A few issues dominated the debates that took place prior to the independence referendum which was planned to be carried out within the Northern Iraq Kurdish Regional Government on July 25, 2017. The most striking one focused on “disputed territories”, including Kirkuk mainly, as defined in Article 140 of the Constitution that was issued in 2005, and the legal administrative status of such territories in the case of declaration of independence after the referendum.
This article will cover the actual control imposed by the Kurdistan Regional Government (KRG) on the lands it has expanded as part of the US occupation and fight against ISIS, based on the de facto autonomy it has gained since the Saddam period and the related demographic competition over Kirkuk.
Legal Recognition and Rights of the Kurdistan Regional Government
The Saddam regime invaded Kuwait in August 1990, and the invasion was ended by the resolution of the UN Security Council on November 29, 1990.
Thinking that the power of the regime was decreased after the invasion, Shiites in the south and the Kurdish in the north rebelled with the hope that they would be supported by the USA. However, the USA refused to support the rebel groups, concerned about the lack of any remaining power in the region to balance the power of Iran, and thinking that the formation of a Kurdish state in Northern Iraq would pose a threat to its allies, Turkey and Saudi Arabia.
Fleeing from counter-attacks of Saddam in April 1991, more than 2 million Kurds had to migrate to the Turkish and Iranian borders. Turkey could only allow 250,000 of these refugees through its border, and appealed to the aid of the UN for those remaining.
In order to resolve the immigration problem at the Turkish and Iranian borders, the UN Security Council decided to establish a safe haven within the regions dominated mostly by Kurdish peoples. Pursuant to Resolution 688 issued on April 5, 1991, it was decided to ensure the protection of the people living in the safe haven from the attacks of the Iraqi government, allow the accession of humanitarian aid to the zone, and enable the immigrants to return to their homes.
A no-fly zone was identified under Resolution 688 forbidding the movement of Iraqi forces above the 36th parallel. With this resolution, the UN took action to recognize and protect the Kurdish people for the first time since the resolution taken by the League of Nations in 1925 concerning the Mosul question.
The no-fly zone, in a way, enabled the de facto establishment of the Northern Iraq Kurdish Regional Government as confirmed by the developments that occurred in the following years.
From “No-Fly Zone” to Kurdish Regional Government
In December 1991, the Iraqi Kurdistan Front led by the KDP (Kurdistan Democratic Party), one of the prominent political parties of the Iraqi Kurdistan region, and PUK (Patriot Union of Kurdistan), decided that a parliamentary election be held in the Kurdish region. As a result of the election, two major parties gained the right to representation, winning 50 seats each in the 105-seat parliament.
Following the establishment of the Cabinet on July 7, 1992, the parliament declared Kurdistan as a federal government within Iraq on October 4, 1992. This federal government continued to remain in force by resisting the economic and political repression imposed by Saddam for about ten years until the invasion of Iraq by the USA in 2003.
Article 140 and Disputed Territories
One of the most debated issues prior to the independence referendum planned to be held by Kurdistan Regional Government on September 25, 2017, was Article 140 of the permanent Iraqi constitution issued in 2005, and the problem concerning the failure/inability to implement such article.
The highly controversial Article 140 is based on Article 53 and 58 of the Iraq Interim Constitution that became effective on March 8, 2004.
Article 53, Clause A recognized and defined the Iraqi Kurdistan Regional Government as “the official government of the territories that were administered by the then government on March 19, 2003, in the governorates of Dohuk, Erbil, Sulaymaniyah, Kirkuk, Diyala and Nineveh.”
Clause C of the same article indicates that the boundaries of the 18 governorates shall remain without change during the transitional period, whereas Clause D stipulates that any group of no more than three governorates outside the KRG, with the exception of Baghdad and Kirkuk, shall have the right to form regions among themselves.
Another significant issue to be regulated in Article 140 of the permanent Constitution concerned the administrative and social structure of Kirkuk. This matter was addressed in Article 58 of the Interim Institution, and it was decided to take measures to remedy the injustice caused by the previous regime’s practices in altering the demographic character of certain regions, including Kirkuk. Pursuant to this article, it was decided to establish the Iraqi Property Claims Commission to guide residents who had been forcefully displaced in restoring their previous rights. The permanent resolution of disputed territories, including Kirkuk, was deferred until the conduction of a census and the permanent ratification of a constitution after the restoration of rights.
The currently effective Permanent Constitution of Iraq was ratified as a result of a referendum held on December 15, 2005. The issue of Kirkuk and disputed territories whose permanent resolution required the declaration of a new constitution as per Article 58 of the Interim Constitution, was addressed in Article 140 of the Permanent Constitution.
Article 140 set forth three steps for the resolution of this issue. One was normalization, the other was a census, and the last step was holding a referendum for the citizens living in the disputed territories to determine their own rights themselves.
