The development of Kurdistan’s de facto statehood: Kurdistan’s September 2017 referendum for independence

Introduction

Since 2014, several radical political transformations have affected the de facto statehood of the Kurdistan Region-Iraq (KRI),¹ culminating in the 25 September 2017 independence referendum. On that day, eligible voters from the Duhok, Erbil, Sulaymaniyah, Halabja and KRI-controlled areas of the Kirkuk, Diyala and Nineveh governorates voted ‘yes’ or ‘no’ to the question: ‘Do you want the Kurdistan Region and the Kurdistani areas outside the administration of the Region to become an independent state?’ Upon tallying the votes, an overwhelming 92.73% majority voted for ‘yes’.² While the Kurdistanis have made, almost, weekly headlines since 2014, few academic studies have examined the timing and drivers underlying why the independence referendum was held in 2017. This paper employs a qualitative analysis methodology including 23 informant interviews with senior members of KRI political parties, such as the Kurdistan Democratic Party (KDP), the Patriotic Union of Kurdistan (PUK), and the Change Movement (Gorran); officials from the Kurdistan Regional Government (KRG), such as the Department of Foreign Relations; employees of the Ministry of Peshmerga,³ the KRG Representation in London and Washington; and members of Parliament. These face-to-face and telephone interviews were conducted in Erbil and Sulaimaniyah between May 2017 and March 2018. Most of the interviewees preferred to be anonymous. In these interviews, we tried to identify what drove the decision and timing of the referendum, and what the lack of a unified internal mechanism in both political and military terms meant for the move towards independence. In addition, we observed the local political developments, attended the referendum campaign rallies in Erbil and participated in closed door meetings where key KRI decision makers and international diplomats presented their policies on different issues related to the referendum in summer 2017. To gain deep insights, we also benefited from an off-record meeting with Masoud Barzani on 20 August 2017 in his office in Pirmam town in Erbil. In the meeting, Barzani clearly explained the approach, method and reasons of the referendum.

Given the temporal proximity of the referendum, there is as yet a lack of comprehensive analysis on the drivers of the decision and timing of the vote. Hama and Jasim⁴ and Park, Jongerden, Owtram and Yoshioka⁵ provide good analyses of the negative consequence of the referendum decision, by focusing on the internal divisions mainly between Kurdistan’s two centres of power, the KDP and PUK. However, they fail to contextualise the idea of a referendum in Kurdistan’s broader transition from war to the moves towards independence in 2014–2017, and how various internal security and political dynamics contributed to the decision. Kaplan convincingly argues that KRI leaders’ miscalculation over potential losses of foreign support in response to the vote was the key driver behind the decision to hold the referendum in 2017.⁶ The decision and its drivers cannot, however, be reduced to this factor alone. The findings of this article suggest that, in addition to the gains Kurdistan made during the fight against the Islamic State (IS), internal security and political dynamics significantly influenced the referendum. This article provides insights into the fluid nature of Kurdistan’s de facto statehood, an area which needs further scholarly attention in the de facto state literature.⁷ Kurdistan’s transition into de facto statehood has been shaped by a series of tensions, such as its changing de facto powers vis-à-vis Baghdad, prompting the entity to look both backwards and forwards. The unstable process which Kurdistan has gone through since 1991 provides important insights into the importance of internal organisation of de facto states in their struggle towards international recognition. The key to understanding such processes is the position of Kurdistan vis-à-vis Baghdad, and its changing strategies to gain recognition. Whereas much of the existing literature explains de facto states’ non-linear progression towards statehood by pointing on the lack of international recognition,⁸ we contend that the internal dynamics (such as system of government, internal democratisation, security forces, institutions, domestic legitimacy and political party rivalry) of Kurdistan played a key role in shaping the development, which culminated in the referendum of 2017. An analysis of what drives the changes in the development, nature and status of de facto states in their struggle towards independence has not received enough attention.

The outline of this paper is as follows. First, the paper provides a short overview of the theoretical framework. Second, we present a detailed background on key security and political developments concentrating on the fight against IS and its impact on Kurdistan’s de facto statehood. To do this, we look at a spectrum of events and changes that strengthened Kurdistan’s de facto powers, despite internal disputes and the lack of monopoly over Peshmerga forces. Next, we evaluate Kurdistan’s internal political problems, especially the presidential crisis, demonstrating how the dispute played an instrumental role in catalysing the move towards independence. In the final section, the paper focuses on the holding of the referendum, its aftermath and its implications for the future of Kurdistan’s de facto powers.

