On Benchmarks:
Institutions and Violence in Iraq
Stephan Haggard
Graduate School of International Relations and Pacific Studies
University of California San Diego
James Long
Department of Political Science
University of California San Diego

Abstract
Since the invasion of Iraq in 2003, the United States has sought to encourage
institutional developments in Iraq that would contribute to national reconciliation andmitigate sectarian and insurgent violence. In these reform efforts, including recent“benchmarks,” the Bush administration has drawn on power-sharing and federalist
models. The purpose of these efforts is to overcome the political dilemmas associatedwith the relative shift in power among the Sunni, Shia and Kurdish communities, and to
blunt the majoritarian features of the political system in particular. A review of thetheoretical and empirical literature suggests that the record of these institutional reforms
in mitigating violence and ending civil wars is not encouraging. A detailed history of
institutional reform efforts in Iraq shows that proposed institutional reforms have notconstituted an endogenous political equilibrium, have not been credible, or have had
perverse consequences. These findings suggest the limits on institutional reform and theimportance of alternative means of restraining violence.
Comments welcome to shaggard@ucsd.edu and jdlong@ucsd.edu.

From the invasion of Iraq if not before, the US has sought to craft appropriate
political institutions for Iraq. Quite early, US decision makers became aware of aparticular political dilemma posed by the collapse of Saddam Hussein’s regime.
Democratization threatened not only a dramatic reversal in the relative power of the Shia
and Sunni Arab communities but a permanent Shia majority.1 Democracy also allowed
the Kurdish minority to protect its de facto independence in ways that further isolated theSunnis and other minorities. The task of institutional engineering was therefore notsimply to bring democracy to Iraq, but to constrain the Shiite-Kurdish majority, expand
the representation of the Sunnis and thus reduce incentives to violence.
Efforts at institutional engineering did not end with the formation of the al-Maliki
government in June 2006. The idea of coupling continued U.S. support to further
institutional reforms re-surfaced in late 2006 and was visible in both the Iraq Study
Group report and the administration’s plan for a “surge.” 2 Lawmakers subsequently
included 18 “benchmarks” in war funding legislation passed in May 2007, calling among
others things for constitutional revision, a review of de-Baathification efforts, renewed
efforts to rein in militias, and passage of laws on oil, revenue sharing, the formation ofregions and provincial elections (see Appendix).

1

See Vali Nasr, The Shia Revival: How Conflicts Within Islam Will Shape the Future,(New York: Norton, 2006), in which his chapter on Iraq is subtitled “The First Arab Shia
State.”
2
See Zalmay Khalilzad, “Joint Press Conference with General George Casey,” (October24, 2006) at http://iraq.usembassy.gov/iraq/20061024_strategy_in_iraq.html; Walter
Pincus, “Timetables? It Depends on Who’s Talking,” Washington Post (October 29,2006), A08; James Baker and Lee H. Hamilton, The Iraq Study Group Report: The Way
Forward, a New Approach (New York: Vintage Books, 2006), pp. 59-69, and the“Notional Political Timeline” appended to Secretary of State Condeleeza Rice letter to
Senator Carl Levin, January 30, 2007.

2

These efforts at constitutional engineering drew on two overlapping approaches tomitigating conflict in divided societies: power-sharing agreements, and the devolution of
power to subnational governments. We argue that in pursuing these reforms, the UnitedStates has faced an “engineer’s dilemma.” Although there are theoretical reasons tobelieve that institutional change might mitigate ethno-sectarian violence, thoseinstitutions do not necessarily constitute an endogenous political equilibrium in Iraq.
Through mid-2007, no political arrangements were able to simultaneously gain
acceptance of the Shia-Kurdish political majority and credibly appease Sunni fears.
Moreover, efforts at political engineering often had unintended and perverse
consequences, exacerbating rather than mitigating violence.
In the first section of the paper, we draw on the civil war literature to outline
features of the Iraqi landscape that have made it a difficult test case for any negotiatedsettlement, including the fragmentation of the combatants, their weak representation in
the formal political process, and the presence of extremists and the associated process ofoutbidding. These conditions are a reminder that civil wars last a long time, that the
majority end only with decisive victory, and that negotiated settlements are relatively
rare.
In the second section, we discuss the logic of power-sharing approaches to the
management of conflict in divided societies. These solutions have included, among
others: proportional representation, consensus decision-making arrangements, minority
vetoes, and the allocation by quota of cabinet positions, bureaucratic offices and otherresources. Cross-national and case study evidence for the success of power-sharing in
averting or resolving conflict is surprisingly fragile. We outline the history of these3efforts in Iraq and find that they failed to overcome majoritarian features of the politicalsystem and lacked credibility.
We provide a similar overview of the literature on federalist solutions to conflict.
We show that the fiscal structure of the Iraqi state, and particularly the high dependenceon oil revenues, and majoritarian features of the political system made it virtually
impossible to craft a credible federal arrangements. Rather, debates over federalism, theformation of regions and oil have had highly polarizing effects. Moreover, we show why
partition has not constituted an endogenous political solution to these problems.
In the conclusion, we consider some alternative paths to reconciliation including
reliance on counterinsurgency, the formation of alternative political coalitions, andmutual hostage strategies. We show why these, too, have been vulnerable to theengineer’s dilemma. We also draw on the literature on third party enforcement in civil
war settings to outline the moral hazard problems that have surrounded the “benchmark”
effort and how negotiations among external actors could at least restrain the conflict.

Violence in Iraq: Fragmentation, Ethnic Geography and the Prospects for
Negotiated Settlement
The United States and its allies confronted an unexpected level of resistance andinsurgent violence from the very outset of the invasion. Sectarian violence was notaltogether absent, but it escalated dramatically in the wake of the final transitional
elections in October and December 2005. A political battle ensued over whether thesituation in Iraq could be considered a civil war, but among students of conflict the issue

4was never in question.3 By any definition, Iraq had descended into a complex civil war
encompassing multiple axes of conflict: insurgent violence directed against Coalition
troops and Iraqi government forces; ethno-sectarian violence between Sunni and Shiite
militants, but increasingly engaging Kurds and other minorities; growing intra-sectarian
violence against Sunni “collaborators” and among Shia factions; and a significant
criminal element.
The idea that institutions might mitigate such violence can be theoreticallygrounded in the contemporary theory of war as the result of bargaining failure.4 In the
shadow of armed conflict, there should always be a negotiated agreement that the parties
would prefer to fighting. However, problems of incomplete information, issue
divisibility, and/or credibility can block agreement, including on new institutions.
Credibility problems seem particularly germane to understanding the conflict in
Iraq. Such problems have typically been invoked to explain the collective action
problems associated with disarming warring parties.5 Yet the credibility problems in civil
war settings are much more pervasive than those surrounding disarmament. Negotiated3

Scholars typically rely upon a battle-death threshold of at most 1,000 per year, or 1,000
for the lifetime of the conflict. See for example M. Small and J.D. Singer, Resort toArms: International and Civil Wars, 1816-1980, (Beverly Hills, CA.: Sage, 1982);
Nicholas Sambanis, “Partition as a Solution to Ethnic War: An Empirical Critique of the
Theoretical Literature,” World Politics, Vol. 52, No. 4 (July 2000), pp.437-483; andJames D. Fearon and David D. Laitin, “Ethnicity, Insurgency, and Civil War,” American
Political Science Review, Vol. 97, No. 1 (February 2003), pp.75-90. Through mid-2007,
Iraq typically met these thresholds in any given month. See Michael E. O’Hanlon andJason H. Campbell, “Iraq Index,” (Washington, DC: Brookings Institution, April 2007).
4
James D. Fearon, “Rationalist Explanations for War,” International Organization, Vol.
49, No. 3 (Summer 1995), pp. 379-414; Dan Reiter, “Exploring the Bargaining Model ofWar,” Perspectives on Politics, Vol. 1, No. 1 (March 2003), pp.27-47.
5Jack Snyder and Barbara F. Walter, Civil Wars, Insecurity, and Intervention (NewYork: Columbia University Press, 1999); and Barbara F. Walter, “The Critical Barrier to
Civil War Settlement,” International Organization, Vol. 51, No. 3 (Summer 1997),
pp.335-364.
5

settlements require agreement over political institutions. For these institutions to mitigate
violence, they have to yield an allocation of decision-making powers, security andresources that, at the margin, makes it rational for those engaged in fighting to desist.
Moreover, these political agreements must be credible. Parties are forward-looking; they
consider the effects of these institutional bargains not only in the current period but into
the future. In the absence of credible third-party enforcement, such agreements must be
self-enforcing; if not, they will not generate support and fighting will resume.
Before turning to these institutional arrangements in more detail, it is important tounderscore that the aggregate data on the duration of civil wars does not paint a hopeful
picture for any negotiated settlement to the civil war in Iraq. First, civil wars typically lasta long time. In 1947, the average length for civil wars was 2 years. By 1999, that number
had jumped to 15 years.6 The evidence also suggests that few civil wars end throughnegotiated settlement. Some debate exists on coding, but estimates range from 40 percent
to as few as 20 percent are resolved in this way.7 The remainder ends in decisive military
victory for one side or the other.

