ERBIL, IRAQ - Iraqis gathered around television sets as midnight approached on August 22. They watched as constitutional drafting-committee members and political elites whispered among themselves. When the Speaker of the National Assembly, Hachim al-Hasani, declared, "We have received a draft of the constitution," the assembly erupted in applause. "But," he added, "there are some points that are still outstanding and need to be addressed in the next three days." Late into the night, politicians and activists continued to meet in the Baghdad homes of the major powerbrokers, grappling with the roles of federalism and Islam in the new Iraq.
While U.S. diplomats and Washington advisers continue to facilitate compromise among Iraq's disparate sectarian, ethnic, and political groups, the reality emerging outside Baghdad is directly challenging Iraq's aspirations to constitutionalism. The U.S. government has spent hundreds of thousands of dollars to bring outside experts to Baghdad for a period of a few days or a few weeks, but Iraqi powerbrokers dismiss their advice as naïve or irrelevant. Massoud Barzani in the Kurdish north and Abdul Aziz al-Hakim and Moqtada al-Sadr in the Shiite south have rejected the experts' academic proposals, and have chosen instead a model perfected by Yasir Arafat, the late PLO chairman.
Standing in front of the White House on September 13, 1993, Arafat, Bill Clinton, and Israeli prime minister Yitzhak Rabin shook hands. Western diplomats could hardly contain their optimism as Israel and the PLO signed the Oslo Declaration of Principles, upon which they pledged to build Arab-Israeli peace.
But we now know that this optimism was misplaced. While Clinton fêted the Palestinian leader at the White House, cajoled him with aid, and turned a blind eye toward his corruption, Arafat broke promises habitually and, until the last years of his life, without consequence. He encouraged incitement, refused to prepare the Palestinians for compromise, and ruled by militia even as European and American agencies trained Palestinian police.
From an Arab perspective, Arafat's strategy looks successful. He extracted blood from the Israelis and treasure from the Americans, all the while consolidating his position. His concessions were limited to pledges whose fulfillment was never required. The result is now clear. Even as drafting-committee members debated Iraq's future, pan-Arab satellite stations broadcast Palestinian celebrations amid what anchors and commentators uniformly described as Israel's defeat in Gaza.
That conclusion is something Iraqi militia leaders have taken to heart. While diplomats and parliamentarians debate the finer points of federalism, warlords are constructing something rather different. One sees it on entering Iraq from Turkey and discovering not a trace of the Iraqi central government. Just last year, Kurdish officials manning the border post with Turkey declined to stamp passports. They now do so, and not with the Iraqi stamps used at other checkpoints, but with the emblem of the Iraqi Kurdistan Region. The Kurdish flag alone flies over the border post; the first Iraqi flag is an hour away, on the outskirts of Mosul.
Kurdistan Democratic party officials rather than the Iraqi government levy customs and taxes on cargo crossing the border. Owners of the cargo say they must make separate payments to the Iraqi central government, the Kurdistan regional government, and the Barzani family. Banners hang from official buildings and declare not only Kirkuk and Sinjar, but also Khanaqin and Mandali--towns 200 miles south of Kirkuk--to be integral parts of Kurdistan. In Erbil, the administrative center of the Kurdistan regional government, only Massoud Barzani's picture hangs. Storekeepers say that Barzani's militia forbids flying the Iraqi flag or hanging the portrait of Jalal Talabani, a rival Kurdish leader who is now president of Iraq.
In recent weeks, the Kurdistan regional government has flouted both Iraqi law and the human-rights standards on which U.S. aid is conditioned by the Foreign Assistance Act of 1961. When many contractors moved their headquarters from Baghdad to Erbil as a result of deteriorating security in the spring of 2004, their Iraqi staff continued to operate in Baghdad, Mosul, and Kirkuk--at great risk to themselves--motivated by allegiance to their mission. In recent weeks, however, Kurdish police have refused these Iraqi Arabs, including employees of U.S. firms, entry into the Kurdistan region. Kurdish peshmerga have maltreated them simply because they are Arabs.
