Iraq is in dire need of a real constitution. The reasons for a failed state, and the normative miseries since the adoption of its current text in 2005 are growing by the day (Alnasir, 2021c; Cordesman & Molot, 2019; Flibbert, 2013; Jayamaha et al., 2017; Underhill, 2014)1, and precisely now on the eve of 2023, that nation’s ordeal would come of age, a new constitution is urgently needed. This does not refer to the political corruption, the state vacuum, the chronic despair, the massive conflicts, nor even the continuous mass migration, it is now the responsibility of the international community for being directly responsible for having perpetuated this misery.

By Samer Alnasir

But the problem today goes far beyond all of the above reasons, for the problems that Iraq brings with it will have significant global repercussions, given that Iraq holds a significant percentage of oil reserves, and today produces around three million barrels per day, enough to collapse the global economy overnight.

Its constitutional problems are on the verge of triggering an international conflict of incalculable consequences. Since the adoption of the current so-called constitutional text, the country has thrown up more than five million refugees, an ethnic cleansing between 2006-2009 that buried more than a million people, and a war triggered by the emergence of the Islamic State in 2013 that left another million victims, missing, more displaced, and endless destabilisation of the entire Middle East (Filkins, 2014). What is most paradoxical is that the genius advisors and apprentices of Western strategic studies were determined to find ways to defeat the Islamic State, and yet to date they have not succeeded, and despite having failed miserably, they continue in the same so-called fight against terrorism, when the most reasonable thing is to wonder if it had not emerged. For whether it was called A or B, the motives behind it are more than credible enough to hide an elephant behind a tree. For the constitutional and consequently political problems of its application were the most natural and logical basis for nurturing violence.

This is not just state violence, but constitutional violence itself. However, no one in the West will care about all of the above, but what will matter is that when these problems now have significant economic repercussions because of the country’s energy burden, especially with projections of reaching four million barrels per day within the next five years, Iraq urgently needs a real constitution.

Law, or a constitution, is a dialogue between equals (Gargarella, 2021), yet Iraq’s constitutional history provides no such experience. All its constitutional charters either refer to hegemonic-colonial imposition, or by military-coup declarations, Iraq has never known a constitution in the proper terms. Its first post-colonial constitution in 1925 was properly drafted by the British House and presented to a popular referendum as a choice between worse and worse, either to approve the text and emancipate, or to remain under British suzerainty.

That one was repealed by the military coup declaration of 1958, followed by other equally coup-like declarations, until the arrival of the new Euro-American coalition invasion in 2003, which also repeated the same steps as before, drafting a new charter by its own agents. The worst thing about the new charter was neither its foreign drafting, nor the exclusion of a third of the people in its negotiation, but its translation. For the final text approved by referendum was neither the work of inept interpreters, nor does it represent the socio-political complexity, nor was it the work of jurists, nor was it coined by specialised translators. For a better understanding, it is necessary to resort to the English text, despite the fact that the official text approved in the referendum is Arabic, which has been poorly translated.

Leaving aside the obvious problems of the legitimacy and legality of the text, the final text presents enormous problems of comprehension, and therefore normative interpretation. Full of spelling mistakes that make it impossible to decipher its intentions, several quotations and references that end with examples ending with etceteras. Several scholars insisted on commenting on it or criticising it, or what would have happened to my previous project (Alnasir, 2003), but I preferred to abstain, as this text cannot be honoured with the title it bears, as a Constitution, nor does it deserve criticism of such a category. I therefore tried to abstain in order to avoid reflecting this rancour in the critique, but every day there are more and more reasons that show the failure and the manifest crime of this text. It is not just a failure and violence of the state, it is a manifest failure and violence of a constitution, which is why Iraq urgently needs a real constitution.

Numerous were its constitutional calamities (Alnasir, 2021a), but most significant now is a case that will have serious repercussions for the global economy. Iraq’s supreme court, in mid-February, has just ruled on a conflict initiated by the constitution itself that will not only cause significant international repercussions, but also, and quite possibly, the invasion of the country by Turkey. All because of the absurd constitutional design and wording. I shall explain it below.