6

Fearon and Laitin, “Ethnicity, Insurgency, and Civil War.”
Hartzell codes negotiated settlements if “representatives from the opposing sides of aconflict met in face-to-face talks to discuss issues and conditions they believed relevant
to ending the war.” Caroline Hartzell, “Explaining the Stability of Negotiated Settlements
to Intrastate Wars,” Journal of Conflict Resolution, Vol. 43, No. 3 (February 1999), pp.
12. This produces 38 cases of negotiations out of 103 civil wars in her dataset between
1945-97, or 37%. See also Caroline Hartzell, Matthew Hoddie, and Donald Rothchild,“Stabilizing the Peace After Civil War: An Investigation of Some Key Variables,”International Organization, Vol. 55, No. 1 (Winter 2001), pp.183-208. Following Roy
Licklider (“The Consequences of Negotiated Settlements in Civil Wars, 1945-1993,” The
American Political Science Review, Vol. 89, No. 3 (Sept. 1995), pp. 681-690), Walter
employs a more stringent definition and finds that only 20% of civil wars ended innegotiation for the 1940-90 period. Walter, “Civil War Settlement.” Similarly, Fearon
finds only 25 percent of 55 civil wars fought over control of the central government from
7

6

Moreover, a number of characteristics of the current violence in Iraq adversely
affect the prospects for negotiated solutions. The cohesiveness or fragmentation of ethnosectarian groups is an important problem in civil wars: the greater the fragmentation
among the groups, the more difficult to reach and enforce settlements. Fragmentation
exacerbates coordination problems, complicating both inter-group bargaining and thepolicing and enforcement of agreements.8 Fragmentation also reflects greater
heterogeneity of preferences within groups, and a greater likelihood of extremists,
spoilers, and “outbidding,” a process in which factions compete by taking more extreme
and violent positions.9
Fragmentation is particularly evident among the Sunni combatants. The Sunni
insurgency initially included redeployed or disbanded army units, former Baathists andmembers of Saddam’s fedayeen, foreign fighters, and local responses to the invasion andits immediate aftermath.10 Despite repeated efforts at consolidation, the Sunni

1955 to the present ended in negotiated settlement. James D. Fearon, “Iraq’s Civil War,”
Foreign Affairs, Vol. 86, No. 2 (2007) pp.2-15.
8Fearon and Laitin, “Interethnic Cooperation.”9
Mia Bloom, Dying to Kill: the Allure of Suicide Terror (New York: Columbia
University Press, 2007); Andrew H. Kydd and Barbara F. Walter, “The Strategies ofTerrorism,” International Security, Vol. 31. No. 1 (Summer 2006), pp. 49-80; Pierre M.
Atlas and Roy Licklider, “Conflict Among Former Allies after Civil War
Settlement: Sudan, Zimbabwe, Chad, and Lebanon,” Journal of Peace Research, Vol. 36,
No. 1, pp.35-53; and Donald Horowitz, Ethnic Groups in Conflict (Berkeley:
University of California Press, 1985). Some spoilers use violence to extract concessions
and can thus be placated through inducements, a critical issue for the power-sharing
approaches we discuss below. See Stephen John Stedman, “Spoiler Problems in Peace
Processes,” International Security, Vol. 22, No. 2 (Fall 1997), pp. 5-53.
10
For overviews of the insurgency, see Zaki Chehab, Inside the Resistence: the Iraqi
Insurgency and the Future of the Middle East (New York: Nation Books, 2005); Fawaz
A. Gerges, Journey of the Jihadist: Inside Muslim Militancy (New York: Harcourt, Inc.,
2006), pp. 246-272; Ahmed S. Hashim, Insurgency and Counterinsurgency in Iraq
(Ithaca, NY: Cornell University Press, 2006), pp. 1-47; International Crisis Group, “In7insurgency has continued to exhibit deep ideological and organizational cleavages.11
Particularly important has been the split between Salafi or Islamist organizations,
including but not limited to the foreign jihadists who represent a relatively small share of
the insurgency,12 and “nationalist” insurgent forces. In 2006-7, these differences brokeout into open warfare.
In addition to this fragmentation is the obvious presence of extremist factions.
Even if the United States were to leave Iraq entirely, the demands of radical nationalists
to re-establish Sunni hegemony or of jihadists for an Islamic “caliphate” reflect
differences so profound that they would not be resolved except through further fighting.
Foreign jihadists, operating with a region-wide strategic vision, are particularly unlikely
to be appeased by institutional compromises.
The fragmentation of the Sunni insurgency is mirrored at the political level in the
weakness of the Sunni parties and divisions between Islamist and secular-nationalist
tendencies.13 These divisions are not all inimical to peace: certain Sunni politicians andsheiks have cooperated with the US counterinsurgency,14 and insurgents have held
discussions with both US authorities and commanders and representatives of the Iraqi
government; negotiations have not been altogether absent. Yet none of the Sunni political
Their Own Words: Reading the Iraqi Insurgency,” Middle East Report No. 50 (February
15, 2006).
11
International Crisis Group, “In Their Own Words”; Mahan Abedin, “Mujahideen ShuraCouncil in Iraq: Fact or Fiction?” Terrorism Focus, Vol. 3, No. 12, (March 28, 2006).
12
Michael E. O’Hanlon and Jason H. Campbell, “Iraq Index,” (Washington, DC:
Brookings Institution, April 2007).
13
The major groupings include the Iraq Accord Front (made up of the Iraqi Islamic Party,
the Iraqi National Dialogue Front and the Iraqi People’s Congress), the Association ofMuslim Scholars, the Witaniyun or Patriots grouping (which also includes some
important tribal associations)14
For example, Lydia Khalil, “Anbar Revenge Brigade Makes Progress in the Fight
Against al-Qaeda,” Terrorism Focus, Vol. 3, No. 12 (March 28, 2006).
8

parties can speak authoritatively for the insurgency as a whole and most do not even
exercise credible control over their own followers.
The major Shia parties—the Supreme Council for the Islamic Revolution in Iraq
(SCIRI, later the Supreme Islamic Iraqi Council, or SIIC) and the Islamic Da’wa Party—
enjoyed the advantages of a lengthy incubation in Iran and were much more coherent as aresult. Moreover, these parties (and their Kurdish allies) enjoyed the advantage of theirdemographic majority and had high-powered incentives to maintain electoral alliances
through the United Iraqi Alliance. Nonetheless, problems of fragmentation among Shia
parties and combatants became more pronounced over time. The unpopularity of the alMaliki government and sharp disagreements within the Shia community over federalism
have generated increasing factional challenges within the UIA from Moqtada al-Sadr andnew regionalist parties in the south. In 2006 and 2007 defections from these parties
reduced the Shia-Kurdish alliance to the narrowest of legislative majorities and eventhreatened a collapse of the government.
Moreover, the dominant Shia parties clearly do not altogether control Shia sourcesof violence. From the uprising of April 2004 through mid-2007, Moqtada al-Sadr
periodically mobilized the Mahdi Army not only against Coalition forces and Sunni
insurgents but against the government as well.15 The Badr Brigade, nominally controlled
by the SCIRI/SIIC, constituted a large and well-armed paramilitary force that has been
implicated in sectarian violence and the penetration of important ministries. Smaller,

15

See Mark Etherington, Revolt on the Tigris: the Al-Sadr Uprising and the Governing of
Iraq (Ithaca, NY: Cornell University Press, 2005); Rahimi, Babak, “A Shiite Storm
Looms on the Horizon: Sadr and SIIC Relations,” Terrorism Focus, Vol. 5, No. 10 (May24, 2007).
9

more localized Shia militias have also proliferated with devastating effect.16 Only in the
Kurdish community do we see a relatively unified political leadership with meaningful
control over its armed force.
In addition to the coordination problems associated with fragmented andheterogeneous groups, the ethnic geography of Iraq poses additional challenges. Ethnic
separation is often suggested as a component of negotiated settlements to intractablesectarian violence, particularly when ethnic groups are highly concentrated andhomogenous. 17 Such conditions appear to pertain in Iraq, with a mostly Kurdish north,Sunni middle, and Shia South.
But closer inspection reveals that this stylized fact is highly misleading. Fully
one-third of the country is made up of mixed areas with key cities—Baghdad, Kirkuk,
Mosul—posing particular challenges.18 Pure separation would require large-scale
population movements. The civil war has resulted in a dramatic reshuffling of Iraq’s
ethnic map; as of mid-2007 there were roughly two million internally displaced people in16

Anthony J. Schwartz, “Iraq’s Militias: the True Threat to Coalition Success in
Iraq,” Parameters, Vol. 37, No. 1 (Spring 2005), pp. 55-71 and the devastating portrait ofBasra in International Crisis Group Where Is Iraq Heading? Lessons from Basra Middle
East Report No. 67 (June 25, 2007).
17
Kaufmann, Chaim, “Possible and Impossible Solutions to Ethnic Civil Wars,”International Security, Vol. 20, No. 4 (Spring 1996), pp. 136-175; John J. Mearsheimer
and Stephen van Evera, “When Peace Means War,” The New Republic (December 1995).
Sambanis, “Partition” for a critique of these approaches.
18
Saddam Hussein attempted to “arabize” oil-rich Kirkuk, but after his fall Kurds moved
back in and engaged in a process of ethnic cleansing of their own. Al-Sadr and others
have threatened violence were Kirkuk to become part of Kurdistan under a proposed
referendum. The status of Kirkuk also has implications for the safety of other minorities,
including Turkomens and Chaldean Christians. Mosul and other cities also face thesehighly localized problems of major groups living in close proximity.
10the country.19 Yet de jure ethnic separation in Iraq would be an extremely costly endeavor
and as we will explain in more detail below does not constitute a political equilibrium
within Iraq.
Theoretical and empirical findings from the civil war literature allow us to situate
the Iraqi case, and the findings are sobering. Civil wars typically last a long time andusually end in decisive victory rather than negotiated settlement. Moreover, Iraq presents
few of the conditions that make negotiated settlement more likely. The Sunnis and Shia
exhibit fragmentation at both the political and military level, with imperfect control
between politicians and fighters and an ample supply of spoilers not amenable to any
plausible political settlement. Moreover, the ethnic geography of the country makes itquestionable as a candidate for partition, and creates intense local “seams” of sectarian
violence.
Given these nearly debilitating constraints, what institutional solutions might
reduce violence? What has been tried and with what effect?