Conceptualising the development of de facto statehood

Within the discipline of International Relations there has been an increasing desire to analyse de facto states and to distinguish these ‘anomalies’ from other forms of statelessness. However, the theoretical discussion is still in its nascent stages,⁹ and a deeper understanding of de facto states’ dynamics can be gained through novel case studies. To conceptualise entities that have managed to achieve degree of statehood in the absence of international legal recognition, different terms are used in the literature such as: ‘de facto states’,¹⁰ ‘contested states’,¹¹ ‘unrecognised states’,¹² ‘quasi-states’,¹³ ‘states-within-states’¹⁴ and ‘state-like entities’.¹⁵ All these classifications point to a condition in the continuum between formal recognised statehood and other forms of statelessness. In our definition, de facto states are entities that meet the Montevideo criteria for statehood, but lack international legal recognition. Pegg defines de facto states as:

Caspersen, in her seminal book Unrecognized States, expands on this, identifying five characteristics for an entity to be considered a de facto state: (1) the entity in question has achieved de facto independence and controls the majority of the territory it claims, (2) building state institutions accompanied by attempts to increase external and internal legitimacy, (3) a declaration of formal independence or at least clearly demonstrated aspirations for independence, for example through an independence referendum, (4) the entity has not gained international recognition and (5) the entity has existed for at least two years.¹⁷ The literature shows that there is significant variation in the degree of statehood achieved by de facto entities.¹⁸ Based on the degree of the above criteria achieved by Kurdistan over the past two decades, scholars including Harvey and Stansfield,¹⁹ Caspersen,²⁰ Voller,²¹ Gunter,²² MacQueen,²³ Jüde²⁴ and Richards and Smith²⁵ categorised Kurdistan and the political nature of its polity among a group of de facto states. However, Kurdistan’s development of de facto statehood has never been linear. The referendum, for example, highlighted the weakness of KRI state-like institutions,²⁶ the lack of monopoly over the means of coercion and the lack of a unified approach towards Baghdad.

The study of internal dynamics of de facto states is a significant contribution of the relevant literature, but only gained scholarly attention in the 2000s when scholars began conceptualising the longevity and survival of de facto states.²⁷ When it comes to the internal functions and organisation of de facto states, Caspersen suggests that de facto states ‘cannot be reduced to their external dimension […] the success or failure of their state-building efforts also owes a lot to internal dynamics’.²⁸ She also argues that statehood in the absence of recognition is possible, but results in a specific form of statehood.²⁹ Within the de facto state literature, one area that has attracted considerable attention in recent years is the impact of non-recognition on democratisation and state-building in de facto states.³⁰ Richards and Smith argues that ‘[t]he ongoing process of state building in an unrecognised state is underpinned and dictated by the mutually constitutive relationship between the quest for recognition and the need for continued stability and existence as a “state”’.³¹ However, one of the distinct characteristics of de facto states, as argued by Caspersen³² and Pegg,³³ is that the lack of recognition justifies the prioritisation of security above all other sectors. This will create an environment which is not conducive for democratisation. At the same time, Tilly’s approach to state formation suggests that the more de facto state military leaders penetrate the society, the more they need to engage in institutionalisation and state-building.³⁴ Moreover, the lack of recognition makes de facto states move in and out of different categories: ‘therefore what was once an unrecognized state can become a state-within-a-state, or perhaps a “black spot”, and vice versa’.³⁵ In this context, the development of de facto statehood faces a series of dilemmas and tensions, at the same time looking backwards and forwards, ‘independent and dependent, open and close’.³⁶

