[Peace-discuss] Who's sitting on the SOFA?

[C. G. Estabrook]

[From the generally excellent Foreign Policy in Focus, an argument that "the 
resulting agreement or lack of agreement is likely to have little actual impact 
on the occupation."  That seems to me right.  --CGE]

	Tenuous Agreement on Maintaining U.S. Troops in Iraq
	Phyllis Bennis | October 24, 2008
	Foreign Policy In Focus 	
	www.fpif.org

Despite the recent surge of attention to the U.S.-Iraqi negotiations over an 
agreement to keep U.S. troops in Iraq for years into the future, the resulting 
agreement or lack of agreement is likely to have little actual impact on the 
occupation. The negotiations are being conducted by representatives of President 
George W. Bush and Prime Minister Nouri al-Maliki — neither of whom actually 
want the U.S. troops to leave (Maliki's government would not likely survive the 
withdrawal of U.S. troops, and Bush remains committed to permanent U.S. control 
of Iraq, its oil, and its strategic location for U.S. military bases).

But both Bush and Maliki face political and electoral pressures to posture as if 
they do want a timetable for troop withdrawal. As a result, most of the 
negotiations seem to have focused less on substantive disagreements between the 
two sides, and more on finding language that disguises the reality of continued 
occupation and U.S. domination, with politically acceptable language extolling 
Iraqi sovereignty.

The negotiations are officially aimed at producing a bilateral agreement between 
the United States and the U.S. occupation-backed Iraqi government that would set 
the terms for how U.S. and "coalition" troops would continue to occupy and wage 
war in Iraq. The urgency surrounding the negotiations is based on the looming 
expiration of the current United Nations mandate for the so-called 
"multinational force" (diplo-speak for the U.S.-led occupation) on December 31, 
2008. The goal is to create an agreement between Washington and Baghdad that 
would replace that mandate. Even The New York Times agrees that if there is no 
agreement in place after December 31st, and the Security Council has not 
extended the mandate, the U.S. troops occupying Iraq would have no legal basis 
for their presence; legally, they would have to be pulled back to their bases 
and quickly withdrawn from the country.

In fact, it's quite unlikely that any new bilateral agreement, or any extension 
of the UN mandate, will have any real impact on the fighting. The U.S. invaded 
Iraq illegally; it's unlikely that the government would end its occupation 
because of a technicality like acknowledged illegality. And those forces 
fighting against the U.S.-led occupation, both the resistance forces targeting 
the U.S. occupation alone and those extremists also committing terrorist acts 
against Iraqi civilians, are unlikely to stop fighting because of a new or 
renewed legal document; they are fighting against a hated foreign occupation, 
and will likely continue to do so regardless of diplomatic niceties.

It should be noted that so far the actual content of the agreement remains 
unclear. No version, either in Arabic or English, has been released, though 
Arabic drafts have been leaked, and informal English translations are all that 
are available. So, if the devil is in the details, the devil remains hidden.

Congress and Parliament

The agreement hasn't been submitted to Iraq's parliament, as its constitution 
requires, and has not been submitted to the Senate for ratification, as the U.S. 
constitution requires. In fact, on the Iraqi side, even leaders of Maliki's own 
party have distanced themselves from the agreement, while other political 
leaders, most notably Shi'a cleric Moqtada al-Sadr (who called a Baghdad protest 
of tens of thousands over the weekend) oppose it altogether. It appears that 
secular, nationalist, and Sunni forces remain largely skeptical. Iran opposes 
the agreement. Only the main Kurdish parties, Washington's closest allies, have 
apparently endorsed its terms. And most Iraqis, other than Maliki's supporters, 
are looking to better possibilities from a new post-Bush U.S. president.

