Against All Odds: The Kurds, Comparative Constitutionalism and Kobane

—Erin McGrath, University of Pittsburgh

While the world watches the conflict carry on in Kobane, just over the Turkish border with Syria, important facts are understated in the press. The Kobane battle is the latest front in the effort by the Islamic State (IS), an armed terrorist group, to reestablish the Islamic Caliphate across Iraq and Syria. Most observers are unaware that these events have much to do with comparative constitutional law; yet, democratic constitutionalism is at the crux of the conflict.

The importance of the outcome in Kobane lies not from a potential victory by a cruel terrorist group. Other states’ intervention choices are strategically complicated, but the largest repercussions frome Kobane will be those of apathy, not just a failed battle. Democracy supporters not defending Kobane today is similar to the banality of evil.[i] Rather than deference to totalitarianism, instead, we are blinded by the sensationalization of the battle, with media focus on bearded terrorists, hostage beheadings, Kurdish women fighters,[ii] jihadi brides. Inaction in Kobane, where democratic constitutionalism has risen against all odds, is simply unjustifiable.[iii] Yet constitutions are not “sexy;” municipal meetings are not “click-bait.”

The political violence in the Kurdish regions of Iraq and Syria has been occurring for much longer than this latest onslaught.[iv] Since the promise for an independent Kurdish region in the Treaty of Sevres, to its revocation in the Treaty of Lausanne, Kurds have been seeking a homeland. Their struggle has been violent. Over a century later, Kurdish political organization, epitomized in places like Kobane, represents one of only a few independence movements in the Middle East that show what democracy in the region could look like. Among the minorities across Northern Iraq and Northern Syria, just one group embraces democratic constitutionalism: the Kurds.

In the vacuum of functioning governments in Iraq and Syria, Kurds formed their own autonomous governing units. In the Iraqi federation, the autonomous Kurdish region of Northern Iraq is governed by the Kurdistan Regional Government. In the last several months, IS has declared control over some territory, including Mosul. In Syria, the Kurdish region is the Autonomous Regions of Rojava (Rojava means “west” in Kurdish). IS has been at its borders for months. In 2013, the population in Northern Syria self-organized for a new autonomous political entity in the region of Rojava.[v]

The Iraqi Federation, the KRG in Iraq, the Syrian state, and the autonomous regions of Rojava have made public their constitutional preferences, each declaring a text about their national identity, governing principles, and governance structure. I review their history, and perform text analysis to understand the underlying, interrelating, structures in the corpus.

The Syrian and Iraqi Constitutions

The Syrian Constitution is the perfect weapon in the dictator’s authoritarian toolkit. Current President Bashir al-Assad’s father, Hafez al-Assad, seized power in a military coup in 1970, and amended the Constitution in 1973 to include Article 8, giving the Syrian Ba’athist Party a leadership role over state and society. The constitution was amended to lower the required age for President so Bashir could come to power in 2000.

Once the Syrian uprising started, Bashir appointed a commission to amend the constitution, and notably removed Article 8. This change was ostensibly approved by a public referendum in 2012.[vi] However, the latest amendments changed nothing in practice. On paper it provides for a multi-party parliamentary system with direct election of the President in a race with multiple candidates. The Ba’athist party remains in control of every aspect of political and public life, including the military; political opposition is non-existent, as opponents risk death or imprisonment for offenses such as “weakening national sentiment.”[vii]

The Iraqi Constitution, promulgated in 2005, is an interim-turned-permanent constitution written in haste under occupation by the US-led coalition. This constitutional drafting process is criticized because the majority of Sunni support came only due to a last-minute concession that gave the next parliament power to revise the constitution at a later date, which never materialized.[viii]

The constitution is now a source of fundamental, irreconcilable division across Iraq’s minority groups.[ix] The Constitution created an Islamic-law based, semi-presidential system with a loose federalist structure. The Iraqi Constitution has both a “supremacy” clause – regional laws cannot contradict it, and a “savings” clause – anything not formally specified is left to the power of the regional governments.

The Draft Constitution of Iraqi Kurdistan and the Social Contract of the Cantons of Rojava

Within the autonomy conceded to it federally, the KRG of Iraqi Kurdistan held a participatory commission[x] to draft their own regional constitution in 2009.[xi] The KRG Parliament approved the draft, but it has not yet been put to a referendum because it contradicts with the Iraqi constitution by laying claim to the region’s territory, and oil and gas reserves.

The KRG’s constitution directly appeals to the ideal of self-determination.[xii] It states that the constitution and laws of the Kurdistan Region are more sovereign and supreme than federal laws; includes a choice of law provision that requires Kurdish courts to follow Kurdish law in the event of a legal conflict; and allows an opt-out of the Iraqi federation if it abandons the federal model, or the constitutional principles of democracy and human rights.[xiii]

The Social Contract of the Cantons of Rojava,[xiv] is a model for a “future decentralized system of federal governance in Syria.” Rojava’s constitution was promulgated in November 2013, creating a region-wide directly-elected assembly. Rojava is composed of the three cantons: Afrin, Jazira and Kobane; Jazira is ethnically and religiously diverse, with co-existing Kurdish, Arab, Syriac, Chechen, Armenian, Muslim, Christian and Yazidi communities. Exceptionally, the social contract draws on the de jure text of the Syrian Constitution to hold it to account as a “free, sovereign and democratic state, governed by a parliamentary system based on principles of decentralization and pluralism,” demonstrating the risk of an authoritarian constitution eventually being held to account by opposition or revolution.[xv]

