The February 2022 Federal Supreme Court (FSC) ruling that declared the Kurdistan Regional Government’s (KRG) Oil and Gas Law unconstitutional and authorized the Iraqi Oil Ministry to take control of all hydrocarbons facilities and production in the Region (KRI) puts the Kurds in a precarious position.

1. 1.

   See, Levy (2007) for more on this point.

2. 2.

   Around the time of the US invasion, several scholars argued in favor of a federal system for post-war Iraq, but specifically against the inclusion in this of a single, ethnic Kurdish unit (Wimmer,2003; Dawisha and Dawisha,2003; Makiya,2003). Their common reasoning was that federalism could, in Wimmer’s (2003: 16) words “reduce the risk of a return to autocracy (by) reducing the prize for winning power at the center.”

3. 3.

   Having said this, two recent FSC decisions offer a serious challenge to the assumed ability of the KRG to control its own electoral process. A May 2023 FSC ruling declared unconstitutional the Kurdish Parliament’s vote to extend its term of office by a year due to lack of agreement on an electoral law; a second FSC decision of February 2024 eliminated the Kurdish parliament’s 10 minority quota seats and declared that there be “no fewer than four” electoral districts created for the forthcoming election. Bafflingly, the FSC appeared to believe it has the power to determine the identity of these four districts (they are the three recognized Kurdish governorates plus Halabja) and even the allocation of seats among them. It is difficult to see how any of this is remotely compatible with federalism.

4. 4.

   All quotes are taken from the version of Iraq’s Constitution available at:https://www.constituteproject.org/constitution/Iraq_2005.

5. 5.

   Compare with Article 122(2).

6. 6.

   See “Law of Governorates Not Incorporated into a Region: An Annotated Text,” USAID, Iraq Local Governance Program, July 2008, available at:https://pdf.usaid.gov/pdf_docs/PNADN071.pdf.

7. 7.

   The strongest opposition came from Vice-President, SCIRI’s Abdul al-Mahdi. At that time, al-Mahdi was a member of the presidency council which could only make decisions via a unanimous vote. This gave each of the three members veto power over legislation, which al-Mahdi initially exercised in the case of Law #21. Al-Mahdi subsequently backed down under pressure from US Vice President Dick Cheney (Hamoudi,2013: 169).

8. 8.

   Law #21 was amended in 2011, 2013, and 2018, with the goal of kickstarting the decentralization process, but made no progress under al-Maliki. Despite a sincere effort from PM Al-Abadi to accelerate decentralization, the process had ground to a complete halt within a couple of years. For a detailed analysis, see Fleet (2019).

9. 9.

   Not coincidentally, Dhi Qar had been at the epicenter of the protest movement for the preceding year.

10. 10.

    On this, see Fleet (2019).

11. 11.

    These are two of the criteria specified in Article 7(8/1) of Law #21.

12. 12.

    Presumably, the federal government has claimed the power to control all aspects of governorate elections—timing, electoral system used, etc.—via Article 122(4), which states that “A law shall regulate the election of the Governorate Council.” While the law referred to here can reasonably be interpreted as a federal law, and it seems logical that governorate councils cannot legislate their own elections until they have actually come into existence, it is a stretch to argue that this Article gives the federal government the power to regulate all aspects of governorate elections indefinitely, including whether or not they even take place.

13. 13.

    “Instead of Uniting, Kurds are Busy Fighting Each Other,”Haaretz, December 5, 2016.https://www.haaretz.com/middle-east-news/iraq/.premium-instead-of-uniting-kurds-are-busy-fighting-each-other-1.5469490.

14. 14.

    For details on the nature, extent, and consequences of Western military support to the Kurds, see ICG, “Arming Iraq’s Kurds: Fighting IS, Inviting Conflict,”Middle East Report No. 158, May 12, 2015.

15. 15.

    See, “Kurdish Trenches Against IS Draw Iraqi Ire,”VOA News, January 6, 2016.https://www.voanews.com/a/kurdish-trenches-draw-iraqi-ire/3134065.html.

16. 16.

    “Entire Coalition Can’t Support ‘Ill-Advised Referendum,’”Rudaw, September 14, 2017.http://www.rudaw.net/english/kurdistan/140920176.

17. 17.

