Iraq protests: the constitutional roots to the unrest

December 2012 saw the outbreak of a new wave of protests in Iraq against the perceived marginalisation of and discrimination against Sunni Muslims in the country. The latest episode of demonstrations, which were sparked by the arrests of the bodyguards of the former Finance Minister, Rafia al-Issawi, began in the Anbar province. Since then, tens of thousands of Sunni Muslims have taken to the streets of several Iraqi cities, including the capital Baghdad and Mosul. Initially the protesters called for reforms; now, as tensions have heightened over the past few months, the majority demand the resignation of the Shi’a-led government of Nouri al-Maliki.

The roots of the intensifying unrest can be traced back to the drafting of the Iraqi constitution in 2005, when the drafting committee failed to take in to account the concerns of the Sunnis. The very same objections and misgivings which the Sunnis had about the constitution – in particular, concerns about potential government abuse of the Anti-Terrorism Law – are again to be found amongst protesters today.

The Iraqi Constitution

The manner in which the Iraqi constitution was drafted in 2005 was highly controversial and underlines the rushed nature of the document. Originally, the constitution was intended to be drafted a 55-member Constitutional Drafting Committee compromising of members of the Iraqi assembly elected in 2005. However, the Drafting Committee and the assembly were soon deemed surplus to requirements by the governing powers and were side-lined by August 2005.

At the time, the Sunnis were under-represented for a variety of reasons. As a contemporary report explained, part of the problem was that the dominant parties in the National Assembly at the time were reluctant to include Arab Sunni leaders and figures that they feared were either not fully committed to the constitutional process, associated with the Ba’ath Party, or sympathetic to various insurgencies ravaging the country. Even when the governing parties did finally come to accept increasing Sunni representation, they attempted to limit the extent to which they were able to participate.i

The absence of leadership amongst the Sunnis also contributed to the poor representation which they had in the drafting of the constitution. The Sunnis lacked the organisational capacity to mobilise effectively, which meant there was no identifiable representative body amongst the Sunnis with whom the governing parties could negotiate. The drafting process was further scuppered by the brief boycott that the Sunni Arabs staged after two Sunni members of the constitutional committee were assassinated on 19th July. They later ended this boycott on the 26th July after a series of their demands were met, but they claimed that this was ineffective because they felt shut out of the negotiations leading up to the 22nd August deadline.ii

Despite the lack of representation of the Sunnis in the 55-member Constitutional Drafting Committee, the Committee themselves were undermined and replaced by what Toby Dodge refers to as the ‘elite bargain’.iii This elite bargain consisted of Ibrahim al-Jaafari, the leader of the Hizb al-Da’wa at the time (who was later to be succeeded by Nouri al-Maliki), Abdul-Aziz al-Hakim, the leader of the Islamic Supreme Council of Iraq and the two Kurdish leaders, Masoud Barzani and Iraqi President Jalal Talabani.iv

It was these four figures that headed the drafting of the constitution without representation of the significant minority of Sunni-Arabs in the elite bargain. The disillusionment of the Sunni population with the resulting compromise soon became evident in the constitutional referendum, when three of the provinces with a high Sunni population voted overwhelmingly against it: Anbar Province voting 96.96% against; Salahhuddin 81.75% against; and Nineveh 55.08% against.v Indeed, it is arguable that the constitution itself would not have passed were it not for certain groups within the Sunni population reluctantly voting for the constitution in the referendum following interference from the US.vi

The Anti-Terrorism Law

One of the fundamental issues of the on-going Sunni protests revolves around the discriminatory application of Article 4 of the Anti-Terrorism Law against them. Many demonstrators feel that the Iraqi authorities have used this law as an instrument to repress any dissent. Interestingly, the main hubs of the protest have been in Anbar Province, Nineveh and Salahhudin, the same provinces which voted against the constitution in the referendum of 2005. The fact that the claims by the Sunnis of being marginalised and discriminated against still exists to this day highlights the emphatic failures of the Iraqi government to address their concerns.

