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| Author: | Greg Bruno, Staff Writer |
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Updated: October 2, 2008
As policymakers and presidential candidates debate the future U.S. presence in Iraq, the Bush administration is negotiating long-term agreements with Iraq's government that could shape legal, economic, cultural, and security relations. U.S. and other multinational forces have been in Iraq since 2003 under a UN Security Council mandate renewed annually. But Iraq's government has requested that the United Nations not renew the mandate again, forcing negotiations on a detailed legal framework for the U.S. presence in the country. While talks in late 2008 were said to be stalled on the issue of legal immunity for U.S. troops, Prime Minister Nouri al-Maliki has signaled a willingness to cede jurisdiction to troops pursuing official duties.
Details of the draft agreements remain incomplete, and negotiations continue. But aspects of the accords—publicly discussed in recent months—are creating unease among Iraqi lawmakers and regional clerics. Ambassador to Iraq Ryan C. Crocker, testifying before Congress in April 2008, said two separate accords are on the table. The first is a status-of-forces agreement (GlobalSecurity.org), called a SOFA, which would codify legal protections for U.S. military personnel and property in Iraq. Such agreements already govern U.S. military conduct in other long-term deployment zones—including Germany, Japan, and South Korea—and the administration has characterized talks for a SOFA in Iraq as a hopeful step toward stability.
Details of the second accord under discussion are more opaque. Referred to as a "strategic framework agreement," the measure would broadly address issues not covered by the SOFA, including those outlined in a "declaration of principles" document signed by President Bush and Prime Minister Maliki in November 2007. Among these issues: the U.S. role in defending Iraq from internal and external threats; its support of political reconciliation; and its efforts to confront terrorist groups. Critics of the measures contend the Bush administration aims to tie the hands of the next president and usurp Iraqi sovereignty, charges the White House vehemently disputes.
Historically, the status-of-forces agreement is a legal framework that defines how foreign militaries operate in a host country. Typically established by executive agreement, there is no uniform or standard format for the document, which can vary in length and specificity. The SOFA drafted in 2002 between the United States and East Timor, for instance, was less than three pages long. The 1966 SOFA with South Korea, by contrast, tops 150 pages and includes over thirty annexes. But while most SOFAs are publicly available, others remain classified; U.S. officials themselves can't agree on how many are in effect. During congressional testimony in April 2008, Crocker testified that the United States has approximately eighty SOFAs worldwide. A February 2008 Washington Post op-ed coauthored by Secretary of State Condoleezza Rice and Secretary of Defense Robert M. Gates, however, put the number at "more than 115."
Some members of Congress have argued the Bush administration will need to send the Iraq SOFA to Congress for ratification, but White House officials have resisted. Michael J. Matheson, a professor of law at George Washington University, told lawmakers in February 2008 that if a SOFA is "limited to giving U.S. forces and personnel exemption from foreign law, the president may conclude it without further congressional approval." But Yale Law School professors Bruce Ackerman and Oona Hathaway argue the agreement being negotiated "moves far beyond" traditional accords—such as proposed exemptions for civilian contractors—and should therefore be subject to congressional review (WashPost).
Status-of-forces agreements are used to define the rights and obligations of militaries operating on foreign soil, detailing the nitty-gritty of foreign deployments—everything from how soldiers wear their uniforms and carry weapons to how their mail is delivered. But the most common issue addressed is the legal jurisdiction over foreign forces (PDF), notes R. Chuck Mason, a legislative attorney for the Congressional Research Service. Legal protection is of particular importance to the U.S. military. According to a November 2003 Department of Defense directive spelling out the Pentagon's status-of-forces policy (PDF), the United States enters SOFAs to protect "personnel who may be subject to criminal trial by foreign courts and imprisonment in foreign prisons."
Yet the granting of immunity to military personnel has become a source of friction for host countries where SOFAs are enforced. The agreement with East Timor, for example, brought a wave of criticism from the local press. Allegations concerning off-duty misconduct by U.S. soldiers on the Japanese island of Okinawa have also highlighted "the importance of providing safeguards both to American forces stationed abroad and to the civilian populations with whom they come in contact," according to Ruth Wedgwood, an expert in international law at John Hopkins University.
Efforts to negotiate a status-of-forces agreement with Iraq come as the UN mandate authorizing foreign forces is set to expire at the end of 2008. After the U.S.-led toppling of Saddam Hussein's government in 2003, the UN Security Council passed Resolution 1511, officially recognizing the Coalition Provisional Authority (CPA) and authorizing a multinational force to bring stability to the country. But included in the resolution was the requirement that the security mandate be reviewed one year from implementation. Every year since, the United Nations has extended the mandate at the request of the Iraqi government. But in late 2007, Maliki asked the Security Council to extend the mandate "for the last time." When the mandate expires, it will officially end Iraq's designation as a threat to international peace and security—a UN distinction that dates to 1990.
