- January 1998
(update June 2008: www.solami.com/rebirth.htm ¦ .../iraqsplit.htm ¦ .../aldeeb.doc)
Having obtained in writing the UN's green light to demonstrate the technical feasibility to pump oil from non-government-controlled Northern Iraq for meeting humanitarian needs (1) Sardar Pishdare proceeded forthwith to the area to prepare the terrain and organize the local leaders' support for the implementation of his "Project Backdoor" (English for Pishdare - sic!). Al Hickerson, an American oilman Gina Lewis introduced to us, had come to Geneva to advise us on some fundamentals of the petroleum industry and to give us a hand in our venture. Nobody had been able to answer his recurring question "Who owns the oil in the Kurdish region of Iraq?" And it was three years before completion - and some 16 years before we actually became aware - of the one study which offers some precious guidance on this crucial question, i.e. Sami Aldeeb's ground-breaking inquiry into "RES IN USU OMNIUM EN DROIT MUSULMAN ET ARABE: Question du feu (le pétrole)". Nevertheless, Al promised to bring in the necessary equipment on his own as soon as he knew what the situation is really like on the ground. So Sardar, accompanied by an expert from Occidential Petroleum Co., had gone to the area fairly packed over the Christmas and New Year's holidays.
Meanwhile, in Geneva, Sadruddin Aga Khan had returned from Iraq. The "explosions" inside his hard wood-panelled UN office could almost be heard across town. We were made to understand that Project Backdoor was seen as upsetting existing plans and the order of things as decided by the powers that be, so that it had no chance of ever taking off the ground, no matter how rational and effective this project promised to be for addressing the urgent humanitarian needs there. Piqued by this non-sensical turn-around and attitude of the UN bureaucracy, we leaned back and - with Al's persistent property question still echoing in our ears - we took another look at the area in question in an old German historical atlas (2). There, mention of the "Mosulgebiet" (about double the size of and covering all of the "liberated Kurdish area") immediately raised our intense curiosity. For our experience in international matters and our instinct told us that there must be interesting and probably still valid documents about the conditions under which the League of Nations had attached this territory to the then-dependent Kingdom of Iraq. The libraries being closed over the holidays and the League of Nations archives as the most authoritative source opening only after its annual inventory on January 16, we were left to wait a little longer. In summary, here is what we then found (for detail, see official documents):
1. The Mosul Vilayet was an integral part of the Ottoman Empire. South, it borders on Iraq's Baghdad Vilayet, to the West on Syria, to the North on Turkey and to the East on Iran. It includes the Diala District, as defined in the League of Nations inquiry of 1925. According to the last available census (1920), its surface is 91009 km2, and its inhabitants were 579713 Sunnites, 22180 Shiites, 14835 Jews and 55470 Christians (Report by HM's Government to the League Council on the Administration of Iraq for the year 1929, p.71).
2. The Council of the League of Nations conditionally attached the Mosul Vilayet in 1925 to the Kingdom of Iraq, rather than to Turkey, and provided for international protection to the Mosul Vilayet's ethnic and religious communities. The Kingdom of Iraq, by decision of the League of Nations' General Assembly, gained its independence on 3 October 1932. As a condition of its independence, Iraq had made its formal Declaration of 30 May 1932 vis-à-vis the League of Nations (E/CN.4/Sub.2/1992/NGO/27). Iraq thus incurred international obligations which it could not alter unilaterally, and from which it could be relieved only by the League of Nations or, in the event, by the United Nations acting as the League's succesor in accordance with UN General Assembly resolution 24 (I) of 12 February 1946.
3. The conditions under which Iraq obtained its independence have never been altered. The circumstances which gave rise to these international minority protection and other obligations have essentially remained. According to testimony published by the UN Human Rights Commission's Special Rapporteur on Iraq (e.g. E/CN.4/1993/45, §§89-126; E/CN.4/1995/138, p.8), past and present human rights conditions in Iraq have provided no justification for abrogating any of Iraq's related international obligations.
