By Geoff Moore
On March 16th, the Kurdish flag went up in government buildings around Kirkuk, the disputed city that lies between the Kurdish and Arab parts of Iraq. This decision, taken by Governor Najmadeen Karim, was followed by a March 28th vote in the Kirkuk Provincial Council (KPC) to extend the order throughout the Kirkuk Governorate (province). The decision to fly the Kurdish Region’s flag alongside the Iraqi flag in and outside government offices has inflamed tensions in a disputed region at a vital moment in Iraq’s history. To understand how a flag can cause so much trouble, it is important to contextualize the historical and constitutional aspects of the Kirkuk dispute, in addition to the power of symbolism and identity in Iraq and Kurdistan.
James Glanz wrote in 2005 that “the conflicting views on Kirkuk are rooted in conflicting readings of the same history.” There is probably not a more succinct explanation of the Kirkuk dispute. These divergent readings are the result of opposing perspectives on ownership of Kirkuk based on historical presence, demographic strength, nationalism, and a near-universal sense of disenfranchisement. Throw in oil reserves and you have a dangerous cocktail.
Claims to the Kirkuk area go back as far as the Assyrian Empire, but the contemporary dispute originated with the Ottoman Empire’s loss of territory in the early 1900s. An Ottoman army division was stationed in Kirkuk, and Iraq’s Turkmen population traces its roots to the Ottoman period and their own influence during the British Mandate. By the 1950s, Kurds had begun to move in from surrounding areas, seen by Turkmen as “rural migrants who settled in Kirkuk to better their status.” Oil was discovered around this time, and the Iraqi Petroleum Company helped turn Kirkuk into a crucial center for Iraq’s oil-dependent economy. Sunni and Shi’a Arabs have differing perspectives on Kirkuk, due in part to Saddam Hussein’s forced relocation of Shi’a to the area under his Arabization policies. However, they tend to agree on the “Iraqi” nature of Kirkuk, rather than an ethnic or sectarian logic.
The last reliable census in Kirkuk, taken in 1957, showed that due to growth in the Kurdish and Arab populations, Turkmen retained only a plurality of the population. Increased competition for jobs and land led to breakouts of violence between Turkmen and Kurds in 1958 and 1959. The census, though not directly responsible for the violence, exposed the waning political influence of the relatively more afluent Turkmen. Fear of similar clashes has factored significantly into the reluctance to conduct another census.
During the American-led occupation of Iraq, the US helped set up a new constitution. The first version of this was the Transitional Administrative Law (TAL) of March 2004. Not all issues had been resolved by this time, so that document acted as a kind of road map to a new constitution. One major problem was the disputed territories that lie between Arab Iraq and the autonomous Kurdistan Region. The TAL stipulated that a “permanent resolution of disputed territories, including Kirkuk, shall be deferred until after” several issues were resolved. These included the reversal of Saddam’s forced relocations (Arabization, or “normalization”), the conducting of a census, and the ratification of the new constitution. This requirement of TAL, within Article 58, was later directly referenced in Article 140 of the 2005 constitution. Article 140 states that
the responsibility placed upon the executive branch [via TAL Article 58] shall extend and continue to the executive authority elected in accordance with this Constitution, provided that it accomplishes completely (normalization and census and concludes with a referendum in Kirkuk and other disputed territories to determine the will of their citizens), by a date not to exceed the 31st of December 2007.
It is essential to lay out Articles 58 and 140 in this way for two reasons. First, there is a strong legal argument that the government’s failure to accomplish “completely” the steps set out in TAL Article 58 by December 31st, 2007 eliminated the “responsibility” of the executive branch. This failure is the crux of the Kurdish argument that Article 140 is no longer relevant. Naturally, that comes into conflict with Baghdad’s desire to maintain the integrity of the constitution and its “responsibility” for Kirkuk, which one could interpret as “sovereignty.”
Second, although Article 140 specifies a hard deadline, the article was also explicitly based upon Article 58’s premise that the Kirkuk issue “shall be deferred” until all of Article 58’s stipulations are met. Although the steps outlined in Article 58 are defined vaguely, the order of operations is clear: there can be no legal resolution to the disputed territories until the aforementioned requirements are met. The failure of the constitution to outline what should happen if the December 2007 deadline were missed created a catch-22 which Arabs and Kurds have tried to exploit for political purposes.
Symbolism and Identity
Flags have always been politicized symbols, and it should therefore be no surprise that raising a flag in a disputed area could be perceived as a land grab. In Kirkuk, a city defined by an ownership crisis, it is a risky move. The timing of this move, and the reaction to it, deserve special attention.
Every year on March 16th, Iraqi Kurds honor the victims of Saddam’s chemical weapon attack on the Kurdish city of Halabja. This year, on the 29th anniversary of that genocidal act, the Governor of Kirkuk took upon himself the decision to raise the Kurdish flag in his city. It also happened to be just before Newroz, the Kurdish New Year. Kurds don’t need to be told why he chose that date to defy the federal government.