Article 111 of Iraq’s so-called 2005 Constitution states that “oil and gas are the property of the whole nation in all regions and provinces”. This reference casts more doubts than it announces, as it does not refer to all hydrocarbons, nor to all minerals held by the country, but names only oil and gas. However, the following article, 112.1, reads as follows: “The federal government shall administer the oil and gas extracted from the current deposits with the regional and provincial producer governments so that their benefits are distributed equitably among the entire population throughout the national territory, allocating a percentage to the regions that have suffered the injustice of the previous regime in order to re-establish the balance between the different areas of the country, and a law shall regulate this”. Article 112.1

The vagueness of the above wording is not due to my translation, but I have tried to observe the same form, including the placement of a single comma throughout the text, so that it is almost literally the original wording. It is, however, very different from the English version of the text, as it was edited by the American proponent. However, the proposal of the text does not indicate anything clearly, because 1) it does not clarify why this circumscription of current deposits is due, and what would happen then with future deposits? 2) nor does it clarify why this explicit circumscription of oil and gas and what would happen with the other minerals? 3) and in line with the above, it is not clear what this administrative commonality with the regions refers to, and whether it also refers to future deposits, or only to current ones? 4) there is no specificity or definition of the sinister regions, as it is not known which ones are referred to in the text, nor the form of distribution, as the previous paragraph refers to demographic distribution, but then refers to the sinister regions, which also does not indicate the duration of time of this supposed compensation. Notwithstanding all of the above, this whole scheme ends up alluding to it being regulated by means of an ordinary law.

Before going on to explain the problem, it is necessary to refer to the following paragraph of the same article, 112.2, which reads as follows: “The federal government together with the regional and provincial governments shall design the necessary strategic policies for the development of oil and gas wealth to ensure the greatest benefit to the Iraqi people based on the most modern techniques of market economy and attracting investment. Article 112.2

In the same way as above, an attempt has been made to observe a literal translation that reflects the ambiguities and vague wording of the original text. For in the same way, it seems easier to refer to the English version of the text to get an idea of what it means. Nothing seems to indicate what is meant by the design of these strategic policies, in the plural, and that they would be designed together with the territorial governments, while the previous article refers to the administration being carried out jointly, subject to being regulated by original law. How is it possible to understand a constitutional text by turning to its foreign version, when the official, constituent version, approved by referendum, is more ambiguous due to its terrible translation, but is also the only one taken into account by the courts?

However, and to finish with this panoramic exhibition, it is necessary to refer in the same way to the article 115 that says: “Everything that is not clearly numbered among the competences of the federation will be understood in favour of the regions and provinces not incorporated in region and the other competences shared between the federation and the regions will prevail in them the regional and provincial norm for the provinces not incorporated in region in case of contradiction”. Article 115

Who would be able to decipher this scheme? Even if we were to use the English version, it would not provide any logic or coherence. First of all, it designs a scheme of exceptionality of the State in favour of the territories, and not the other way round, but moreover, when it refers to shared competences, it refers only to the regions but not to the provinces, although it finally reiterates referring to the provincial rules. A scheme fully aimed at dissolving the state and entrenching chaos and legal insecurity. The State legislates, and the territories contradict it, and yet the territorial norm prevails even though it is the competence of the State. Is it possible to admit such a wording as constituent? Or what kind of advisors accompanied the Americans in that task? Even if it is foreign, colonial or whoever, what kind of jurists is that? How would this scheme be configured with the previous one referring to mineral resources in Article 112.2?

The calamity, or rather in the plural, the calamities do not end there, worse because it is the interpretation of the Iraqi Federal Supreme Court. For in that labyrinth, in 2012, the local council of an oil city in the south of the country, Kut, agreed to ban the export of the city’s oil abroad to cover local supply needs under articles 111 and 112.1 of the Constitution. This resolution was appealed by the central government to the Federal Supreme Court, which ruled in its ruling 8/Fed/2012 a few weeks later, upholding the government’s appeal, stating that the scheme of the aforementioned articles of the Constitution is subject to the adoption of an ordinary law regulating them, and given that such a law was not adopted by the legislature, the constitutional provision is suspended and awaiting original regulation.