The “Engineer’s Dilemma” and the Limits of Power-Sharing in Iraq
The literature on constitutional engineering in divided societies is generally
agreed on one point: majoritarian constitutional and electoral arrangements have adverse
consequences.20 Majoritarian institutions threaten minorities not only with exclusion and

19Internal Displacement Monitoring Center (March 2007), at http://www.internaldisplacement.org/.
20
Alvin Rabushka and Kenneth Shepsle, Politics in Plural Societies: A Theory
Democratic Instability (Columbus, Ohio: Charles E. Merrill Publishing, 1972); Eric
Nordlinger, Conflict Regulation in Divided Societies (Cambridge, Mass..: Center forInternational Affairs, Harvard University, 1972); Arend Lijphart, Democracy in Plural
Societies (New Haven, Conn.: Yale University Press, 1977); Horowitz, Ethnic Groups.
11

an undesirable distribution of resources in the present, but also vulnerability to predation
and a skewed allocation of resources over the long-run.
Power-sharing political systems, by contrast, foster governing coalitions inclusiveof most, if not all, major mobilized ethnic groups in society.21 The least controversial
power-sharing mechanism is proportional representation, under which electoral rules
generate legislative representation more closely commensurate with the popular vote andthus with the underlying demographic strength of the respective communities. A central
problem with proportional electoral rules—strongly evident in Iraq—is that while they
may guarantee representation in the legislature they do not guarantee effective
representation in government. Lijphart’s conception of consociational democracy
included other means of representing minorities, including oversized or “grand”
coalitions, consensus or super-majoritarian decision-making procedures, and minority
vetoes over some or all significant issues.22 “Strong” power-sharing agreements gobeyond proportionality altogether and simply allocate executive posts, cabinet portfolios,
bureaucratic office or even legislative seats by quota.
In addition to normative critiques of power-sharing agreements as undemocratic,
the evidence on their efficacy in mitigating conflict in divided societies or managing civil
conflict is mixed at best. 23 Recent work has pointed to the adverse consequences of

21

For a review of different definitions, see Timothy Sisk, Power Sharing andInternational Mediation in Ethnic Conflicts (Washington, D.C.: United States Institute ofPeace Press, 1996).
22
Arend Lijphart, Power-sharing in South Africa (Berkeley: Institute of International
Studies, 1985); Lijphart, Plural Societies; Lijphart, Patterns of Democracy: Government
Forms and Performance in Thirty-Six Countries (New Haven, Conn.: Yale University
Press, 1999).
23
See for example Philip G. Roeder, and Donald Rothchild, Sustainable Peace: Powerand Democracy After Civil Wars (Ithaca: Cornell University Press, 2005); Rudy B.
12consociational rule even in the relatively “easy” European cases on which Lijphart’s
original formulation was based and such arrangements have failed utterly in developing
country settings, including Lijphart’s paradigmatic case of Lebanon.24 Hartzell and
Hoddie find that of 38 civil wars between 1945 and 1998 that did end in negotiatedsettlement (out of 103 conflicts total), all except one featured some form of powersharing and the sole outlier, Angola, later suffered collapse.25 They also find that the more
institutionalized political, territorial, military and economic power-sharing arrangements,
the greater the likelihood of stability. However, these hopeful findings rest on therelatively modest way “success” has been defined. Typically, scholars give the agreement
five years, arguing that negotiated settlements are most likely to break down directly afternegotiations and/or founding elections.26 Such a coding classification defines agreements
reached in Zimbabwe, Sudan, Chad, Lebanon, and Nigeria as successes, even though allof these cases eventually broke down and resulted in a resumption of mass politicalviolence.27
In sum, the evidence with respect to power-sharing is ambiguous at best. Powersharing has generated problems even in “easy” cases, most civil conflicts do not generate
power-sharing arrangements, and in those that do their success in mitigating conflict isAndeweg, “Consociational Democracy,” Annual Review of Political Science, 3 (2000),
pp. 509-36; and Ian Lustick, “Lijphart, Lakatos, and Consociationalism,” World Politics,
Vol. 50, No. 1 (1997), pp.88-117.
24
Andeweg, “Consociational Democracy.”
25
Caroline Hartzell and Matthew Hoddie, “Institutionalizing Peace: Power Sharing andPost-Civil War Conflict Management,” American Journal of Political Science, Vol. 47,
No. 2 (April 2003), pp. 318-332. See also Caroline Hartzell, “Explaining the Stability of
Negotiated Settlements to Intrastate Wars,” Journal of Conflict Resolution, Vol. 43, No. 3(February 1999), pp. 3-22.
26
For example, Walter “Civil War Settlement.”
27
Atlas and Licklider, “Former Allies.”
13

probably exaggerated. Nonetheless, it is important to remember that majoritarianism also
poses challenges to democratic stability in divided societies and power-sharing may be
the best among an unappealing array of institutional choices.
How have such arrangements fared in Iraq? Power-sharing ideas held appeal, but
the ability of the US to impose them was limited by the political heft and majoritarian
aspirations of the Shiite parties, the de facto self-government of the Kurdish region, andthe absence of “appropriate” Sunni interlocutors. The representative institutions that
arose during the transitional period under-represented the Sunni minority and despite
proportional electoral rules Sunni parties remained under-represented following thetransition as well. Power-sharing efforts since the transition, culminating in the recent“benchmarks,” have also been limited by the majoritarian features of the political system.

Through the HandoverConcerns about political representation in Iraq initially centered on the efforts of
Ahmad Chalabi’s Iraqi National Congress (INC) to establish a provisional government
dominated by exiles. After the Bush administration finally rejected this option in
November 2002, 28 U.S. Special Envoy Zalmay Khalilzad pursued a power-sharing
approach, but drawing only on the six main opposition groups willing to cooperate with
the US: the INC, SCIRI, the two dominant Kurdish parties (the Kurdistan Democratic
Party [KDP] and the Patriotic Union of Kurdistan [PUK]), Ayad Illawi’s Iraqi National

28

David Phillips, Losing Iraq: Inside the Postwar Reconstruction Fiasco, (NewYork: Basic Books, 2005), pp. 89-90.
14Accord (INA), and Ali bin al-Hussein’s monarchist party. 29 Conspicuously absent at the
London meeting that formalized these arrangements were Al-Da’wa—subsequently
brought into the process—the Iraqi Communist Party, Arab nationalist parties andparticularly parties with strong Sunni representation such as the Iraq Islamic Party.
Through the handover, the so-called Six sought to monopolize Iraqi representation,
empower themselves as the provisional government, and when those efforts failed, toinfluence constitutional arrangements to favor their incumbency.
To institutionalize consultation after the invasion, the Office of Reconstructionand Humanitarian Assistance (ORHA) under Jay Garner created a Leadership Council ofseven principals.30 Coalition Provisional Authority (CPA) administrator Paul Bremer
subsequently negotiated an expansion of the Leadership Council into the Iraqi Governing
Council (IGC) to dilute the over-representation of the exiles and address the underrepresentation of the Sunni.31 But Shiite representatives insisted on a 13-seat majority on
the 25-seat council32 and quickly formed a caucus, the “Shia House,” that exercised
strong influence over all IGC deliberations. The quota system was also extended toministerial appointments and the formation of key committees, including the constitution

29

On the history of cooperation among this cartel, see Ghassan Atiyyah, “Fixing It: theLondon Conference, Tehran deal, and beyond,” Open Democracy (January 9, 2003).
30
Ahmad Chalabi (INC), Iyad Allawi (INA), Massound Barzani (KDP), Jalal Talabani(PUK), Abdul-Aziz al-Hakim (SCIRI) as well as Ibrahim al-Jaafari of Da’wa and a weakSunni Arab representative who lacked a meaningful organized base of support. Larry
Diamond, Squandered Victory: The American Occupation and the Bungled Effort toBring Democracy to Iraq (New York: Times Books, 2005), pp.40-41.
31
Bremer III, L. Paul, My Year In Iraq: the Struggle to Build a Future of Hope
(New York: Threshold Editions, 2006), p. 49.
32
The remainder was allocated to five Kurds, five Arab Sunnis, one Assyrian Christianand one Assyrian Turkoman.
15

drafting committee.33 The very creation of the IGC along sectarian power-sharing lines
not only encouraged political elites to mobilize support on those grounds but also
entrenched rather than diluted the majoritarian features of the country’s religious andethnic make-up.34
Bremer’s seven-point plan for the transition included the appointment of aconstitution drafting committee in consultation with the IGC.35 Yet on June 30, before the
IGC was even formally constituted, Shia religious leader Ali al-Sistani issued a fatwa
deeming a selected constitution drafting process unacceptable and requiring general anddirect elections for a constitutional convention. The fatwa represented a frontal challengeboth to the CPA and to the IGC cartel. Bremer’s attempts to finesse al-Sistani’s decree
met stiff resistance both inside and outside the IGC and by November the administration
had come to the conclusion that Bremer’s efforts for the transition were floundering.36
Following consultations in Washington in November, Bremer unveiled a revisedtransition plan that would yield sovereignty back to Iraq by June 2004. The new plan
acceded to al-Sistani’s demand for early elections for a constitutional assembly, but
retained a complex caucus method for choosing the interim government that would
maintain US influence. This, too, quickly met resistance from Sistani and members of the33

Ali A. Allawi, The Occupation of Iraq: Winning the War, Losing the Peace (NewHaven: Yale University Press, 2007), pp. 195-196; 205-206; Bremer, My Year in Iraq,
pp. 93-103.
34
For critiques along this line, see Kanan Makiya, “A Model for Post-Saddam Iraq,”
Journal of Democracy, Vol. 14, No. 3 (July 2003), pp. 5-12; Adeed Dawisha,, “Iraq:
Setbacks, Advances, Prospects,” Journal of Democracy, Vol. 15, No. 1 (January 2004),
pp. 5-20.
35
Bremer III, L. Paul, “Iraq’s Path to Sovereignty,” Washington Post, September 8, 2003.
36
Rajiv Chandrasekaran, Imperial Life in the Emerald City (New York: Alfred A. Knopf,2006), pp. 191-201; and Bob Woodward, State of Denial: Bush at War, Part III (NewYork: Simon & Schuster, 2007), pp. 260-270.
16

