By: Amir A. Amirshekari

Iraqi Kurdistan independence is illegal

July 2, 2017 - 8:36

On 8 June 2017, Masoud Barzani the president of Iraqi Kurdistan called for a referendum for independence of the region on 25 September 2017.

Some days ago, he said in his interview with France 24 Television that every attempt to prevent the referendum will result in “catastrophe” and “bloody war”. Also, before two months, on 2 April 2017, a meeting held amongst Kurdish political parties, mainly between Kurdistan Democratic Party (KDP) and a delegation of the Patriotic Union of Kurdistan (PUK), in Erbil, with the aim of holding a referendum on Kurdish independence this year in Iraq. The Kurdish parties issued a joint statement declaring the Kurdish nation was entitled to implement its right of self-determination and it was the: “natural right of the nation of Kurdistan to decide on its political and administrative path in a referendum and an entity of an independent state.” It is while that on 28 March, 5 days before the meeting, the Kurdish flag, according to the decision of Kirkuk council, was raised in Kirkuk, although on 1 April, the Iraqi parliament rejected the decision and the governments of Iran and Turkey declared clearly that they could not tolerate the decision.

It seems that the process of Kurdish claim to independence is an ongoing process. On 19 January 2017, Masoud Barzani, the president of Iraqi Kurdistan Region, stated in his interview with Washington Post that an independent Kurdistan is “neither a rumour nor a dream”. On 22 March 2016, he declared, in his interview with Al-Monitor website, that the independence referendum for Iraqi Kurdistan would be held before October 2016, the date one month before which the U.S. presidential election would take place. It is worth noting that there exist many interviews of Mr Barzani and the other Kurdish leaders in which they were calling for the independence of Iraqi Kurdistan. On the other hand, external interventions have put severe pressures on the territorial sovereignty of Iraq, amongst which the remarks of Benjamin Netanyahu, Israeli prime minister, and Ayelet Shaked, the Israeli minister of justice, are remarkable who called for the formation of an independent Kurdistan. It has been reported that Israeli military and intelligence operatives had been active in Iraqi Kurdistan, without the permission of the central government of Iraq, providing training for Kurdish commando units.
The extinguishing of ISIS, which has united the Kurds against a common artificial enemy, and the anon falling of Mosul, as well as the operations happened recently by Kurdish militants in Turkey and Syria, strengthen the presumption that Iraqi Kurdistan statesmen propound their demand for independence again. Is Iraqi Kurdistan independence legally permissible?

 A federal region

Article 1 of Iraqi constitution states: “The Republic of Iraq is a single federal, independent and fully sovereign state in which the system of government is republican, representative, parliamentary, and democratic, and this Constitution is a guarantor of the unity of Iraq.” Iraqi constitution recognises the region of Kurdistan, just as a federal region (Article 117). According to article 141 of the constitution of Iraq, legislation enacted in the region of Kurdistan and decisions issued by the government of the region of Kurdistan shall be considered valid provided that they do not contradict with the Constitution. Therefore, according to the explicit text of the constitution, Iraqi Kurdistan Region is not allowed to declare independence.

It has been reported in several resources that Israeli military and intelligence operatives had been active in Iraqi Kurdistan, without the permission of the central government of Iraq, providing training for Kurdish commando units.The raison d’être of each state requires the right to existence of that state, from which the principle of territorial integrity is deduced. Therefore, territorial integrity, which generates the right to conservation and the right to freedom, is the cornerstone of international law, although the principle is always exposed to internal and external threats. The right to perfectibility, to defence, and to security are derived from the right to conservation; and the right to independence or sovereignty is inferred from the right to freedom.

One of the most important exceptions to the territorial integrity of a country is the right to self-determination, which is coming into force when peoples are under colonialism and/or foreign occupation. But recently, after the emergence of partially recognised entities such as Abkhazia, South Ossetia, and Kosovo, a new discussion on the denial of territorial integrity has emerged in international law, when the grave systematic continuous breach of fundamental human rights of a group, or some groups, of people has come into existence. This theory has been called remedial secession premised on the priority of human rights over territorial integrity; but it has not been accepted as a reliable recognised theory in international law to be cited in different international disputes.

In 2014, Benjamin Netanyahu, Israeli prime minister, stated that the Kurds were “worthy of their own independence”. Also, on 19 January 2016, Ayelet Shaked, justice minister of Israel, called for an independent Kurdistan. She also expressed that Israel had to openly call for the establishment of a Kurdish state that separated Iran from Turkey, one which would be friendly towards Israel. In 2016, a Kurdish delegation, on behalf of Masoud Barzani, visited Washington, DC, meeting with Jewish lobbyist as well as some U.S. officials there, to request financial assistance from them in fighting against ISIS and to seek support in declaring an independent Kurdistan in Iraq.

It has been reported in several resources that Israeli military and intelligence operatives had been active in Iraqi Kurdistan, without the permission of the central government of Iraq, providing training for Kurdish commando units; but even if it is an allegation, the mere statements of Israeli prime minister as well as the justice minister of Israel contravenes the Friendly Relations Declaration, adopted by the GA on 24 October 1970 (UNGA Res 2625 (XXV)), according to which “No state may use or encourage the use of economic, political or any other type of measures to coerce another state.”; and although the Declaration has no binding force in international law, it can be said that those mere statements, without paying attention to the fact that whether or not other helps and assistances have been carried out on behalf of Israel to Iraqi Kurds, are against article 2(7) of the UN Charter according to which “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state”. Therefore, the members of the UN, including Israel, are not permitted to intervene in the internal affairs of any state.

Israel cannot also contend that it intervenes in internal affairs of Iraq because of the fact that this intervention is based on humanitarian intervention, because, although Iraqi Kurdistan Region infringes gravely the fundamental human rights of Turkmens, Yazidis, Armenians, Assyrians, and Arabs inside the region, according to the reports of the Amnesty International and Human Rights Watch the central government of Iraq does not violate the fundamental rights of its Kurdish subjects.

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