Article 4 of the Anti-Terrorism Law includes two types of penalties; the first sentences to death ‘anyone who committed, as a main perpetrator or a participant, a terrorist act, along with anyone who incites, plans, finances or assists terrorists to commit such a crime.’ The second penalty sentences to life imprisonment ‘anyone who intentionally covers up any terrorist act or harbours a terrorist with the purpose of concealment.’vii

Over the past few years Article 4 of the Anti-Terrorism Law has been one of the most frequently used articles in the judicial system since it was approved by the unelected Iraqi National Assembly in 2005. The protesters and other opponents of the article claim that the Prime Minister Nouri al-Maliki has consistently abused this article, manipulating it to target his political opponents as its interpretation is subject to the Shi’a-led government and the forces behind it. The most recent example of this, which triggered the outbreak of the mass protests by the Sunnis, was the arrest and detention of the bodyguards of the former Finance Minister Rafia al-Issawi on suspicion of terrorism related charges.viii Another notable example is that of the arrest warrant issued for the former Vice-President Tariq al-Hashimi, who was accused of running a death squad that assassinated officers and government officials. Somewhat tellingly, the warrant for al-Hashimi’s arrest was issued on the day after the US army had officially pulled out of Iraq. This only reinforces the accusations by Maliki’s opponents that he utilises the Anti-Terrorism Law to remove any political opponents in government: a prospect set to continue with the withdrawal of American troops.ix

The Sunnis also feel that they are being targeted during a purging process of ‘de-Ba’athification’, whereby remnants of those who collaborated and supported Saddam Hussein’s regime are marginalised. As a recent report by the International Centre for Transitional Justice published in March 2013 outlines, Sunnis repeatedly perceived de-Ba’athification of the government as ‘de-Sunnification’, arguing that de-Ba’athification had become nothing more than a sectarian instrument wielded to prevent Sunnis from participating in public life.x The same report also identifies identical concerns raised by the Sunnis during the drafting of the Iraqi constitution in 2005; namely that of feeling victimised by de-Ba’athification.xi The findings of the reports further reinforces one of the major grievances of the protesters, that of exclusion from the public sphere based on what they feel is the discriminatory application of the Anti-Terrorism Law under the guise of de-Ba’athification. The implications of this particular plaint, amongst many others, have finally been realised with the advent of the recent mass protests.

The critics and protesters claim that there have been tens of thousands who have been arrested and detained in the past few years under the Anti-Terrorism Law. They also claim that in the recent demonstrations women have been specifically targeted by the government. Falah Alwan, the President of the Federation of Workers Councils and Unions in Iraq (FWCUI) stated in a recent interview how the Iraqi authorities have made it very difficult for independent organisations to conduct investigations and reports into such matters based on the accusations of ‘terrorism’.xii This claim is supported by Hanaa Edwar, the General Secretary of the Iraqi al-Amal Association (IAA), who in an interview recently claimed that the government had asked the IAA to disband because they are an independent organisation and are vocal on Human Rights issues in Iraq.xiii According to government institutions, there are only one thousand women detained, with four thousand arrested and under interrogation. However, media outlets have reported that the government has arrested tens of thousands of women under the same anti-terror clause.xiv Indeed, it is because of the level of government repression that was present that Anwar believes protests were not ‘triggered’ earlier.xv

Post-war Reconstruction

What the recent protests in Iraq demonstrate are the consequences of the failures of the process of the drafting of the constitution and the constitution itself. In an article in the New York times written in May 2005, Sharon Otterman, a reporter from the New York Times and then-associate director at the Council on Foreign Relations, warned rather ominously that an Iraqi constitution ‘that fails to take Sunni concerns into account, many experts say, could spark increased violence and – in a worst case scenario – lead to a civil war pitting Sunnis against Shiites‘.xvi Given that the country was subsequently ravaged by a devastating civil war, which peaked in 2006 and 2007, this suggests that the constitution had comprehensively failed in establishing a set of fundamental governing principles which would incorporate all the citizens of the state. Yet the very dangers that Otterman highlighted did indeed manifest themselves in the following years. The exclusion of the Sunnis and their political input in the whole process of the drafting of the Iraqi constitution alludes to a far greater problem of the Sunnis becoming disillusioned with the Iraqi state, and this is precisely what we are seeing in the mass protests over the past few months.