IGC and the US was forced to turn to UN envoy Lakdhar Brahimi to broker a politicalcompromise that postponed elections, but called for the appointment of an interim
government and drafting of an interim constitution (the Transition Administrative Law[TAL]). The interim government under Ayad Allawi reflected a broadly similar crosssection of organized political forces to that in the IGC and CPA cabinet, but with aneffort to increase the participation of Sunnis, including former Baathists.37 This renewed
effort at power-sharing not only failed to halt the march of the insurgency, but quickly
fell victim to the country’s underlying electoral logic as we will see.
The TAL, to be produced under a tight UN-imposed deadline of February 28, also
included a number of power-sharing elements. The Kurds succeeded in pressing a highly
controversial rule that effectively gave them a strong veto over the permanent
constitution.38 The presidency council—initially three co-equals but later changed to asingle President and two deputies—also had power-sharing features.39
Yet Larry Diamond shows that “under pressure from the Shiite parties and theAmericans, with the Kurds agreeing for tactical reasons…the effort to generate morechecks on the power of the prime minister…failed.”40 The president could dismiss theprime minister and cabinet officials only for corruption, and subject to due process(Article 41). Interestingly, both the supermajority provisions for choosing the executive
37

Diamond, Squandered Victory, pp. 258-264; Allawi, Occupation of Iraq, pp. 287-290.
The infamous Article 61c, inserted at the insistence of Kurdish leader MassoundBarzani in the late stages of the TAL negotiations, stipulated that the constitution would
be defeated if it was rejected by two-thirds of the voters in three or more provinces. See
Diamond, Squandered Victory, pp. 173-178; Allawi, Occupation of Iraq, pp. 222-224.
39
It was to be elected as a single slate by a two-thirds majority of the legislature (Article36a) and was to take decisions by consensus (Article 36c). The council was to appoint thePrime Minister by consensus or by a two-thirds majority of the assembly if it could notagree on a candidate (Article 38a).
40
Diamond, Squandered Victory, p. 153.
38

17

and its formal powers vis-à-vis the prime minister were further weakened in the 2005
constitution.41 Under both the TAL and the final constitution, the government itself
operates in a standard majoritarian fashion, requiring a simple majority of assembly
support and taking votes in the cabinet by majority (Articles 41 and 42). Nor is the prime
minister required to appoint a government representative of the country’s major groups.

From the Handover through the Transitional Government: Elections, Drafting andPassage of the Constitution
In 2005, Iraq had three highly-consequential elections: the January 2005 election
for a Transitional National Assembly that would oversee the constitution-writing process,the October referendum on the hastily-negotiated document, and the December 2005
elections for the first non-transitional government. Although Iraqi election rules were
proportional in design, the Sunnis ended up weakly represented in both the Transitional
National Government and the first fully sovereign government, in large part because of
their underlying demographic position but also because of the violence and an electoral
boycott. The US pressed the winning coalitions in both 2005 and 2006 to form oversized
governments, but it was ultimately unable to enforce decision-making structures thedominant political coalition did not want. As a result, key elements of the final
41

Article 67 of the 2005 constitution maintains the two-thirds vote to select thepresidency council. But “if any of the candidates does not receive the required majority
vote then the two candidates who received the highest number of votes shall compete andthe one who receives the highest number of votes in the second election shall be declaredas President.” As Shugart concludes, “it takes two-thirds unless the majority does notwant it to take two-thirds.” Matthew Shugart, “Iraq Government Formation Does NOT
Require a Supermajority,” (December 16, 2005) at http://fruitsandvotes.com/?p=373.
Moreover, Article 73 obligates the president to grant the legislative bloc with the largest
share of votes the first crack at forming a cabinet, a straightforward majoritarian
provision.
18

constitution were negotiated primarily among members of the ruling coalition of Shia andKurdish parties.
The first electoral contest was the January 2005 election for a Transitional
National Assembly. The CPA opted for a closed-list proportional representation (PR)system in a single national constituency over a provincial or district list system, mixed
model, or alternative vote (AV) system in single-member districts. Provincial lists or an
AV system would arguably provide strong incentives for Sunni parties to contest theelections in the areas where they had demographic majorities and thus draw them into thepolitical process.42 But such systems would have required the assignment of seats acrossprovinces or the creation of new districts in the absence of a census, a process that would
have exacerbated ethnic tensions.43 Moreover, the US feared the rise of more localized
Islamist parties if elections were conducted using district level electoral units andprovincial lists. If there was an alternative electoral strategy that might have mitigated theviolence, it was probably not to hold elections so quickly at all, a position advanced byseveral analysts at the time but also carrying its own risks.44
Although hailed by the United States as a triumph, the outcome of the January2005 elections was highly troubling. The UIA managed to secure an outright majority of
42David Moon, “International Snapshot: Iraq: Elections Roundup, January and December
2005,” FairVote Research Report, 2005, at
http://fairvote.org/?page=1786&articlemode=showspecific&showarticle=1312; Adeed
Dawisha, “Democratic Institutions and Performance,” Journal of Democracy, Vol. 16,
No. 3 (July 2005), pp. 35-49.
43
The alternative of an integrative approach—for example, by using open as opposed toclosed lists that would fragment the dominant coalitions and encourage competition
among co-partisans—does not appear to have been seriously considered but sufferedfrom the similar problem of devising different provincial ballots.
44
See for example Marina Ottaway and Thomas Carrothers, “The Right Road toSovereignty in Iraq,” Policy Brief 27 (Washington D.C.: Carnegie Endownment forInternational Peace, October 2003).
19

seats (140) with the Kurdish bloc picking up an additional 75. Not only was victory
claimed by an alliance of Shia parties with strong Islamist tendencies, ties to Iran anddirect links to Sadrist insurgents, but Sunnis were severely under-represented. Sunnis
constituted an estimated 20 percent of the overall population, but won only 17 of 275
seats (6.2 percent) and six of these had been put forward by the UIA. The most obvious
reason for the disproportional electoral outcome was the Sunni electoral boycott, whichbegan with a coalition of 47 groups in November 2004 spearheaded by the Association ofMuslim Scholars and was followed by the last-minute withdrawal of the Iraqi Islamic
Party in December 2004. However, the outcome also reflected the gross imbalance in thelevel of political cohesion. Not only were the Shia and Kurdish parties much morestrongly organized in their respective communities, but they had overwhelming politicalincentives to maintain their pre-electoral coalitions because of the prospect of forming agovernment.
To offset unanticipated majoritarian biases in the first transitional election, 45
members of Iraq’s Transitional National Assembly (TNA) adopted a two-tier List PR
system within governorate-level constituencies, precisely the system that had been
rejected by the CPA and its UN advisors in the first transitional election, coupled with

45

There is some debate about the extent to which the electoral rules mattered to outcomeof the January and December elections. We are skeptical. An analysis by Fair Votecompared the actual results of the January election to what would have transpired underprovincial lists (albeit using actual vote tallies and thus under the constraint of theboycott). The dominant Sunni list would indeed have more than doubled its
representation in the legislature, but from five to only 12 seats. Moreover, the UIA seatshare would actually increase; the losers under such a rule would have been the Kurdish
parties. Moon, “International Snapshot.”20

full national compensation.46 The Sunni parties did pick up a number of seats, but thatpick up was almost exactly proportional to the improvement in turnout and still left themoutside the government.
Cognizant of the risks associated with the highly majoritarian election outcomes,
the US once again engaged in a complex set of power-sharing negotiations. The principal
beneficiaries of these negotiations were not the Sunnis, however, but the Kurds, who usedtheir leverage over the formation of the government to extract concessions from both the
US and the UIA on federalism. Although the UIA made a number of nominal
concessions to Sunnis—the new government had a Sunni as deputy president, Assembly
speaker and deputy prime minister, as well as six cabinet positions—the UIA insisted ontight control over all ministries.47
The US was particularly concerned that the constitution drafting process would bedominated by the Shiite and Kurdish parties and on May 10, 2005 the interim National
Assembly appointed a 55-member committee that fully vindicated these worries. The
allocation of seats on the committee was proportional, but to the performance of theparties in the ruling coalition in the December elections!48 Following direct intervention
by Secretary of State Rice as well as public statements by al-Sistani, the government

46

Under this model, most seats are awarded to winning lists in each constituency, butsome are awarded at the national level to bring the results closer to “ideal”
proportionality with the popular vote. But only one party won enough votes nationwide(without winning any seats in a governorate) to qualify for a compensatory seat. The
remaining 44 national seats were thus awarded to the parties that had won seats in thegovernorates in proportion to their share of the nationwide vote.
47
Allawi, Occupation of Iraq, p. 394.
48
The UIA held an absolute majority of seats. Sunnis held two seats but one of those wasfrom the UIA and the other from Allawi’s secular list; none of the Sunni religious parties
was represented.
21

relented by transforming the Assembly committee into an independent commission andadding 15 Sunnis as members and another 10 as non-voting advisors.49
The appointed Sunnis, which included a bloc of non-elected Baathists, strongly
opposed a number of provisions that had already been drafted at the time of their
appointment, including those on federalism. But the US wanted an agreement quickly andthus rejected any delays to accommodate the minority view. The final negotiations were
essentially conducted between the leaders of the government parties, including Kurdish
President Massoud Barzani (who was not even a member of the government) and SCIRI
leader Abd-al-Aziz al-Hakim.50 When the commission voted on the final version of theConstitution on August 28, all the Sunni representatives voted against it.
In a last-ditch effort to secure at least some organized Sunni support for theconstitution, US Ambassador Khalilzad sought without success to convince the Kurds toweaken the constitution’s provisions on federalism. Against firm Kurdish and Shiite
opposition, the best he could do was negotiate the addition of language (Article 137) thatwould convene a panel “representative of the main components of Iraqi society” to draft
amendments to the Constitution following the formation of the new government. Thesechanges did generate some Sunni endorsements for the constitution.51 But far from49

Peter Galbraith, The End of Iraq: How American Incompetence Created a War Without
End, (New York: Simon & Schuster, 2006), p.193-194; Woodward, State of Denial, p.
396.
50International Crisis Group, “Unmaking Iraq: A Constitutional Process Gone Awry,”
Middle East Briefing No. 19 (September 26, 2005), p. 5.
51
The Association of Muslim Scholars and the Iraqi National Dialogue Council rejected
the constitution, as did all major insurgent groups, but the Iraqi Islamic Party and ahandful of other politicians took the highly risky position of endorsing it.
22

guaranteeing that Sunni views would be represented, the power-sharing efforts of the US
only underscored the majoritarian features of the decision-making process.52

