The Middle East Channel

Americans, put away your quills

Later this month, the representatives just elected by Tunisian voters will begin the task of designing a new political order for the country. If all goes well (though it may not) Egyptians and Libyans will follow suit by drafting new constitutions. It is still not inconceivable that other Arab societies will join them in an attempt to reinvent political systems on a more democratic basis. People in these societies are about to engage in an unprecedented process for them -- while they have all lived under constitutions before, those documents generally enabled authoritarian government. Now they want to write constitutions that will allow them to live democratically. As Americans, this seems to be a story we know well -- a people rises up, throws off oppression, and then deliberates carefully how to write a set of rules for a new republican order fit for a free people. Therefore, we will soon hear lots of well-meaning advice on how Arab societies should write their constitutions and what those constitutions should say. 

We saw in Iraq how much U.S. understanding of the constitution drafting process was colored by the U.S. experience. Commentators rushed to speak about a "Philadelphia moment," recommended favorite clauses from the Bill of Rights, and even argued over judicial review by reference to Marbury vs. Madison or Roe vs. Wade. We should have learned our lesson: much of our advice will be bad and most will be irrelevant.

First, when outsiders give advice, they tend to ask an abstract question: what would be the best constitution for a given society? Not only do they often know little about that society, they forget that constitution writing is a supremely political process. It is not carried out by philosopher kings but pushed through by real political forces playing a gritty political game. Despite what some of us may dimly remember from junior high school U.S. History, our process was no different. Constitutional kibitzing rarely finds an enthusiastic audience. After the initial election in the various Arab countries, the constitution will be the first test of the new balance of political forces -- and it will be the first real opportunity for them to discover not simply how to compete, but how to cooperate. Even more important than the text they produce, the patterns of interaction they establish as they draft will produce lasting patterns for politics. They need to keep their eyes on each other -- and that is precisely what they will do.

Second, there are few points of entry for foreigners to press their ideas. Where states have failed or been occupied, international advice and even oversight has had a strong role. But the Tunisian and Egyptian states are very much intact and unoccupied. While NATO planes helped to advance the revolution, they will likely play little role in Libya's constitutional process. Instead it is powerful indigenous structures and actors who will guide the process. And when it comes to fundamental questions about their political futures, they tend to prefer the answers that they themselves give. Tunisians debating the country's identity -- so far the biggest hot button issue in constitutional debates -- are hardly likely to pull in foreign consultants to draft language. The Egyptian committee of one hundred people is unlikely to want to be seen as allowing outsiders to vet their work in a political context in which "foreign agendas" are the topic of daily denunciations in the press.

Third, the Arab world actually has a long set of constitutional traditions that will serve as the reservoir for drafting efforts. Tunisia received its first constitution when France was an empire and Germany was not yet a state. Egypt has a long and rich tradition of constitutional experiments dating back almost as long. Much of that heritage is deeply troubled to be sure, but most Arab societies are full of people who already speak their own constitutional language. Constitutional law professors and lawyers have already begun to play prominent political roles. And when they find something troubling in past documents, they generally react by attempting to write the precise opposite of detested practices into the constitution. Constitutional drafters in most countries act like generals fighting the last war. It is their own history that serves as a positive and negative model, not that of the United States. And while this attitude can lead to some odd results (drafters in Iraq, for instance, tried hard to make a military coup unconstitutional), the attitude is, by and large, sensible. Constitutions have made a difference in Arab politics (as Egypt found when its rulers tottered and were revealed to have booby trapped the constitutional documents to make a gentle transition virtually impossible to negotiate). But those documents, while significant, have not been democratic. The problem lay not in their general promises, which were lofty, but in their fine print. Now there is a chance to fix that -- not by borrowing still more lofty phrases from foreign documents but by carefully rewriting the details and closing the loopholes of the ones they already have.