Searches of vehicles and persons are prudent, but apartheid is not. U.S. laws and regulations require basic human rights and freedom of movement within political entities, and Washington still considers Iraq an integral whole. By law, then, Kurdish actions should endanger the eligibility of Kurds to receive aid, but both Iraqi officials and bureaucrats within the U.S. Agency for International Development have come to view such aid as an entitlement rather than a privilege.
Zalmay Khalilzad, U.S. ambassador to Iraq, may counsel compromise, but American officials have a long history of giving an opposite message by failing to enforce their demands. Ambassador Frank Ricciardone, Gen. Jay Garner, and Ambassadors L. Paul Bremer and Robert Blackwill have all come to Iraq, issued démarches, and left. Barzani and Talabani have learned to nod politely while ignoring the demands. They have witnessed a growing divergence between policy and implementation. While Bremer demanded Iraq's unity and opposed ethnic federalism, his representative in the northern region affixed the Kurdish flag to his business cards. Certificates signed by American officers express appreciation for the hospitality of local officials not in Iraq or Iraqi Kurdistan, but simply in Kurdistan.
Bush's second-term State Department has continued to give mixed messages. Secretary of State Condoleezza Rice undercut compromise on federalism when, on a surprise visit to Iraq on May 15, 2005, she went directly to Barzani's mountaintop headquarters. In the Middle East, who visits whom, and where, matters. By going first to Barzani's headquarters rather than to Baghdad, she bolstered the Kurdish leader's position in the eyes of his constituents and among the other Iraqi political leaders negotiating in the nation's capital. In the wake of Rice's visit, Barzani increased his territorial and political demands. Kurdistan Democratic party representatives may participate in constitutional discussions, but Barzani shows a willingness to abide by their pledges no greater than Arafat's willingness to honor his negotiators' commitments.
Across southern Iraq, a similar tension has arisen. While the constitutional commission debates the role of religion in society, Abdul Aziz al-Hakim, head of the Supreme Council for the Islamic Revolution in Iraq, leads the militia of firebrand cleric Moqtada al-Sadr in striving to impose their vision of a society based on Islamic law. Constitutional decisions about whether Islam is to be a "main source" rather than "the source" or "a source" of legislation are irrelevant on the streets of Basra, Najaf, and Karbala. Rights may exist on paper, but to the militia leaders guns are what matters.
Like the Americans in the north, the British have ignored southern militia abuses in the hope of securing a short-term peace. But that choice is negligent and destructive. Its result is that the militias impose their will with impunity. The liberals--who do not have the benefit of a militia--are the losers.
Upon the collapse of Saddam Hussein's regime, Coalition officials redistributed Baath party property to various political groups. In the south, the British tried to purchase calm by giving the most prominent properties to militias regardless of their popularity. For example, in Amarah, they gave the keys to the former city hall to the Badr Corps, which proceeded to festoon the building with anti-American and anti-British slogans. The Badr Corps also occupied choice real estate along the Euphrates River in Nasiriya. Locals saw these gifts to an oppressive militia as an implicit endorsement of Islamism--a view that is now conventional wisdom not only among many Iraqis in the south of the country, but also in Baghdad and the north.
Islamists have learned that what they cannot win through the political process, they can impose by violence. They have firebombed liquor stores and forcibly veiled women. On March 15, 2005, al- Sadr's militiamen broke up a Basra University student picnic because men and women were socializing. British forces refused to stop the vigilantes from beating ordinary civilians. The murder on August 2 of freelance journalist Steven Vincent, two days after he published a New York Times commentary exposing the death squads within the militia-dominated Basra police, underscores the depth of the problem.
Even as Islamists force their will on once-liberal Basra, many Iraqi Shiites see Iranian-style theocracy as theologically blasphemous. Increasingly, though, their concerns do not matter. This is the legacy of Arafat: Words and processes satisfy Western policymakers, but sincerity is irrelevant.
Iraq's sovereignty may limit our ability to intervene directly, but Washington still has great leverage. U.S. officials should stop turning a blind eye toward their interlocutors' insincerity and realize that policies consisting exclusively of carrots do not work. If the Iraqi constitution is to be worth more than the paper it is written on, the rule of law must triumph.
Michael Rubin, editor of the Middle East Quarterly, is a resident scholar at the American Enterprise Institute.