Three days after the Kurdish flag went up in Kirkuk, Iraqi Prime Minister Haider al-Abadi travelled to Washington DC. While he was away, the United Nations Assistance Mission for Iraq (UNAMI) released a statement saying “under the Constitution Kirkuk falls under the jurisdiction of the central government and that no flag should be raised in the Governorate other than the Iraqi flag.” Prior to the KPC vote, Iraqi Turkmen Front leader Arshad Salihi passively suggested that “we cannot control angry youth when they take to the streets.” The day after the Council’s vote, Turkmen protestors indeed took to the streets, with some declaring that the Turkmen flag should also be raised.
Turkey, which sees itself as an external guarantor of Turkmen rights in Kirkuk, released a statement on March 28th expressing the Turkish Government’s “concern” at the “incorrect” decision to fly the Kurdish flag. Notably, the statement claims the KPC decision “contradicts the Iraqi Constitution.” This is false. The only reference to a flag in the Iraqi Constitution declares that the Iraqi flag “shall be regulated by law.” The UNAMI statement more accurately describes Kirkuk as “under the jurisdiction” of Baghdad. The Iranian Foreign Ministry waded in on April 3rd, saying that the KPC decision “runs counter to [Iraq’s] constitution and creates tension.” It is unclear why both Turkey and Iran share this false interpretation of Iraq’s constitution, yet their mutual opposition to Kurdish influence in Kirkuk is well known.
Iran and Turkey both oppose independence for the Kurdistan Region of Iraq, but Turkey has walked a tightrope. Turkey simultaneously bombs Kurdish cities under the guise of fighting the PKK, while jailing legitimate Kurdish political opponents. Nevertheless, President Erdogan has been willing to work with the Iraqi Kurds, including by making oil deals that undermine Baghdad. The regional consequences of this have played out in Rojava (Syrian Kurdistan), where Turkeys opposition to Syrian Kurds affiliated with the PKK has challenged the unity of the anti-ISIS coalition. Turkey-KRG relations grew more ominous when, on April 4th, Erdogan threatened that “a heavy price will be paid” if Kurds fail to remove their flags.
The United States also finds itself in a tricky position when it comes to the Kurds. Although the US recognizes the PKK as a terrorist organization, it also supports Syrian Kurds. In Iraq, the US has openly supported the autonomous Kurdish Region within a united Iraq since the Gulf War when it began protecting the region from Saddam with a no-fly zone. The US position on the unity of Iraq has been so consistent that the Obama Administration hesitated to directly arm the Kurdish Peshmerga after the fall of Mosul, preferring instead to route weaponry through the capitol city, Baghdad.
Independence or Autonomy?
Back in Kirkuk, flying the Kurdish flag could be reasonably perceived as a premature step towards the attachment of Kirkuk to a future independent Kurdistan. In normal times, it would also be reasonable to assume that the US Department of State would issue a disapproving statement were such a move made to unilaterally raise the Kurdish flag. There is no statement. Not one press release. The pitifully unqualified Jared Kushner, who inexplicably visisted Iraq this week, has not made a peep on behalf of his father-in-law.
When reached for comment on the subject, a State Department officer explained that “Iraqis should be focused on defeating ISIS and building a free and democratic, unified and prosperous Iraq.” When asked if the US agrees with Iran and Turkey that raising the flag violates the Iraqi Constitution, the official said to “contact the government of Iraq for comments on its Constitution.”
Although this sounds like support for a united Iraq, the complete lack of acknowledgement that the Kurds are openly disregarding long-standing US policy in Iraq should drop jaws. For an administration and president so willing to tout their skills of negotiation, this should have been an easy mistake to avoid. Instead, red warning lights are flashing the message that America is no longer interested in maintaining its strategic interests or foreign policy positions.
Iraqi Kurds have been talking about potential independence of the Kurdistan region for years. When the Islamic State took the city of Mosul in 2014, the Iraqi Army fled to the south. This allowed the Kurdish Peshmerga to move in to Kirkuk and assert control on the ground. The KRG President, Masoud Barzani, has called for independence several times since the summer of 2014. However, the ambition to secure Kirkuk prior to an independence referendum goes back to before the Islamic State was around. A 2006 report by International Crisis Group argued that the Kurdish strategy has been “to effect changes on the ground in Kirkuk without appearing to violate the letter or spirit of either the TAL or constitution.” The report notes that “Kurds have made serious headway, both de jure and de facto, in their ambition to absorb Kirkuk into their federal region.”
