Federalist Dreams for the Middle East

Editor’s note: This week, Lawfare is running a series of essays on federalist governance in the Middle East. This essay is the third in the series. Read the introductory essay here, the second essay here, and the third essay here.

I have long supported a proposal along the lines of what Benjamin Wittes sets forth in his essay suggesting a possible future for Israel-Palestine as a federal state. I reached this conclusion early in my career: A chapter of my book “The Middle East in the 21^st Century” draws heavily on a statement of David Ben Gurion in 1930 on federalism as a solution in Palestine, a statement also cited by Noam Chomsky in his “Peace in the Middle East?” I had an occasion to discuss the matter with Noam Chomsky when we met in Beirut during my campaign for the presidency of Lebanon in the spring of 2006. While Chomsky has, since “Peace in the Middle East?” was published in 1974, drifted toward support for a two-state solution instead, I have persisted in my belief that a united, federal Israel-Palestine is not only morally desirable but inevitable considering the long-imbricated populations within Israel-Palestine. Over the past decade, my advocacy has rested on two pillars: nonviolence as Palestinian strategy, and federalism as constitutional framework over what is known as “historic Palestine,” the territory of the British Mandate from the Mediterranean to the Jordan river.

The alternative is a horror story of ethnic cleansing by the stronger party of the weaker party. For now, the Palestinians are the object of a slow-moving policy of exclusion and deportation—but the risk that Israeli Jews may be annihilated should not be discarded either, considering the spread of weapons of mass destruction throughout the Middle East. This is frightful, and all involved should redouble efforts to break the murderous deadlock.

As the opening of a debate, Wittes’ paper deserves a detailed response. Here I present a few thoughts on federalism in the Middle East and the difficulties it will face in taking root. Regarding Israel-Palestine, I will just note for now that the need for a vision like Wittes’s is underlined by the Israel Democracy Institute’s failure to produce a constitution for all Israelis—despite a decade-long effort by leading Israeli jurists and politicians—and the Knesset’s recent reinforcement of a structurally inegalitarian Israel as “the nation-state of the Jewish people” in its most recent Basic Law.

Why advocate federalism in the first place, in Israel or elsewhere? As a general premise, federalism must first be accepted as a superior or advanced mode of democracy— otherwise there is no point in turning to it over a non-federal system.

With this in mind, I argue in this brief contribution three points:

1. The concept of federalism is confused in the Middle East, where many of its advocates wrongly use it as a substitute for secession.
2. Democracy is a condition sine qua non for federalism to work.
3. A serious Middle Eastern agenda for federalism requires a leap of faith.

Federalism in the Middle East is a loaded word. It is contradictory and misunderstood. But this is not unique to the region: When the French revolution radicalized in 1792-3, any reference to federalism and fédérés, who were celebrated previously as ‘representatives’ from the provinces, became suspect to the central power in Paris. The F word, in France then in a different way for its detractors in the European Union, became a code word for both separatism and abandonment of sovereignty.

1. The “F-word” is loaded and confused in the Middle East

It is therefore not surprising that the word continues to elicit great passion. In the Middle East, the ambivalence is compounded by a special legacy of colonialism and internal strife in a region dominated by a system of communities and sects increasingly defined by religion.

As a political and legal concept, the understanding of federalism conjures up two diametrically opposed understandings in the region.

The first understanding connotes separation, self-determination, independence and secession. It leads to the transformation of a national (generally language-based: Kurdish, Arab, Turkish or, Azari) or religious group (Christian, Jewish or Muslim, or to be more specifically sectarian, Sunni, Shi‘i or Coptic) within a country into claimants to an independent state. Separatist Kurds, separatist Christians in Lebanon at the beginning of the war in 1975 and separatist Hijazis in Saudi Arabia all see or saw federalism as a ploy for independence. So do those who oppose them.