The al-Maliki Government, Reconciliation and Benchmarks
As we have seen, the changed rules for the December 2005 elections did not
fundamentally alter the result, and the United States again faced the dilemma of ademocratically-elected government that threatened to exclude the Sunni minority. Onceagain, the US undertook a vigorous diplomatic campaign to influence the shape of the
new government, vetoing the nomination of the incumbent Ibrahim al-Jafaari to the prime
ministership and forcing a “national unity” government on the UIA-Kurdish coalition.
Yet the factions of the newly-reconfigured UIA coalition were less content than they had
been under the Jaafari government to defer to the executive and the government thus hadto accommodate not only the Kurdish parties—which proved critical for the negotiations
on federalism we take up in the next section—but anti-quietist Islamist factions on the“right” and nationalists such as al-Sadr on the “left.”53 As under the previous
government, the allocation of cabinet posts to the Sunnis by no means guaranteed
effective influence in decision-making.
In June 2006, the al-Maliki government announced a 24-point reconciliation planthat was a precursor to the subsequent elaboration of “benchmarks” but with predictable
52

The amendment process included in the final draft would pass through a committee
that, while nominally “representative of the main components of Iraqi society,” would be
appointed by the government. Its proposals would require approval—but only by asimple majority of the National Assembly—and have to pass in a referendum under thesame rules governing the October Constitutional referendum.
53
The components of the “second” UIA were SCIRI, the Badr Organization, the Da’wa
Party, the Sadrists, the Fadhila Party and a group of independents. See Allawi,
Occupation of Iraq, pp. 437-440.
23

differences in emphasis. First, while power-sharing approaches create formal checks on
majority rule, the reconciliation plan was ad hoc and purely consultative in form. For
example, the plan called for the formation of a National Council for the Reconciliation
and National Dialogue Plan that would include wide societal representation. Yet the
purpose of this body remained unclear, the first meeting was postponed until December
2006, and its very composition became a source of recrimination.54
Second, it quickly became clear that the plan did not enjoy the support of theruling coalition, and no sooner had it been unveiled than pressures from within UIA
coalition forced backtracking on key provisions.55 The revised version of the planeliminated a distinction between "national resistance" forces and "terrorists" that would
have expanded the scope for direct negotiations with the insurgents. Through mid-2007,
no efforts had been taken to consider amnesty for insurgent activities or to institutionalize
negotiations.56
Two components of the reconciliation plan that related directly to power-sharing
and the provision of assurances to minorities were the reversal of de-Baathification andaddressing the problem of militias. The pledges to address de-Baathification were
initially stripped out of the reconciliation plan following consultation within the UIA
alliance. Under strong American pressure in the run-up to the mid-term elections in
November, however, the government did finally announce the intention to forward a
Sumedha Senanayake, “Iraq: Reconciliation Conference Fails To Deliver,” Radio Free
Europe/Radio Liberty (Wednesday, December 20, 2006), at
http://www.rferl.org/featuresarticle/2006/12/56190B66-CDEF-4B7A-AAA2BE8D95433D93.html.
55
Rod Norland, “Olive Branch,” Newsweek, June 26, 2006, at
http://www.msnbc.msn.com/id/13558539/site/newsweek/.
56
Lydia Khalil, “Divisions Within the Iraqi Insurgency,” Terrorism Monitor, Vol. 5, No.
7 (April 12, 2007).
54

24

Reconciliation and Accountability Law to the legislature. The bill would reform the deBaathification process by opening civil service jobs to a wider range of former Baathists,
address the crucial financial issue of pensions for dismissed civil servants, and place astatute of limitations on lawsuits against former Baath party members.57 In December, atthe first reconciliation conference, the prime minister opened the door for former
members of the military to join the new Iraqi army a well (albeit subject to militaryneeds).
The political backlash against these efforts from Shia and Kurdish politicians
proved swift and the head of the de-Baathification Commission, Ahmad Chalabi,
mobilized Ayatollah Sistani against the effort as well.58 At the time of the first review ofthe benchmarks in mid-2007, the Bush administration was forced to admit that little
progress had been made in handling former Baathists and that none was likely in themedium-run. In any case, it is doubtful that the central government would be able toenforce the new law if passed because of the power UIA factions held over appointments
at particular ministries and at the provincial and lower levels of government.
The problem of demobilizing militias in civil war settings is a classic collective
action problem: parties to a conflict are unlikely to give up their arms unless there is acredible expectation that others will do so as well.59 Yet the problem of militias in Iraq isparticularly complicated because of charges that the Iraqi security forces cooperate with

Sumedha Senanayake, “Iraq: Reinstating Ba’athists Expected to Help Reconciliation,”Radio Free Europe/Radio Liberty (Friday, November 10, 2006), at
http://www.rferl.org/featuresarticle/2006/11/7A12B23A-35B8-46B7-9BEA43BBE627AB17.html.
58
Damien Cave, “Iraqis Are Failing to Meet Benchmarks Set by U.S.,” New York Times,
Late Edition, East Coast (June 13, 2007), p. A1.
59
Walter, “Civil War Settlement.”57

25

Shia militias directly or that militias have penetrated the security forces, police and othergovernment paramilitary entities such as the Facilities Protection Services.60 Promises todemobilize militias were among the provisions of the initial reconciliation plan that werequickly dropped following consultation with the UIA. Under pressure from the UnitedStates prior to the November 2006 elections, the al-Maliki government did take actions
against certain units charged with particularly egregious abuses. However, American
military commanders complained repeatedly that their ability to pursue militias was
hamstrung by the government. Moreover, although the Council of Representatives
allocated funds for a Disarmament, Demobilization and Reintegration program, and evensolicited a UN team to advise on the process, the Bush administration’s own July 2007
assessment concluded that the legislature “has not moved toward passage of legislation toestablish a disarmament program, nor are senior Iraqi officials or political-party leaders
focused on passing such a law”.61 The reasons were fairly obvious: the al-Maliki
government was dependent not only on SCIRI but on the Sadrists as well. Efforts to go
after these groups risked defection, a threat the Sadrists carried out twice over the courseof 2006-7 with devastating impact on the capacity to govern.
In sum, although the elections of December 2005 achieved the objective of atransition to democratic rule, they also put in place a coalition of Shiite and Kurdish
parties that showed surprisingly little inclination to make concessions to the Sunni
community. Despite efforts to forge power-sharing arrangements, decision-making

60

Solomon Moore, “Police Abuses in Iraq Detailed,” Los Angeles Times (July 9, 2006),
p. A1.
61“Initial Benchmark Assessment,” July 12, 2007, p. 14.
26

processes in the cabinet, legislature and bodies such as the constitution drafting
committee reflected majoritarian principles.

Federalism
Federalism, decentralization, devolution, grants of autonomy, agreements onrevenue-sharing and even partition constitute an alternative, yet potentiallycomplementary set of institutions for managing conflict in divided societies. Devolution
and federalism permit groups that constitute minorities at the national level to nonethelessenjoy the benefits of majority rule in their locale, although subject to some constraints.
As with power-sharing arrangements, these constraints vary in the extent to which they
accommodate minority concerns. Some forms of decentralization are accompanied bystrong checks on sub-national powers and ongoing central government control overresources. More decentralized federations, by contrast, grant substantial powers andrevenues to sub-national jurisdictions.62
What success have such arrangements had in managing conflict in divided
societies? The literature on the stability of federal arrangements is decidedly mixed.
Bermeo and Amoretti and Bermeo claim that federal states are more stable and less likely
to experience rebellion.63 There is also some empirical evidence that provisions for

62

These mechanisms include revenue-sharing arrangements that are locked in throughsuper-majority provisions or that require provincial acquiescence. Federalism is also
typically associated with bicameralism which can introduce further checks on majority
rule while guaranteeing representation for provinces. It is noteworthy that the Iraqi
constitution calls for a second house, but the provisions establishing the body were notactually included in the constitution and were to be worked out subsequently by the rivalchamber. Through mid-2007, the upper house had not been established.
63
Nancy Bermeo, “The Import of Institutions,” Journal of Democracy, Vol. 13, No. 1227autonomy help to stabilize civil war settlements.64 Using a hazard model, Hartzell,
Hoddie, and Rotchild find that the presence of an autonomy provision in an agreement
reduces the hazard of failure by 96 percent.65 As a result, federalism and autonomy haveappeared as an institutional component of negotiated settlements to insurgency violence
and civil war in a number of countries, including Ethiopia, Sudan, and the Philippines.
On the other hand, there is also evidence of the fragility of federal arrangementsin the developing and post-socialist world.66 Once an ethnic group gains self-governancethrough federal arrangements, the federal bargain may no longer prove self-sustaining.
Lake and Rothchild, for example, argue that attempts at “territorial decentralization”
work in the short-run but break down when majority parties gain power at the center,once again making secession an attractive option.67 Aleman and Treisman find that fiscal
decentralization does not ameliorate these problems, pointing to the persistence ofsecessionist violence in India, Pakistan, Nigeria, and the former Yugoslavia.68 As with