Fourth, when Arabs turn outwards to spot analogous cases, they are more likely to look to Europe and selected other countries (such as South Africa) where they are far more likely to find some similarities both in historical experience and constitutional structures. The U.S. experience, rich as it is, is very idiosyncratic. From a constitutional perspective, the United States is a marsupial: exotic and sometimes even cuddly, but also a product of a completely different evolutionary path. The U.S. attempt to graft some familiar structures, terms, and concepts familiar into the Iraqi text often left Iraqi politicians baffled -- and largely had to be abandoned as the United States finally concluded that any constitution Iraqis agreed upon was better than one that made sense to Americans.

Fifth, even if we had good advice to give, we also have a long track record of accommodating authoritarian rule. Having made our peace with many of these Arab autocracies, at best giving a few tools to those who nibbled away at its edges, it would be an odd time to insert ourselves aggressively into the politics of building democratic orders.

So are we to be mere spectators? Largely yes, but not completely. There are things we can do to help. First, we can communicate that rule of law works internationally as well as domestically -- the newly reconfigured members of the family of nations cannot jettison their international obligations that come in the form of various human rights instruments, the United Nations Charter, and other binding bilateral agreements. If the United States can overcome its own phobia of international law, it will find these documents a promising source of values and of language that Arabs have already accepted in theory. Indeed, some of those clauses that tend to make Americans most nervous -- especially those related to Islam -- are generally vague, symbolic, and ambiguous at most in their practical legal affects. Illiberal applications of such clauses can often be hemmed in by robust, specific, and enforceable references to international human rights instruments.

Second, we can probably offer fair technical help. We cannot tell Arab states how they must structure their elections, but we can give some helpful advice about how various countries build structures to oversee the civil service or ensure that that they have the capability to assemble fair voter lists.

Third, we are often taken to have influence with particular actors and an inclination to combat others. Many Egyptians feel the United States has leverage with the military -- many throughout the region wonder how strongly we will stand against Islamists. Our influence is likely greatly exaggerated in both regards, not only in our own minds but also in those of activists in the region. But we still need to acknowledge and react to our perceived influence.

We should handle these challenges differently. The Egyptian military shows definite signs of attempting to shoehorn in a permanent constitutional role for itself and an exemption from civilian oversight. We likely cannot make them change their minds, but we can communicate publicly to Egyptians that they are doing so without our blessing.

With regard to civilian political forces, we should communicate our general support for the process without endorsing particular actors. Our leaders can communicate as clearly as possible that the process of constitutional reform is one we can win live with. We will not pick winners and losers or support elections only on the condition that one side win or another side be excluded. We are prepared to see the constitutional structures designed in the Arab world work their course. Such a gesture would probably be the most effective -- and the most appreciated -- one we could offer.

Nathan J. Brown is a professor of political science and international affairs at George Washington University and nonresident senior associate at the Carnegie Endowment for International Peace.

SALAH HABIBI/AFP/Getty Images

The Middle East Channel

Kurdish nationalism in the aftermath of the Arab Spring

In the midst of all the changes the Arab Spring has brought in Egypt, Tunisia, and Libya, among others, the intelligent lay, media, and policy worlds have remained largely deaf to the Kurdish question. This is an unfortunate situation because much has occurred concerning Kurdish nationalism, particularly in the aftermath of the Arab Spring. However, the Kurdish version of the Arab Spring did not just begin in 2011, but has been going on for decades: In Turkey (at least since the Kurdistan Workers Party (PKK) formally began its insurgency in August 1984), as well as in Iraq since the days of Mulla Mustafa Barzani beginning in the early 1960s, but especially since the end of the two U.S. wars against Saddam Hussein in 1991 and even more in 2003. These two wars led to the creation of the Kurdistan Regional Government (KRG) in northern Iraq, the most successful attempt at Kurdish statehood in modern times.

On a lesser scale Iran, too, has long been going through its own periodic Kurdish Spring, the Mahabad Republic in 1946 being the most famous example. Although the Iranian Kurds are bitterly divided into several competing parties, protests and even armed struggle by the Kurdistan Free Life Party (PJAK), ensconced in the Iraqi Kandil Mountains just across the border from Iran, continue today. And even in Syria, where the Kurdish population is much smaller and not as geographically united as it is in the other three states, some Kurds have possibly broken out of their muted and divided existence to join the anti-Assad movement in protest against the assassination on October 7, 2011 of Mashal Tammo, one of their most promising leaders. Indeed, even earlier, largely inspired by the KRG in Iraq, Syrian Kurds had begun agitating for basic rights as citizens when rioting broke out at a football match in Qamishli in March 2004.