The second understanding, which prevails in functioning federal states the world over, is that a federalist country stands as a single national entity in which diverse groups are not seeking to live on their own in an independent state. Federalism is premised on the rejection of a bounded sub-territory functioning like a state, i.e. having the monopoly of rule-issuance to bolster the monopoly of state violence and recognized internationally as such. Federalism in democratic countries is not a shadow game standing in lieu of, or as a step to, independence or separation. It is an advanced form of de-centralization, where the country remains one in a federal system consisting of two or more entities with delegated autonomy over their own affairs and active participation in central, national affairs. There is no challenge to the unity of the country: federalism ensures that there is no need for secession, neither would there be legitimacy for it. Contrary to viewing federalism as the door to independence leading to two or more states, this understanding presents federalism as an internal arrangement between two or more sub-entities that preserves the integrity of one state.

There is no middle ground between the two understandings of federalism, and the difference is discrete. I believe only the second understanding is constitutionally correct. The present reflection is based on this premise.

Why the confusion?

Reasons for the Middle Easternization of federalism as a route for secession have not been studied enough. One can venture a mixture of interlocked explanations. Some are power-related and contextual. Others are more conceptual. The education gap plays a unique role.

In the first register of historical contextualization and power relations, Kurds in various Middle Eastern countries and Christians in Lebanon have used federalism to avoid an open advocacy of separation: they have not seen themselves as strong enough on the regional and international scene in order to claim outright independence. Real or imagined prospects of international recognition are key. In one case, it worked: South Sudan, independent since 2011 as the 193^rd member state of the United Nations, was part of a formally federal Sudan. Mostly it hasn’t. Without the support of the wielders of veto power at the U.N., especially the U.S. government, Palestinian declarations of independence since 1987—let alone Somaliland’s claims in 1991—have gone nowhere.

Federalism is also poorly understood on a conceptual level. Some of the misunderstanding derives from divergent political interests: Middle Eastern advocates of federalism paper over or hide their separatist yearning by using the word. They consider themselves as a “people” entitled to self-determination, meaning independence, and use federalism to cloud the discussion. This is typical of Kurds in the four Middle Eastern countries in which large Kurdish communities live: Iraq, Iran, Syria and Turkey. Because of the long-standing threats posed by powerful central governments, various Kurdish leaders have tended to avoid the call for secession by advocating federalism. When Masoud Barzani pushed last September for an independence referendum, the national and international backlash that occurred—despite the fact that 90 percent of Kurds voted in favor—came as a reminder that secessionism is a big leap from a just-acquired federal setup. The experience of the Catalonian referendum is largely similar. Plans of building on federalism to acquire independence come from a deep misunderstanding of the concept of federalism as a constitutional arrangement.

This fuzzy understanding may also be the result, at least in the Middle East, of legal education. Federalism is a complex constitutional arrangement in countries long considered federal, such as Switzerland, the United States or Germany. (Note in the case of Switzerland, and the early form of federalism in the U.S., the use of the word “confederation.” While nuances may be in order, I consider confederation and federation to be the same.)

In federal countries, federalism is practiced everyday along contested legal boundaries, economic, social, sometimes even physical when a geographical delineation is at stake. Federal conflicts are arbitrated by tribunals, leading to a large set of case law, which commands in turn important scholarship and specialization developed in advocacy and legal education. In the Middle East, the absence of a serious discussion of federalism comes in significant part from the fact that Britain and France as the main colonizing powers never knew federalism within their own system, and so never projected it as model onto their Mideastern colonies. Counter-examples appear only towards the end of British and French colonial dominance in the wake of World War II. In Malaysia and India, federalism emerged during the late years leading to independence, when US dominance following World War 2 had replaced Britain’s. In Libya, federalism emerged briefly in the Constitution of 1951 from a short U.N. impulse while the country was negotiating its independence after the collapse of Italian rule.