The rise of IS and new opportunities for Kurdistan

The collapse of the Iraqi Security Forces (ISF) in northern Iraq in mid-2014 enabled Kurdistan to expand its territory, seize long-coveted Kirkuk and other territories whose administration has been a source of heated dispute between Baghdad and Erbil since the toppling of Saddam Hussein’s regime in 2003. As soon as the ISF left these areas in June 2014, Barzani ordered the deployment of Peshmerga to secure Kirkuk, Tuz Khrumatu, Mosul Plain, Makhmoor, Shingal and other areas situated along the contested border between KRI and Federal Iraq. Following these events, Barzani surprisingly claimed that Article 140 of the Iraqi constitution, which is designed to settle the territorial dispute between Baghdad and Erbil, ‘has been implemented and completed for us’.³⁷ These changes aggravated pre-existing tensions between Baghdad and Erbil causing them to revert back to distrust and acrimony which had previously come to a fever-pitch during the second term (2010–2014) of former Iraqi Prime Minister Nouri al-Maliki. Since then, these governments have regarded each other as mutual security threats with significant implications for the independence of Kurdistan.

More than ever, the Peshmerga’s ability to succeed where the ISF failed to stymy the IS’ advances was pivotal to enhancing Erbil’s political leverage with Baghdad. Based on the newly acquired control over a territory 50% larger than the Kurdistan Region’s official size, and sure of its celebrated military strength, the political climate for independence appeared ripe. On 3 July 2014, Barzani instructed the Parliament to begin preparations for independence referendum. In an address to an international audience on 7 July 2014 he announced: ‘from now on, we will not hide that independence is our goal’.³⁸

While the advance of IS presented an opportunity for Kurdistan, it also brought new challenges beyond the capacity of Erbil’s security and military forces. IS was heading towards Baghdad, and the Erbil leadership was focusing on independence rather than concerning themselves with potential attacks from IS. Beginning in August 2014, Erbil was plagued by a series of acute crises when IS barraged residents of Shingal, Mosul Plain and Makhmoor. On 7 August 2014, IS militants advanced as close as 25 miles from the KRI’s capital, before US President Barack Obama ordered airstrikes against IS to drive them out of KRI-controlled territory. Moreover, the 2014 drop in oil prices and Baghdad’s decision to freeze the share of the KRI budget, costing the entity nearly one billion dollars a month, financing the war against IS, the influx of 250,000 Syrian refugees and 1.5 million internally displaced populations (IDP), overwhelmed Kurdistan with a severe financial crisis. In combination, these challenges forced Erbil to postpone the calls for a referendum.

Two steps back: constrained democratisation and state-building

Setting the date of the referendum

In the fight against IS, Peshmerga sacrificed 1800 fighters, 9000 injured and 60 missing. This created a perception among the Kurdistani policy makers that ‘Peshmerga fought on behalf of the free world’, and deserves recognition. The Erbil leadership attempted to leverage its counter-terrorism successes into political support to the referendum. When asked how Kurdistan will continue if it became isolated after the referendum, Barzani replied ‘[t]his issue is different. One of the reasons given for isolating Qatar is that they are sponsoring terror. But for us, we broke the myth of terror. We gave blood to break the myth of terror and defeat terror’.⁶¹ In an interview with The Guardian, he confirmed: ‘[a]fter the big sacrifice of the Peshmerga and breaking the myth of Isis, we thought they would respect this right [self-determination]’.⁶²

To protect Kurdistan’s gains during the war, Barzani blazed ahead with referendum plans. Barzani had to move fast to run the referendum, considering important developments such as the approaching end of his term in office and the scaling down of the war against IS as the Mosul operations were concluding and Peshmerga retook all areas claimed by Erbil by summer 2017. Barzani believed that in this new era Peshmerga was no longer needed, and a move like the referendum was viewed as a necessary step to protect the achievements of Peshmerga in the 2014–2017 period. On 7 June 2017, the KDP, the PUK, the Islamic Union of Kurdistan (Yekgirtu) and smaller parties announced that Kurdistan would hold an independence referendum on 25 September 2017. Once the date of the referendum was set, regional and international actors believed that they would be successful in convincing the Erbil leadership to postpone the referendum. They thought that the Kurdistan authorities would ultimately understand how grave the repercussions would be if they pursued a secessionist agenda. Initially, Baghdad, Tehran and Ankara did not react strongly. This view is best illustrated in Turkish President Recep Tayyip Erdoğan’s statement: ‘Until the very last moment, we weren’t expecting Barzani to make such a mistake as holding the referendum. Apparently we were wrong’.⁶³ In addition, the international community, as Alistair Burt, UK’s Minister of State for the Middle East, confirmed, viewed the call for the referendum as a negotiating power with Baghdad.⁶⁴

