will receive adequate treatment in the distribution of power and official posts in future.
14 – It has to be remembered that the United Nations office in Baghdad ceased to function and closed down after a fatal bomb attack which claimed the life of many, including UN representative in Iraq.
15 See supra, note 12. It is noteworthy to remind that the Shiite population in Iraq have the bitter memories of being twice summoned to rebellion and mass protests- by the Nixon and first Bush administrations, where in both cases they were not supported and left to the mercy of Saddam Hussein’s brutal regime. They were murdered by hundreds and put in mass graves, found all over Iraq after the collapse of Saddam.

16 See Iran Daily, February 5, 2004, p.9. According to US plan, the constitutionalprocess and timeline will ultimately be included in the Fundamental Law, but need to be agreed in advance, as detailed below:. · A permanent constitution for Iraq will be prepared by a constitutional convention directly elected by the Iraqi people.· Elections for the convention will be held no later than March 15, 2005.· A draft of the constitution will be circulated for public comment and debate.· A final draft of the constitution will be presented to the public, and a popular referendum will be held to ratify the constitution.· Elections for a new Iraqi government will be held by Dec. 31, 2005, at which point the Fundamental Law will expire and a new government will take power. See: A:\[casi] Agreement on formation of Iraq's new government.htm
The United States and Britain have said Iraq must first have a constitution and hold elections before they relinquish sovereignty. France, Germany and Russia are seeking a quick transfer of power to a provisional Iraqi government and want the United Nations to get the major role in overseeing the country's political transition to a democracy. The new U.S. draft does not set a deadline for the hand over of power, which France had said it wanted by the end of the year. But it does ask the United Nations to help the Iraqi people during the political transition and provide its "unique expertise" when the Governing Council holds a constitutional conference and in its preparations for elections. The United States, which holds the council's rotating presidency for October, circulated the draft informally. According to the draft, co-sponsored by Britain and Spain, the Governing Council must submit to the Security Council by Dec. 15 "a timetable and a program for the drafting of a new constitution for Iraq and for the holding of democratic elections under the constitution." See: A:\U_S_ Draft Sets Iraq Election Timetable.htm

17 The "Fundamental Law," or the Provisional Constitution to be drafted by the Governing Council in close consultation with the Coalition Provisional Authority. Will be approved by both the GC and CPA, and will formally set forth the scope and structure of the sovereign Iraqi transitional administration. Elements of the "Fundamental Law":* Bill of rights, to include freedom of speech, legislature, religion; statement of equal rights of all Iraqis, regardless of gender, sect, and ethnicity; and guarantees of due process. * Federal arrangement for Iraq, to include governorates and the separation and specification of powers to be exercised by central and local entities. * Statement of the independence of the judiciary, and a mechanism for judicial review.
* Statement of civilian political control over Iraqi armed and security forces. See: A:\[casi] Agreement on formation of Iraq's new government.htm
18 – For detail see: Ali-Asghar Kazemi, Religion and Politics: In Search of Compatibility and Compromise (Monograph, Tehran: 1985), p.122

19 In fact, the September 11, 2001 events, which finally brought the United States and its allies to Afghanistan and Iraq, are the product of such fundamentalist beliefs that secularism and Western style democracy are nothing but a major conspiracy to devoid the Moslems of their religious principles.

20 There are two schools of thought in this context: One, the skeptics who maintain that human frailties make mass participation in politics both impractical and undesirable. To these, ordinary people simply lack the requisite knowledge, skills, and motivations to act responsibly. The opposing view ( optimists) puts the blame on political leaders. In both cases the paradox of democracy is present. See “ Democracy and Public Opinion: Two Views,”

21 – See my paper on “The Legality of U.S. Armed Interventions and Prospects for Peace and Democracy in the Middle-East” Presented to: The Regional Security Conference UCLA Burkle Center for International Relations and The Foreign Ministry of Greece , 2-5 August 2003

22 – See my paper “Mounting Challenges to U.S. Military Presence in Iraq and the Rising Costs of Occupation,” presented to the Middle East Regional Security Conference, December 2003, Athens –Greece.

23 – Similar dubious explosions took place more recently in Kurdish region, which also killed many Kurds, including a number of prominent Kurdish leaders and officials.
24 – On the question of nuclear proliferation see my paper: “ Shifting U.S. Threat Perception after September 11 and the Fear of Iran’s Nuclear Threat,” Presented the Regional Security Conference, Athens-Greece, December 2003

25 – Ministers from Iraq, Iran, Jordan, Saudi Arabia, Syria, Turkey, Egypt and Bahrain agreed in this meeting to “ re-emphasize the territorial integrity of Iraq together with respecting the sovereignty, independence and unity of Iraq , in addition to complying with the principles of non-interference in its internal affairs.” See: Iran Daily, February 16, 2004. p.1
26 –See: A:\BBC NEWS World Middle East Iraqis put constitution on hold.htm – 5 March 2004

27 – Cf. A:\BBC NEWS Middle East Iraq's draft constitution hailed.htm - March 1,2004

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