2. Democracy as condition sine qua non of federalism

Mostly, federalism is misunderstood because it meaningless in the absence of democracy. Jalal Talibani, the leading Kurdish figure who became the first president of a federal Iraq, underlined this central premise: For him, federalism is an empty word if the country is not democratic in its classic, liberal, Western understanding. The USSR during most of the 20^th century is evidence of this principle, as is the Russian Federation presently. Federalism cannot be taken seriously if the country in question is ruled autocratically.

In the some twenty states in the democratic world in which federalism is successfully practiced—including countries as varied as Brazil, Mexico, Canada, Austria, Germany, South Africa, India and Australia—federalism does not threaten unity. There is a fundamental reason for this, often overlooked by the adherents of federalism as a step to independence: the democratic nature of the system. Democracy is a sine qua non condition for federalism. The most convincing legal reasoning on this matter appears in an opinion of Canada’s Supreme Court, Reference re Secession of Quebec, [1998] 2 SCR 217, which holds a contrario that separatism may be legitimate if the center is undemocratic, and the region heavily oppressed.

We can be more specific. A federal constitution benefits from consideration under two characteristic angles: substance and form.

Substance is about the exercise of power by federal (national, central) as opposed to state (regional, federated, provincial) authorities. Three areas of competence are exclusively federal: (a) defense, (b) foreign affairs, and (c) the currency as symbol of the general economic system.

1. The army and defense are national in a federal system. Some states or regions may have limited armed forces as police or state troopers, but they are at best an auxiliary in the regional government’s duty to carry out the country’s defense.
2. The central = federal = national authorities are exclusively competent in foreign affairs. Never is a state or a region in a federal system authorized to represent the country internationally, even if regions or states may have some symbolic presence abroad. This is also true for issues of immigration and nationality.
3. The economy as a whole is run according to common principles and one currency. States can levy their own taxes and create economic incentives, but they cannot infringe on general economic principles vesting in the national authority or use their own, separate currency. The franc in Switzerland and the dollar in the U.S. cannot tolerate the parallel presence of an Italian-Swiss or a Californian currency.

Form provides another angle. Regions elect their representatives to regulate a significant part of their daily lives in both unitary and federal states, but the degree of autonomy is far more important in federations. Sometimes the line is blurred, because there is always a dialectic of power relations between the region and the center, but federalism often displays a parallel mirroring of national institutions by the states. The U.S. is typical: state governors mirror the U.S. president, state legislatures mirrors the national House of Representatives and the Senate, and state judges adjudicate state law.

Without a national bi-cameral legislature—one chamber representing citizens as equal on the national scale, and the other representing sub-national entities, such as senators representing U.S. states—a country cannot be federal. Some unitary systems are bicameral, such as the British House of Lords or the French Senate, but these upper chambers do not express the electorate of British or French regions as such. In contrast, the power of Californians in Washington is exercised formally by way of their representation in the US Senate. This, paradoxically, is more important, as well as less intuitive, than the power to take decisions in the regions themselves. In a democratic society, it is expected that Californians or Provençaux will be represented by Californians and Provençaux in their respective regions. While both may rail against the capital’s sway over their lives, the distinctive power that California wields in Washington through the Senate is very different from the haphazard, uninstitutionalised power that Provençaux may wield in Paris. Federalism institutionalizes an enhanced power of the region in the center. Thanks to the US Senate, Californians have far more power in Washington than Provencaux in Paris.

In the Middle East, none of the formally federal states are democratic. Sudan’s federalism collapsed into two separate states in 2011, and South Sudan quickly became mired in a brutal replica of the rule in Khartum. Federated Emirates in the United Arab Emirates (UAE) mirror the national system based in Abu Dhabi as the capital, but national rule in Abu Dhabi is not democratic in the most basic sense of people electing their rulers freely, so the UAE fails federalism’s first test. Pakistan and Iraq remain loci of a potential success for federalism, but Pakistan is plagued by the harsh control of the military and security services over society. And Iraq, which became officially a federal state in 2005, continues to suffer from immense violence. Institutionally, the persistent absence of a Federation Council—despite its mention in Article 65 of the Iraqi Constitution as the Upper Chamber representing the regions in Baghdad— was further tested by the separatist bent of the Kurdish referendum carried out in September 2017. The characteristically autocratic rule in the country’s Kurdish north does not bode well either. Both the Catalan and Kurdish referenda for secession failed, but the wounds will carry on for generations. If a government is finally formed in Iraq, a renewed effort to establish the Federation Council might allow federalism to come of age in one Middle East country.