Still, the most fundamental gains for Kurdish nationalism to date have been solidified in Turkey (despite renewed violence there since the national elections held on June 12, 2011) and Iraq, and thus require the most immediate attention in the post-Arab Spring regional context.

Turkey

In July 2009, Turkish Prime Minister Recep Tayyip Erdogan announced a much publicized and promising Kurdish Initiative, later called the Democratic Opening and then National Unity Project. It soon became evident, however, that Erdogan's AK Party (AKP) had not thought its Kurdish Initiative out very well and subsequently proved rather inept in trying to implement it. For example, although there were many proposed reforms, such as writing a new, more democratic Turkish constitution that would include provisions on decentralizing the overly centralized state, changes to laws regarding human rights violations, permitting the use of formerly Kurdish titles for districts, eliminating legal barriers for speaking Kurdish during prison visits, and establishing Kurdish language and literature departments at various universities, among many other proposals, little tangible had been accomplished.

In addition, the PKK's "peace group" gambit on October 18, 2009 to return home to Turkey 34 members from northern Iraq backfired badly when these Kurdish expatriates were met by huge welcoming receptions at the Habur Border Crossing with Turkey and later in Diyarbakir. These celebrations were broadcast throughout Turkey and proved too provocative for even moderate Turks who perceived the affair as some sort of PKK victory parade.

Then on December 11, 2009 the Constitutional Court, after mulling over the issue for more than two years, suddenly banned the pro-Kurdish Democratic Society Party (DTP) because of its close association with the PKK. Although the Peace and Democracy Party (BDP) quickly took the DTP's place, coming when it did, the state-ordered banning of the pro-Kurdish DTP could have not come at a worse time and put the kiss of death to the Kurdish Initiative. In short order more than 1,000 BDP and other Kurdish notables were placed under arrest for their supposed support of the PKK, yet another body blow to the Kurdish Initiative. Soon the entire country was ablaze from the fury that had arisen, and the Kurdish Initiative seemed closed.

Despite the problem of how now to bring the two sides together, by the fall of 2010 talks with the imprisoned PKK leader Abdullah Ocalan appeared to have begun over such important issues as a cessation of military operations, the release of KCK detainees, an initiative for a new constitution, and a review of the 10 percent electoral threshold that made it so difficult for regional pro-Kurdish parties to win seats in the Turkish parliament. Moreover, on September 13, 2011, a 47-minute recording was leaked to the press revealing on several recent occasions Turkish representatives had met with some senior PKK leaders in Oslo.

Although the AKP won practically 50 percent of the popular vote or 326 seats while the BDP and its allies won a record 36 seats in the parliamentary elections held on June 12, 2011, hopes for a renewed and more successful Kurdish Initiative quickly foundered. Shortly after the election results had been announced, the newly elected BDP MPs began to boycott parliament in protest over the jailing of five of their elected colleagues, while a sixth (the well-known Hatip Dicle) was stripped of his seat for "terrorism" offenses.

Then, on July 14, the DTK, another umbrella Kurdish NGO, proclaimed "democratic autonomy," a declaration that seemed wildly premature and over-blown to many observers and which infuriated Turkish officialdom. Amidst mutual accusations of initiating renewed violence and warlike rhetoric, the Turkish military launched several days of cross-border attacks on reputed PKK targets in northern Iraq's Kandil mountains on August 17. Ihsan Dagi, a respected progressive Turkish academic and journalist, concluded that Ocalan had lost control of a weakening and divided PKK, and that further negotiations with it were impossible.