It is significant that, eleven years after the ICG report, the KRG remains in de facto and de jure control of Kirkuk. It seems appropriate that the Iraqi Parliament voted on April Fools Day to reverse the KPC decision. The vote itself is not likely to be binding, and by April 4th, the Prime Minister was reduced to pleading with the Governor to reverse the decision. The same day, the KPC both rejected the Parliamentary vote and voted in favor of conducting “a referendum on the province’s secession from Iraq and joining the autonomous Kurdistan Region.” While this would not be a true secession, the absorption of Kirkuk into the KRG is widely seen as an essential step towards Kurdish independence due to Kirkuk’s oil reserves.
The prediction business has not been kind to prognosticators of Kurdish independence the past few years. For Kurds, the past decade has almost certainly felt like living in their own ‘boy who cried wolf’ story. However, on April 2nd, the two largest Kurdish parties, the KDP and PUK, “announced they would form a joint committee to prepare for a referendum on independence,” according to the KDP-funded Rudaw news outlet. Smaller Kurdish parties want an independence vote to “be approached through parliament,” although the KRG Parliament has not met for more than 18 months. It is not clear if all of the parties will be able to coalesce, but any move towards a referendum is a sign that Article 140 is truly dead and buried.
There is a colloquialism in Kurdistan that ominously describes the “four wolves” surrounding the region, namely Iran, Turkey, Syria, and Iraq. While this speaks to the Kurdish feeling of isolation and disenfranchisement in the region, it also represents the distinctness of Kurdish identity and fortitude. Whether or not the KRG follows through with an independence referendum in 2017, Kurds have played their hand extremely well. It is probably too soon to tell whether or not the decision to raise the Kurdish flag in Kirkuk will precipitate events leading to Kurdish independence, but it seems clear the Trump Administration will do nothing to condemn unilateral actions. And despite intra-Kurdish disputes, it is exceedingly difficult to argue that they don’t mean business.
 Glanz, James. “Letter from the Middle East: A City with 3 Chips on its Shoulder.” The New York Times, 10 Aug. 2005.
 Bet-Shlimon, Arbella. “Group Identities, Oil, and the Local Political Domain in Kirkuk: A Historical Perspective.” Journal of Urban History 38(5), SAGE Publications, (Sept 2012). Pg. 916. ; Güçlü, Yücel. “Who Owns Kirkuk? The Turkoman Case.” The Middle East Quarterly, 1074 Winter (2007). Pg. 79-86.
 Letayf, Patricia. “An Ethnic Tug-of-War? The Struggle Over the Status of Kirkuk.” NIMEP Insights, (2011). Pg. 70.
 Bet-Shilmon, Arbella. “The Politics and Ideology of Urban Development in Iraq’s Oil City: Kirkuk, 1946-58.” Comparative Studies of South Asia, Africa and the Middle East, Vol. 33, No. 1, (2013). Duke University Press. Pg. 28.
 Anderson, Liam and Gareth Stansfield. Crisis in Kirkuk: The Ethnopolitics of Conflict and Compromise. University of Pennsylvania Press, Philadelphia, 2009. Pg. 79.
 Bet-Shlimon, Arbella, “Group Identities,” 2012, pg. 921. ; Bet-Shlimon, Arbella, “Group Identities,” 2012, pg. 921.
 Güçlü, Yücel. “Who Owns Kirkuk? The Turkoman Case.” The Middle East Quarterly, 1074 Winter (2007). Pg. 79-86.
 “Law of Administration for the State of Iraq for the Transitional Period.” Coalition Provisional Authority, 8 March 2004. Article 58(C).
 Iraqi Constitution (2005). Retrieved from: http://www.iraqinationality.gov.iq/attach/iraqi_constitution.pdf.
 Iraqi Constitution (2005).
 Email interview with State Department officer, 5 April 2017.
 “Iraq and the Kurds: The Brewing Battle Over Kirkuk.” International Crisis Group, Middle East Report No. 56, Amman/Brussels (2006). Pg. 16.
 O’Leary, Brendan (2009). How to Get Out of Iraq with Integrity.
Image from British Library: https://www.flickr.com/photos/marcroehlig/16210124549/in/photolist-qGr8h2-GRCpK9-B3YofR-vZGA51-92a4pK-8SEcKb-5Ueqr6-9fcyAj-93TrhU-9ABdHV-7EdtwX-9GE4vc-96MCh8-7KuaMk-e9Cx8M-7LcfEZ-7Kyhns-9Fjcoo-7KuaMp-92D6xj-gt7o27-7VhStT-8VaFdj-gvWMEi-7EdtwP-9LWRa5-9NCBgc-pWFvtB-7Kyhno-9UY4j1-gumeAL-pWFsWH-qTiFnX-qB2Ysx-gF2L2B-9EyJF4-7DR6Kh-HydqN-9FGtDm-iT73Ut-7EpaUU-ah1K3x-qtrvBH-pTte8S-akNdMW-brKNaS-5C1gUA-9QhXbU-pA4bTJ-4FRPb2