For the past year, the Bush administration has been attempting to negotiate with its Iraqi counterpart an agreement that would provide a legal structure for the long term presence of American forces in Iraq. Currently, the occupation is considered to be pursuant to a U.N. mandate, and the relationship between occupier and occupied is governed by U.N. rules. Every year since 2003, the Iraqi government has reapplied to the U.N. for an extension of the mandate, but the preferred method, used by the US in all of its other occupied zones, from Germany to Japan, is to sign a bilateral Status of Forces Agreement or SOFA, which will not be subject to U.N. rules or supervision, and would not require annual approval from the Security Council.
The negotiations have not gone well. After months of bickering, the parties arrived this month at what was hoped to be a final draft, which was then immediately rejected by every Iraqi faction except the Kurds as a dishonorable capitulation to the occupiers. The future of this agreement is now uncertain. So what's wrong with this SOFA and what does it mean for the future conduct of this war? Let's find out.
From the beginning, the Iraqis had several major concerns that they demanded the SOFA to address. One is the withdrawal of occupation forces by a date certain. This of course is anathema in American domestic politics, but Bush simply renamed "withdrawal by a date certain" as "aiming for an aspirational time horizon for withdrawal" and continued negotiating, relying on the fact that Americans consider this war won, are not paying attention, and think that everything happening in Iraq post the magical success of the surge to be a boring and irrelevant epilogue. Naturally the American negotiators, for whom SOFAs by definition are vehicles for enshrining a permanent US presence, along the lines of Germany, S. Korea or Japan, have done everything in their power to water down any date certain requirements. In the latest draft of the SOFA, the compromise solution is that the US would withdraw from Iraqi towns and villages to American bases in country by July 31, 2009, and withdraw completely from the country by December 31, 2011 unless a new pact is mutually agreed upon.
That sounds pretty good, right? You got dates in there, you got a two stage withdrawal process which is superficially similar to Obama's plan. I should point out, because I am a bit of a jerk, that Obama's actual plan would not in any way be acceptable to the Iraqis, since Obama does not set a date for complete withdrawal, but instead, calls for a
residual force [which] will remain [indefinitely] in Iraq and in the region to conduct targeted counter-terrorism missions against al Qaeda in Iraq and to protect American diplomatic and civilian personnel. They will not build permanent bases in Iraq, but will continue efforts to train and support the Iraqi security forces as long as Iraqi leaders move toward political reconciliation and away from sectarianism.
While this might sound like peacenik surrender talk in the US, and makes Obama a so called "peace candidate," to anybody outside the Reich this sounds like calling for an open ended presence by a force of indeterminate size, which is intended to influence and control Iraqi government actions. This is one reason why the Iraqis tried to push negotiations with the lame duck Bush administration, because they are afraid to negotiate this again with either of the presidential candidates, who have both endorsed an open ended presence in Iraq dictated solely by American interests.
Nevertheless, after getting feedback from the Iraqi people, the ruling Shiite political parties, as well as the main Sunni party, the highly respected clerics, and the radical opposition Sadrist Tendency, have all rejected this language, because it clearly envisions that, as explained by Iraq's government spokesman Ali al-Dabbagh to Reuters
"In 2011, the government at that time will determine whether it needs a new pact or not, and what type of pact will depend on the challenges it faces."
This has become a major bone of contention in Iraq, because the Iraqis suspect that by 2011, the Americans will have manipulated the Iraqi government into accepting a modification of the withdrawal schedule which would permit American forces to stay on the expensive, huge and very permanent seeming bases which we have built there at great expense, and to continue dominating Iraqi governance.
To prevent this, the Iraqis are demanding a revision that would remove the provision that allows the Iraqi government to ask "the United States government to leave certain forces for training and for support purposes for the Iraqi forces." This seems like populist posturing, since it is very difficult to envision e a bilateral agreement that contains terms which cannot be modified by the later mutual agreement of the signatories. This change would also completely take the air out of Bush's and McCain's face saving spin that the Iraqi plan is still responsive to conditions on the ground, since the Iraqis insist on making it crystal clear that the withdrawal date will not be changed no matter what.