In other words, the constitutional court called upon to watch over and safeguard the constitution washed its hands of the constitution by suspending the constitutional mandate until the ordinary legislator intervenes. However, on a previous occasion, when the constitutional text referred to a specific time period for an ordinary regulation, the court affirmed that the constitutional mandate was time-barred when the deadline for adopting an ordinary law had passed, even though the legislator had failed to comply. What seems clearer is not that only the constitution is the work of laymen, but that the Iraqi high court is more of a layman’s body.

On the other hand, and in the same vein, Article 93.6 of the Constitution, which lists the competencies of the Supreme Court, states that “recognising charges brought against the president of the republic, the prime minister and ministers shall be regulated by law”. Therefore, and according to this doctrine, the court’s competence to recognise the civil or criminal liability of these charges would be suspended until the leaders themselves, by means of a law, regulate this issue, which, as this law has not been adopted, their accusations will remain inadmissible, as there is no criminal law to regulate it. But what is curious in this example is that the Iraqi official gazette, dated 2 June 2021, published a law 25/2021 reforming the statute of the Federal Supreme Court. In this reform, it lists and reiterates, once again, the powers of the court already numbered in the Constitution, and in its fourth article, paragraph six, i.e., in the same order of the constitutional scheme, it says “to recognise the accusations made against the president of the republic, the prime minister and the ministers”. In other words, it abolishes the subordination of this competence to an ordinary regulation, so the ordinary legislator, by means of a statutory law, tacitly amends the constitution and puts an end to the subordination of the court’s competence to an ordinary law, not only against the constituent criteria, but also against the court itself. How can we consider this chaos to be a state?

From the above, let us return to the scene of oil and Articles 111, 112.1 and 2, and in conjugation with 115 described above. For by virtue of the open constituency designed by 111 and 112.1 in terms of the temporal reference of the oilfields by referring only to the current ones, the Kurdistan Region in 2007 passed a law for the exploitation of oil and gas in its territory. This law was neither contested nor challenged in any way by the central government, which was then engaged in ethnic cleansing in the so-called “triangle of evil”, as the Americans call it, and in filling its current accounts in the banks of the West.

Then, under Kurdistan’s constitutional scheme and regional law, the Kurdistan Autonomous Government entered into several research contracts with foreign companies to search for and exploit oil, and indeed it did, finding several oil fields on its territory. The extraction and transport of oil was then started, using a state-owned pipeline that runs through the autonomous territory to the Turkish port of Cihan, as an export route to Europe, which was set up in the 1980s. Faced with this situation, the central government protested to the Turkish government, demanding that the central government take over the use of this pipeline, since it is the exclusive property of the Iraqi state, and also claiming that it has exclusive competence for the exploitation of oil.

Indeed, in 2012, a lawsuit was filed by the central government against the Kurdistan regional government for this action. What is inexplicable in this case is that the so-called supreme court, which had ruled on the case 8/fed/2012 of the province of Kut a few weeks later, shelved the appeal on the same issue against the Kurdistan Region and did not rule until mid-February 2022, i.e. ten years afterwards, without even taking a single precautionary measure, allowing the KRG to continue the extraction of some four hundred thousand barrels of oil per day, the use of the national pipeline, and its sale to Turkey and on the international black market without any action being taken. This is despite the fact that the Kurdistan Regional Government had no autonomous status of its own, despite the constitutional mandate to adopt it, no supervised accounts, and not even the receipt of these oil revenues into the region’s coffers has been verified. In other words, a web of institutional appropriation of the state by its own agents, veiled by the vacuum of the constitution and its interpreter, the Supreme Court.