Others argued, however, that instead, the ultimate problem was the inherent ethnic Turkish inability to accept the fact that Turkey was a multi-ethnic state in which the Kurds have similar constitutional rights as co-stakeholders with the Turks. More specifically, the Turkish government refuses to truly negotiate with the Kurds' main representative -- the PKK -- and instead insists on continuing to brand it as a terrorist movement. Until the Turkish government truly accepts the PKK as a legitimate negotiating partner -- along the lines of Sinn Fein and the IRA in northern Ireland -- it is doubtful whether a political solution to this continuing crisis can be reached. As of November 2011, therefore, hopes for a renewed Kurdish Initiative have been put on hold.

Iraq

In Iraq, of course, autonomy had already been achieved with the creation of the KRG following the Gulf War in 1991 and the KRG's constitutional recognition in 2003. However, many wonder what will happen to the KRG once remaining U.S. troops withdraw from Iraq at the end of 2011. Already the KRG and Baghdad have come perilously close to blows over Kirkuk and their disputed internal border, often referred to as "the trigger line."

Will the KRG and Baghdad begin fighting once the U.S. troops are no longer there to separate them? In addition, despite warming economic and even political relations between Turkey and the KRG, Turkey began bombing PKK militants in northern Iraq in August 2011 and then even sent troops over the border to pursue them in October. Turkey also asked the KRG for help in these efforts, even though it is clear that the KRG does not want to fight against fellow Kurds in the PKK. Iran, too, has been shelling the Kurdistan Free Life Party (PJAK) -- dissident Iranian Kurds -- entrenched just over the border in northern Iraq. How will all this play out once U.S. troops are withdrawn and both Turkey and Iran have a freer hand in intervening in northern Iraq? It remains to be seen.

Meanwhile, the Iraqi Kurds have had their own "Kurdish Spring" of sorts. First, the anti-corruption Gorran (Change) Party split the long-entrenched Patriotic Union of Kurdistan (PUK) in the KRG elections held on July 25, 2009. Subsequently, violent demonstrations broke out in Sulaymaniya on February 17, 2011, the KRG's second largest city, and continued until they were forcibly curtailed by the KRG leadership on April 19.

Most of the demonstrators were protesting against corruption, nepotism, and the lack of effective services such as jobs and electricity. Intellectuals and journalists also protested against limitations against speech and press as well as daily harassment. Among all there was a deep anger against the Barzani's Kurdistan Democratic Party (KDP) and Talabani's PUK family domination over society and government.

Unlike the objects of the Arab Spring demonstrators, however, the KRG had just been democratically elected in July 2009 and thus was not so readily able to be denounced as illegitimate. The KRG also was able to prevent demonstrations from breaking out in Irbil, its capital and largest city by closing the universities, sending the students home, and banning large gatherings. Nevertheless, the anti-KRG demonstrations that did occur constituted a serious wake up call that all was not well with the KRG.

***

While less prominent in the media and in policy-making circles than the perennial Arab-Israeli dispute, for instance, Kurdish nationalism remains a continuing and leading factor of instability in the geostrategically important Middle East. Furthermore, since the Kurds sit on a great deal of the Middle East's oil and water resources, Kurdish nationalism probably will become increasingly salient in the coming years.

Unlike the Arab-Israeli dispute, however, the Kurdish issue no longer seems intractable as it once was, as the Kurds have actually established an autonomous state in northern Iraq, the KRG. Although this entity's future remains somewhat uncertain, relative to the other states in the Middle East, the KRG situation is not really impossible. Given continuing U.S. diplomatic backing as well as wise KRG leadership, it is not naïve to believe that the KRG will be able to survive and even prosper amidst all the birth pangs of the new, democratic Iraq.

The situation for Kurdish nationalism in Turkey, of course, is more problematic. However, a quick comparison with where the Kurdish issue stood in Turkey just one or two decades ago, when the very term Kurd constituted a four-letter word in the Turkish lexicon, illustrates the enormous progress that has been made. The immediate task now is for the fighting to stop and the writing of a new, more democratic constitution to commence. Both sides are on record as favoring just such a scenario, so the burden is on them to now produce. Given the progress that has been made over the past two decades, there is reason to be cautiously optimistic. Only time will tell.

Michael M. Gunter is a professor of political science at Tennessee Technological University

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