Internally, different political actors opposed the timing of the referendum. Some PUK leaders such as Bafel Talabani (the oldest son of the late PUK leader Jalal Talabani) were also in favour of postponing it. Gorran and Komal had different opinions about the timing, method and preparations of the referendum. While they stated ‘the right of independence is a natural and a just right for all Kurdistan people’,⁶⁵ they wanted the referendum and the presidential and parliamentary elections, which was planned to be held on 3 November, to be held together on the same day. They feared that pro-referendum parties would use the independence card for their political gains. Another aspect of the tensions is that the KDP has been historically unpopular in Sulaymaniyah, a stronghold of both the PUK and Gorran. The referendum being seen as a KDP project appeared to be the most significant reason why the referendum was less popular in the province. It was within this context, a month before the referendum, the Movement of ‘No for Now’ was announced. The Movement was led by Shaswar Abdulwahid, the owner of a media conglomerate which includes NRT TV. He described the referendum as ‘an excuse by Kurdish leaders to remain in power’.⁶⁶ However, the Movement’s effect remained limited to Sulaymaniyah and Halabja provinces. The sacredness of independence for the majority of the Kurdish people provided the Movement with a very limited space.

Alternative path to the independence referendum

As soon as Kurdistan’s Independent High Elections and Referendum Commission announced the campaign for the independence referendum on 5 September 2017, the whole process entered to a new phase. The stronger Barzani’s language became, the more people welcomed the call. It was in this period when the US, the UK, France and the UN began to present an alternative path to the referendum. Barzani made it clear that Erbil would not compromise on the objective of the referendum (namely independence) but the referendum itself was negotiable.⁷³ On 15 September 2017, a meeting to discuss the alternative path was held between the Erbil leadership and UN, US and UK representatives. Heather Nauert, spokesperson for the US Department of State, described the alternative as ‘a serious and sustained dialogue with the central government, facilitated by the United States and United Nations, and other partners, on all matters of concern, including the future of the Baghdad–Erbil relationship’.⁷⁴ In addition, the UN presented another alternative, offered postponing the vote for two years ‘until a meeting in the United Nations discusses the Iraqi file, including the Kurdistan Region and the independence referendum’.⁷⁵ As a last attempt, US Secretary of State Rex Tillerson sent a draft letter to Barzani on 23 September 2017 recognising the concerns of Kurdistan and its constitutional rights. This alternative proposal outlined a streamlined approach for negotiation with the Iraqi government and the nature of the future relationship between the two.⁷⁶