4. The UN Secretariat, in its "Study on the Legal Validity of the Undertakings Concerning Minorities" of 1950 (E/CN.4/367, p.51) had concluded:
7. H.E. Tariq Aziz, as Foreign Minister of Iraq, declared to the UN Special Rapporteur on Iraq:"Iraq would be the first to recognize Kurdish independence" (E/CN.4/1992/31, §108). Since 1991, Iraq de facto has withdrawn its control, administration and protection from most parts of the Mosul Vilayet. In order to avoid a regionally destabilizing vacuum and to enhance the credibility of international minority protection rights and obligations, setting up an unprejudicial effective interim administration for the Mosul Vilayet has become important.
8. The leaders of the Mosul Vilayet's Assyrians, Kurds and Turkomans thus founded the Mosul Vilayet Council in May 1992 as the Mosul Vilayet's "supreme secular authority of the Mosul Vilayet, wherein all indigenous Arabs, Armenians, Assyrians, Kurds and Turkomans have the right to be equitably represented by their own leaders"(Declaration of Separation from Iraq, 20 October 1992). All of its autochthone tribes and political, religious, ethnic and other constitutive groups have since joined this undertaking to responsibly exercise their right to self-determination by signing the Unity Declaration of 31 May 1994.
(1) letter of 19 November 1991, signed by Henrik Olesen, Director of the then-absent Sadruddin Aga Khan's "Office of the Executive Delegate of the UN Secretary-General for a UN Inter-Agency Humanitarian Programme for Iraq, Kuwait and the Iraq/Turkey and Iraq/iran border areas"
(2) Atlas zur Weltgeschichte, 2, Deutscher Taschenbuch Verlag, München 1966, S.166
Inquiry II on the
of Northern Iraq
by the CORUM RESEARCH GROUP (1)
27 February 1992
(see also: Sami Aldeeb, "RES
IN USU OMNIUM EN
DROIT MUSULMAN ET ARABE
Question du feu (le pétrole)", 1996)
The Frontier Treaty between Turkey and the Kingdom of Iraq of June 5, 1926, was ratified on July 18, 1926; it is claimed to have then come into force (2). Though settling "as definitive and inviolable the frontier line" between Turkey and Iraq, some questions relating to the status, in international law, of the Mosul Vilayet (3), and its oil resources were thus answered, while others - some apparently asked neither then nor until now - were left open. That, however, does not appear to make them now irrelevant, untimely or unhelpful.
Art.14 of the 1926 Treaty provided for the Turkish Government to receive from the Iraq Government, for 25 years, 10% of "all royalties" accruing to it under specified provisons of the March 14, 1925 concession it granted to what later became the Iraq Petroleum Company(4). This is seen to have effectively provided compensation for the transfer of ownership to Iraq of specified "property and possessions" contained in the Turkish Empire's "Civil List", as detailed in article 60 of the Peace Treaty of Lausanne of July 24, 1923 (5).
Of course, said article 60, paragraph 1, provides that "The States in favor of which territory was or is detached from the Ottoman Empire after the Balkan wars or by the present Treaty shall acquire, without payment, all the property and possessions of the Ottoman Empire situated therein." However, that same article also limits this ownership transfer by specifying:
Automatic State monopolies on land, mineral and other properties used to be the trademarks of Communist societies; neither the Turkish Constitution, nor the Turkish Mining law of 1886/1906 provided for them. Rather they accomodated private petroleum seepage rights, such as those accorded by ancient firman to the Naftchi family concerning an oil field at Baba Gurgur near Kirkuk (7). Even the Sultan, in 1890, found it necessary to secure "for himself a number of the known oil-bearing lands" (ibid., p.13). Thus, the Iraqi State's ownership claims to mineral resources subjected to Iraq's conditional sovereignty cannot be based on prior rights and the rules of succession - nor do nationalization or other coercive measures add up to more than a farce of legal ownership.
To begin with then, neither pre-independence laws, customs or practice, nor either of the two above-mentioned fundamental treaties of 1923 and 1926, support the Iraqi State's practice of disposing of Iraq's mineral wealth as if it were the legal successor to land and mineral resources ownership rights. The aboriginal residents of the Mosul Vilayet traditionally owned and transferred titles to land, water and mineral resources by way of tribal customs. The tribes retained these rights and settled claims among their members, other tribes and third persons which may legally have obtained ownership of related titles. Having been an integral part of the Ottoman Empire, Turkish ownership laws and customs applied there at least until the League of Nation attributed its Mandate for Iraq to Great Britain. During the period of the Mandate, the land, water and mineral resources rights, if they changed hands at all (8), are not seen as having been subject to any automatic aligning - except perhaps in favor of the aboriginal owners, i.e. the local tribes and their leaders. Iraqi law in force prior and after Independence was to protect these rights.