It is not clear what the expiration will mean for U.S. military personnel, however. Currently, multinational forces, international consultants, and U.S. personnel are immune from the Iraqi legal process (PDF). CPA Order 17, which granted the immunity, was not amended or rescinded by the Iraqi government after the provisional authority was dissolved. Jennifer K. Elsea, a legislative attorney with the Congressional Research Service, told lawmakers in February 2008 that the order means U.S. forces might not necessarily be forced to leave when the UN mandate expires. But the Bush administration is not waiting for a legal ruling. In November 2007, President Bush and Maliki signed an agreement spelling out the political, economic, and security issues meant to frame relations between the countries. The Bush administration set July 31, 2008, as a tentative deadline for completion of bilateral agreements.
Opposition leaders in Iraq and legal scholars in the United States have been critical of U.S. descriptions of the agreement. Anti-American cleric Muqtada al-Sadr has called on Shiite followers to protest the agreement being penned "between the forces of darkness … and the current Iraqi government," and has called for a national referendum on the subject. Shiite cleric Grand Ayatollah Ali al-Sistani has also objected to the security accord, as have Iran's political and clerical establishments (Alsumaria). Iraqi lawmakers, too, have vowed to veto any agreement that is not ratified by Iraq's Council of Representatives. In a letter released June 4, 2008, Iraqi parliamentarians said the bilateral agreements being penned between Baghdad and Washington must "obligate the occupying American military forces to fully withdraw from Iraq."
"The U.S. enters SOFAs to protect "personnel who may be subject to criminal trial by foreign courts and imprisonment in foreign prisons."
— 2003 Pentagon policy memorandum
Among the most contentious aspects of the agreements is the belief that either measure will lay the groundwork for an indefinite U.S. military presence. Senior Iraqi lawmakers have expressed concern over proposed U.S. military operations; legal immunities for troops and civilian contractors; and the continued detention of Iraqis by U.S. forces. Yale's Hathaway says the SOFA, as discussed publicly, appears to go beyond agreements negotiated with past allies. "The SOFA is a misnomer here; it’s a SOFA-plus. And it’s the 'plus' that’s controversial." Hathaway says a so-called right-to-fight clause—the legal authority to conduct military missions after the UN mandate expires—is the "linchpin" of the debate. Steven Simon, a CFR expert on U.S. security policy in the Middle East, says Iraqi opposition is rooted in five decades of post-colonial history (RFE/RL). "The way in which the United States has gone about pursuing an agreement," Simon says, "has reminded Iraqis …of their experience with the British."
U.S. officials, meanwhile, have repeatedly stated that neither agreement will tie the hands of the next administration. "They will not establish permanent bases in Iraq, nor will they specify in any fashion the number of American forces to be stationed there," Ambassador David Satterfield, a senior adviser on Iraq policy, told lawmakers in March 2008. Nor is opposition universal. Kenneth Katzman, a specialist in Middle East affairs with the Congressional Research Service, says that Kurdish lawmakers in Iraq are largely supportive of the agreement, as are the main Sunni factions. "When this started out they were dead set against it, figuring they were going to be the object of U.S. combat," Katzman says of the Sunni groups. "But now that U.S. combat is in some ways helping them, they've become more supportive." Maliki may also be warming to a compromise of a finalized accord. "We regard negotiating and reaching such an agreement as a national endeavor, a national mission, a historic one," the Iraqi prime minister told the AP in September 2008. "It has a historic dimension."
The Bush administration was also negotiating a so-called strategic framework agreement with Baghdad, though details of this accord remain unclear. Iraq experts disagree on what is likely to be included in the framework, and administration officials have been vague. The Congressional Research Service's Katzman says he believes the agreement may incorporate some of the more contentious security proposals, such as authorization for the use of force, contractor immunity, and perhaps approval for the United States to continue detaining prisoners. Patrick Cockburn, the Independent newspaper's veteran Iraq correspondent, writes that the agreement being pushed by the United States would give Americans "long-term use of more than fifty bases in Iraq," an assertion Ambassador Crocker calls "flatly untrue." The framework, if signed, would also give U.S. troops "a free hand to carry out arrests and conduct military activities in Iraq without consulting the Baghdad government," Cockburn reports. Yale's Hathaway, meanwhile, says public statements by administration officials have led her to believe contentious security details will remain part of the negotiated SOFA. The strategic framework "basically appears to be everything else" outlined in the November 2007 declaration of principles, she says.
Administration officials, for their part, have said the framework will broadly address issues outlined in the November 2007 agreement. Political and economic items make up the bulk of that document, including vows to increase the flow of foreign investment into Iraq; foster debt reduction; and encourage cultural, education, and scientific exchanges between the countries. Wedgwood, of Johns Hopkins University, says the Iraq framework appears to be a reiteration of the framework the United States signed with Afghanistan in 2005. Among the most contentious issues remaining on the Iraq strategic framework is whether its principles will be binding, or if it will indefinitely commit Washington to defending Iraqi sovereignty. But on that front Wedgwood sees a clear line. "I do not believe that in the strategic framework there will be a legally binding promise to come to the aid of Iraq," she says.
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