The case for Kurdish statehood in Iraq.

• Author: Hadji, Philip S.

This Note argues the legal and political case for a Kurdish state in Iraq. After some background on the Kurds, the Note begins by outlining the elements of self-determination and concludes that the Iraqi Kurds possess the right of self-determination. Next, the Note argues the Iraqi Kurds could secede from Iraq in a manner that gains international support and causes minimal disruption to the region through a process of "earned sovereignty." Finally, the Note argues that American support of a Kurdish state in Iraq would benefit the United States. The newly formed state would be a secular democracy positioned in a strategically significant part of the world, could be a strong American ally, and would reaffirm the United States' commitment to human rights.

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND II. THE IRAQI KURDS POSSESS THE RIGHT OF SELF-DETERMINATION A. The Kurds Satisfy the Objective Elements of Self-Determination. B. The Kurds Satisfy the Subjective Element of Self-Determination. C. The Kurds Have a Right to Self-Determination that Includes a Right to Independence D. Kurdish Territory in Northern Iraq Satisfies the Criteria for Statehood III. THE IRAQI KURDS CAN PEACEFULLY SECEDE THROUGH THE PROCESS OF "EARNED SOVEREIGNTY" A. An Overview of the "Earned Sovereignty" Approach B. The Elements of "Earned Sovereignty" C. Successful Implementation of "Earned Sovereignty" Around the World 1. Montenegro 2. Kosovo 3. Northern Ireland D. Adopting an Earned Sovereignty Approach in Northern Iraq E. Recognition of a Kurdish State is Dependent on Politics and Diplomacy IV. THE UNITED STATES SHOULD SUPPORT KURDISH STATEHOOD A. Kurdish State Would Allow the U.S. to Exit Iraq on a Positive Note B. Newly Formed State Would Not Disrupt Region C. Kurdish State Would be a Strong U.S. Ally in a Strategically Significant Region CONCLUSION INTRODUCTION

Despite the calamity in Iraq since the United States invasion in 2003, there is hope in the Kurdish region of Northern Iraq. Compared to the rest of the country, violence in the Kurdish region has been relatively minor. (1)

In many other parts of the country, by contrast, different ethnic groups living in close proximity to one another have engaged in high levels of sectarian violence. (2) At times, this violence was best described as civil war. (3)

The relative stability in the Kurdistan region has allowed the Iraqi Kurds to enjoy the country's highest living standard and highest level of foreign investment. (4) Moreover, the region is stable enough to allow the Iraqi Kurds to engage in foreign relations with other countries and even host travelers and businessman from Europe. (5) While the level of day-to-day violence in Iraq has largely subsided since the invasion U.S. invasion, progress has come at a considerable price. Over four thousand American troops have died, (6) and the total economic cost to the U.S. may easily reach over two trillion dollars. (7) More than two million Iraqis--almost ten percent of the prewar population--have fled to neighboring countries. (8)

The stability and autonomy that the Iraqi Kurds have enjoyed since the fall of Saddam Hussein in 2003 has presented the Iraqi Kurds with a tremendous opportunity. The Kurds have long dreamed of having their own sovereign state, and have suffered greatly as a result of not having their own state. Most notably, they were the victims of a genocide inflicted by Saddam Hussein, which took the lives of as many as 182,000 civilians. (9) Given this unfortunate history, and their position as the largest ethnic group in the world without a country, the Iraqi Kurds have quite a compelling case for statehood.

This Note argues the legal and political case for a Kurdish state in Iraq. The first section provides background on the Kurds and Iraq. The second section outlines the elements of self-determination and considers whether the Iraqi Kurds possess the right of self-determination. The principle of self-determination is that distinct groups of people have the legal right to determine for themselves to what state they wish to belong. (10) Given their common background, history, language, and culture, the Note concludes that the Iraqi Kurds qualify as a distinct group of people and therefore possess the legal right of self-determination. (11)

The third section addresses whether the Iraqi Kurds could secede from Iraq in a manner that gains international support and causes minimal disruption to the region. The secession of Kosovo--through the process of "earned sovereignty"--demonstrates how a country can gradually secede from its parent state with minimal disruption. This Note argues that based on its success in Montenegro, Northern Ireland, and Kosovo--and the similarity between the religious and ethnic conflicts in these countries and Iraq--the "earned sovereignty" approach could be followed in the Kurdish region of Iraq to successfully execute a secession with broad support and minimal disruption. (12)

Finally, the Note examines the interests of the United States in the region. Ultimately, the legality of a Kurdish secession from Iraq will be judged by whether states choose to recognize the new country. (13) Given that the United States has invested tremendous resources in the Iraq war and is a highly influential country, the support of the United States would greatly help the Iraqi Kurds. Supporting Kurdish statehood would be in the best interest of the United States. (14) A Kurdish state would allow the United States to exit Iraq on a positive note by helping form a self-supporting, secular democracy. Moreover, the newly formed state would be positioned in a strategically significant part of the world and could be a strong American ally.