Under these circumstances the concessions the Iraq Government granted in 1925 may have been based and applied on erroneous assumptions. Be that as it may, those and later concessions concerning the Mosul Vilayet (just as later their nationalization) are not seen to have legally altered the land and mineral resources ownership by, mostly, the local tribes and families and their leaders. Thus, when it was granted independence in 1932, Iraq's constitutive Declaration of May 30, 1932 (9), became important for the effective protection not only of human and minoriry rights, but also of private property. For in art.14,1 of said solemn Declaration, the Iraqi Government unambiguously stated (10):
Unless proven otherwise, the original tribes of the Mosul Vilayet are seen
to be the legal owners of its oil fields, in as much as sovereignty transfers
do not bestow automatic legal ownership of private property, and as the
acquisitions of related rights by Iraq in line with its international obligations
have been or will be voided, e.g. due to breach of Iraq's obligations.
CORUM - Center for Free Zones and Paneuropean Studies
POB 2580 - CH-1211 Geneva 2 (e-mail: email@example.com; fax: +4122-7400362)
(2) With Iraq becoming an independent subject of international law on October 3, 1932 (date of termination of the League of Nations' Mandate administered by Great Britain, and of Iraq's admission as Member of the League of Nations) the coming into force of this Treaty may not have occured until then - but also not later, due to Great Britain's status as a party to same and the corresponding provision of Iraq's constitutive Declaration of May 30, 1932. This difference of dates might become significant, e.g. if further research turned up evidence that the oil concessions granted by Iraq prior to its independence infringed on ownership rights protected by that Declaration, e.g. those of the aboriginal inhabitants of the Mosul Vilayet, but perhaps also those claimed by Turkish subjects who lawfully had acquired related rights.
(3) On December 16, 1925, the Council of the League of Nations conditionally decided in favor of the present frontier line between Turkey and Iraq. It attached strict conditions for the long-term protection of minorities and commercial rights, providing garantees for the Kurdish population regarding the local administration (Official Journal of the League of Nations, February 1926, p.191-2). On March 11, 1926, the Council put this decision into force (ibid., April 1926, p.502-3). In his critical review of this decision - which, in effect, attributed the Mosul Vilayet to Iraq rather than to Turkey - P.E.J. BOMLI concludes it to be "nul and void" and that Iraq's territorial sovereignty over the Mosul Vilayet rests exclusively on its Frontier Treaty with Turkey of June 5, 1926 ("L'Affaire de Mossoul", H.J., Paris 1929, p.245). See also: "Sovereignty Questions Regarding the Mosul Vilayet - An Inquiry on Northern Iraq", CORUM Geneva, 1992.
(4) "Royalty payments to the 'Iraq Government from 1926 to the end of 1951 ... amounted to £1,900,000" (Stephen H.LONGRIGG, "Oil in the Middle East", Oxford University Press, 1961, p.188).
(5) League of Nations Treaty Series (LNTS), vol.28, 1924, p.53
(6) In the late twenties, this has given rise to claims by the heirs of Sultan Abdul Hamid, i.e. "an ever-growing body of Turkish princes and princesses" who, in the words of LONGRIGG (op.cit. p.68),
The UN Security Council resolution 688 (1991) is reviewed in light of actual conditions and foreseeable needs in Iraq. The effects of, and the options concerning the Memorandum of Understanding are discussed. Also, the conditions under which Iraq acquired independence on 3 October 1932 (date of termination of Britain's Mandate and Iraq's admission to the League of Nations) are reviewed with particular regard to the people of the Mosul Vilayet. Iraq's violations of these "obligations of international concern" open the way to appropriate solutions reflecting Iraq's limited sovereignty.
THE SOLUTION: Baghdad-independent
alternative or complementary legal instruments to those now in place, ie.