In 2018, the case reaches the American courts, when the central government locates a shipment headed for the port of Texas, and then asks a local court to seize the shipment, citing its constitutional powers, in addition to the Iraqi oil law of 1986. The case ultimately ends up in the US Court of Appeals for the Fifth Circuit in case 15-40062. Far from entering into the controversies of the case, the regional government, even though it did not have international legal personality, defined itself on the basis of the aforementioned articles 112.1 and 2 and 115 of the constitution, and that the national oil law of 1986 was a pre-constitutional norm and, in its opinion, contrary to the spirit of the aforementioned articles and its own regional law that should prevail over that of the State by virtue of article 115. However, the Iraqi government, which also did not contest the Kurdistan Region’s lack of international legal personality, claimed its sole competence in the matter, and its ownership of the pipeline used to transport the oil, so the Court ultimately upheld the central government’s claim and ordered the delivery of the cargo to the Iraqi government. However, while the appeal was pending, the cargo managed to escape from the port of Texas, made its way to Israel where it was unloaded and sold by the Kurdistan Regional Government.

Now, on 15 February this year, 2022, i.e. ten years after the appeal against the extraction contracts was filed, the Iraqi Court ruled in its decision 59/fed/2012 that the aforementioned articles of the constitution, by virtue of its previous doctrine in the case of the Kut province, are pending legislative regulation and are therefore not applicable or in force in any way, and therefore annulled the Kurdistan Region’s oil law despite the fact that it was not appealed by the appellant, the government; and orders the Kurdistan Region to empower the central government’s Ministry of Oil to renegotiate the current exploitation contracts. Nothing explains what this formula of empowerment refers to, and what it would be like to renegotiate international contracts concluded under a law, which the court itself is declaring null and void. However, no one, once again, disputes the international legal personality of the Kurdistan Region, which has entered into these contracts in a sovereign manner without having any legal personality or sovereignty whatsoever. Both the contractors and their advisors may have relied on the English version of the constitutional text, whereas the Arabic version is the only legally valid one.

Who can conceive of this text, scenario, scheme as a legal, or constitutional scheme? A nation that pretends to present itself to the international community without a constitution is like one that appears at a dance party dressed in swimming trunks (Hauriou & Gicquel, 1966, p. 73). The eminent problem today is that Turkey is the country most involved, as the foreign contractors were Turkish companies, which under those contracts hold the right to exploit the deposits found for a period of ninety-nine years. The first move, therefore, is to move the troops, as the Turkish army has already entered Iraqi territory for some fifteen kilometres, and threatens to advance to protect its investments, which according to the supreme court’s ruling, must be seized and renegotiated by the central government. Meanwhile, both the Kurdistan regional and Turkish governments argue that the constitution referred only to the current 2005 deposits, and that art. 115 opened the way for autonomous regulation of future deposits.

What is clear, or rather, the only thing that is clear, is that Iraq urgently needs a constitution, a new constitution indeed. A constitution cannot be a source of problems, confusion and chaos, otherwise it will break all the defining criteria, but this time it must clearly be drafted by expatriates and foreigners. For the intellectual revolt in the country also seems to be more and more pronounced (Alnasir, 2021a, p. 500, 2021b, p. 404). Not only does it suffer from a state vacuum, but also from an intellectual vacuum. Individuals with no academic formation, who have never weighed a university in their lives, are occupying political, administrative and judicial leadership positions in the country, and the result is obvious. Since the adoption of the Constitution in 2005, several million Iraqis have been forced into exile, and the borders of Europe bear witness to this on a daily basis. A text since its adoption has created nothing but segregation, calamity, war, and instability at home and abroad, and is now plunging the global economy into another economic coup. How can this entity be admitted as a state in the international community and refer to this text and organs as a constitution and a constitutional court? What is clear is that Iraq is in dire need of a real constitution, rather than simply a new constitution.

It is also paradoxical to see among the voices asserting the failure of the state and the inadequacy of its order what has actually been part of it, for Alaaldin (2021), who has served, he says, as advisor to two Iraqi presidents, asserts, and reiterates, in academic debates, Iraq’s utter state failure. For if the testimony already comes from a senior political influencer, what more can we in academia do?