by John Isaacs
by Travis Sharp
CONCLUSIONS IN BRIEF
- The agreement represents a stunning reversal in policy for the Bush administration, which until now rejected any timeline for troop withdrawals.
- The Bush administration has fallen in line behind the policy of President-elect Barack Obama, who has proposed removing U.S. combat troops from Iraq within 16 months.
- While opponents of any long-term accord feared that President Bush was trying to tie the hands of the next president, the agreement eliminates that concern by giving President-elect Obama flexibility to change or cancel the agreement.
- The accord reinforces the views held by the majority of Iraqis and Americans that it is time for U.S. military forces to leave Iraq.
- The agreement bars permanent American bases in Iraq, prohibits the United States from using Iraqi territory to launch attacks against other nations, and bars any residual U.S. forces in Iraq beyond the end of 2011.
- Downsides include both the Bush administration’s refusal to send the agreement to Congress for approval and various ambiguities in the text that could lead to future disputes.
- Overall, the agreement marks the beginning of the end for major U.S. military operations in Iraq, with the pace and specifics to be worked out once the Obama administration takes office.
BACKGROUND AND LATEST DEVELOPMENTS
In November 2007, President George Bush and Iraqi Prime Minister Nouri Al Maliki signed a “Declaration of Principles for a Long-Term Relationship of Cooperation and Friendship.” The agreement, commonly referred to as a status of forces agreement or ‘SOFA,’ is slated to replace the UN Chapter VII mandate under which U.S. forces currently are operating in Iraq. The UN mandate expires at the end of the year and – without a replacement agreement – American forces will lack the legal authority to stay in Iraq.
Although a final draft of the SOFA was supposed to have been ready by July 2008, negotiations dragged on into the fall and a finalized agreement was not signed until mid-November. Presently, the agreement is awaiting approval by the Iraqi parliament, which is scheduled to vote on the accord on Wednesday, November 26.
While the majority of Iraqi parliamentarians support the pact and Iraqi citizens have taken to the streets to demonstrate in favor of it, lawmakers loyal to Shiite cleric Moqtada Al Sadr oppose any agreement with the United States on principle and have been disrupting negotiations over the pact’s approval. It remains to be seen whether or not the Iraqi parliament actually will hold a vote on the accord before the end of the week, when many Iraqi lawmakers are scheduled to take a religious holiday. To pass, the SOFA needs to get 138 votes out of 275 Iraqi lawmakers and also must be ratified by the Iraqi presidential council.
In the United States, political observers have noted the stunning reversal in policy that the SOFA represents for the Bush administration. For years President Bush insisted that any U.S. withdrawal from Iraq be based on conditions on the ground, not timelines imposed by Washington. By signing the SOFA, which mandates the withdrawal of all U.S. forces by the end of 2011, the Bush administration essentially falls in line behind the policy of President-elect Barack Obama, who has proposed the removal of American combat troops from Iraq within 16 months. President-elect Obama’s transition office signaled that he wants Congress to have the opportunity to review the pact, though not necessarily to approve it.
While opponents of any long-term accord feared that President Bush was trying to tie the hands of the next president, the new SOFA eliminates that concern by giving President-elect Obama flexibility to change or cancel the agreement. Should Obama desire to change the SOFA’s terms after taking office on January 20, 2009 – in order to remove American soldiers before the 2011 deadline, for example – he will be able to do so by either: 1) gaining the Iraqi government’s consent in order to make changes; or 2) providing one year advance notice in order to cancel the agreement.
The SOFA reinforces the views held by the majority of Iraqis and Americans that it is time for U.S. military forces to leave Iraq. The accord also bars permanent American bases in Iraq, prohibits the United States from using Iraqi territory to launch attacks against other nations, and bars any residual U.S. forces in Iraq beyond the end of 2011. There are downsides to the agreement, of course, including the refusal of the Bush administration to send the SOFA to Congress for approval as well as various ambiguities in the text.
Overall, however, the agreement marks the beginning of the end for major U.S. military operations in Iraq, with the pace and specifics to be worked out once the Obama administration takes office.
WHAT DOES THE SOFA SAY?