688 and the MOU. The latter will run out automatically 30 June 1992. It
should not be prorogated, even if Baghdad deigns to extend it, lest the
people it is designed to protect are to be left without effective protection
and minimum human rights standards, and the world community be subjected
to still further humiliations and complications. Such new legal instruments
may consist of corresponding Security Council texts which may be making
creative use of existing texts, such as the UN Statute on Trust Territories,
in combination with the still valid IRAQI
DECLARATION of 30 May 1932. And
they may be brought to bear in the sense of the "exceptional response"
recommended by the Special Rapporteur of the UN Human Rights Commission.
That Commission, on 5 March 1992, with 35 votes for and Iraq's vote against,
adopted a resolution condemning human rights abuses in Iraq, and requesting
its Special Rapporteur "to develop further his recommendation for an exceptional
response" notably to the policies of "genocide-type" treatment of the Kurdish
people by the Iraqi authorities. Measures short of formally withdrawing
recognition from the present Iraqi Government: enforcing
international minority rights and protection guarantees with Human Rights
Monitors, National Sponsorship for
Non-Self-Governing Territories, Trusteeship
System, UN troops, Neutralized
Zones, etc; Security Council review of the conditions under which Iraq
gained independence, under which the League of Nations attached the Mosul
Vilayet (northern region) to Iraq rather than to Turkey, and under which
Iraqi oil property rights were - or were not legally - acquired by the
State of Iraq; etc.
With its resolution 688 of 5 April 1991 (3), the Security Council
2. Demands that Iraq, as a contribution to removing the threat to international peace and security in the region, immediately end this repression and expresses the hope in the same context that an open dialogue will take place to ensure that the human and political rights of all Iraqi citizens are respected;
3. Insists that Iraq allow immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq and to make available all necessary facilities for their operation;
4. Requests the Secretary-General to pursue his humanitarian efforts in Iraq and to report forthwith, if appropriate on the basis of a further mission to the region, on the plight of the Iraqi civilian population, and in particular the Kurdish population, suffering from the repression in all forms inflicted by the Iraqi authorities;
5. Requests further the Secretary-General to use all the resources at his disposal, including those of the relevant United Nations agencies, to address urgently the critical needs of the refugees and displaced Iraqi population;
6. Appeals to all Member States and to all humanitarian organizations to contribute to these humanitarian relief efforts;
7. Demands that Iraq cooperate with the Secretary-General to these ends;
8. Decides to remain seized of the matter.
In the "FURTHER REPORT OF THE SECRETARY-GENERAL ON THE STATUS OF COMPLIANCE BY IRAQ WITH THE OBLIGATIONS PLACED UPON IT UNDER CERTAIN OF THE SECURITY COUNCIL RESOLUTIONS" (S/23687, 7 March 1992), on the subject of resolution 688, it is stated:
(a) From 13 to 18 April 1991, the United Nations Mission led by Mr. Eric Suy, Personal Representative of the UN Secretary General, and
(b) From 16 to 18 April, the United Nations Inter-Agency Mission led by Prince Saddrudin Aga Khan, Executive Delegate of the UN Secretary General for the UN Humanitarian Programme for Iraq, Kuwait and the Iraq/Iran and Iraq/Turkey Border Areas."
Experiences made, imperatively call for a fundamental policy review, with the objective of enhanced effectiveness of the UN's various humanitarian efforts in Iraq. Existing measures must be checked against resolution 688, so as to strengthen - rather than weaken - this reference date in international humanitarian law. An assertive 688-based policy is thus called for, seeking to abrogate the MOU at the earliest possible moment, and to replace it - rather than to renew it - with an independent interim regime, in line with UN rights and obligations, as appropriate responses.
In order to secure the widest possible
political support, the world community's response to the Iraqi authorities'
actions and inactions should be specific, with the envisaged independent
interim regime based on generally recognized legal fundaments. The 4th
Geneva Convention on the protection of civilians in war and the UN Charter
are seen to avail themselves to that effect. Appropriate structures may
be built on that basis in application of the still valid constituent IRAQI
DECLARATION of 30 May 1932 (5).