    Galbraith, Peter, “Why the Kurds are Paying for Trump’s Gift to Iran,”The New York Review of Books, November 2, 2017http://www.nybooks.com/daily/2017/11/02/kurds-pay-for-trumps-gift-to-iran/.

18. 18.

    “US Military Rushes to Defuse Looming Crisis in Kirkuk After Iraqi Army Advances,”The Guardian, October 16, 2017.https://www.theguardian.com/world/2017/oct/16/iraq-kurdish-forces-army-us-military.

19. 19.

    The FSC’s decision (available at:https://www.iraqfsc.iq/ens.2022/) is confusing to say the least.

20. 20.

    The legal basis for the Court is Order 30, an executive order issued by then Prime Minister Iyad Allawi.

21. 21.

    Vijaya Samaraweera, “Identifying the Federal Supreme Court of Iraq,”USAID, Legal Policy Briefing Paper 15, 1 November 2007.

22. 22.

    Ismael’s (2016: 212) detailed analysis of the decisions taken by Iraq’s Supreme Court concludes, “The Court opted to uphold laws and policies which might be considered to do a disservice to federalism since they are often supportive of the centralisation of powers in federal authorities which is arguably inconsistent with what the Constitution establishes.” In 2018, the Court also ruled that only the Council of Ministers has the power to appoint senior officials (at or above the level of Director General) in governorates (Fleet2019: 11). The constitutional basis for the ruling remains opaque. For a more optimistic take on the performance of the Court, see Hamoudi (2010).

23. 23.

    In 2019, for example, the Court actually ruled in favor of the Kurds on the issue of Article 140. However, the Court’s ruling, that Article 140 needed to implement, has, not surprisingly, been subsequently ignored.

24. 24.

    Even without an FSC decision like this, the status of the Peshmerga as defenders of the KRI against a resurgent Baghdad is severely compromised if the Kurds depend on Baghdad to fund the Peshmerga. At present, the US provides approximately $250 million/year for the Peshmerga, but this funding will not continue indefinitely.

25. 25.

    See, “KRG President Barzani’s Visit to Washington;” confidential cable from Ambassador Christopher Hill, January 10, 2010https://wikileaks.org/plusd/cables/10BAGHDAD145a.html.

26. 26.

    According to Anderson (2014: 174), of the various (ethnic) federacies in place since 1945, only two (Sudan with South Sudan, and Crimea with Ukraine) have failed, equating to a success rate of 96 percent.

27. 27.

    A third term for al-Maliki was strongly opposed by the US, Iran, and Ayatollah Sistani.

28. 28.

    https://historiae.org/aqalim.asp.

29. 29.

    https://www.aljazeera.com/features/2011/12/22/the-breakup-more-iraqis-bid-for-autonomy.

30. 30.

    https://www.aljazeera.com/economy/2021/1/27/iraq-anbars-post-isil-reconstruction-spawns-autonomy-debate.

31. 31.

    Basra agitated for separation from the rest of Iraq for most of the 1920s. Importantly, the movement was non-sectarian in intent and was backed by elites of all ethnicities and sects. It ultimately failed largely due to the lack of support at the mass level. For a detailed treatment of Basra’s separatist quest, see Visser (2005,2007).

32. 32.

    Quoted in Isakhan and Mulherin (2018: 273).

33. 33.

    https://shafaq.com/en/Report/With-calls-for-decentralization-resurfacing-what-would-Basra-gain-if-it-became-A-region.

34. 34.

    Unlike the production sharing agreements signed with foreign oil companies by the KRG, under which a portion of the oil or gas extracted becomes the property of the company, workers in Basra’s oil industry have always campaigned to keep Iraq’s oil in Iraqi hands. To this end, workers formed the first post-Saddam union in Iraq, the Southern Oil Company Union, which went on to become the major component of the powerful Iraqi Federation of Oil Workers’ Unions. In other words, Basra has always adopted a staunchly nationalistic line with regard to control over Iraq’s oil sector. For details, see, Isakhan (2014).

35. 35.

    For a detailed treatment of the preferences of Kirkuk’s major political parties, see Anderson and Stansfield (2009: 193–203).

Authors and Affiliations

1. Wright State University, Dayton, OH, USA

   Liam Anderson

Corresponding author

Correspondence toLiam Anderson.

Editors and Affiliations

1. Lincoln, UK

   Marianna Charountaki

2. Leicester, UK

   James R. Moore

3. Dayton, OH, USA

   Liam Anderson

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