The Bush administration has similarly refused to engage Congress, claiming that 
the agreement is "merely" an ordinary Status of Forces Agreement (SOFA), similar 
to agreements the U.S. has with Germany or Japan. But of course there's no war 
being fought by U.S. troops in those countries. In Congress there is strong 
opposition to the agreement, but it's primarily focused on the exclusion of 
Congressional input and approval rather than the substance of the terms.

However, if the agreement fails it would mean official recognition by 
governments, inter-governmental institutions, and other international diplomatic 
entities of the illegality of the U.S. occupation. That would constitute a huge 
advance for global anti-war forces, including here in the U.S. So challenging 
the legitimacy of any new agreement is a continuing obligation.

Time Horizon

Article 25 of the draft agreement describes "withdrawal of U.S. forces from 
Iraq," and the first paragraph states that "the U.S. forces shall withdraw from 
Iraqi territories no later than December 31, 2011." Later in the same article, 
there are references to "combat troops" being withdrawn from Iraqi cities and 
regrouped in U.S. bases by June 2009, but the initial commitment to the December 
31, 2011 withdrawal doesn't specify "combat" troops. It appears this was likely 
one of the demands of the Iraqi government, aware that the Iraqi parliament, let 
alone the population, would certainly reject the kind of partial withdrawal, of 
"combat troops" only, that is being defined as ending the war in U.S. electoral 
discourse.

But the existence of that text doesn't indicate a serious U.S. commitment to a 
timetable for full withdrawal of all troops, even by the end of 2011. Paragraph 
5 of the same article explicitly authorizes the Iraqi government to request U.S. 
forces to remain in Iraq — for "the purposes of training and support of the 
Iraqi security forces." Such "support" of the U.S.-trained, U.S.-armed, and 
still U.S.-dependent Iraqi military could in practice mean any military action 
the Pentagon wants to carry out. Paragraph 5 goes on to say that "the Iraqi 
government might ask for an extension of paragraph 1 of this article" — an 
extension of the 2011 withdrawal deadline.

So the whole idea of a deadline is a politically driven fraud. It's not 
coincidental that when the Bush administration appeared to give in on the 
once-rejected idea of a timeline, the actual description was that of a "time 
horizon" — very beautiful, perhaps, but you could never get there.

There are similar wiggle-word descriptions of how U.S. troops would have to get 
approval from the military Iraqi in a joint coordination committee for military 
operations. As to the detention of Iraqis, U.S. troops are required to hand over 
detainees to the Iraqi authorities within 24 hours — unless the detention "was 
based on an Iraqi decision in accordance with Iraqi law."

U.S. Military Immunity

As to the hot-button issue of immunity vs. accountability for U.S. troops 
committing crimes against Iraqis — immunity largely wins the day. There does 
seem to be a claim of Iraqi sovereign control over U.S. contractors who commit 
crimes against civilians — according to Article 12, "Iraq has the primary legal 
jurisdiction over contractors with the U.S. and their employees." We'll see how 
Blackwater and other mercenary companies deal with that. But as to U.S. troops, 
the U.S. maintains "primary legal jurisdiction over U.S. armed forces members 
and civilian members." Iraq's government can now brag to its people that it will 
have "primary legal jurisdiction over armed forces members and civilian members 
in cases of major and intentional crimes" that occur outside of U.S. bases and 
"while troops are off duty." But how convenient — U.S. troops essentially never 
leave their bases except for military activities, and several paragraphs later 
the text gives the U.S. the explicit right to determine whether the troops 
involved were off-duty or not.

U.S. bases also remain unchallenged. The U.S. is to submit a list of all 
"installations and areas used by the U.S. forces" for the purpose of "being 
reviewed and agreed upon by both sides" by June 30, 2009. There are references 
to the U.S. returning to the Iraqi government military bases "that were 
constructed, remodeled, or modified under this agreement," but no reference to 
bases that pre-date the agreement or may not be among the "installations and 
areas agreed upon."