Having been stowed away in the Archives of the League of Nations, this
fundamental document has only recently been re-discovered. It provides
for the effective protection of human, minority (religious, ethnic, language)
and property rights by way of "obligations of international concern" which,
as "fundamental laws of Iraq", are specifically declared to take precedence
over any present or future Iraqi "law, regulation or official action".
Moreover, these obligations have explicitly been "placed under the guarantee
of the League of Nations" (with related rights and obligations now seen
to be residing with the UN Security Council, in line with the principles
reflected in articles36 and 37 (6)
of the Statute of the International Court of Justice as well as
with those principles which have repeatedly been confirmed and strengthened
by various UN institutions, notably in the case of South Africa's League
of Nations Mandate on South-West
ON IRAQ'S LIMITED SOVEREIGNTY IN THE MOSUL VILAYET
In line with art.3 of the Treaty of Lausanne of 24 July 1923 (8), and art.22 of the Covenant of the League of Nations(CLN) (9), the Council of the League set up a special Commission of Inquiry (CI) on the Mosul Vilayet which was disputed by Turkey and Iraq (the subject of a League Mandate entrusted to Great Britain (10)). This Commission was to assemble and examine the relevant facts and to submit its recommendations to the Council of the League.
After extensive consultations among the different ethnic groups (11) who have inhabited this contested Mideastern crossroad for centuries, the CI completed its report 16 July1925 (12).
Government has strongly opposed the formal attachment of the Mosul Vilayet
to Iraq, citing notably its Turkish and Kurdish inhabitants' right to
self-determination as well as historical and conventional rights
Although it has eventually accepted the border with Iraq as stipulated
by the Council of the League, and in 1946 and later has concluded bilateral
agreements with Iraq pertaining to border questions, some see Turkey to
have never formally renounced its claims to the Mosul Vilayet which it
considered to be an integral province of its national territory.
Also, the League's Commission of Inquiry of 16 July 1925 - "Question of the Frontier between Turkey and Iraq" C.400. M.147 - authoritatively concluded in these terms:
... It should be added
that when the Iraq Parliament ratified the treaty [of Alliance between
Britain and Iraq of 10 October 1922 (14)]
it adopted a resolution to the effect that the treaty should become null
and void in the event of the British Government's failing to safeguard
the interests of Iraq in the Vilayet of Mosul as a whole. ...
The internal situation in the State of Iraq, however, seems unstable. ... Serious difficulties are being encountered owing to the tension between Sunnites and Shiites, the latter of whom are less open to modern ideas of reform. It should be noted that the Shiites are in a majority in the two vilayets of Baghdad and Basrah, while the vast majority of the population of the Vilayet of Mosul are Sunnites. The relations between Kurds and Arabs are also uncertain; at the time of the Commission's visit the Government had not yet ventured to set up an Iraq administration in the Liwa of Sulaimaniya, which was still ruled by British officials. The Commission formed the impression that the mandate, in the shape of the existing treaty, must be maintained for something like a generation in order to allow of the consolidation and development of the new State. In the opinion of many persons whom we consulted, the very existence of the State might be imperiled if the guidance and protection afforded by the League of Nations mandate were withdrawn after a few years.
It is clear, therefore, that the economic and other advantages which the Vilayet of Mosul as a whole would derive from union with Iraq would be exchanged for very serious political difficulties if the mandate should expire before Iraq could be regarded as ripe for self-government without League support. In that case it would certainly be better for the Vilayet of Mosul to be placed under Turkish sovereignty, since the internal and external political situation of Turkey is incomparably more stable than would be the case with Iraq if the latter country were left to itself.
Popular sentiments in the disputed area might also serve as a guide in seeking a solution which will not infringe the rights of any of the parties. These sentiments are probably somewhat in favour of Iraq, if the statements given in all parts of the territory are taken together. These statements, however, were so variable, and so hedged in by conditions, that they cannot be taken as the sole basis for the future political status of the country. It should particularly be noted that the attitude of those districts in which the prevalent feeling is in favour of Iraq is decided not so much by any real preference for Iraq as by economic considerations and the desire to retain the foreign support which is now afforded by the mandate.
Many of the partisans of Iraq state that if the mandatory regime were shortly to come to an end they would rather be restored to Turkey. ...