(April 2002), pp.96-110; and Ugo M. Amoretti and Nancy Bermeo, Federalism andTerritorial Cleavages, (Baltimore, MD: Johns Hopkins University Press, 2004).
64
Sisk, Power Sharing; and John Coakley, “Introduction: The Territorial Management ofEthnic Conflict,” in The Territorial Management of Ethnic Conflict, ed. John Coakley(London: Frank Cass, 1993).
65
Caroline Hartzell, Matthew Hoddie, and Donald Rothchild, “Stabilizing the Peace
After Civil War: An Investigation of Some Key Variables,” International Organization,
Vol. 55, No. 1 (Winter 2001), pp.183-208.
66
Valerie Bunce and Stephen Watts, “Managing Diversity and Sustaining Democracy in
the Postcommunist World,” in Roeder and Rothchild; and Valerie Bunce, Subversive
Institutions: the Design and the Destruction of Socialism and the State (New York:
Cambridge University Press, 1999).
67
David A. Lake and Donald Rothchild, “Territorial Decentralization and Civil War
Settlements,” in Roeder and Rothchild, Sustainable Peace.
68
Eduardo Alemán and Daniel Treisman, “Fiscal Politics in ‘Ethnically Mined,’
Developing, Federal States: Central Strategies and Secessionist Violence,” in Roeder andRotchild, Sustainable Peace.
28

power-sharing arrangements, grants of autonomy in the supposed success cases such as
Ethiopia, Sudan, and the Philippines have also proven fragile.
The debate over federalism and conflict is framed by the assumption thatthreatened minorities favor decentralization; the question is how to design federalarrangements that credibly protect minority interests while limiting incentives forsecession. Yet in Iraq, the problem is quite different. Because of the fiscal structure of the
Iraqi state and the geographical distribution of current oil production and known reserves,
it is the Sunni who have opposed federalist arrangements. It is important to understandwhy.
The Iraqi economy has long been dependent on oil: 92.5 percent of total
government revenues were generated by oil in 2005.69 Provinces and lower levels ofgovernment are therefore ultimately dependent on oil revenues controlled by the central
government and passed down in the form of direct spending or inter-governmental fiscal
transfers. At the same time, however, both current production and reserves are
geographically distributed in ways that would favor the Shiite and Kurdish regions of thecountry were they to gain direct control over them.70
This combination of fiscal structure and the location of known reserves create afundamental dilemma for the Sunnis. In a centralized system, they face the problems ofmajoritarianism that we outlined in the previous section: their permanent minority status
69

International Monetary Fund, “Iraq: First and Second Reviews Under the Stand-By
Arrangement,” IMF Country Report No. 06/301 (Washington, DC: International
Monetary Fund, 2006), p.15.
70
Kamil al-Meheidi, “Geographical Distribution of Iraqi Oil Fields and its Relation with
the New Cosntitution,” Revenue Watch Institute, 2006 provides an excellent introduction
to production and reserves. Any discovery of reserves, such as the discovery of oil in theSunni-dominated province of Anbar, would affect the preferences of the major parties
with respect to federalism.
29

makes it difficult to assure that revenues, spending and intergovernmental fiscal transfers
will be allocated fairly. But if the system becomes more decentralized, production fromnew fields could fall under the control of provincial or regional governments with no
obligation to share revenues with the rest of the country at all. Rather than equalizing
revenue and spending, federal arrangements could produce growing inequalities acrossprovinces and communities over time.
Conflicts over federalism would be difficult enough if they engaged only theSunni and Shia communities. However, they have been severely complicated by the defacto independence enjoyed by the Kurds in the decade prior to the American invasion. 71
With a high degree of autonomy as their reversion point—and with a strong preference
for de jure as well as de facto independence—the Kurdish leadership has been able toexercise a powerful influence over all constitutional negotiations relating to federalism.
However, the results have increased the anxiety of the Sunnis; many “benchmarks” were
designed to mitigate these concerns about Iraqi federalism.
We begin with the effective assertion of Kurdish independence, early debates overIraqi federalism, and the relevant provisions of the TAL and the 2005 constitution. We
then turn to the stalled efforts to clarify these provisions through crucial “benchmarks” onregions, provincial elections and the oil and revenue-sharing law, concluding briefly withwhy partition is unlikely to constitute an alternative.
71

On the history of the Kurds and the Kurdish issue from different perspectives, seeDavid McDowall, A Modern History of the Kurds, Third Edition (New York: I.B. Tauris,2004); Faleh A. Jabar and Hosham Dawod, eds., The Kurds: Nationalism and Politics(London: Saqi, 2006); Kevin McKiernan, The Kurds: A People in Search of theirHomeland (New York: St. Martins Press); and particularly Galbraith, End of Iraq, andBrendan O’Leary, John McGarry and Khaled Salih, eds, The Future of Kurdistan in Iraq,(Philadelphia: University of Pennsylvania Press, 2005); Galbraith, End of Iraq.

30

Prehistory: Early Debates on Federalism through the Constitution
Federalism figured as a prominent point of discussion among the exile opposition
from the very first pre-war planning meetings in the fall of 2002.72 Although these
discussions reflected a common aversion to the centralization of power, federal
preoccupations had particular salience for the Kurds. The humanitarian response to the
refugee crisis that followed the First Gulf War created an effective safe haven in the
Kurdish regions, buttressed by the imposition of a military exclusion and no-fly zone
north of the 36th parallel. Although the Kurds faced their own internecine conflicts andproblems of power-sharing between the two dominant parties, Saddam never fully
reasserted authority over the region.
Quickly aligning with the US invasion, the Kurds moved with alacrity to expand
their autonomy. Iraqi intellectuals and the CPA expressed concerns that Kurdish demands
threatened wider inter-communal conflicts, tensions with Turkey and Iran and even the
break-up of the country.73 In papers circulated in December 2003 and January 2004 inadvance of the final negotiations over the TAL, Bremer proposed a non-ethnic
conception of federalism based on the existing 18 Iraqi governorates. As O’Leary andSaligh note, the unstated implication was that Kurdistan “should accept its dissolution
into the pre-existing governorates and bits of governorates that its territory
encompassed.”74 Such an arrangement not only failed to recognize Kurdistan as an entity

72

Phillips, Losing Iraq, pp. 51-54, 84-85.
Makiya, Kanan, “A Model for Post-Saddam Iraq”; Bremer, My Year in Iraq, p. 269.
74
O’Leary, Brendan and Khaled Salih, “The Denial, Resurrection, and Affirmation of
Kurdistan,” in O’Leary, McGarry and Salih, Future of Kurdistan in Iraq, p. 30.
73

31

but was based on governorate boundaries that did not correspond to the territory thenunder the de facto control of the Kurdistan government.
The Kurds subsequently backed down from maximalist demands that would have
granted them virtual independence under the TAL. But Article 53a of the TAL achieved acore objective from which other powers subsequently flowed: the Kurdistan Regional
Government was recognized as the official government of the territories that it
administered on 19 March 2003, and not only in the governorates of Dohuk, Arbil, andSulaimaniya; but in Kirkuk, Diyala and Neneveh as well.
These Kurdish precedents not only directly influenced the subsequent
constitution, but shaped the demands of the major Shia parties as well. Diamond notes
how Kurdish autonomy influenced SCIRI proposals for a provision in the TAL (Article
53c) allowing the creation of new regions, which subsequently became a feature of thepermanent constitution as well.75 The TAL (and 2005 constitution) also recognized
Kurdistan’s right to control the police and internal security, severely complicating efforts
to disband militias.
As Galbraith notes bluntly, “the Kurds never implemented the provisions of the
TAL they did not like,” and when it came to writing the final constitution they devised a
strategy that would maximize their autonomy.76 The Kurdish position was bolstered not
only by the strong agenda-setting effects of existing regional institutions and the TAL but
by a January referendum in which the region had voted overwhelmingly for outright
independence. As Galbraith summarizes the grand bargain, “the Kurds got what theywanted with respect to federalism and the Shiites would get some of what they wanted on
75
76

Diamond, Squandered Victory, p. 167.
Galbraith, End of Iraq, p. 168.
32

Islam, women’s issues and the role of the clergy, provided these provisions did not apply
in Kurdistan.”77 US efforts to extract concessions to Sunni concerns were negotiatedvirtually up to the eve of the referendum,78 but the draft on which Iraqis voted did nottouch on the core provisions governing federal arrangements. Revisions or rectification of
the unsettling aspects of the constitution were pushed off into a political future that would
be shaped by the same political forces that produced the constitution in the first place.
The Constitution: Understanding Iraqi Federalism
As might be expected in the wake of such a tyrannical and centralized system
under Saddam, both the CPA and the members of the constitution drafting committee
were intent on limiting the power of the central government. The list of powers allocatedexclusively to the federal level include most prominently foreign and national security
policy, “formulating” fiscal, monetary and trade policy, drafting the general andinvestment budget and enforcing the common market (Article 110). A second class of
responsibilities is shared between the federal and provincial or regional levels (Article110): public services such as electric power, public health, education, and water. Rather
than delineating the powers of the provinces and regions specifically, all powers not in
the exclusive domain of the federal government are delegated; the governorates andprospective regions were the “residual claimants” of the new constitutional order.
Yet virtually all federal powers were potentially subject to provincial or regionalveto, generating substantial uncertainty about the delineation of real authority in the77

Galbraith, End of Iraq, p. 198.
For example, the constitution made the symbolic concession of noting explicitly that
Iraq was a founding member of the Arab league and committed to its covenant (Article
3).
78

33

country. Article 111 specifically states that in cases of disputes between the center andprovinces over shared powers, the priority goes to regional law. Article 117 permitssubnational governments the right to amend the application of national legislation within
their regions in the case of conflicts.79
As a concession to the existence of the Kurdish peshmerga, the constitution does
not even establish the central government’s monopoly on force. Although theConstitution stipulates that militias “outside the framework of the armed services” areforbidden, the regions are granted the power to maintain not only police but “security
forces and guards of the region.”
By far the most confusing elements of the Iraqi constitution have to do with theprovisions governing inter-governmental fiscal relations. To begin with the revenue sideof the ledger, there is some dispute over whether the central government even has thepower to tax without provincial or regional consent. Brown argues that the power to tax is
implied by any meaningful definition of “fiscal policy,” which is allocated exclusively tothe federal level.80 But Galbraith reports with authority that this interpretation was notshared by the Kurdish leadership, which believed that since the power to tax is not
explicitly mentioned it requires the assent of the regions.81
Given the reliance of the government on oil revenues, the provisions governing
control over those revenues are pivotal in defining the fiscal structure of the new Iraq
state. The confusion begins with Article 108, which states that “oil and gas are the79

