Seven Questions: Framing Iraqs Constitution

A controversial draft constitution has renewed tension and bitterness among Iraqis, fueling concerns that Iraq is slipping closer to civil war. FP spoke to Middle East scholar Juan Cole about the constitutional process he thinks is off the rails, and why the United States should get out now.

FOREIGN POLICY: What are some positive aspects of the draft constitution that have been delivered to the Iraqi parliament?

Juan Cole: The draft constitution is apparently still being tinkered with. The one weve seen so far has virtues in that it contains provisions for freedom of speech, religion, and the press. It also prohibits discrimination on the basis of gender or race or beliefs. But those freedoms are mentioned in many constitutions around the world without actually being implemented. The text of the old Soviet constitution was a marvel of human rights.

FP: And whats wrong with this draft?

JC: It is deeply self-contradictory and makes no provision for adjudicating the legal conflicts it sets up. For instance, it says parliament cannot pass civil legislation that contravenes Islamic law. But it also provides for freedom of speech, religion, and the press. So will blasphemy be punishable? There is no indication in the text of how conflicts like that would be adjudicated.

It also creates bureaucratic and judicial nightmares. The draft I saw allows each Iraqi to choose to be under either civil or religious law for purposes of personal statusmarriage, divorce, alimony, etc. Say a Shiite man wants to be under Shiite law and his more secular Shiite wife wants to live under civil law. They want a divorce. Do the divorce proceedings go forth under Shiite or civil law? Shiite law makes no provision for alimony. Can she initiate a divorce in the first place? Shiite law would not allow her to do so.

FP: But is it too late to fix the constitution? There are reports of edits taking place as we speak.

JC: My sources in Baghdad indicate that entire articles are disappearing. The document is still in flux, both to bring Sunnis on board and placate the desires of Shiites and Kurds. But the process is now off the rails. There is no semblance of any legality. They are working outside the framework that was envisaged in the interim constitution.

The text may not be final until the constitutional referendum of October 15, though you would hope that there is some date by which the text is fixed and printed so that the public can have some idea of what they are voting on. People didnt know what they were voting for back in January.

The constitution could be rejected at the polls. The Kurds have inserted a provision that kills the constitution if three provinces vote it down with two thirds of the vote. The Kurds like the current draft, and the Kurdistan regional parliament has already passed it. The Sunnis dont like it, though it isnt clear if they are organized or numerous enough to defeat it in three provinces. They could get help from Shiite Moktada al-Sadrs movement, which doesnt like the federalist provisions in the constitution. But I think it is probably going to pass. Whether thats a good thing, I cant say.

FP: What does Irans government think of this situation in Iraq?

JC: They like the constitution. The Iranian foreign minister has come out for Iraqis to accept the document. The Iranians are especially pleased that laws cannot be passed that are contrary to Islam, and a Shiite-dominated Iran likes a Shiite-dominated Iraq. This constitution enshrines a single-chamber legislature, which will likely be controlled by Shiites for a long time. So the Iranians have urged Iraqis to support the constitution on October 15 and for Iraqis to vote in the December parliamentary elections. In this regard, Scott McClellan, the White House press secretary, and the Iranian spokesman sound like doppelgers.

FP: What, if anything, can quell the insurgency at this stage?

JC: Nothing. Secretary of Defense Rumsfeld has suggested the insurgency could go on for 10 or 12 years. Among all the things that Secretary Rumsfeld has said, this one is true.

FP: Then what should Washingtons Iraq policy be now?

JC: I think the United States should get its ground troops out. The U.S. presence in the Sunni Arab areas over the past two and a half years has made things progressively worse. The U.S. approach has been to reply with overwhelming, massive force to any challenge, like in Fallujah. Sunni Arabs who didnt particularly like Saddam and werent so upset about him being overthrown deeply resent the presence of foreign troops in their towns. The U.S. military has killed or injured a very large number of Iraqis whom have an extended familial clan. In north-central Iraq, the U.S. forces have become just another tribe, one in a feud with all the other tribes, with no significant allies.

The situation there is demonstrably worse today than a year ago. The presence of U.S. troops is pushing more and more Sunni Arabs into the insurgency. And Ill admit there could be problems accompanying withdrawal. What if the insurgents form militias and march on Baghdad? The government is still weak and might not be able to defend itself. In that scenario, the United States could treat the new Iraqi government the same way it treated the KLA in Kosovo or the Northern Alliance in Afghanistan and continue to give it logistical and air support to ensure that the militias couldnt take over the capital.

FP: Whats in store for Iraq in the next year?

JC: The insurgency will continue to grow in power. It will continue to deliver significant blows to the stability of the elected government, and it will continue to prevent foreign investment and the dispersal of U.S. aid. The trends weve seen toward the emergence of subnational and regional political identities will be reinforced. I dont see a short-term improvement.

Juan Cole is professor of modern Middle Eastern and South Asian history at the University of Michigan and author of the blog Informed Comment.