The second major change the Iraqis want to see relates to the other issue of great concern to the Iraqi people – Iraq's right to try American soldiers and contractors for crimes against Iraqis. This issue has been troublesome in other American SOFAs, and continues to cause tensions with Japan and S. Korea in particular every time a US G.I. forcibly liberates one of their underage girls from her virginity.
Under both the S. Korea and Japan SOFAs, American soldiers can be tried in local courts for their crimes against local nationals, but the US always takes this very badly and puts enormous pressure on the local prosecutors to drop the charges and allow the soldiers to be slapped on the wrist by American military courts, which is what usually happens. For instance, according to S. Korean figures,
out of the 39,452 cases (45,183 US soldiers involved) of crimes committed by US soldiers from 1967 to 1987, south Korea was able to exercise its jurisdiction only in 234 cases, punishing only 351 US soldiers. Among them, 84 US soldiers were convicted of rape and 89 US soldiers were convicted of murder and robbery.
These figures exclude the period of occupation from 1946-1967, the year in which the US entered into the S. Korean SOFA agreement, but still show a very low rate of local prosecution during the S. Korean occupation, despite the fact that during the occupation, according to the Koreans,
Countless cases of rape were committed by US soldiers, including a woman gang raped by 4 soldiers' in March 1946, a 14-year-old schoolgirl raped in 1956, a daughter and a mother both raped in 1967, a woman raped by 8 soldiers in the mountains in 1971, a month pregnant teacher raped in 1986 by 5 soldiers in the middle of Team Spirit military exercise, a handicapped schoolgirl sexually harassed in 1996, and a 6-year-old girl sexually harassed in May 1997.
It is this sort of record, as well as the already numerous and heinous crimes committed against Iraqi civilians by American personnel that makes this such a burning issues for regular Iraqis.
The current language provides that U.S. forces or Defense Department contractors who commit "premeditated and gross felonies" while off duty and outside U.S. facilities would fall under Iraqi jurisdiction, according to the copy obtained by CNN.
All other crimes -- and murders committed inside U.S. facilities or by on-duty forces -- would fall under American jurisdiction, the agreement says. However, other contractors working for the U.S. government, which category includes the notorious Blackwater, etc. protection squads, would be under primary Iraqi jurisdiction, which is a big step forward in itself.
Now you immediately notice that there are a lot of caveats there to shield an American soldier from Iraqi jurisdiction. For the Iraqis to get the case: 1) the crime would have to a serious and deliberate felony; 2) the crime must occur outside the American base; and 3) the soldiers must be off duty (i.e. the crime is not committed during a mission. So for example, if an American soldier was to execute a bunch of Iraqis during a house to house search, or if he was to steal a few bucks from an Iraqi on the street, or recklessly kill an Iraqi while driving, he would not be subject to Iraqi jurisdiction under the present draft agreement. Further, the determination of whether the crime falls under Iraqi jurisdiction would be made solely by the Americans, and the service man would remain in US custody until after conviction. Finally, comments by American Congressmen regarding the fact that the Iraqi system does not contain adequate due process protections hints that any American service man could appeal being turned over to the Iraqi system in US courts citing violations of his due process and other Constitutional rights, making it highly unlikely that any American soldier would ever be actually turned over to the Iraqis for punishment. Not surprisingly, the Iraqi people want this provision beefed up, to provide that Iraq would share in decisions regarding prosecution of US soldiers for crimes, and to allow Iraq to actually prosecute American criminals for crimes committed on its soil.
Other interesting provisions of the SOFA would be that for the first time, the ability of the US to search Iraqi homes, arrest Iraqis and hold them indefinitely without trial would be limited.
U.S. forces are not authorized to arrest or detain anyone (except when that person is a U.S. service member or from the civilian component) except with an Iraqi order issued under Iraqi law.