Normalization required the relocation of the Kurdish, Turkmen, and other ethnic communities to their original provinces after having been forcibly expelled from the disputed territories including Kirkuk as part of the “Arabization” policies applied during the Saddam regime. Within this scope, it was decided to pay compensation to the people expelled by the Saddam regime, provide jobs for those that are unemployed, and most importantly, allow those that had to alter their ethnic identities under the old regime to decide on their ethnic group of their own free will.
The completion of the normalization process would be followed by a census in the disputed territories and a referendum to determine if the community wanted to be a part of the Kurdistan Regional Government or the central government.
The point that made Article 140 differ from the provisions in the Interim Constitution was the existence of a deadline, namely, December 31, 2007, for the completion of the normalization, census and referendum process.
Kirkuk: A Fine Line Between Union and Secession
Another focus of today’s debate is which territories of Iraq are de facto and de jure controlled by the Kurdistan Government.
The KRG’s legally defined borders include the governorates of Dohuk, Erbil, and Sulaymaniyah. However, the KRG has de facto control of several areas that are within the governorates of Nineveh, Saladin, Kirkuk and Diyala.
Mostly controlled by the Regional Government, Kirkuk took precedence over the other territories in debates and became a subject of negotiation between parties. In January 2005, general elections were held in Iraq, and the Shiite block gained supremacy with a two-thirds majority in the government in April. During the formation of the government, the Shiite block promised to start the negotiations to implement Article 140, including the return of those Kurds expelled by Saddam back to Kirkuk, in order to prevent withdrawal of the Kurdish from the coalition.
In August 2006, the Prime Minister of the time, Nuri al-Maliki, set up a commission for the implementation of Article 140. However, this commission could not/did not implement the article, which would later result in a referendum, due both to political reasons and uncertainties and gaps in Article 140. Yet, neither were the “disputed territories” defined in the said article nor were the possible results of a referendum to be held in Kirkuk considered. This is because in the referendum there were no other options apart from remaining a part of the KRG or the Government of Baghdad. Besides, it was not clear if the referendum was to be held all across the Governorate of Kirkuk or region-by-region.
The issue regarding the resolution of the Kirkuk problem and the implementation of Article 140 not only remained unresolved from the formation of government in 2005 to the end of 2007 but was also used as a means of negotiation in the Iraqi elections and coalition negotiations several times.
As a result of the parliamentary crisis that emerged just before the national election of Iraq in 2010, the “Erbil Agreement” was signed between the KRG and Baghdad Government. According to this agreement, the Kurdish authorities would support Prime Minister Nuri al-Maliki in forming the cabinet, and Maliki would enable the implementation of Article 140 in return.
The Baghdad government had always balked at the implementation of the process and was going to continue its resistance. This is because the Baghdad Government considers Kirkuk as the foundation of a national union; an important bond that prevents the country from being divided into three, as the north, the south, and the center, and holds the country together. Therefore Maliki’s government either did not or preferred not to move forward in this process under the effect of both internal political balance and international powers.
Prime Minister Haider al-Abadi, who came to power against the invasion of ISIS that broke out in 2014 and spread increasingly, was unable to demonstrate an effective political will. The Government of Baghdad’s weakness in the fight against ISIS resulted in an expansion of the territory ruled by the KRG which had a relatively stable status. After all, the KRG aims to legitimize its presence in the regions where it took de facto control during the post-ISIS period, and naturally Kirkuk, by means of the referendum planned to be carried out on September 25.
The Governorate and City of Kirkuk have witnessed an intense demographic competition for a long time due to its population consisting of Turkmens, Kurds and Arabs. Among these three ethnic communities, the Kurdish and Turkmens have demographic claims in particular to take or maintain control of Kirkuk.
Specialists confirm that the most reliable census in Iraq was conducted in 1957. According to that census, the distribution of the population in the Governorate and City of Kirkuk was as follows:
Source: O’Leary (2004), Ahmed (2005) for data
The Turkmens have constituted a major component in Kirkuk and its units in political, social and cultural terms within the context of their late and recent history.
As told by Kemal Mezher Ehmad to Iraqi Turkmen historian, Shakir Sabir al-Dabit, the Turkmens have been assigned to strategical military regions and positions in various parts of Iraq by the governors ruling the region ever since 674 AD. Kirkuk, Tal Afar, Mosul, Tikrit, Samarra, Mandali and Erbil are among these regions.
The presence of the Turkmen in Kirkuk strengthened especially after the Peace of Amasya signed in 1555 during the Ottoman period. The Ottomans considered Kirkuk as a fortress against the East/Iran, and attached great importance to reinforcing their dominance in this region.
Over time, a “Turkmen aristocracy” was built in Kirkuk with great political, economic and cultural influence. After the Committee of Union and Progress seized power in 1908, the presence of the Turkmen in the city was quite strong and offices of the Committee of Union and Progress were opened in Kirkuk.