The circumstances of Rojava’s creation are inspiring and progressive. Graeber writes that the “autonomous region of Rojava, as it exists today, is one of few bright spots … to emerge from the tragedy of the Syrian revolution.” [xvi] Facing the hostility of almost all of its neighbors, Rojava has “not only maintained its independence, but is a remarkable democratic experiment.”[xvii] Municipal councils are selected with gender and ethnic balance, with one Kurd, one Arab and one Assyrian or Armenian Christian, and at least one woman.[xviii]

Despite the Social Contract’s progressive nature, alleged human rights abuses have taken place under its auspices, and must be addressed.[xix] Human Rights Watch has recommend that Kurds also alter the Social Contract because it “neglects to stipulate a number of core principles, such as the prohibition on arbitrary detention, the right to prompt judicial review, and the right to a lawyer in criminal proceedings.” [xx]

Topic Modeling of the Constitutional Documents

The topic model is a quick, exploratory method to view clusters or “topics” within a corpus.[xxi] The small 40,000 word corpus generated three topics, with attributes as either “official” state or Kurdish texts.

Essentially, Kurds use terms indicating minority rights (christian, armenian, syriac) and their recognition and rights (selfdetermin, elig, everyone, entitl, demand, initi). Kurds also use local government terms (municip) where the official state constitutions use federal or national terms (referendum, presidenti, speaker, level, boundari).

In conclusion, democratic political organization in Rojava deserves greater attention. Most are unaware it has occurred, so they are also unaware that the destruction of Kobane entails not only loss of life and destruction of property but triumph of Islamic fundamentalism over self-organized constitutionalism created under uncertainty, violence, lack of resources, and tremendous ethnic and religious diversity. Rather than division or domination, Kurds in Kobane are part of a group that is promulgating pluralistic governance (not without missteps), but are bucking the regional trend of using constitutions to privilege one group over minorities, whether ideological, ethnic, or religious.

Kurdish groups’ community self-organization of democratic constitutionalism against all odds in Rojava is the only light shining in an area increasingly covered in the darkness of authoritarianism and intolerance – where, unfortunately, constitutions are being used for the latter purposes as well.

Suggested Citation: Erin McGrath,Against All Odds: The Kurds, Comparative Constitutionalism and Kobane, Int’l J. Const. L. Blog, Nov. 14, 2014, available at: http://www.iconnectblog.com/2014/11/against-all-odds-the-kurds-comparative-constitutionalism-and-kobane

[i] Arendt, Hannah. 2006. Eichmann in Jerusalem: A Report on the Banality of Evil. Penguin Classics.

[ii] Dirik, Dilar. 29 October 2014. “Western Fascination with Bad-Ass Kurdish Women” Al-Jazeera English.

[iii] A notable exception: Graeber, David. 8 October 2014. “Why is the world ignoring the revolutionary Kurds in Syria?” The Guardian.

[iv] Sharifi, Amir. 12 Nov 2013. “The Kurds of Rojava (Syria) and the Political Paradox of Western Democracies,” Kurdish Media.

[v] Solomon, Erika. “Special Report: Amid Syria’s violence, Kurds carve out autonomy,” Reuters.

[vi] Fares, Qais. 8 May 2014. “The Syrian Constitution: Assad’s Magic Wand,” Carnegie Endowment for International Peace: Syria in Crisis.

[vii] Human Rights Watch. 27 January 2011. “Syria: Jailed for Weakening National Sentiment: Arbitrary Detention, Torture, Discrimination Highlight Government’s Record in 2010,” Human Rights Watch.

[viii] Beehner, Lionel. 12 October 2005. “Why Sunnis Don’t Support Iraq’s Constitution,” Council on Foreign Relations.

[ix] Arato, Andrew. 2009. Constitution Making Under Occupation: The Politics of Imposed Revolution In Iraq. New York: Columbia University Press. P. 251.

[x] Editors. 16 August 2012. “Campaign for a Democratic Constitution for Kurdistan: Have Your Say,” Kurdistan Tribune.

[xi] Kelly, Michael J. “The Kurdish Regional Constitution Within the Framework of the Iraqi Federal Constitution: A Struggle for Sovereignty, Oil, Ethnic Identity, and the Prospects for a Reverse Supremacy Clause,” Penn State Law Review Vol. 144:3: 707-808.

[xii] Ibid, p. 735.

[xiii] Ibid.

[xiv] Civiroglu, Mutlu. “The Constitution of the Rojava Cantons,” Personal website.

[xv] Tom Ginsburg and Alberto Simpser, Constitutions in Authoritarian Regimes. Cambridge University Press, 2013.

[xvi] Graeber, David. 8 October 2014. “Why Is the World Ignoring the Revolutionary Kurds in Syria?” The Guardian.

[xvii] Ibid.

[xviii] Ibid.

[xix] Human Rights Watch, 19 June 2014. “Under Kurdish Rule,” Human Rights Watch Reports.

[xx] Human Rights Watch, 19 June 2014. “Under Kurdish Rule,” Human Rights Watch Reports.

[xxi] Roberts, Molly, and B. Stewart, D. Tingley, and E. Airoldi. 2013. “The Structural Topic Model and Applied Social Science.” Advances in Neural Information Processing Systems Workshop on Topic Models: Computation, Application, and Evaluation.