{"id":52961,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/secession-and-the-future-of-iraq.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"secession-and-the-future-of-iraq","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/secession-and-the-future-of-iraq.html","title":{"rendered":"Secession and the Future of Iraq"},"content":{"rendered":"\n
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Secession and the Future of Iraq:
Should the Kurds, and Others, Be Able to Withdraw to Create Their Own Nations?<\/span><\/h1><\/td>\n <\/tr>\n

By SANFORD LEVINSON<\/h2><\/a><\/td>\n <\/tr>\n

Thursday, Apr. 17, 2003<\/td>\n\n <\/tr>\n <\/table>\n

One now hears more and more about the importance of making it possible for Iraqis freely to choose their own future. That raises an interesting question: What will be the inevitable limits on their choices? <\/p>\n \n

Many commentators have assumed that one limit will be territorial. The war’s proponents have emphasized their commitments to retaining Iraq’s “historic borders.” <\/p>\n \n

But should that necessarily be so? Why, exactly, should one feel a commitment to an unalterable Iraq?<\/p>\n \n

The Post-World War II Creation of Iraq’s “Historic Borders” <\/b><\/p>\n \n

Baghdad has a 5000-year old history, but Iraq as a country most certainly does not. In 1919, following the demise of the Ottoman Empire in World War I, the British created what we now know as Iraq – enclosing it within suitably strange-looking borders, and trapping together within it a number of historically antagonistic religious and ethnic groups. <\/p>\n \n

Meanwhile, the aftermath of World War I brought the triumph of the Wilsonian vision of “national self-determination.” One implication of that vision is that it is desirable for each group considering itself a nation to have its own state. This is a totally unrealistic, indeed, disastrous vision – leading to the possibility of endless bloodshed in what are inevitably multinational states. But it has still proved a compelling one, for groups who have been denied their own state. <\/p>\n \n

Today, as many commentators have noted, George W. Bush is almost zealously Wilsonian in his professed zeal to create a new world predicated on democracy. The initial defense of invading Iraq emphasized direct national security threats posed by weapons of mass destruction. But now the rhetoric has shifted, especially since few, if any, such weapons have been discovered. Now the rhetoric emphasizes the Iraqi people’s right to determine their own fate. <\/p>\n \n

Self-Determination, But For What Group or Groups? <\/b><\/p>\n \n

But which<\/u> Iraqi people – or subset thereof? In 2003, the Iraqi nation is no more homogeneous than it was a century ago. Instead, it is rife with division.<\/p>\n \n

\n\nShi’ite Moslems, though a majority of the country, have been systematically dominated by the Sunnis; as a result, Shi’ites tend to view Sunnis essentially as Cain viewed Abel. To make matters more complex, Kurds have no desire to be governed, in more than a nominal sense, by Arabs. They seek an independent Kurdistan. <\/p>\n \n

As it happens, each of these three groups tends to dominate one part of Iraq’s landscape. The South, including the city of Basra, is predominantly Shi’ite. Northwestern Iraq, especially since 1991, has become an enclave for the Kurds. Most Sunnis appear to live in central Iraq, including Baghdad. <\/p>\n \n

This alignment of geography with allegiance makes it inevitable that some will contemplate secession and political independence. <\/p>\n \n

Can Federalism Work in Iraq?<\/b><\/p>\n \n

As an alternative to secession, one hears much talk of a “federalized” Iraq. (Some of the proposals for federalization were recently discussed by Alec Walen in a column for this site<\/a>.) <\/p>\n \n

Presumably, under a federal system, significant powers will be devolved upon certain geographic areas and, as a practical matter, upon the quite different religious and ethnic groups that dominate there. Thus, it is hoped, otherwise contentious enemies will be able to achieve some kind of stable harmony in a new and democratic Iraq.<\/p>\n \n

It would be lovely if it happens. But, alas, there is no reason at all to have any confidence in this outcome. <\/p>\n \n

And so we come to the Achilles heel of all “federalist” visions, whether in the United States, Canada, Yugoslavia, or the U.S.S.R.. What happens if one of the local provinces or states believes, perhaps justifiably, that it simply cannot achieve its ends, including a tolerable level of “self-determination,” by remaining inside the existing country? What, that is, if it wishes to secede? <\/p>\n \n

Should a federal Constitution for Iraq allow secession, or instead consider it an act of war? Or, perhaps, should Iraq be divided in the first place, if secession is inevitable in any event?<\/p>\n \n

Secession Precedents: the U.S., the Soviet Union, and More<\/b><\/p>\n \n

This is, obviously, no academic matter. The U.S. Constitution is silent on the issue of secession. In part as a result of this silence, one out of fifty Americans died between 1861-1865 over the propriety of secession. Abraham Lincoln denied that the United States Constitution allowed secession. From his perspective, supporters of the Confederacy were engaging in rebellion, nothing more, nothing less. <\/p>\n \n

Ironically, this had been, of course, the same view taken by King George III, who had nothing but disdain for those subjects of the British crown who dared to attempt secession from the British Empire. <\/p>\n \n

Almost no one died during the dissolution of the Soviet Union – not least because of the formal existence of Article 72 of the oft-derided Soviet Constitution. Article 72 provided for secession by a constituent republic of the Soviet Union. Because Article 72, existed, Mikhail Gorbachev was able to present himself as acceding to law–and not merely submitting to insurrectionists–when he recognized the legitimacy of withdrawal by the Baltic states (and then many others). <\/p>\n \n