Source: Nahid (1915)
In the second part of the article series called “Iraqi Turks” published by Hashim Nahid, a member of the Ottoman intelligentsia, in the magazine Türk Yurdu in 1915, the regions where the Turkmen lived in Iraq were shown on a map drawn by Hasan Bey, an engineer. As seen on the maps, Tal Afar, Mosul, Erbil, Kirkuk, Tuz Khormato and Mandali were recorded as the regions of Turkmen presence in Iraq.
The Turkmen population of Kirkuk was also exposed to the “Arabization” policies of Saddam, and forced to emigrate to various parts of Iraq. However, as mentioned above, they maintained their dominance in terms of population in the city according to the census carried out in 1957. Nevertheless, it is hard to talk about a certain presence of Turkmens in the changing demographic aspect of city as no reliable census was conducted after 1957 either during the Saddam regime or after the US invasion of 2003.
Those claiming that Kirkuk is a Kurdish city generally base such claims on the Kirkuk article in Kâmus’ul Alâm, a geography encyclopedia written by Sami Frashëri during the days of the Ottoman Empire.
Sami Frashëri describes Kirkuk as follows in the relevant article: “It is an important city of Zor Sanjak with a population of 30,000. It consists of a castle on a hill, neighborhoods below the castle and to the right side of the river, and three-quarters of the community are Kurdish and the remaining are Turkish, Arabs, etc. There are also 760 Jews and 460 Chaldeans.”
After the overthrow of Saddam in 2003, the KRG aimed to reverse the changed demography of the city’s population following the “Arabization” policies of the former regime, and thus added articles both to the interim and permanent constitutions, as mentioned above, to base this transformation on legitimate grounds.
However, there are is one factor worth noting when it comes to the reverse of the demographic balance as included in the Constitution under Article 140 by the Regional Government. The return of the Kurdish population that left Kirkuk during the former regime occurs coincides with the calling of general and local elections in Iraq.
That is to say, while only 5,805 Kurds returned to Sulaymaniyah, Erbil and Dohuk between the start of the US invasion and 2004, this figure jumped to 114,649 before the general elections held in 2005. The number of Kurds that returned to Kirkuk in 2006, a year without any elections, was 3,719, whereas 89,753 people returned to the city before the 2010 election.
However, these efforts aimed at enabling a change in the population before the elections and increasing the number of Kurdish voters do not seem to have yielded a very effective result. The Kurds may have got 312,750 votes in 2005, but this figure dropped to 274,000 in 2010, and 272 in the 2014 elections.
Nonetheless, debates on the demographic structure of Kirkuk came to the fore again before the independence referendum planned for September 25. About one month after June 7, 2017, when KRG President Massoud Barzani announced the date of the independence referendum, the authorities of Kirkuk stated that internal migration received mostly from the cities around Kirkuk that are under the control of ISIS would affect the demography of Kirkuk in a “negative” way. In his speech made on July 16, Governor of Kirkuk Najmiddin Karim, said that even though ISIS had been pushed out of most regions, the majority of those who had emigrated to Kirkuk did not want to return to where they had come from. He stated that they would not allow this to happen as the demographic structure would be seriously affected if these people stayed in the city for a long time. These statements of the Governor of Kirkuk set an important example of how the KGR is preparing for the referendum on July 25 through a demographic planning of Kirkuk.
 Mehmet Dalar, Tarihsel Siyasal ve Hukuksal Perspektifiyle Irak Kürdistan Bölgesel Yönetimi, Bursa 2016.
Iraq’sConstitution of 2005, (https://www.constituteproject.org/constitution/Iraq_2005.pdf?lang=en), (20.09.2017)
 Elizabeth Ferris, TheFuture of Kirkuk: TheReferendumandItsPotentialImpact on Displacement, TheBrookingsInstitution, s.3, 3 Mart 2008.
 Kemal Mazhar Ahmed, Kerkük Tarih Politika ve Etnik Yapı, s.95-97, İstanbul 2005.
 Haşim Nahid, Irak Türkleri II, Türk Yurdu Mecmuası, Cild 9, Sayı 95, 22 Teşrin-i evvel 1331 (4 Kasım 1915).
 Şemseddin Sami, Kâmus’ulAlâm, c.5, s.3846, Mihran Matbaası, İstanbul 1896.
 “ As ArabBirths in HawijaChangeKirkukDemography, KurdsStandtoLoseOut”, (http://www.rudaw.net/english/kurdistan/13012014) , (21.09.2017)
“Intikhabaat al barlaman al-iraaq2014” (http://www.alsumaria.tv/Iraq-Elections-2014/Province/4/kirkuk), “al-madudiya al-ulya al-mustakillahlil-intikhabat” (http://ihec.iq/ihecftp/ntaij2014/karkook.pdf)
 “KirkukgovernorconcernedaboutethnicbalanceandIDPs”, (http://www.kurdistan24.net/en/news/d7a88575-e879-4496-a70d-5ee19299b965/Kirkuk-governor-concerned-about-ethnic-balance-and-IDPs), (21.09.2017)