Dr. Sana Kamal Abdullah
Every time the winds of political crises intensify in Iraq, certain factions seize the opportunity to reopen the file on the Peshmerga forces, raising questions about their legitimacy and the lawfulness of their existence. However, this recurring controversy does not reflect any ambiguity in the constitutional text as much as it reflects a political exploitation of selective interpretations.
Anyone examining the 2005 Constitution of Iraq with an objective legal eye will not find the Peshmerga on the margins of legitimacy; rather, they will find them firmly rooted at the core of the constitutional structure.
Article (121/Fifth) of the Iraqi Constitution alone is sufficient to answer every question, as it explicitly stipulates the jurisdiction of the regional government to “establish and organize the internal security forces for the region, such as the police, security forces, and the regional guard.” Although the text did not explicitly mention the term “Peshmerga” by name, the term “regional guard” was understood by all parties to the constitutional process at the time as the legal framework under which the Peshmerga forces specifically—and no others—fall.
This is not a contrived interpretation, but rather a reading of the historical and political context in which these texts were born.
This constitutional framework becomes even more solid when we recall Article (117/First), in which the Constitution recognized the Kurdistan Region and its existing authorities as a federal region. The legal meaning of this recognition is deeper than it appears at first glance; the Constitution did not create the region from a vacuum, but rather recognized an entity that existed with its institutions prior to 2005. Among those institutions existing at the time, the Peshmerga was present and active. Consequently, recognizing the region is, by logical and legal necessity, a recognition of its security institutions.
As for the argument most commonly circulated among skeptics—which invokes Article (9) to label the Peshmerga as a “militia”—it is an argument that falls apart under the slightest legal scrutiny. The Peshmerga does not operate in an institutional vacuum or outside the authority of the state; rather, it is subject to a democratically elected government, possesses an official and recognized ministry, and has a budget approved by a legitimate parliament.
By legal definition, a militia is an armed organization operating outside the authority of the state, a description that does not apply to the Peshmerga in any respect. Furthermore, Article (110), which restricts national defense to the exclusive authorities of the federal government, pertains to supreme national military policy and does not conflict with the region’s authority to manage its own security forces. In fact, Article (115) grants priority to the powers of the regions in the event of a dispute over matters outside the exclusive authorities.
The minutes of the meetings of the 2005 Iraqi Constitution Drafting Committee, as an official document and an approved interpretive reference for constitutional texts, decisively clarify this matter.
The draft constitution explicitly stated that the tasks of the regional government include “managing and organizing the regional guard, internal security forces, and border guards,” drawing a clear distinction between the “regional guard” and the “border guards.” More importantly, the minutes indicated that while some members objected to including the border guards within the region’s powers, no one objected to the regional guard. This consensus-driven silence regarding the Peshmerga is, in itself, irrefutable proof that they were taken for granted by all parties and were never a subject of debate within the committee itself.
The constitutional legitimacy of the Peshmerga cannot be read in isolation from its deep historical and humanitarian roots. These forces were not born out of a political decision at a negotiation table; rather, they were formed through decades of struggle against dictatorship and became entrenched in the conscience of the Kurdish people through immense sacrifices, from the mountains of Kurdistan to the Anfal campaigns and the gas-shrouded skies of Halabja. This popular and historical legitimacy preceded the constitution and brought it into being, and recognizing it was not a favor from anyone, but a historical duty.
In conclusion, it must be acknowledged that there are genuine internal challenges regarding unifying the Peshmerga command and restructuring it institutionally. However, this file remains a purely internal affair belonging exclusively to the Kurdistan Region and its elected institutions. Just as the Kurdistan Region has no right to interfere in the organizational structure of the Iraqi army, no federal entity has the right to exploit these internal challenges as a pretext to undermine the Peshmerga’s constitutional legitimacy. The bottom line is that whoever challenges the legitimacy of the Peshmerga does not merely challenge a military force, but challenges the Constitution of Iraq voted on by the people, and challenges the invincible will of the people of Kurdistan.
Rudaw
Note: This text is translated from the original Arabic version… Read the Arabic version: Click here