The country is inhabited by Kurds, Arabs, Christians, Turks, Yezidi and Jews, in that order of numerical importance. ...
The majority of the population consists of Kurds, who are neither Turks nor Arabs, and speak an Aryan language. The Turks of the country are of the same race as those of the Turkish Republic. The Yezidi are not Moslems; they are akin to the Kurds, but their religion and their isolated position make them an entirely distinct people. The vast majority of the Christians are Nestorians and Chaldaeans. ...
The only communication between the City of Mosul and the settled Arab populations runs through an area inhabited by a Kurdish majority.
The Christians are scattered, but the great majority of them live north of Mosul.
Out of an estimated total of 3,000,000 Kurds, it is fair to say that 1,500,000 live in Turkey, 700,000 in Persia and 500,000 in the disputed territory. There are a certain number in Syria, but the number in Iraq proper is insignificant. Those of the Kurds in the disputed area who live on the northern side of the Greater Zab are connected by their dialect, racial affinities, and personal and economic relations with the Kurds of the vilayets of Hakkiari and Mardin in Turkey. Those living to the south of the Lesser Zab are more closely connected with the Kurds in Persia."
Iraq is the first League-mandated country to gain independence, but that might explain only partially the apparent tiptoeing. The documents, reports and correspondences undug so far in the Archives of the League, moreover, do not support the view that over the years the notoric ethnic tensions between Arabs, Turks and Kurds have subsided to a level affording to reduce or even abolish the above strict reservations and conditions recommended by the CI. On the contrary, the League Council found itself compelled to enact these recommendations in every detail and at every step and, in the end, even to complement and to stiffen them - regardless of how much, in law and in practice, these safeguards effectively have encroached on Iraq's sovereignty. Indeed, those who, in the late twenties and early thirties, were charged with the task of monitoring the situation must have quickly come to the conclusion that - short of an outright amputation of the contested territory - an early termination of Britain's Iraq Mandate could not responsibly be envisaged without a new set of strict, verifiable and permanent safeguard measures, particularly for the inhabitants of the Mosul Vilayet.
Eventually, the partisans of Iraq's early national independence developed a formula for a solemn irrevocable international Iraqi guarantee which made key human rights the subject of Iraqi "obligations of international concern ... placed under the guarantee of the League of Nations", over-riding Iraqi national law, and thus going in some points even beyond the measures stipulated by the League's Commission of Inquiry. As an integral part of Iraq's ascension to national independence they were then seen to adequately cover the foreseeable contingencies. Following are some excerpts from this apparently not widely known - and heeded - key document (16) (see annex; fn 5) with the title:
OF THE KINGDOM OF IRAQ, MADE AT BAGHDAD ON MAY 30TH, 1932,
ON THE OCCASION OF THE TERMINATION OF THE MANDATORY REGIME IN IRAQ, AND
CONTAINING THE GUARANTEES GIVEN TO THE COUNCIL BY THE IRAQI GOVERNMENT
Iraq, by fiat of the League of Nations, on 3 October 1932, was formally, but only conditionally, relieved of the tutelage bonds entailed in the Mandate the League had entrusted to Great Britain. As such it became on that date a closely observed, yet independent subject of international law, thus being subject only - but nevertheless fully - to the international obligations entered into by Iraq's constitutional authorities.
The above Declaration of 30 May 1932, is seen to constitute such an instrument unconditionally and permanently binding Iraq on the international level. The beneficiaries of these rights are the Iraqi, notably the Kurdish citizens living in the Mosul Vilayet. These rights have been declared officially to constitute for the Iraqi Government solemn "obligations of an international concern [that are] placed under the guarantee of the League of Nations." They take precedence over all present and future Iraqi laws and regulations, and interested third nations are thus empowered to initiate proceedings in the appropriate international fora, ie. the United Nations and/or the International Court of Justice.
This Iraqi Declaration is thus seen to be a constituent element - and a still indispensable one at that - of both Iraq's existence as an independent subject of international law and of Iraq's territorial integrity. Moreover, its collatoral, ie. Iraq's far-reaching obligations flowing from it can also fairly be assumed to have in no way suffered a diminution in international law. The question then arises on the degree of effective compliance or non-compliance, and on eventual consequences and remedy measures.