Yet many Sunnis have previously shown a commitment to the Iraqi state and opposition to terrorist activity. The events of the ‘Anbar Awakening’ during the civil war demonstrate a willingness by the inhabitants of the Anbar Province to aid the development of Iraq. During 2006 and 2007, the tribal Sheikhs and inhabitants of Anbar led a campaign to push out any al-Qaeda forces which were committing terrorist activities and looking to make the province a stronghold for them.xvii The events of the Awakening demonstrate two points; that the groups that were, and in some cases still are, committing terrorist activities in those areas and in Baghdad are not the same people involved in the protests today. To the contrary; many of the protesters we see today were on the front line leading the assault against the terrorist groups during the civil war and successfully pushed them out of the province.

In the aftermath of the civil war, there have been several Sunni politicians who have been placed in governmental positions; however, their scope of influence has been repeatedly undermined and restricted by the government of Nouri al-Maliki. The two Sunni politicians who have already been mentioned, Tariq al-Hashimi and Rafia al-Issawi, are a good example of Sunni politicians becoming frustrated with the factional nature of the Maliki government. Both the arrest warrant issued for al-Hashimi and the arrests of the bodyguards of Rafia al-Issawi on terrorism-related charges have caused much unrest and have de-stabilised Iraq. These political moves by Maliki have undone much of the work that had been done since the civil war to ease sectarian tensions and have thrown Iraq into a political crisis. Recently the Parliamentary Speaker and Sunni politician Osama al-Nujaifi promised to annul Article 4, which he referred to as ‘a sword held to the neck of Iraqis‘.xviii However, Maliki and his political bloc have opposed this position by al-Nujaifi and it leaves yet more question marks over the political situation in Iraq and further frustrates the Sunni politicians as they are undermined once more.

The impatience with the increasingly sectarian nature of the Maliki government is also demonstrated by growing tensions between Maliki and the Kurdish governing powers, as there are still issues to resolve with the Kurds over border disputes and debated regions. These disputes were not answered by the constitution itself in 2005 and Maliki has failed thus far to address them. There is also an increasing number of Shi’a joining in the protests, with the Shi’a cleric Moqtada al-Sadr throwing his support behind the protests against Maliki and urging his followers to join them.

Conclusion

In the aftermath of the devastating bloodshed experienced during the Iraqi civil war, one would expect that the Iraqi government would look to diffuse the tensions in Iraq amongst the different groups: to try and promote a spirit of reconciliation to prevent such a detrimental outbreak of violence to occur once again. Yet what we are seeing today is a repeat of the concerns that have been voiced since the advent of the new democratic Iraq in 2005. The same issues which were present in the drafting of the Iraqi constitution and which Otterman had warned against have not been addressed. The Sunnis have been marginalised and excluded from significant political involvement. The fact that we see the same Sunni-majority provinces voicing disillusionment with the government, most recently with the mass protests, as there had been in the constitutional referendum, is indicative of what minimal progress has been made in Iraqi politics.