Slobodan Milosevic, on the other hand, explicitly invoked Abraham Lincoln to justify his own refusal to recognize a legal right of secession on the part of the constituent states of the Yugoslav republic – and, even more certainly, on the part of Kosovo as a constituent part of Serbia. <\/p>\n \n

Indeed, even the Clinton administration, which was willing to engage in legally dubious warfare in behalf of the Kosovars, was not willing to support secession and independence. <\/p>\n \n

When Is Secession Justifiable? Lincoln’s Marriage Metaphor<\/b><\/p>\n \n

So how should we think about secession, whether as an abstract matter or a practical issue of contemporary constitutional design? Is it true, as Abraham Lincoln said in his First Inaugural Address, that “no government proper, ever had a provision in its organic law for its own termination”? <\/p>\n \n

In an 1861 Indianapolis speech made just before he became president, Lincoln more informally took aim at the view of secessionists. From their perspective, he argued, “the Union, as a family relation, would not be anything like a regular marriage at all, but only as a sort of free love arrangement–to be maintained on what that sect calls passionate attraction.” <\/p>\n \n

With all respect to the person many consider our greatest President, Lincoln’s view of secession seems clearly wrong–especially if one takes seriously his marriage metaphor. After all, few of us today support a view of marriage that demands its maintenance whatever the degree of unhappiness (or worse) it brings to one of the parties. While “free love” still is a minority view, so is the view that marriage is forever, no matter what may occur. <\/p>\n \n

Indeed, everyone who gets married, at least in the United States, is well aware of provisions in the law that will indeed allow its termination should things go wrong. (To reverse Lincoln’s metaphor, every marriage “constitution” thus has a de facto secession provision.) And for good reason: One suspects that many people would hesitate to get married if divorce were legally impossible. And once married, they would, in effect, divorce no matter what the law might say – the domestic equivalent of illegal secession. <\/p>\n \n

Options For the Iraqi Constitution: A Middle Position on Secession?<\/b><\/p>\n \n

To be sure, one can believe that dissolution of states, like the dissolution of marriage, ought not be subject to casual decision. That leads to a middle position: Secession may be permissible, but only when specific, limited conditions obtain.<\/p>\n \n

For instance, the Canadian Supreme Court, in a remarkable decision, in effect legitimized the legal possibility of secession by Quebec from the Canadian federation. But it nonetheless set out a formidable set of procedural requirements that would be necessary in order for secession actually to take place. <\/p>\n \n

Perhaps the wisest course would be for the drafters of the new Iraqi Constitution might be to stake out the same middle ground. After all, if they do not address secession, they may face the same kind of Civil War over its propriety that the U.S. experienced. <\/p>\n \n

So perhaps they should, at least, acknowledge the option, as did the authors of the Soviet Constitution. However much one may doubt the Soviet drafters’ sincerity at the time in doing so, as noted above, the inclusion provided invaluable political “cover” to avert violence later. <\/p>\n \n

The Only Good Reason to Take A Constitutional Position Against Secession<\/b><\/p>\n \n

Some may argue, however, that the drafters of the Iraqi Constitution should, quite to the contrary, take an express anti-secession position – stating in the document the current borders of Iraq are inviolable, and that anyone who wishes to change them, will be punished as a traitor. <\/p>\n \n

There is, I believe, only one good reason to take this position – though it is a good reason indeed: Any suggestion that secession is even thinkable, let alone legitimate, will be as destabilizing as the war itself. <\/p>\n \n

What Turkey fears, more than anything else, is the creation of an independent Kurdistan, not least because of the secessionist impulses it might generate in eastern Turkey. There is no reason to believe that Turkey would tolerate an independent Kurdistan or even its juridical possibility. Given its own Kurdish minority, Iran could be expected to have the same resistance. <\/p>\n \n

Similarly, a secessionist Shi’ite country might well be tempted to join in a new federation with Iran, given that Iran is predominantly Shi’ite. It is hard to believe that the United States, let alone other Arab countries in the area, would tolerate that, at least in present circumstances. <\/p>\n \n

Secession as One Test of Our Principles, Among Many Others<\/b><\/p>\n \n

Secession is only the most dramatic example of the many tests of our ostensible principles that postwar Iraq will present. We must also help define what counts as democracy in Iraq, and help establish legal mechanisms by which vulnerable populations can defend themselves against the domination of their enemies. <\/p>\n \n

Not only must we take a position on secession, but we must take a position on questions like this one: Should Iraqi elections be open to all persons and groups within the country, or should Iraqi foreclose participation by anyone connected in any way to the Baath Party? As a practical matter, that might leave the country without any experienced bureaucrats. <\/p>\n \n

Even as the Coalition celebrates its victory, it’s important to remember that almost all opponents of the War believed that it would be relatively easy to win, at least defined in military terms. Their concerns tended to focus more on the difficulties of winning the peace afterward. So should ours, now. <\/p>\n \n

The truly hard part will come as we try to figure out what “democracy” and “self-determination” can possibly mean in a region so fraught with dangerous animosities. Thus, the lively public debate on the war itself should ideally be followed by an even more lively debate on crucial postwar questions like these.<\/p>\n \n\n\n<\/span>\n\n

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\n\n\n<\/a>\nSanford Levinson is the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law and Professor of Government at the University of Texas (Austin). An internationally eminent scholar of constitutional law, Professor Levinson also teaches and writes about professional responsibility, jurisprudence, and political theory. He is author of Constitutional Faith<\/u> (Princeton 1988) and Written in Stone<\/u> (Duke 1998). \n

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