Articles 118-119 outline, albeit it in less detail, the independence of those governorates
not incorporated into regions.
80
Nathan Brown, “The Final Draft of the Iraqi Constitution: Analysis and Commentary,”(Washington, DC: Carnegie Endowment for International Peace, 2005).
81
Galbraith, End of Iraq, p. 199
34

ownership of all the people of Iraq in all the regions and provinces.” This language could
be read as asserting an underlying federal claim but might also justify regional ones.
Regional claims are given further weight by Article 109, which requires sub-national
units to coordinate with the central government regarding both old and new and oldfields, but only requires that the revenues generated from existing fields be distributed
nationally and the principles for doing so are vague. By implication, new fields are notconstrained by these provisions and thus might be developed independently by theregions, which the Kurds quickly moved to do.
Provisions governing oil and revenue-sharing are further complicated by aprovision of the Constitution that establishes independent commissions, including one
that is granted authority over the distribution of revenues (Article 103). To be establishedby law, this commission would be comprised of “experts and representatives” from boththe federal and regional level. Article 103 suggests that some share of revenues will beallocated to the regions “in accordance with fixed percentages,” implying a revenue
sharing scheme. However, these constitutional arrangements do not fix revenue-sharing
directly nor do they enshrine regional or communal representation or consensus decisionmaking procedures. The distribution of revenues is thus ultimately controlled by the
majority bloc at the center.
In sum, the constitutional provisions concerning federalism in Iraq generated ahigh level of uncertainty. On the one hand, the constitution granted provinces andproposed regions extensive powers, including with respect to oil. On the other hand,central government mechanisms designed to check centrifugal tendencies in the system

35

and oversee revenue-sharing were ambiguous in their design and mandate and vulnerable
to the same majoritarian tendencies visible in the political system as a whole.
Not surprisingly, the benchmarks articulated in the fall of 2006 included
legislation designed to rectify these ambiguities, including through a general
constitutional revision. By far the most significant of these benchmarks related to theformation of regions, the related question of the laws governing provincial elections, andthe oil laws.

Rebalancing the Constitution: The Region and Oil Laws and Provincial Elections
As we saw in the previous section, constitutional revision was promised in 2005
to induce Sunni support for the Constitution and included as a component of thereconciliation plan offered by the al-Maliki government in July 2006. In November, theCouncil of Representatives agreed to create the 27-person committee, which held out thepromise of providing a forum for negotiating Sunni concerns with respect to federalism.
But the committee was dominated by the ruling parties and it was not clear what
incentives they had to introduce major constitutional changes to a document they had justcrafted and passed. Predictably, the committee missed deadlines, leaving major decisions
regarding the future of Iraqi federalism to more discrete legislative initiatives.
The extreme uncertainty at the heart of Iraqi federalism is exemplified by the factthat the constitution allowed for the creation of new regional governments but did notprovide clear guidance on how they would be formed; these details required
implementing legislation in the form of a regions law.82 From the writing of the TAL, the82

Reider Visser, “The Draft Law for the Formation of Regions: A Recipe for
36

SCIRI/SIIC fueled Sunni concerns over further decentralization, first by forcing throughthe constitutional provisions that allowed regions to form in the first place and then by
outlining in more detail in August 2005 a proposal for the creation of a “super-region”
that would combine nine Southern governorates. The new region would not only include
oil-rich areas such as Basra and Maysan but would pose significant religious issues given
the presence of Sunni minorities.
In the fall of 2006, Parliament approved legislation that outlined how regions
could be formed, requiring that the new entities only garner support either from a third of
the governing council in each province or one-tenth of voters in a referendum in order tobe placed on the ballot. The region law postponed conflict over the issue by stipulatingthat no regional referenda can be entertained until 2008. Moreover, a coalition of support
in favor of this sort of soft partition is by no means assured. For purely tactical reasons,the Kurds acceded to the legislation because it effectively endorsed their own autonomy
ambitions.83 But both Moqtada al-Sadr and factions within the Da’wa party drew
substantial support from the oil-scarce regions around Baghdad and elsewhere in theSouth that might be excluded from the new region depending on precisely how it isdefined. These intra-coalitional checks on SCIRI/SIIC ambitions could ultimately block
the formation of a new Shia-dominated region, but through mid-2007 the law only shifted
the threat of conflict over the issue into the future.84

Permanent Instability in Iraq?” 2006, at http://historiae.org/Aqalim.asp.
83
A law on regions also opens the Pandora’s Box of what to do with oil-rich Kirkuk,
which may or may not become a part of Kurdistan if a constitutional referendum isbrought to fruition by the end of 2007. We have already suggested the large potential forviolence over the fate of Kirkuk.
84
Visser, “Draft Law.”
37

A closely-related problem has to do with the provisions governing provincial andlocal political structures and processes. American policy toward local democracy was
clearly divided.85 Some democracy advocates argued strongly that these efforts wereequally if not more important than rushing toward elections at the national level and US
aid efforts had a strong local governance component as a result.86 Nonetheless, themilitary and CPA explicitly vetoed a general policy of staging local elections in June
2003, largely because of fears that these bodies would be captured by interests inimical tothe occupation.87
The lack of a coherent strategy in political structures outside Baghdad and theextraordinarily thin administrative capabilities of the CPA resulted in a highly unevenand ad hoc process of provincial and local political development about which we stillknow surprisingly little.88 Military and CPA authorities engaged in local power-sharing
efforts, permitting elections in some areas but for the most part relying on appointed
councils. With highly imperfect knowledge of local power structures, the same problems
noted with national power-sharing were replayed at the local level. In some cases,
military authorities inadvertently appointed former Baathists; in all cases, theynecessarily favored some local factions over others. Those excluded from decision-

85

International Crisis Group, Iraq: Can Local Governance Save Central Government?
IGC Middle East Report No. 33, October 27, 2003; Eric Herring and Glen Rangwala,
Iraq in Fragments: the Occupation and its Legacy (Ithaca, NY: Cornell University Press,
2006), pp.96-127; Diamond, Squandered Victory, pp. 115-117.
86
Diamond, Squandered Victory, pp. 115-117, 198.
87
. William Booth and Rajiv Chandrasekaran, “Occupation Forces Halt Elections
Throughout Iraq,” Washington Post, June 28, 2003, A20.
88
Herring and Rangwala, Iraq in Fragments provide an excellent overview, but the best
insights are local accounts such as Rory Stewart, The Prince of the Marshes: and Other
Occupational Hazards of a Year in Iraq, (Orlando, Fla.: Harcourt, 2006) and Etherington,
Revolt on the Tigris.
38

making (and the flow of grant money passing through provincial and district councils)
increasingly viewed CPA-created structures as undemocratic and illegitimate.
Prior to the handover, the CPA issued an important order (CPA Order 71) thatlocked incumbent governorate and local structures into place until elections could be
held.89 When elections were held for provincial councils concurrently with the January2005 elections, the Sunni boycott resulted in a replication of the problems of underrepresentation visible at the national level. For example, Sunnis did not control thegovernorate of Ninevah, in which they enjoyed a demographic majority, and did not evengain representation in some mixed provinces such as Diyala.90 Rectifying these anomalies
would seem of obvious importance for staunching the violence. Yet despite a promise by
the al-Maliki government to hold provincial elections by the end of 2007, the government
proved incapable or unwilling to pass new legislation to clarify provincial election
procedures. In the interim, government structures in a number of locales effectively
disintegrated, even in cities such as Basra in which sectarian violence did not represent
the main cleavage.91
Uncertainty concerning intergovernmental fiscal relations paralleled uncertainty
over regions and local political structures, of which the distribution of oil revenues
constituted the central part. As the debate over revenue-sharing heated up in 2006, theKurdistan Regional Government once again sought to lock in its autonomy by passing its
own hydrocarbon law in late October, pre-empting legislation from Baghdad scheduled
89

CPA Order 71 also granted substantial powers to the provinces to structure local
politics as they deemed appropriate; the Constitutional provisions governing thesequestions were extraordinarily thin (Articles 118 and 121).
90
Peter Galbraith, “Iraq: the Way to Go,” New York Review of Books, August 16, 2007,
p. 4.
91
International Crisis Group, “Where is Iraq Heading?”
39

for completion by December. The Kurdish law stipulated that revenues from future
exploration would be distributed to the Kurdish region only, exactly the type of provision
feared by oil-scarce portions of the country.92 The law also allowed for the signing ofcontracts with foreign firms, a process that was strongly opposed by nationalist
politicians regardless of communal affiliation.
In February 2007, the Cabinet passed a general outline of a draft oil law thatgenerated opposition from all sides. The draft contained provisions that mirrored somebasic principles of power-sharing. It proposed a revenue law that tasked the Council of
Ministers and Treasury with “fair and just” distribution of oil revenues, and the creationof an independent committee—the Federal Oil and Gas Council—to over-see theformation and maintenance of contracts.93 However, the implications of the oil law arecontingent on the ultimate shape that regions take. Moreover, the draft law allowed
regional oil companies to develop in parallel to the national one, again a concession tofacts on the ground in Kurdistan. Furthermore, while the Constitution stipulates that
extant oil exploration is subject to at least some form of redistribution, disagreement
continues over how revenues from future exploration will be parsed out. At the behest of
the Kurds, the law allows regions to develop and sign their own contracts with foreign

92

Sumedha Senanayake, “Iraq: Kurdish Oil Law Poses Problem for Baghdad,” RadioFree Europe/Radio Liberty (New York: November 8, 2006), at
http://www.rferl.org/featuresarticle/2006/11/2c572f6a-4ab1-4986-9832eabb726f3652.html.
93
The law also restructured the Iraqi National Oil Company, tasked with operating
existing oil fields, although any oil company at the national level would be subject toappointment and oversight by the central government, making it subject to the same
power-sharing dilemmas described above.
40

investors.94 But the draft appeared to give the central government veto power overregional decisions, setting up future conflicts over the respective powers of the center andregions.
As predicted, Sunni politicians rejected the proposed legislation. Anti-federalist
Shiites also strongly opposed the legislation, opening the possibility of a politicalcoalition that could brake the trend toward more substantial devolution and thus appease
Sunni concerns. But the Kurds began to express reservations following a proposed
amendment that would cede greater control to the Iraqi National Oil company regarding
oversight and control of fields, setting up the prospect of a constitutional showdown overfederal powers as the Kurds pursued their own interests. As with other components of thefederal bargain, it is hard to imagine any oil law that could simultaneously resolve theconflict between pro-federal Shiites like SCIRI/SIIC and anti-federal Shiites such as alSadr, appease Sunni concerns about exclusion, and grant the Kurdish regional
government the level of autonomy that it not only desires but has already achieved. Andeven if such a bargain could be struck, it would be highly vulnerable to the credibility
problems raised in the previous section.
As Peter Galbraith has argued most forcefully, Iraq is already effectively divided
if not partitioned and it is time to recognize this fact; the Biden-Gelb plan and others have
jumped on this bandwagon by calling for “soft partition.”95 This approach includes ceding
governance and security to three ethno-geographic regions, with Sunni and Shiite areas

94

James Glanz,, “Draft Law Keeps Central Control over Oil in Iraq,” New York Times
Late Edition (East Coast), January 20, 2006, pg. A 1.
95
Edward P. Joseph and Michael E. O’Hanlon, “The Case for Soft Partition in Iraq,”
Saban Center for Middle East Policy Analysis No. 12, (Washington, DC: Brookings,2007).
41

following the model of the Kurds. Yet this proposed solution also suffers from the“engineer’s dilemma.” It is far from clear how these arrangements would arise in theabsence of massive outside involvement, pressure and commitment. Soft partition would
still require the parties to agree on borders, oil revenue sharing and a massive
resettlement as well. Partition may appear and attractive end state, but as with otherinstitutional fixes it does not enjoy majority support in the country outside of the Kurdish
community and explicit consideration of it could easily intensify rather than reduce
conflict.