Tillerson’s letter represented a high mark in international engagement with Kurdistan. Its rejection, nonetheless, turned out to be a grave strategic miscalculation. There are several reasons why the Kurdistan leadership rejected the alternatives. Firstly, since June 2014, Barzani called for holding a referendum several times. In 2016, for example, he promised that referendum would be conducted before the presidential elections in the US. Though the date was formalised in June 2017, many aired suspicions about the feasibility of holding the vote on the named date, 25 September 2017. Any postponement would have badly damaged Barzani’s leadership because he referred to it in almost every appearing. Second, the main concern was not the referendum itself, but a possible military confrontation with Baghdad. The leadership in Erbil believed that the US would prevent any military confrontation between its two allies Baghdad and Erbil. They also believed that if the ISF backed by Iranian-aligned militias attacked Peshmerga in disputed territories, the US will stand against such a move. This conception was based on the assumption that the US policy was to reduce Iranian influence in Iraq. Additionally, Turkey’s rivalry with Iran over political clout will block the expansion of Iranian-aligned militias and the realisation of Iran’s dream to have unimpeded access to the shores of the Mediterranean Sea (anonymous, interview with KDP’s senior official by author, 22 November 2017). Third, many believed that Kirkuk, due to its historical and strategic importance, would be the area where Baghdad and Erbil would clash. This is so because Kirkuk has been a stronghold of the PUK since 2003. Pro-referendum figures including the First Deputy for the Secretary General of the PUK Kosrat Rasul, the Governor of Kirkuk Najmadin Karim and the Head of Peshmerga’s 70th division Sheikh Jaafar all had a strong presence in Kirkuk. The main perception in Erbil was that the PUK’s Peshmerga forces in Kirkuk would fight if necessary. Masrour Barzani later confirmed ‘[w]e never believed that the Peshmerga force of Kurdistan, especially those forces of the PUK, would listen to these people [referring to Bafel Talabani and Lahur Talabani who had a secret agreement with Baghdad to leave the city indefensibly]. We thought that they will endure, fight, and prevent any attack’.⁷⁷ However, the withdrawal of the Peshmerga, including the KDP-affiliated forces, across the disputed territories remains obscure. While KDP officials argue that their withdrawal was to avoid potentially grave internal civil conflicts, such as split administrations and perhaps civil war, the KDP’s retreat from the front lines has come under vitriolic criticism as well. Fourth, by the time Tillerson’s letter was received, the referendum had already become a fait accompli. KRI’s High Council for Referendum received the letter late on 23 September. The Council felt that the alternatives presented no solid promises of future statehood and demanded stronger wording in the letter in the form of guarantees.⁷⁸ Fifth, Barzani believed that Washington could not bind the future Iraqi government as Baghdad would not accept referendum in the future. Kurdistan’s fear about the change of policies in the next cabinet in Baghdad was understandable, especially as the political fate of PM al-Abadi, also known as ‘the US man’, was ambiguous. However, Erbil was wrong in assuming that Baghdad would agree to such an arrangement as the Iraqi government was under strong populist, religious and sectarian pressures against secessionist attempts in Erbil. Importantly, by September 2017, Iraq was largely free from the IS reign. This new dynamic generated an atmosphere of a military victory and sense of strength and pride among the ISF and Hashd al-Shaabi. The inclusion of Kirkuk and other disputed territories in the referendum exerted tremendous pressure on Baghdad to assert itself and preserve its positive momentum. Sixth, another important explanation why Barzani believed that the referendum should not be postponed is related to the history of Kurdistan since its creation in 1991. Kurdistan has achieved most of its powers since 1991 via imposing the realities on the ground in a mode of de facto imposition. A case in point is the status of Peshmerga after 2003. Barzani throughout the referendum campaign tried to convince the people that the result of the referendum will accepted as de facto with the passage of time. ‘After years of experience, now I have learnt how to deal with the countries asking for postponing the referendum [mainly referring to the US]. They first threaten you, and then will deal with the facts on the ground’.⁷⁹ Finally, refusing the alternatives and the advices of the international actors, including the allies, can be explained in the desire of the Kurdistan leadership to be seen as an independent actor. In this vein, Cockburn explains that ‘minority communities and small nations must occasionally kick their big power allies in the teeth’.⁸⁰ Similarly, Hawrami confirmed ‘for the first time in 100 years the referendum shows that, we are not a proxy of external actors, we are no longer just reacting to the actions of others; we are an independent player’ (Hemin Hawrami, second interview with author, 21 January 2018).

The aftermath

Though Erbil leaders tried to explain that the referendum should not be perceived as an immediate threat, the referendum meant what it says.⁸¹ Kurdistan’s initial plan was to conduct the referendum and negotiate with Baghdad on independence for 1–2 years. If negotiations failed, then independence would be declared. On 25 September 2017, Kurdistan proceeded with the referendum with the aim of entering into a new phase of policies vis-à-vis Baghdad, through achieving a popular and legal mandate to negotiate with the government of Iraq. However, former PM al-Abadi strongly refused to discuss the results, demanding its outcomes be nullified. In addition to Baghdad, Washington already warned Erbil that ‘if this referendum is conducted, it is highly unlikely that there will be further negotiations with Baghdad, and the above international offer [referring to alternatives] of support for negotiations will be foreclosed’.⁸² Baghdad, with an appetite for revenge against Erbil’s unilateral decision, adopted a multi-sectoral isolation policy against the de facto powers of Kurdistan. Erbil’s unsupported decision left al-Abadi with almost unanimous support from Iraq’s parliament, regional countries and the international community, including the US, when he emphasised his own ‘[obligation] as commander-in-chief of the armed forces to take all legal and constitutional steps to protect the unity of Iraq and its people’,⁸³ including deploying ISF to replace Peshmerga in all disputed areas, banning international flights to Erbil and Sulaimaniyah, and demanding KRG relinquish control of its airports, border gates and crossing points. On 16 October 2017, ISF, backed by Hashd al-Shaabi militias, seized Kirkuk and all other disputed areas, causing Peshmerga to retreat from all territory taken from IS since late 2014. These actions reverted the KRI boundaries along the disputed frontier to those drawn in 2003, striking a punishing political blow to some of the Kurdistan’s hard-won de facto powers.