The text is replete with references to Iraq's sovereignty, respect for the Iraqi 
constitution and laws, etc. But there is no enforcement capacity and given the 
unequal balance of power between the two sides, there is little doubt that those 
references are designed to placate Iraq's overwhelmingly anti-occupation 
population, and even much of the parliament.

Oil

The agreement does nothing to end or even curtail U.S. efforts to control Iraqi 
oil. It states the U.S. will continue its current role in "protection 
arrangements" for Iraq's oil and gas production "and their revenue." Given 
Bush's signing statement two weeks ago rejecting Congress' law requiring an end 
to U.S. efforts to control Iraq's oil, such continuation remains very dangerous.

So What Is Likely to Happen?

It's very unlikely that the Iraqi parliament, veering between skepticism and 
outright rejection of the agreement, will come to accept it in the next two 
months. It is certainly possible that Prime Minister Maliki will simply assert, 
as he has before, that his government doesn't need parliamentary approval; but 
with important provincial elections looming in Iraq early in 2009, that's 
probably a recipe for political suicide.

In the United States, Bush faces a similar problem. Rejecting claims that their 
approval isn't required, Congress is beginning to react — primarily by demanding 
a say in the process. Some members are targeting the idea of U.S. forces ever 
being held accountable in the Iraqi judicial system, despite the clear reality 
that the text itself provides a myriad of ways to prevent such an occurrence.

There's already a move in Congress, led by Rep. Bill Delahunt (D-MA), to 
challenge the legitimacy of the exclusion of Congress from approval of the 
agreement, but urging the Security Council to extend the UN mandate after Dec. 
31 instead. This would mean repeating the common tactic of using the UN to 
provide political, and in this case legal, cover for illegal U.S. actions — 
potentially even for war crimes that may be committed by U.S. troops following 
illegal orders.

If the December 31 expiration of the UN mandate looms closer, and the U.S.-Iraq 
agreement is not accepted by both sides, and Bush and Maliki fail to win 
political support for their claim that congressional/parliamentary approval is 
not necessary, three possibilities are likely:

     * An effort to win Security Council agreement for a short-term extension of 
the mandate;
     * A Bush-Maliki "handshake" agreement to maintain the status quo for three 
or six months, perhaps longer, the equivalent of Congress' frequent "continuing 
resolutions" that maintain current funding and activity levels;
     * Agreement by Congress and the Iraqi Parliament to accept a shorter-term 
and perhaps stripped-down version of the agreement, essentially endorsing a 
"handshake" agreement between the governments.

So What Does the Peace Movement Do?

The December 31, 2008 expiration of the UN mandate should lead to an immediate 
recognition of the illegality of the U.S. occupation. That acknowledged 
illegality should be seen as an opportunity to implement the clear will of the 
Iraqi people and a majority of the American people. The result should be 
immediate steps to return all U.S. troops to their bases, and begin the process 
of immediate withdrawal of not only combat troops but also U.S.-paid non-Iraqi 
contractors, and closure of the U.S. bases.

Although much of the nation's attention is captive to the current elections, 
there's an immediate need for a strong response against the latest round of 
negotiations that includes:

     * Opposing any U.S.-Iraq agreement to maintain the U.S. occupation, whether 
it's for one month or three years.
     * Opposing any such agreement being negotiated or signed without U.S. 
Congressional and Iraqi parliamentary approval.
     * Rejecting interim measures designed to continue the occupation.
     * Standing against any Security Council decision to extend the current 
mandate authorizing the U.S.-led occupation in Iraq; we call on the United 
Nations to stand with global civil society in defense of international law and 
its own Charter, to oppose the continuing occupation of Iraq.

[Phyllis Bennis is a fellow of the Institute for Policy Studies in Washington 
and the Transnational Institute in Amsterdam, and a Foreign Policy In Focus 
contributor. Her newest books include Ending the Iraq War: A Primer and 
Understanding the US-Iran Crisis: A Primer, both published by Interlink 
(www.interlinkbooks.com)].

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