Secondly, the US has responded in a manner considered unacceptable at the Vatican to the protection of the rights of Iraqi Christians under the new Iraqi constitution. The Bush administration has told the Vatican that as coalition forces have not succeeded in securing the whole territory of Iraq, they are unable to protect non-Muslims.
And indeed, the BBC has reported on the increasing difficulties of Christians in Iraq, a community that predates Iraq's Islamization by a number of centuries.
In fact, the number of Christians in Iraq is decreasing because of death threats and kidnappings. Many have been killed. It means we have no freedom to move around. It's especially difficult for women - they are prisoners in their own homes. This forced me to send my wife and four daughters to Syria. Situations vary from neighbourhood to neighbourhood. In some areas we can't practise our religion in a normal way, while in other places we can go to Church but there is no safety guarantee.Iraq Surge: Christian Family, BBC News Online, Sept. 10, 2007 (quoting Kurkies Ishou, a member of an Iraqi Christian party called Bait Al-Tahrain).
The Iraqi constitution provided the Vatican with a perfect opportunity to contribute to the developing dialogs about the contours of next generation constitutions--represented by the U.S. influenced Iraqi and Afghani Constitutions--which appear to develop substantial departures from the post WWII constitution models of Germany and Japan, as well as the post dictatorship constitution models of Argentina and South Africa. The Iraqi constitution, in particular, is an ethnic constitution. It accepts ethnic fracture within a monolithic religious framework. That religious framework gives the Iraqi constitution its form and cohesion. I have suggested the difficulties of this choice of framework. See Larry Catá Backer, God(s) Over Constitutions, Law at the End of the Day, Jan. 8, 2007. I have also indicated the not so hidden agendas behind that constitutional project. Larry Catá Backer, Of Political States and "Soft" Religion as the Basis for State Organization, Law at the End of the Day, July 16, 2007.
But the Vatican reminds Americans (and through the Americans, the Iraqis) that Iraq, like Afghanistan, is divided by religion as much as it is divided by ethnicity (beyond the schism between Sunni and Shi'a Islam). See Larry Catá Backer, Constitution and Apostasy in Afghanistan, Law at the End of the Day, March 28, 2006. In that context, Constitutions that exclude through frameworks that marginalize citizens pave the way for interventions from outside the state. Indeed, such constitutions serve to weaken the monopoly of state power over its citizens by suggesting a hierarchy of citizenship based on fracture. It would follow then, that failing to provide an equal dignity to Christian Iraqis, it falls to communities outside the state to represent the political interests of those citizens within the state. And so, it is to the Vatican to protect the rights of Iraqi Christians (might it be to Israel to protect the interests of the People of Israel in Iraq?). Certainly the Iraqi Constitution might make that possible, and it appears to have become a necessity. Constitutionalism in this form thus forms another step in the process of weakening the state as the final repository of rights and powers over individuals.
This is an observation that has not been lost on ethnos based political communities. Consider the People's Republic of China, about which in this context I have recently written. See Larry Catá Backer, China and the New (Old) Citizenship: Overseas Chinese, "Soft" Citizenship, and the Homeland, Law at the End of the Day, Sept. 17, 2007. Like the Vatican, the People's Republic of China has sought to project its power over the members of its community beyond the formal niceties of state theory and formal citizenship. By so doing, the Chinese, like the Vatican, have suggested a limitation on the functional power of formal instruments, like constitutions. The Chinese look to the interests of its emigrants, who retain ties--economic, cultural and perhaps political (for in a Marxist Leninist world view the three merge)--with the homeland, a "soft" citizenship worth protecting. The Vatican looks to the interests of the Christian community who retain ties with each other in another form of "soft" citizenship--in the Christian "nation." This notion of religious nationality is strong within the rising legal traditions of constitutional law in Muslim majority states. Consider Article 11 of the Constitution of the Islamic Republic of Iran:
all Muslims form a single nation, and the government of the Islamic Republic of Iran has the duty of formulating its general policies with a view to cultivating the friendship and unity of all Muslim peoples, and it must constantly strive to bring about the political, economic, and cultural unity of the Islamic world.This constitution of nationality based on the ties of religion are not unique to Islam. Nor are they unique to religion. Yet, so (re)constituted, we might be witnessing (again) the rise of overlapping, functionally differentiated and overlapping autonomous communities with varying degrees of authority over its members. We have seen this rise in the area of global economic organization. See Larry Catá Backer, Economic Globalization and the Rise of Efficient Systems of Global Private Law Making: Wal-Mart as Global Legislator, 39(4) University of Connecticut Law Review 1739 (2007). We are now seeing it rise within the public constitutional global order(s).