THE GOOD
Timeline for withdrawal: Iraqis already have taken to calling the SOFA the “withdrawal agreement.” Based on the text, this appears to be an accurate description. The SOFA mandates that “all U.S. combat forces” withdraw from urban areas in Iraq by June 30, 2009, and that “all U.S. forces” withdraw from the country by December 31, 2011. A previous draft would have allowed these withdrawal dates to be extended with both countries’ approval, but that loophole was eliminated from the final version. The SOFA upholds Iraq’s “sovereign right” to demand the departure of U.S. forces anytime and recognizes the United States’ “sovereign right” to remove its forces earlier than the end of 2011.
Speculation already has begun about whether or not a follow-on agreement will need to be negotiated to govern a residual U.S. presence in Iraq after 2011. The SOFA states explicitly that “all U.S. forces” are to be out of Iraq by the end of 2011. But Obama’s plan currently calls for a residual U.S. force to remain in Iraq in order to conduct targeted counterterrorism operations, protect American personnel, and train and support Iraqi Security Forces. While impossible to predict at the present time, much will depend on how Iraqis view the reduced U.S. “overwatch” presence in Iraq and whether or not Iraqi political dynamics continue to reward leaders who oppose any continuing U.S. presence in the country (e.g. Moqtada Al Sadr’s nationalist rhetoric has made him a popular figure on the Iraqi street).
Compensation for Iraqis: The SOFA states that while both countries waive their right to request compensation for injury or death occurring during official U.S. combat duties, the United States will continue its pattern of paying “fair and reasonable compensation” for third party claims of negligence or malfeasance by American soldiers and civilians performing both official and non-combat duties.
No permanent bases: The SOFA reiterates that Iraq owns all of the agreed upon buildings and installations used by the United States and that upon American withdrawal, these facilities and their predetermined inventories will be returned to the Iraqi government. Moreover, the text states that the United States is “not permitted to use Iraqi land, water, and airspace as a route or launching pad for attacks against other countries.” In a likely attempt to bolster perceptions of Iraqi sovereignty, the agreement transfers “complete responsibility” for the Green Zone to the Iraqi government effective January 1, 2009. American embassy personnel already plan to move to a new embassy compound before the Iraqis take over responsibility for the Green Zone in 2009.
THE BAD
Confused chain of command: The SOFA creates the Joint Military Operations Coordination Committee (JMOCC), composed of representatives from both countries, to supervise U.S.-Iraqi military activities. Since the pact states clearly that all military operations must be “conducted with the approval of the government of Iraq,” scenarios may develop where the freedom of action for U.S. armed forces is curtailed. This could be problematic; for example, what if U.S. forces receive actionable intelligence about a top Al Qaeda leader but have to wait for approval from the JMOCC before launching a rapid strike? The terrorist leader easily could slip away while military bureaucrats wait for approval. Some U.S. military officers already are speculating that they will need to obtain arrest warrants before detaining Iraqi suspects or searching homes.
In her testimony before a House Foreign Affairs subcommittee on November 19, University of California Berkeley law professor Oona Hathaway argued that the SOFA text appears to allow American commanders in the field to act without advance consent from the JMOCC only in cases of self defense. While this arrangement previously has existed when American soldiers were operating under foreign command as part of peacekeeping contingents, these arrangements were authorized by treaties which first gained approval from majorities in both houses of Congress or two-thirds of the Senate. By placing U.S. forces under partial foreign command, Hathway concludes, the JMOCC adds a stipulation to the SOFA that necessitates congressional approval.
Overextending executive power: Some believe the agreement in its current form extends President Bush’s executive authority beyond lawful limits. For example, Professor Hathaway concluded that the agreement “undermines the constitutional powers of President-elect Obama.” Because any request to alter the SOFA’s withdrawal schedule must be agreed to by both countries and cancellation of the agreement requires one year advance written notice, Hathaway asserts that President-elect Obama may be bound to continue abiding by the agreement for a full year even if he decides the SOFA is no longer in the best interests of the United States. This potential handcuffing, in Hathaway’s view, is “unprecedented and…unconstitutional in the absence of congressional authority.” Perhaps as a reaction to this broad exercise of executive authority, some Democrats hinted that the Senate might hold a (non-binding) vote on the SOFA in 2009.
