On 15 September the Iraqi Kurdistan Region (KRG) held an independence referendum, in which a majority of the non-Kurdish people of the disputed oil-rich city of Kirkuk did not participate. Kurdish Peshmerga forces took control of Kirkuk after the Iraqi army abandoned its posts in a rapid collapse before the Islamic State’s offensive nearby in 2014. After the referendum, which the central government of Iraq had opposed, Baghdad rejected its results as illegal and its army launched an offensive against the Peshmerga forces to retake Kirkuk and its oil fields on 16 October 2017.
Tensions between the two sides rose after the independence referendum, which passed with more than 92 percent of voters voting for independence. Both sides blame the other for the escalation in violence. Both sides appear to be in violation of the international laws of armed conflict, in particular by failing to distinguish between combatants and civilians. Both sides have targeted civilians who are not directly related to military operations and should be distinguished from military targets under the Geneva Conventions, which Iraq ratified on 14 February 1956. However, as Human Rights Watch reported, apparently indiscriminate firing during fighting between Peshmerga and Iraqi forces on October 16 2017 in a town near Kirkuk left at least 51 civilians wounded and five dead.
Recently, clashes have erupted in Kirkuk and Iraqi police troops have been dispatched to the Kirkuk oil fields as part of a plan to secure oil facilities there. Iraq’s military funding and bureaucracy depends on oil revenue from Kirkuk province, which contains one of the biggest oil fields in Iraq. More than 6 percent of the world’s oil comes from the area. Therefore, the region is of huge strategic importance. Already, thousands of mainly Kurdish civilians have fled the city because of the conflict.
According to Article 140(2) of the Iraqi Constitution, ratified in 2005, Kirkuk is a disputed region and is not within the boundaries of KRG. Article 140(2) contains an obligation to determine the will of the people of Kirkuk by referendum. This has not happened. However, military occupation of Kirkuk by either side will not mean that the occupying side can claim Kirkuk as its territory. In international law, the unlawful occupant does not acquire sovereignty over the territory it unlawfully occupies. Occupation is only a temporary situation, and the rights of the occupant are limited to the extent of that period. In this regard, Peshmerga forces should have left Kirkuk after saving it from Islamic State’s aggression. However, they are now occupying Kirkuk to control its main oil-fields, which are not legally part of KRG territory under Article 140(2).
In this case, it seems likely that the occupation of Kirkuk by the KRG has ceased to be lawful, and serves only to prolong the suffering of the civilian population of the region. It must also be borne in mind that one of the most important reasons to create an autonomous region such as the KRG is that it provides an efficient mechanism to prevent violent conflict between the central government and the autonomous regional government. This means that ensuring the protection of the civilian population and avoiding any violent conflict should be a core commitment of the autonomous Kurdistan region.
In sum, in order to protect Iraqi civilians in the conflict over Kirkuk, both the Iraqi government and KRG should try to provide a space for the speedy diplomatic negotiation of a more lasting agreement. In this respect, negotiations concerning the status of the results of the 15 September referendum or a re-negotiation of the Iraqi Constitution, especially the section about disputed regions including Kirkuk, could be the most robust and peaceful solution.