Greg Bruno, Staff Writer
Council on Foreign Relations
Tuesday, November 18, 2008 9:17 AM
As the United States prepared for a presidential transition, the Bush administration was negotiating long-term agreements with Iraq's government that could shape legal, economic, cultural, and security relations between the two countries well into President-elect Barack Obama's first term. U.S. and multinational forces have been in Iraq since 2003 under a UN Security Council mandate renewed annually. But because Iraq's government has requested that the Security Council not renew the mandate upon its expiration at the end of 2008, U.S. officials have had to accelerate negotiations on a detailed legal framework for the U.S. presence in Iraq. One of two major agreements, a security pact long stalled on the issue of legal immunity for U.S. troops and dates for a full withdrawal, cleared a major hurdle in mid-November 2008 when the Iraqi cabinet overwhelmingly approved (NYT) a draft of the agreement. But implementation is dependent on approval by Iraq's parliament, where opposition among some Sunni and Shiite lawmakers remains.The Draft Agreements
Details of the draft agreements, aspects of which have been negotiated for more than a year, have leaked in recent months. U.S. Ambassador to Iraq Ryan C. Crocker, testifying before Congress in April 2008, confirmed 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. A draft of that agreement (PDF) from October 2008 shows significant concessions from the U.S. side. For instance, the Bush administration agreed to a total withdrawal of U.S. troops from Iraq by the end of 2011. The agreement would also place additional restrictions on how U.S. troops conducted missions, and require a pullout from Iraqi urban areas by July 2009.
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 Nouri al-Maliki in November 2007. Among these issues: the U.S. role in defending Iraq from internal and external threats; U.S. support of political reconciliation; and U.S. 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.The Law of the Flag
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 disagree 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 say the Bush administration will need to send the Iraq SOFA to Congress for ratification, a position President-elect Obama argued during his presidential campaign. 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).Legal Framework
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.A SOFA in Iraq
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.
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 took no chances. 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.A Contentious Accord
Opposition leaders in Iraq and legal scholars in the United States have been critical of the way Washington has characterized the SOFA, and some Iraqi hard-liners kept up their opposition following the cabinet vote in November 2008. Anti-American cleric Muqtada al-Sadr, who consistently called on Shiite followers to protest the agreement, denounced the cabinet's approval and urged supporters to take up arms against Americans. But other historic opponents of the pact appear to have softened their position. Maliki succeeded in building support for the pact among Shiite and Kurdish leaders. Shiite cleric Grand Ayatollah Ali al-Sistani, who objected to previous versions of the accord, did not publicly oppose the version passed by the cabinet.
Questions about what the U.S. side has given up could linger, regardless of whether the pact passes its final hurdle in the Iraqi parliament. 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. Other experts say the provision requiring U.S. troops to leave Iraqi cities by the summer of 2009 could render them powerless in containing future violence.
U.S. officials, meanwhile, have repeatedly stated that neither agreement will tie the hands of the next administration. The agreements "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.Strategic Framework Agreement
In addition to the SOFA, the Bush administration has also negotiated a so-called strategic framework agreement (Reuters) with Baghdad, defining relations on "economy, culture, science, technology, health and trade." Kenneth Katzman, a specialist in Middle East affairs at the Congressional Research Service, 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. 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.