The UN Human Rights Commission, no less than the Security Council, on various occasions, has condemned Iraq for wide-spread, systematic and officially sanctioned human rights violations particularly vis-à-vis Kurds (17). These violations involve fundamental modern texts of international humanitarian law which have been duly ratified by Iraq, such as the 4th Geneva Red Cross Convention and Additional Protocols. But these violations are also seen to be compatible neither with Iraq's 1932 Declaration, nor with the minority protection guarantees thus incumbent upon the United Nations. Pointedly, the Council of the League of Nations linked the attachment of the Mosul Vilayet to Iraq to strict conditions.
Has Iraq thus forfeited whatever limited
sovereignty rights it was entrusted with regarding the Mosul Vilayet? This
may be a matter for the International Court of Justice to decide.
Until then - with the burden of proof resting clearly with Iraq, and in
light of the prevailing human rights circumstances and the genesis of the
Mosul Vilayet's conditional attachment to Iraq - the United Nations, in
international law, are not seen to be obliged to respect whatever territorial
claim Iraq may have beyond the internationally recognized borders surrounding
the Basra and the Baghdad Vilayet. Accordingly, the Mosul Vilayet, in international
law and for the time being, may be treated as a NON-SELF-GOVERNING TERRITORY
in the sense of articles 73 and 74 of the UN Charter, with those members
of the Security Council so wishing eventually assuming corresponding responsibilities
OPTIONS FOR PROMPT REFLIEF, REDRESS AND RECONSTRUCTION
Non-Self-Governing or Trust Territories and/or Neutralized Zones?
The UN Charter (articles 75 to 91) provides for an international trusteeship system (19) under the authority of the United Nations. On the surface of it, none of those articles is seen to fit the case of the Mosul Vilayet. A closer look provides better insights.
In the above light, the Security Council, upon further analysis, may conclude that the League of Nations Mandate entrusted to Great Britain, on Iraq's independence day of 3 October 1932, lapsed only conditionally. That could provide some legal mileage for developing various options. In the event, they could affect either the whole of Iraq, or only the Mosul Vilayet and/or those areas on the northern border of the Tigris wherever officially perpetrated violations of internationally guaranteed minority protection rights cannot be safely ruled out. Placing these territories promptly under the UN trusteeship system is the least what those officially abused minorities may expect from the UN.
In view of the special legal circumstances of the Mosul Vilayet, a step-by-step approach may also provide a practical pathway, eventually leading to independence by way of the status of a non-self-governing territory in the sense of articles 73 and 74 of the United Nations Charter. This may or may not involve, as an immediate first step, the establishment of a Neutralized Zone in the sense of article 15 (20) of the 4th Geneva Convention of 1949. And it may or may not take advantage of the entry vehicle to the UN trusteeship system provided for in the Charter (art. 77, 1c). At any rate, evidence suggests that the present "safe haven" in Northern Iraq, being a part of the Mosul Vilayet, in international law, is neither a legal no-man's land nor need it be treated as being subject to Iraq's internationally recognized sovereignty.
As to the best choice among the various available instruments for effectively relieving the plight of the Iraqi civilian minorities in Northern and Southern Iraq, all those discussed are based on solid legal grounds, yet the experience with these instruments and the available infrastructure for their application vary greatly. Security is seen to be a prime concern in each case. The interim solution(s) eventually adopted on the basis of the UN Charter would seem to offer no significant problem in that regard. For the Security Council, using authority granted to it in articles 39ss of the Charter, could in each case provide for adequate physical protection of the populations concerned with all the necessary means, including UN troops.
In the case of Neutralized Zones
- which may be set up promptly anywhere in Iraq - Iraq's obligations under
resolution 688 (art.3), together with art.15 of the 4th Geneva
Convention, are seen to provide the legal basis for unilaterally
established neutralized zones for the protection of civilians. These zones
might be exclusively administered by the International Committee of the
Red Cross ICRC and the League of Red Cross and Red Crescent Societies.