i Brown, Nathan, Iraq’s Constitutional Process Plunges Ahead (2005), p. 6. http://carnegieendowment.org/files/PO19Brown.pdf (Accessed 20/03/2013). return to main text
ii Beehner, Lionel and Otterman, Sharon. IRAQ: Drafting the Constitution, (August 23, 2005) http://www.cfr.org/iraq/iraq-drafting-constitution/p8044 (Accessed 20/03/2013). return to main text
iii Dodge, Toby, Iraq: From War to a new Authoritarianism (Oxford: Routledge, 2012), p. 46. return to main text
iv Ibid, p. 46. return to main text
v ‘Iraq voters back new constitution’, BBC, (October 25, 2005), http://news.bbc.co.uk/1/hi/world/middle_east/4374822.stm#map (Accessed 20/03/2013). return to main text
vi Ottaway, Marina, Back from the Brink: A Strategy for Iraq (2005) http://www.carnegieendowment.org/files/pb43.ottaway.FINAL.pdf, (Accessed 20/03/2013). return to main text
vii Anti-Terrorism Law (2005), p. 4. Available: http://www.vertic.org/media/National%20Legislation/Iraq/IQ_Anti-Terrorism_Law.pdf (Accessed 20/03/2013). return to main text
viii ‘Iraq Sunnis rally against Shia-led government’, Aljazeera (February 02, 2013) http://www.aljazeera.com/news/middleeast/2013/02/20132193645300257.html (Accessed 20/03/2013). return to main text
ix Healy, Jack, ‘Arrest Order for Sunni Leader in Iraq Opens New Rift’, New York Times (December 19, 2011), http://www.nytimes.com/2011/12/20/world/middleeast/iraqi-government-accuses-top-official-in-assassinations.html?scp=2&sq=Tariq+al-Hashimi&st=nyt&_r=1& (Accessed 20/03/2013). return to main text
x Sissons, Miranda and Al-Saiedi, Abdulrazzaq, A Bitter Legacy: Lessons of De-Baathification in Iraq (2013), p. 17. http://ictj.org/sites/default/files/ICTJ-Report-Iraq-De-Baathification-2013-ENG.pdf (Accessed 20/03/2013). return to main text
xi Ibid, p. 15. return to main text
xii Issa, Ali, ‘Tipping Towards Iraq’s Squares: An Interview with Falah Alwan’, Jadaliyya, (January 22, 2013) http://www.jadaliyya.com/pages/index/9699/tipping-towards-iraqs-squares_an-interview-with-fa (Accessed 20/03/2013). return to main text
xiii Beaumont, Peter, ‘Iraq war 10 years on: “There is phenomenal violence against women. I hear of rape cases in prison. Police officers are doing it”‘, The Guardian (March 17, 2013) http://www.guardian.co.uk/world/2013/mar/17/iraq-10-years-on-womens-rights-activist (Accessed 20/03/2013). return to main text
xiv Issa, ‘Tipping Towards Iraq’s Squares’. return to main text
xv Ibid. return to main text
xvi ‘Q&A: Drafting Iraq’s Constitution’ New York Times, (May 12, 2005), http://www.nytimes.com/cfr/international/slot2_051205.html?_r=0, (Accessed 20/03/2013). return to main text
xvii Kagan, Kimberley. (2007). The Anbar Awakening: Displacing al Qaeda from Its Stronghold in Western Iraq. Available: http://www.understandingwar.org/sites/default/files/reports/IraqReport03.pdf. return to main text
xviii Abel Sadah, Ali, ‘Iraq in Crisis Over Terror’, Al-Monitor (February 4, 2013), http://www.al-monitor.com/pulse/originals/2013/01/irp-terrorism-sadah-w-arabic-version.html (Accessed 20/03/2013). return to main text
Protesters demonstrate against Iraq’s Shiite-led government as they wave flags during a rally in Ramadi, December 2012.
A freed detainee greets his daughter outside al-Rusafa prison in Baghdad, March 2013.
Detainee women wait for their release from al-Rusafa prison in Baghdad, March 2013.
Iraqi Sunni protesters hold up a defaced portrait of Prime Minister Nuri al-Maliki in Ramadi on January 4 2013.

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Published by Asfar in London, UK - ISSN 2055-7957 (Online)