Kurdistan’s ill-fated referendum also changed the military balance in favour of Baghdad. The weakness of the Iraqi government, in military terms, was essential for the consolidation of Kurdistan after 2003. The Iraqi government managed to prevent Kurdistan from effectively making use of the territory of which it had gained control in war, and thus had very little incentive to engage in a comprehensive discussion with Erbil about a future power-sharing deal beyond the Iraqi constitution. Kurdistan suffered a loss of international sympathy and political backing,⁸⁴ with international actors blaming the Erbil leadership for the escalation with Baghdad. The KDP and other parties found it difficult to maintain the rhetoric of independence, and had to freeze the results of the referendum in an attempt to ease the political tensions with Baghdad and the international community. From moving towards independence, the strategy changed to protecting the constitutional entity of KRI as a federal region within Iraq. While Kurdistan’s central role in the fight against IS presented a great opportunity for Kurdistan to move towards an independent state, the post-referendum crises also highlighted that a united force is certainly a key ingredient that Kurdistan is lacking.

Conclusion

Through a deeper look at both internal and external security and political dynamics, we analysed the drivers that shaped the timing, decision and method of the referendum. During the IS war (2014–2017), Kurdistan emerged as an independent actor with the desire for fully-fledged statehood. The fight against IS, as was coming to a close in summer 2017, enabled Kurdistan to expand its territory, strengthen its hard power and increase international support and engagement which, in turn, served as a primary driver shaping the move towards independence in September 2017. While the 2015 political deadlock resulting in the illegal extension of Barzani’s presidency was not a determining factor leading to the referendum, it nonetheless quickened the process and significantly influenced the timing of the referendum.

As presented in the article, Kurdistan is a constant, dynamic and ambiguous entity with a modal tendency in a fluid political transition and development towards de jure statehood. A non-linear transition in the case of Kurdistan is defined by the entity’s changing dynamics of its transition towards de jure statehood, Kurdistan’s ambiguity with waxing and waning de facto powers vis-à-vis Baghdad, and the various internal security and political dynamics affecting its strategies to gain international recognition. For example, from 2014 to 2017, Kurdistan moved in two directions, alternating between a somewhat fragile entity (e.g. the 2015 political deadlock) and a functioning de facto state (e.g. success in fighting IS). Therefore, to better comprehend the development of Kurdistan’s de facto statehood, we should not confine the development to a specific time period or case. Instead, we need to focus on a combination of multiple drivers constituting an unstable transition towards de jure statehood.

Kurdistan as a de facto state long sought to preserve the status quo, especially when international recognition was deemed unobtainable after the 2003 war. Nevertheless, when there is a perceived opportunity, as an aspiring state Kurdistan will seek full-fledged statehood, as the 2017 referendum for independence shows that. From 2003 to 2017, Kurdistan benefited from the weakness of the Iraqi government to increase its international engagement. Here, an important conclusion about de facto states can be drawn from Kurdistan’s unilateral independence referendum. The timing, approach and move towards independence are subject to internal security and political dynamics and constraints more than international practices of state recognition. This requires a deeper look at the internal governance of de facto entities and how their internal environment shapes their strategies to achieve independence.

In addition, Kurdistan’s recent developments are useful for analysing the nexus between war and state formation. The IS war enabled Kurdistan to increase its military capability, territorial control and international engagement. However, the abrupt end of the referendum’s hope for independence highlights the centrality of coercive control and the unification of security forces to both protect the de facto independence of an entity and move it towards international recognition. While there is no evidence to support the prediction that Kurdistan’s unified military response to the attacks of the ISF and Hashd al-Shaabi would have provided international support for the referendum results, the lack of a unified and effective response gave the international community no reason to support Kurdistan.