And the inhabitants of these zones might be protected by police forces
flying the Red Cross flag; in the event, they might be drawn in particular
from Allied Forces.
km2 Sunnites Shiites Jews
Baghdad 141227 524414 750421 62565 20771 1360304
Basra 138741 42558 721414 10088 2551 785600
Mosul 91009 579713 22180 14835 55470 703378
total 370977 1146685 1494015 87488 78792 2849282
of the Frontier between Turkey and Iraq", Commission of Inquiry
Report, 16 July 1925, League of Nations Publication C.400, M.147, 1925
(13) With the arrival of the nationalists under Kemal Pacha (Atatürk) on the political, military and diplomatic scene in Turkey, their successful campaigns and territorial policies ruled out many of the concessions their predecessors had found themselves constrained to make in the Peace Treaty of Sèvres of 10 August 1920 (which thus never came into force, yet, is formally referred to in art.XIV of the British-Iraqi Alliance of 10 October 1922). However, these policies do not appear to have been fundamentally against the creation of autonomous regions or even independent states on "core-Turkish" territory, notwithstanding rejection of the Sèvres Treaty which, in art.62-64, explicitly provided for the eventual creation of an "independent Kurdish State" involving notably Turkish Kurdistan and the Mosul Vilayet. For one thing, these Turkish policies are seen to be largly inspired by President Woodrow Wilson's principle of self-determination, as expressed notably in point 12 of his 14 Points on World War I peace terms:
J.A.Keller, Secretary, Good Offices Group of European Lawmakers - 28 February 1992
In view of the Iraqi Government's outright rejection of the UN Security Council Resolution 688, and in light of its persistent practices which are seen to be compatible neither with humanitarian law nor with Iraq's statutory and other international obligations, the Office of the UN Secretary General's Executive Delegate is looking into the "interesting possibilities" outlined by Kurdish leader Sardar Pishdare, has taken note of his plan (2) "to demonstrate the technical feasibility of making these wells [located in Kurdish-controlled Iraq North of the 36th parallel] produce, and of applying the proceeds to Iraq's humanitarian needs" and is awaiting "the technical feasibility results" (letter of Nov. 19, 1991).
NOTE: Apparently in response to this non-military enforcement of humanitarian UN Resolution 706, the Iraqi Petroleum Minister Oussama al-Hitti, at a Baghdad press conference December 25, 1991, revealed the Iraqi government's conditional willingness to consider applying this "non-applicable" - and thus repeatedly rejected - key UN Resolution 706; nevertheless, he wanted it to be re-negociated by the Iraqi Foreign Minister in line with Iraqi policy. Yet, a corresponding February meeting with UN officials in Vienna was called off unexplained by Iraq.
* * *
The sudden collapse of Communist
dogmas, institutions and networks comes at an unexpected moment in history
on top of basic questionings and re-orientations notably among Muslims
living in societies which, due to economic or social gradients, have not
been noted for their stability. Like in the case of Algeria and some former
USSR republics, the free flow of things might thus aggravate already volatile
political, economic and social conditions - to the point of entirely uncontrollable
developments possibly affecting the basic regional setup and, for some
years at least, Western oil supply interests. The clear-sighted search
for and the determined promotion of a generally and mutually stabilizing
catalyst for the Mideast is thus urgently called for.
NOTE: Traditionally pragmatic, open and Western-friendly Muslims, the Kurds with their strong European roots, in most relevant ways, would seem to avail themselves best for this key rôle, even from the point of view of their Iranian, Turkish and Arab neighbors. The powers that be might thus want to consider supporting the above-mentioned "UN feasibility study" regardless of what actions and inactions the Iraqi Government may pursue ... and to seek inspiration from the somewhat analoguous case of Switzerland where, in 1815, the powers that were agreed to what is still valid and mutually beneficial (3).
Middle East oil reserves critically important to world supply" Oil
& Gas Journal, 9/23/91, p.62
(2) Indications are that all Kurdish tribes and leaders (Massoud Barzani, Ali Homam Ghazi, Jalal Talabani, etc.) support both this plan and Sardar Pishdare's leadership for its development and execution.
(3) As discussed at greater length by the same author in his contribution to the European Confederation Conference, "On the Ideal Nation", Austria, France, Great Britain, Prussia, Russia, at the Paris Congress on November 20, 1815, adopted the time-tested Swiss neutrality formula devised by Charles Pictet-de Rochemont: