Hours before the second deadline for Iraq’s new constitution on August 22, Shiite and Sunni Arab leaders met in a conference room at the Baghdad headquarters of Kurdistan’s President Massoud Barzani. The Shiites wanted the constitution’s preamble to mention Saddam Hussein’s atrocities and the Sunni negotiators were objecting. Guests sipping tea in the adjacent reception room heard voices rise in anger, and then Nabeel Musawi, a Shiite parliamentarian with a long record as a human rights campaigner, came out of the meeting. “The Sunnis,” he said, claim that “Saddam only killed five farmers in the south and some Kurds.” Nabeel’s father disappeared after being arrested by Saddam’s security services in 1981, one of 300,000 Shiites murdered by the Baath regime during its thirty-five years in power. Another deadline was missed.
Three days later, President Bush telephoned Abdel Aziz al-Hakim, a Shiite cleric who leads the Supreme Council for Islamic Revolution in Iraq (SCIRI), Iraq’s largest and most pro-Iranian political party, to ask for concessions on behalf of the Sunni Arab negotiators on the controversial issues of federalism and de-Baathification. Hakim politely thanked the President who, not being well versed in the intricacies of Iraqi politics (or even its broad outlines), was reduced to pleading that his requests be taken seriously. The President then said something about protecting women’s rights and Hakim assured him they were sacred.
The call was pointless. Bush was asking Hakim to make concessions that the Sunni Arab negotiators themselves did not consider sufficient. Hakim’s idea of women’s rights is very different from what Bush wanted, but the President did not know enough to respond to the cleric. The Hakim episode reveals just how clueless the President and his advisers are about the divisions in Iraqi society. Small concessions cannot paper over the differences between the victims of horrific atrocities and those who deny that any crimes took place. There was also no small amount of hypocrisy in the President’s expressions of concern about women. His diplomats had already agreed to soften key protections for women, and two days before expressing his concern to Hakim, Bush had publicly congratulated Iraq on “a democratic constitution that honors women’s rights.” While the President’s personal intervention into the Middle East bargaining was predictably feckless, his ambassador to Iraq, Zalmay Khalilzad, did much to produce the constitution that emerged. Days after taking up his post in early August, Khalilzad summoned Iraq’s top leaders to the capital’s Green Zone, initiating three weeks of nonstop talks that produced the Kurdish–Shiite deal that is expressed in Iraq’s new constitution.
The Shiite and Kurdish leaders who negotiated Iraq’s new constitution did so on the basis of a strong electoral mandate from their voters for the positions they advocated—the only undemocratic part of the process was the Bush administration’s inclusion of unelected Sunni Arabs. But the administration’s insistence on the deadlines in Iraq’s interim constitution—an insistence related to the President’s plummeting poll numbers and not to the concerns of Iraqi leaders, all of whom wanted more time—effectively prevented meaningful participation by Iraq’s peoples or its elected National Assembly. The resulting constitution is not the one that neoconservatives dreamed might precipitate a democratic revolution in the Middle East. In particular, the constitution fails to adequately protect religious freedom and the rights of women.
But the constitution might bring stability to Iraq, a country now on the edge of full-scale civil war. Underneath an Islamic veneer, Iraq’s new constitution ratifies the division of Iraq into three disparate entities: Kurdistan in the north, an Iranian-influenced Islamic state in the south, and, in the center, a Sunni region that has no clear political identity, but that with luck and concerted diplomacy could be governed by a new generation of Sunni Arab leaders. The constitution provides a basis for resolving Iraq’s most contentious issues: oil, territory, and the competition to be the dominant power in Baghdad. If these issues are not addressed, they could set off a widespread civil war. Whether Iraq nominally stays together or formally breaks apart, it was important to find a formula that could reduce the likelihood of a full-scale conflict. The constitution has many flaws, but it provides a peace plan that might work, and it is therefore the most positive political development in Iraq since the fall of Saddam Hussein from power.
At first glance, Zalmay Khalilzad seemed an improbable mediator for this Iraqi constitution. An Afghan-American whose Republican links go back to the Reagan administration, Khalilzad openly shares the fierce political partisanship that characterizes the Bush administration’s efforts in Iraq. In the build-up to the Iraq war, Khalilzad was associated with the neoconservative cabal that plotted the war and then failed to plan for its aftermath; for seven months he acted as President Bush’s envoy to the Iraqi groups that opposed Saddam Hussein. He came to Iraq after serving as US ambassador to Afghanistan, where he was widely known as “the viceroy.” Khalilzad had little time to master the complexities of Iraq’s politics, and on some issues it showed.
If Khalilzad arrived in Baghdad still believing in the Bush administration’s formula of a “democratic, federal, pluralistic and united Iraq,” he swiftly caught on to the reality. Shuttling from faction to faction, he approached the process of drafting a constitution as not so much an exercise in “nation building” as a negotiation of a tripartite peace treaty, which is largely what it was. (I was struck by the similarities to the three-week Dayton talks ending the Bosnian war, in which I took part in 1995. In Baghdad, as at Dayton, the three factions never engaged in substantive negotiations as a group. Instead, agreements were worked out in bilateral talks between two of the factions or by American diplomats shuttling among the residences of the leaders.)