Conclusion
Iraq is obviously a hard case, posing a number of challenges to any negotiatedsettlement. The barbarism in the country still had ample fuel in mid-2007, and it may
simply require a prolonged period of fighting before fatigue sets in and the parties are
induced to negotiate. Some sources of violence are only likely to be quelled through aneffective counterinsurgency strategy. Radical jihadists, those committed to ethnic
cleansing, criminal gangs and opportunists are not likely to change their behavior as aresult of institutional fine-tuning negotiated among weak party leaders in Baghdad.
The hope for institutional solutions to the conflict in Iraq is not without theoreticalfoundation, however, and we have used the literature on power-sharing and federalism toframe our discussion. But institutions themselves are endogenous to the underlying
distribution of capabilities and as a result reflected the interests of the dominant KurdishShiite coalition. Even if institutional agreements included concessions to the Sunni
community, they would not be credible in the absence of increased trust or a fundamental

42

change in political culture. Moreover, we have shown that constitutional engineering has
had a number of unintended consequences in Iraq, for example, strengthening rather thanweakening sectarian attachments.
If institutional solutions have proven disappointing, what options are available forquelling violence? It goes beyond our purpose—or abilities—to outline alternatives but inthe remainder of the conclusion we can show how our consideration of institutions relates
to other approaches.
One strategy, reflected in the Bush administration’s early 2007 surge, is to tackle
the violence primarily through military means: to focus on the counterinsurgency in thehope that a reduction of the violence might provide the “breathing space” in which
politicians could craft more enduring compromises. Through mid-2007, we found noevidence that such a strategy was working and in any case it cut against the core lessonsof a vast literature on counterinsurgency showing that military efforts were unlikely to
succeed in the absence of simultaneous progress on the political front.
A second possibility hinted in our discussion of federalism is that the problems
we have identified are not immutable features of the Iraqi political landscape, but reflect
the weakness—or stubbornness—of a particular political coalition. Violence could
possibly be alleviated through a change in government. An alternative coalition mightalign the Kurds and moderate Shiites and Sunnis against the extremes. Again, however,such hopes for a “third way” suffer from the engineer’s dilemma we have highlighted
throughout: there has to date been little evidence that such a coalition lies in waiting, nor
is it clear how it might be built by outsiders.

43

A third possibility that takes the existing political line-up as given is to look fornon- or extra-institutional means for reaching self-enforcing agreements. The South
African case provides interesting parallels in this regard. Like Iraq, a democratic South
Africa implied a completely reversal of the political order; blacks make up roughly 85
percent of the population and were unlikely to settle for political arrangements that did
not reflect their dominant position. Whites had similar fears to those in the Sunni
community. Not only did they face permanent exclusion from formal political decisionmaking, but their previous crimes under apartheid made them a target of retribution.
Their significant property also constituted an appealing target for predation. But while
blacks had the numbers, whites were well-armed and had assets that were important for
the functioning of the South African economy. As a result, the black majority had
incentives to allow whites to maintain many of the assets and economic assurances they
enjoyed under apartheid. A “mutual hostages” bargain ensued under which both sides
could credibly threaten costly defection and punishment were the other to do so.
The problem in Iraq is that the Sunni do not enjoy the economic assets of thewhites in South Africa that would provide them leverage over Shia behavior. However,they are armed. In contrast to other civil war settings in which the disarming of theparties is a crucial objective, allowing some Sunni militias to remain armed may prove arisky, but necessary concession.
However, we are doubtful that any internal settlement in Iraq is likely to be selfenforcing; external actors will have to provide assurances.96 This suspicion finds support

96

Kaufmann, “Ethnic Civil Wars”; Walter “Civil War Settlement”; and Barbara F.
Walter, Committing to Peace: the Successful Settlement of Civil Wars, (Princeton:
Princeton Univ. Press, 2002).
44

in the civil war literature. Walter (1997) finds that in every case where a third party
entered to serve as a guarantor of a treaty after warring parties settled, stability wasmaintained for at least a five year period.97 Similarly, Hartzell finds that the probability
that a negotiated settlement will prove stable increases by 21.8 percent with third party
enforcement.98
Who will provide such assurances? We are skeptical the United States can playthis role in Iraq. The US is not viewed as an honest broker by any party and has faced--or
created--difficulties when it has intervened to fine-tune the domestic political balance. At
various points, the US has acquiesced in the exclusion of substantial portions of the Sunni
community—both Baathist and Islamist—and then reversed itself by pressing for their
inclusion. Moreover, the US does not have an infinite time horizon in which it can stake acommitment. By mid-2007 the majority in both public opinion and within Congress wasin favor of de-escalation, redeployment, and/or outright withdrawal. These domestic
political facts, along with the Administration’s reluctance to make continued supportconditional on political progress, created severe moral hazard problems with the alMaliki government. As numerous critics pointed out, the administration’s commitment to“stay the course” reduced US leverage over the implementation of the very benchmarks it
deemed necessary for a stable political outcome.
The UN has proven successful at managing peace settlements in a number ofcases, 99 but they are highly unlikely to play any more than a marginal role in a conflict of
this magnitude. There is a role for multilateral diplomacy in restraining the conflict,
97

Walter, “Civil War Settlement.”
Hartzell, “Negotiated Settlements.”
99
Michael W. Doyle and Nicolas Sambanis, Making War and Building Peace: United
Nations Peace Operation, (Princeton, Princeton Univ. Press, 2006).
98

45

although it is different than that theorized by those arguing for third party enforcement ofnegotiated settlements. In internationalized civil wars, the credible commitment problems
are not limited to the combatants but include the actions of competing outsiders.
Following the Baker-Hamilton recommendations, the necessary although not sufficientconditions for a settlement may lie in negotiating a “regime of restraint” on the part ofIraq’s neighbors—Syria, Iran, Turkey and Saudi Arabia—and on the part of the UnitedStates.100 Such a “regime of restraint” takes us far beyond institutions and benchmarks.
But as we have suggested throughout, its success would still depend on domestic politicaldevelopments over which outside engineers have exerted surprisingly little direct control.

100

Baker and Hamilton, Iraq Study Group Report.
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Appendix
Benchmarks Included in HR 2206
Following is the list of benchmarks included in HR 2206, Section 1314b(“Conditioning of Future United States Strategy in Iraq on the Iraqi Government's Recordof Performance on Its Benchmarks.”). The legislation required reports on progress withrespect to the benchmarks on July 15 and September 15, 2007. The legislation also
required progress on each benchmark in order to expend economic support funds, butwith a explicit waiver authority.
(i) Forming a Constitutional Review Committee and then completing theconstitutional review.
(ii) Enacting and implementing legislation on de-Baathification.
(iii) Enacting and implementing legislation to ensure the equitable distribution ofhydrocarbon resources of the people of Iraq without regard to the sect or ethnicityof recipients, and enacting and implementing legislation to ensure that the energy
resources of Iraq benefit Sunni Arabs, Shia Arabs, Kurds, and other Iraqi citizens
in an equitable manner.
(iv) Enacting and implementing legislation on procedures to form semiautonomous regions.
(v) Enacting and implementing legislation establishing an Independent HighElectoral Commission, provincial elections law, provincial council authorities,
and a date for provincial elections.
(vi) Enacting and implementing legislation addressing amnesty.
(vii) Enacting and implementing legislation establishing a strong militia
disarmament program to ensure that such security forces are accountable only tothe central government and loyal to the Constitution of Iraq.
(viii) Establishing supporting political, media, economic, and services committees
in support of the Baghdad Security Plan.
(ix) Providing three trained and ready Iraqi brigades to support Baghdad
operations.
(x) Providing Iraqi commanders with all authorities to execute this plan and to
make tactical and operational decisions, in consultation with U.S commanders,
without political intervention, to include the authority to pursue all extremists,
including Sunni insurgents and Shiite militias.

47

(xi) Ensuring that the Iraqi Security Forces are providing even handed
enforcement of the law.
(xii) Ensuring that, according to President Bush, Prime Minister Maliki said `theBaghdad security plan will not provide a safe haven for any outlaws, regardless of[their] sectarian or political affiliation'.
(xiii) Reducing the level of sectarian violence in Iraq and eliminating militia
control of local security.
(xiv) Establishing all of the planned joint security stations in neighborhoods
across Baghdad.
(xv) Increasing the number of Iraqi security forces units capable of operating
independently.
(xvi) Ensuring that the rights of minority political parties in the Iraqi legislature
are protected.
(xvii) Allocating and spending $10 billion in Iraqi revenues for reconstruction
projects, including delivery of essential services, on an equitable basis.
(xviii) Ensuring that Iraq's political authorities are not undermining or making
false accusations against members of the Iraqi Security Forces.

48