_ In the case that U.S. forces arrested or detained persons as authorized under this agreement or under Iraqi law, these persons must be handed over to Iraqi authorities within 24 hours of their detention or arrest.
_ U.S. forces are not authorized to search homes or other properties without a judicial order issued for this purpose except in cases when actual fighting is taking place ... in coordination with relevant Iraqi authorities.
From the American perspective, the deal on the table is more than generous. The top brass have reacted to the Iraqi requests for revisions with predictable bad grace. Defense Secretary Gates remarked that:
I don't think you slam the door shut, but I would say it's pretty far closed. What we have is what I would call a final draft.
and then went on to warn about dramatic consequences to Iraq should the SOFA fail to be ratified. Joint Chiefs of Staff Chairman Admiral Mullen went even farther, warning that time is running out for this agreement and directly accusing top Iraqi government officials of being bribed by Iran into rejecting this agreement. The Iraqis did not appreciate the Admiral's candor, replying:
We received with concerns statements from U.S. Chief of Staffs Michael Mullen and they are unwelcome in Iraq," Iraqi government spokesman Ali al-Dabagh said in a statement received by Aswat al-Iraq.
U.S. military chief Michael Mullen bluntly warned Iraq on Tuesday that it risked security losses of "significant consequence" unless it approves an agreement on a legal basis for U.S. forces.
"All Iraqi political factions considered the importance of signing the U.S.-Iraq security pact and well understand its overreaching consequence," the spokesman noted.
"The deal must not impose on Iraqi’s will and the statement was inappropriate way to address Iraqis," he stressed.
This determination by the Iraqi government to stay strong is motivated by several factors. In addition to the massive popular protests, the fatwas of senior religious authorities, from the moderate Sistani or Iraq, to Iran's Kazim al-Hosseini al-Haeri to Lebanon's modernist Iraqi-born Grand Ayatollah Mohammed Hussein Fadlallah who declared that the Baghdad government has no right to "legitimize" the presence of foreign troops, the ruling Iraqi parties, Dawa and SIIC, have both called for reviions to the agreement. The only ones who are happy with it are the Kurds, who are not impacted by the agreement in any way, having come to their own arrangement with the US. Faced with this wall of opposition, Iraqi Prime Minister Maliki has asked that all objections be submitted to him today, so that he might pass them to the American side by Sunday. Maliki has become significantly more assertive since the success of several Iraqi military operations in the spring and summer of this year which smashed the power of the Mahdi Army militia, and seems unlikely to cave now that the people of Iraq stand united against this draft. It appears highly doubtful that the SOFA, in any form, will be approved by the Iraqis before the Nov. 4th elections.
The approval process itself is another thorny issue. On the Iraqi side, Maliki has said that he will not even submit the SOFA to the Iraqi Parliament for approval unless he can be sure of a 2/3rds majority, which would only be possible with the support of his own Dawa, the currently dominant SIIC and the minority Sunni parties. Dawa and SIIC have been having a falling out over this issue for weeks now. Naturally, in the US, Bush has maintained that he does not require any approval from Congress to sign this agreement. Such unilateral execution by Bush would leave the SOFA open to Congressional challenge under the new administration.
Should the SOFA negotiations fail, the fallback position would be to request the U.N. for another extension of the mandate, permitting the status quo to continue for another year while the new administration strongarms Iraq into acceding to its demands. While this would most likely be approved, it would necessitate the US to obtain Russia's blessing, which will not be easy after the show of Cold War hostility the US put on in response to the Russian - Georgian conflict in August. There are fears that Russia might veto the mandate, and US forces would be legally required to remain on their bases and prepare for a speedy withdrawal. Hmmm, it looks like those of us who are genuinely anti-war might have to rest our hopes of achieving an actual American withdrawal from Iraq on Putin's Russia. Sadly, this may be the best chance we have for seeing US soldiers out of Iraq in our lifetimes.