Khalilzad faced two major obstacles: the distrust of all Iraqi parties for one another and the incoherent US policy that preceded his arrival. The Kurds saw the constitution largely as a threat to their continued independence, and examined every proposal from that perspective. As the majority faction, the Shiites controlled the drafting of the text—and whether through inexperience or self-serving intentions, they often simply disregarded agreements others thought had been reached. Naturally, this fed Kurdish suspicions. The Sunni Arabs objected to practically everything that was proposed, frustrating the Shiites and Kurds to the point that they stopped negotiating with them. In the end, Khalilzad had the US embassy prepare drafts, record agreements, and incorporate them into the text.
Khalilzad inherited policy decisions—made both in Washington and in Baghdad—that complicated his task. In May, Condoleezza Rice flew to Baghdad to insist that Sunni Arabs, who had boycotted the January elections and were therefore only minimally represented in the National Assembly, be included as members of the constitution drafting committee. Such inclusiveness in constitution-making is, of course, desirable; but senior Iraqi officials—some of them Sunnis—warned that the particular Sunnis selected by the US to represent their community were not prepared to take part in serious dialogue; nor for the most part were they representative. These warnings were ignored.
The Sunni delegation represented a variety of views, but it was dominated by former members of the Baath Party. The group’s spokesman and de facto leader was a former Baath Party functionary, Saleh al-Mutlaq, who argued against nearly everything that was proposed, and did so in an aggressive way that offended the Kurds and Shiites and some of his fellow Sunnis. Also on his team were Saddam Hussein’s former translator and several other former Baathist functionaries, as well as representatives of the Iraqi Islamic Party, a Sunni religious party. The leaders of the Iraqi Islamic Party ended up supporting the new constitution, but their voices have been drowned out in the anti-Shiite, anti-Kurd rhetoric of the others.
By pandering to unelected former Baathists, the Bush administration made them appear as more authentic representatives of the Sunni Arabs than those Sunnis who had actually been elected, including Iraq’s Vice President Ghazi Yawher (from one the country’s largest Sunni Arab tribes) and the speaker of the National Assembly, Hajem Hassani. Although they were not part of the Sunni negotiating group, both were inclined to agree to a compromise, and Hassani, a liberal who had spent years in California, objected not to the provisions on federalism or de-Baathification but to the inadequate protection of the rights of women. By refusing to compromise, the Sunni Arabs selected by the US forced protracted delays that both emphasized the dominant American role in preparing the constitution and undermined its legitimacy in Iraq and internationally. Their fierce denunciation of the outcome has intensified Sunni Arab hostility to the draft.
The Bush administration also made other mistakes, some of which bordered on the bizarre. Although the administration would have to rely on the pro-Western Kurds to support US positions in the negotiations, US diplomats went out of their way to offend them. The US embassy office in Kirkuk was instructed to snub a Kurdistan government–hosted July 4 reception, unless the Kurds flew the Iraqi flag. The Kurds, who associate the flag with Iraqi genocide, canceled the reception. A few days later, the US embassy’s political counselor, in talking to the foreign press, denigrated Kurdistan’s constitutional proposals, comparing the Kurdish leaders to carpet sellers who set a high price with the intention of settling for much less. Kurdistan’s President Massoud Barzani had the last laugh, since almost all of his proposals were accepted.
The historically contentious Kurds entered the negotiations with advantages that neither the Americans nor the Shiites fully appreciated. Barzani assembled a unified delegation that included Christians, Turkomans, Yezidis, Islamists, and Communists. Shrewdly, he obtained a mandate from Kurdistan’s parliament that gave him no room for compromise on the region’s basic demands: the supremacy of Kurdistan law over federal law, acceptance of the peshmerga, the Kurdish guerrilla army, as the official military force of the region, control of natural resources, and a formula to resolve territorial disputes, particularly the control of Kirkuk. Most important, the Kurds did not need a constitution at all, since their autonomous state already existed.
The Shiites were less well organized and considerably more divided. They broadly agreed that the constitution should define Iraq as an Islamic state and, except for the radical cleric Moqtada al-Sadr, who did not participate, they agreed on the principle of federalism. But the Shiites disagreed on many details. Some wanted two or three Shiite states in the south, including one centered in Basra and another for the holy cities of Najaf and Karbala, while the SCIRI leader, Abdel Aziz al-Hakim, advocated a single Shiite superregion consisting of all nine Shiite governorates. Some Shiites supported the Kurdish position that oil should be controlled by the regions—80 percent of Iraq’s known oil is in the Shiite south—while the prime minister, Ibrahim Jaafari, wanted oil to be controlled by the central government. These differences made it hard to work out agreements with them. Khalilzad regularly intervened to work out a deal, including most notably the one that divided Iraq’s oil between the federal government and the regions.