3. An agenda for federalism in the Middle East?

Given the dour conditions of democracy across the Middle East in the brutal counter-revolutions that followed the Arab Spring, viewing federalism as a way forward in the region requires a leap of faith.

If my premises are correct, an agenda for federalism requires

(1) frankness in its opposition to separatism,

(2) ensuring democracy both within the entities established in a federal state, and in the center, and

(3) nonviolent experimentation with complex set-ups that include communities defined by their religion.

First, flowing from the discussion above, federalism cannot be advocated as a decoy for secession—nor for related words like separatism, independence and self-determination.

Second, federalism without democracy, both at the center and in the regions, is inconceivable. A country could be democratic without being federal, but a country cannot be federal without being democratic. Efforts to implement federalism must pay particular attention to enhancing the institutionalized power of the regions in the central government. Contrary to the usual emphasis of federalism as a protector of the autonomy of decision-making in the regions, federalism succeeds because it enhances the power of the regions in the capital. This requires an upper house elected by universal suffrage actively participating in law-making at national level, and an effective supreme court at the top of the judicial system, including the state judiciary, to ensure a minimal uniformity in basic equal rights between the citizens.

Third, federalism as practiced in the world is exclusively territorial. The political regime in Lebanon has been often described as “federal communitarianism,” or as a “federation of communities.” This is not correct constitutionally, but it underlines the additional layer of complexity facing the national-territorial quandary of federalism the world over, particularly regarding the strong presence of groups defined along religious lines in the Middle East. This is a typically Middle Eastern problem that is nevertheless spreading worldwide as boundaries between groups harden increasingly along the lines of religious and sectarian identities.

In practice, the disappointing results of the federal experiments in the UAE and Pakistan leave the Middle East with Iraq as a possible hope, and the two small countries in which the advocacy of federalism can benefit from a relatively open society: Lebanon and Israel.

Lebanon (sort of) ended its long wars in 1990 through a constitutional amendment of Article 22, which announced a Senate based on communitarian representation alongside a lower house based on a one person-one vote principle. Like Iraq’s Federation Council, the Lebanese Senate is yet to be formed despite its explicit mention in the constitution. The persistent failure in both Iraq and Lebanon to establish federalism as a corrector of majoritarianism underlines a problem common to most Middle Eastern countries, including Israel, because of the attachment of the majority of the population to its Jewish character. This additional religious/sectarian identification creates its own conundrum. In ‘traditional’ federalism, the upper chamber universally elected is based on territory, which is religion-neutral. In the Middle East, where Israel and a number of Arab states consider that Judaism and Islam, respectively, are markers of national identity, non-Jews and non-Muslims are degraded constitutionally to second tier. This is a conundrum not easily solved.

I largely concur with Wittes’s reading of possibilities for a federal Israel, and have been keen to push the concept of a federal Israel-Palestine further. While I am skeptical of its immediate espousal given the hardening boundaries between the constituent groups in Israel-Palestine, I take heart both in the rise of the philosophy of nonviolence amongst Palestinians and the possible allure of a discussion of federalism both within Israel and internationally, which might have the ability to bring together Israelis and Palestinians and break the structural deadlock. To succeed, the process might well require at least a generation. It certainly requires a revolution.

As elsewhere in the Middle East, pursuing a federalist solution in Israel-Palestine needs a leap of faith—and we should expect a steep political and educational learning curve.