Vague security commitment: The SOFA contains ambiguous language on security commitments similar to provisions included in the original November 2007 draft. The pact commits the United States to providing diplomatic, economic, or military support to deter “external or internal danger…against Iraq or an aggression upon…its sovereignty, its political stability, the unity of its land, water, and airspace…[and] its democratic system or its elected establishments.” Potential threats listed in the text include Al Qaeda and other terrorist groups, outlaw groups, and remnants of the former regime.
Henry Kissinger once said that the problem with Europe was the lack of a single telephone number one could call to get Europe’s policy. The same can be said of Iraq. Who exactly – Sunni, Shiite, or Kurd – determines Iraq’s national interests? Iraq’s competing sectarian factions, which sometimes lack a clear sense of nationalism, make it extremely difficult to asses what exactly constitutes an “external or internal danger.” The vague language in the SOFA raises the specter of Iraqi leaders trying to use U.S. armed forces to advance their own sectarian interests. For example, Iraqi Kurds might argue that the United States is required to confront Turkey over its military actions against the Kurdistan Workers’ Party (PKK) in northern Iraq. One potential threat mentioned in the SOFA – “remnants of the former regime” – specifically raises concerns about the Shiite-dominated central government demanding American help to purge Sunni Baathists formerly loyal to Saddam Hussein.
If the elected Iraqi government was forced out by violence, the vague security commitment in the SOFA might be interpreted as requiring the United States to intervene to restore the elected government or to oust a government – even a stable government – that came to power through undemocratic means. Does the United States really want to be legally obligated to choose sides in an Iraqi civil war?
The SOFA language also might require the United States to crack down on activists in Iraq who the central government designate a threat but whose activities or political ideology might not necessarily conflict with U.S. interests. This might mean that the United States could be compelled to curtail activities in Iraq that represent core U.S. values such as promoting human rights, improving government transparency, and building democratic institutions.
Finally, the SOFA cements the U.S. commitment to “supplying and arming Iraqi Security Forces.” While providing Iraqi Security Forces with the equipment they need to achieve their objectives will help increase Iraqi soldiers’ confidence and effectiveness as the United States begins commencing troop withdrawals, Iraqi oversight of military equipment coming into the country must be bolstered. Baghdad and Washington are in the middle of a major effort to modernize the Iraqi military. The United States has completed approximately $20 billion in Foreign Military Sales agreements with Iraq since 2005. According to the Special Inspector General for Iraq Reconstruction’s July 2008 report, the United States also provided $17.9 billion in military-related aid – separate from Foreign Military Sales – since 2005 through the Iraq Security Forces Fund. If weapons are channeled toward dangerous insurgents and away from Iraqi Security Forces, Iraqi soldiers will lose legitimacy in the eyes of the Iraqi people and the security environment in Iraq could take another perilous turn toward sectarian bloodletting.
THE UGLY
Jurisdiction: Legal jurisdiction over U.S. soldiers was probably the most contentious issue during SOFA negotiations. This contentiousness is reflected in the final text. The agreement establishes that the United States has primary jurisdiction over American soldiers and civilians both inside U.S. installations and when they are on-duty outside of these installations. On the other hand, Iraq has primary legal jurisdiction over off-duty soldiers and civilians who commit “major and premeditated crimes” outside of U.S. installations. These major crimes will need to be defined by a joint committee and the United States retains the right to determine whether or not its personnel were on- or off-duty. Iraq also maintains primary legal jurisdiction over contractors (and their employees) that have contracts with the United States.
The SOFA goes to great lengths to ensure that Americans subject to Iraqi jurisdiction will be afforded the legal rights, procedures, and guarantees consistent with American and Iraqi law. In an underdeveloped Iraqi legal system, however, the protection and definition of these rights may be dubious at best. In a reflection of the complicated legal matters covered in the SOFA, the agreement requires both parties to review its jurisdictional provisions every six months. At that time, changes desired by either country can be instituted as long as both sides agree.
No protection for Iraqi assets: The SOFA does not contain language protecting Iraqi financial assets from seizure as part of legal claims against the former government of Saddam Hussein. This protection, which is currently included in both the UN mandate and an executive order signed by President Bush, allows the Iraqi government to move its assets – which come largely from oil revenues – into international banks without fear of having courts seize the funds to settle legal judgments. A number of American and Iraqi officials have said that an agreement protecting Iraqi assets will have to be negotiated separately from the SOFA.
