Issues Home About Contact Us Issue 5 - January 2013 عربى
Regional Developments

Disputed Territories of Iraq

On 17 December 2012, a series of armed attacks inflicted death on 11 people in the disputed areas between Baghdad and the Iraqi Kurdistan semi-autonomous region. These acts followed the breakdown of negotiations between the Kurdistan Regional Government (KRG) and the central Government of Iraq. At issue was Baghdad’s mobilization of its Tigris Operations Command to manage security for those territories under the influence of the KRG that were the subject of negotiation.

Despite those attacks and disagreements between the two governments, central and regional, the Iraqi Constitution enshrines the entitlement for Kurds to recover their land rights. The Constitution also acknowledges the means by which the whole of Iraqi society is to resolve the ethnic conflict through the application of the principles of justice and equity

The Iraqi Constitution’s Article 140 stipulates that:
  “the Transitional Administrative Law shall extend to, and shall continue for the executive authority elected in accordance with this Constitution,    
provided that it accomplishes completely (normalization and census and concludes with a referendum in Kirkuk and other disputed territories to
determine the will of its citizens), by a date not to exceed 31 December 2007.“
 

The Iraqi Parliament formed a special committee in May 2011 to study and implement the recommendations contained in that article. It defined the contested areas as those areas affected by the practices of the former regime [that pursued] demographic change and a policy of Arabization and change the population by deporting, exiling and displacing people from their places of residence by way of forced migration and resettling other individuals in their place, and by requisitioning and expropriating landed property, extinguishing [owners] of their rights to dispose of property and depriving them of work through correction of nationality, or through the manipulation of administrative boundaries, in order to achieve political goals pursued by the former regime. The legal effect of Article 140 covers these described acts in the contested areas between 17 July 1968 and 9 April 2003. 

The relationship between the central and regional Kurdistan governments has suffered severe crisis over several differences, but most recently with Baghdad’s formation of the Tigris Operations Command to take over security responsibilities in the disputed territories.

In human rights terms, Article 140 constitutes a major step in the pursuit of equity and reconciliation to address violations against both the displaced and deported. However, those steps may need to years of application, as the three prescribed objectives (normalization and census, followed by a referendum) call for a set of precise and detailed measures and procedures to avoid perpetrating other violations on the inhabitants of those areas. Such needed legal guidance exceeds that contained in Article 58 of the Law of Administration for the State of Iraq for the Transitional Period (Transitional Administrative Law, TAL), which is the origin of Iraq’s constitutional Article 140.

The task of normalization alone implies resolute compliance with standards of justice and fairness, arrangements for social construction and reconciliation through the improvement of relations and confidence building to ensure security and freedom without discrimination.

Normalization phase formed in accordance with Article 58, of the four procedures: (1) real property disputes, (2) returning displaced and transferred persons, (3) re-entrants to their areas of origin and (4) re-demarcating the administrative borders of Kirkuk and other governorates. The necessary arrangements, standards and mechanisms are still lacking that would govern the application process so it was no group, whether Arabs or Kurds, is subject to violations.

Hazards lurk in the issue of compensation in the settlement of real property disputes. Displaced persons are entitled to be re-established in their original homes and property. Failing that, the government is obliged to provide them with just compensation.

A Property Claims Commission has been formed to ensure justice to both parties in a dispute. The subject of confiscation has her/his right, and the new owner has to be provided with facilities for conflict resolution. Still, many obstacles remain as a result of a failure to provide mechanisms for implementation, despite a statement that nearly 70% of cases have been completed.

The issue of compensation is controversial, because compensation alone is not sufficient to fulfill the principles of fairness and justice. Compensation is but one among other criteria of the right to reparations, a principle that is not stipulated expressly under Article 140 of the Iraqi Constitution. 

The affected parties who are only compensated financially reportedly complain that the compensations are calculated at very low rates and do not match the value of the property lost during their forcible displacement. Meanwhile, the Property Claims Commission is responsible for normalization, and has issued several decisions to include financial compensation in addition to compensation in form of a plot of land in the areas from which the affected parties have fled.

In addition, many affected persons are faced with continued confiscation of their lands and properties by officials and influence peddlers, and they have not been able to use their properties. Amid the recent announcement of the return of some 90 thousand dunams of agricultural land to their original owners, they continue to suffer from land acquisition as land mafias seize hundreds of acres at nominal prices and converted them to resorts or personal investment in housing projects. Reportedly, many peasants Kurds have recovered rights their land,but Arabs continue to control that land. Since they have tilled and planted the land more than once, the Arabs peasants consider the land to be theirs, and prevent their Kurdish owners from retaking them 

Ahmed Mansour, legal researcher at HIC-HLRN, observed that The potential for conflict is in both rural and urban areas. While displaced Kurds are returning in large numbers to Kirkuk, the city does not have the capacity to accommodate such an influx. Many live in squalid conditions. At the same time, new land disputes in the agricultural lands threaten to ignite a new kind of violence and social disruption. If either side appears to seize unfair advantage, the consequences could be dire.

In several villages, skirmishes have broken out between returnees andcurrent communities previously transferred. Notably, in al-Bashir village, south of Kirkuk, Turkoman returnees clashed with Arab residents who refused to permit to returnees to reclaim their lands. Already in 2004, occupation forces had to intervene there in order to broker a compromise.

The issue of re-establishing the administrative borders to the Kurdish areasis considered a major step in the process of equity and reconciliation, but it lacks specific criteria take into account the non-Kurdish population, because it will leave stateless nearly 15 thousand families who do not have Iraqi nationality and were displaced from the disputed areas. They are further harmed by the lack of agreement on the part of the territorial authorities in Kurdistan to give them official identification documents from their areas of origin within its territory.

Moreover, questions remain as to the rights of the Turkmen population who live in the areas affected by the demographic change wrought by the Saddam Hussein regime. Urgent now is to resolve the land dispute between the two competing governments in Iraq so as to reconcile procedures with Article 140 toward the prescribed referendum.

Related reading:

Restoring Values: Institutional Challenges to Providing Restitution and Compensation for Iraqi Housing and Land Rights Victims (Cairo: HIC-HLRN, 2005).


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