1. BACKGROUND

   Despite their long history in the Middle East, the Kurds still do not have their own state. With a population of thirty-five million people, they are the largest ethnic group in the world without a state. (15) The Zakrus Mountains, which separate Iran from Iraq, are considered to be their historical homeland. (16) Today, most Kurds live in what are now the countries of Turkey, Iran, and Iraq. (17)

   A Kurdish state has long been the dream of Kurds. The dream came close to reality after World War I, when the Kurds were promised a state in the Treaty of Sevres. (18) Article 62 of the Treaty of Sevres called for "a scheme of local autonomy for the predominantly Kurdish areas." (19) The Treaty also specified that the Kurds had the right to petition the League of Nations for independence. (20) Turkey, however, did not accept the Treaty, and it was never ratified. Instead, it was replaced with the Treaty of Lausanne, which made no mention of Kurdish statehood. (21)

   [FIGURE 1 OMITTED] (22)

   Prior to the British invasion during World War I, the area that is now known as the modern state of "Iraq" was under Ottoman rule. (23) The area was made up of three provinces around the towns of Basra, Baghdad, and Mosul, occupied mostly by Shiite Arabs, Sunni Arabs, and the Kurds, respectively. (24) At the conclusion of World War I, the borders of the Middle East were drawn by the European allies at the Conference at San Remo in April 1920. (25) The allies made borders that were essentially straight lines drawn on a map of the Middle East that did not consider the traditional boundaries of the region. (26) The borders divided some tribes and placed rival tribes together. The British were given control of Basra, Baghdad, and Mosul, and decided to combine the three provinces into one territory that would later become the state of Iraq. (27) By deciding to combine the three provinces, the British ignored the clear territorial and ethnic distinctions in the name of preserving what was historically called "Mesopotamia." (28) Most strikingly, "the British had no empathy or understanding of the cultural impact of combining the Shiite and Sunni segments of the [territory into one] country." (29) These arbitrary borders split the Kurds into three countries--Iran, Iraq, and Turkey--and left them without a state. (30)

   The Iraqi Kurds have suffered greatly as a result of their not having an independent state. Under the regime of Saddam Hussein, the Iraqi Kurds have been the victims of crimes against humanity and genocide. Most notably, in the late 1980s the Iraqi armed forces launched what is known as the Anfal campaign. During the Anfal campaign, "Iraqi armed forces ... systematically destroyed more than four thousand Kurdish villages and several small cities." (31) In 1987 and 1988 the Iraqi armed forces unleashed chemical weapons and organized the deportation and execution of Kurdish civilians. (32) As many as 182,000 Kurdish civilians were killed, making the Anfal campaign one of the deadliest atrocities in the last thirty years. (33) With the help of the international community, the Iraqi High Tribunal convicted the Anfal campaign's leaders of genocide, the most severe crime in the world. (34)

   A de facto Kurdish state emerged in Northern Iraq following the Gulf War in 1991. (35) Ironically, an American decision during the Gulf War intended to prevent any Kurdish state gave the Kurds the relative independence that they now enjoy. In the midst of an air campaign in February 1991, George H. W. Bush called on the Iraqi military and people to overthrow Saddam Hussein. However, Bush declined to move troops into Baghdad to overthrow Saddam Hussein. This decision allowed Saddam Hussein's army to move north and suppress a rebellion of Shiites and Kurdish rebels trying to overthrow Saddam. (36) Fearing for their lives, as Iraqi forces advanced into Northern Iraq, hundreds of thousands of people fled to the Turkish and Iranian borders. The Turks refused to let the Kurds into Turkey, but allowed reporters to televise pictures of people "dying in a sea of human agony." (37) These pictures prompted the Bush administration to re-intervene in Iraq. (38) The United States protected the region by...