Ambassador Gerald B. Helman writes:
Absent the unexpected, it is unlikely that a security agreement in the form of a Status of Forces Agreement (SOFA) between Iraq and the US will be in place before our Presidential elections and almost as unlikely before the end of the year when the present UN Security Council mandate runs out. That mandate, in the form of a resolution renewed annually, provides the terms and conditions under which the US has been able to occupy and seek to pacify and rebuild Iraq politically. In practice, it has given the US a free hand as the occupying power. To that extent, it has severely limited Iraq’s sovereignty and has legitimized its maintenance by the US in a tutelary status. The negotiations to replace the UN mandate with a type of SOFA has been underway for much of this year and from what little is known of its contents the US has agreed to initiate military operations only with Iraqi assent; to withdraw its forces from Iraq’s cities by June 2009 and from Iraq entirely by the end of 2011.
While language is included to suggest that a complete withdrawal might be conditions-based by mutual agreement, it seems to be a sop given by the Maliki government to the Bush administration. Even with such seemingly anodyne conditionality, the provision has proven to be unacceptable to many in Iraq’s parliament. Similarly unacceptable to Iraqi politicians seems to be the provisions regarding legal jurisdiction over offences committed by US troops, which would place them under US jurisdiction while on base or on authorized military operations off-base. With senior US officials indicating that the US limit has been reached on further concessions, an impasse seems now to exist.
If the news reports on the draft SOFA’s main provisions are generally accurate, it is hard to understand what the fight is all about. The US appears to have conceded on all major issues and is left with little alternative to withdrawal:
–after January 1, the US will undertake military operations only with Iraqi consent;
–all US non-military contract employees will be subject to Iraqi law. (The US military operation has become so dependent on contract employees that it’s hard to understand how the US could function if US contract employees are pulled out by their employers because of their exposure to arrest by a legal system they do not understand and understandably fear.)
–all Iraqis apprehended by US military must be turned over to Iraq authorities.
–by June 2009, all US military must evacuate the cities and return to fixed bases, from which they can operate only with Iraq’s permission. The practical effect of this provision is that whatever the merits of General Petreus’s strategy of deploying forces to cities and neighborhoods to protect the population and to sponsor civil affairs and local self-help activities, it will be history. Thus the surge will also be no more, together with the many soldiers and special forces needed to support it..
–By the end of 2011, all US combat forces will be withdrawn unless the two sides agree that circumstances require them to stay.
We know little about the precise language of the draft or anything regarding what must be an extensive agreement covering issues such as jurisdiction over air space; limits on operations; import-export of material ranging from foodstuffs to sophisticated weaponry; designation and inventorying of current bases including elaborate airbases and their eventual disposition (including buildings and equipment) following drawdown and departure; and much more. Further, are there provisions for residual forces, for whatever purpose, authorization for ongoing training and military assistance programs, civil construction and technical assistance programs, and the like?
Taking all into account, and accepting the reality that present efforts to replace the Security Council resolution with a bilateral SOFA is badly stalled and may abort, how should the US and Iraq proceed? From the US standpoint, some organic instrument is needed to legitimize and help manage our continuing activities in Iraq and more especially in the context of our departure over the next few years. From the standpoint of Iraq, the restoration of its sovereignty would be critical not only to its international standing but in bringing about the kind of internal political accommodation so desperately wanting. Popular perception of tutelage and occupation and dependency helps make Iraq a failed state. The restoration of sovereignty in fact as well as theory—essentially, the recognition of Iraq’s adulthood–may well be central to encouraging the kind of national political accommodation the US says it has been seeking.
With this seeming stalemate, any way forward needs to take into account a number of practical realities central to both countries:
–The US will shortly be electing a new President who will be responsible to the American public for the US position in the Middle East and the implementation of a SOFA in that context.
–Similarly, Iraq will be holding critical regional elections early next year which could well significantly alter the political balance within the country, bring new constituencies and new political actors on the scene and perhaps result in a new government. It is that government which should be responsible for implementation of the SOFA and associated withdrawal, indeed, for the future direction of Iraq.
–Gaining time needed to reach agreement should not be a problem. If Iraq, with Arab support, asks for an extension of the current mandate for six months, the Security Council will comply. The Russians, for example, will be only too happy to see the US army bogged down in Iraq for as long as possible.
With a continuing Security Council resolution providing legitimacy, the US and Iraq can proceed to implement the 99% of the SOFA that appears to be agreed upon and which in any event would be compatible with a 2011 (or 2010) withdrawal, with or without conditionality. The matter of jurisdiction over criminal behavior by US troops off base and off duty can perhaps be dealt with by third-part arbitration by the UN. The new US and Iraqi governments can then limit the SOFA to housekeeping matters and concentrate on fundamentally political matters that don’t belong in a SOFA anyway, looking toward a future US-Iraqi relationship. These might include:
–a formal termination of hostilities between the two countries, whether by treaty or executive agreement, supported by a Congressional Joint Resolution that terminates the authorization to conduct hostilities adopted by Congress in 2003. This might be accompanied by a US declaration formally terminating the occupation regime. Nothing would more authoritatively reestablish Iraqi de jure sovereignty as well as its psychological sovereignty and sense of nationhood. (The bestowal of sovereignty several years ago by Jerry Bremer amounted to a formal, but ineffective gesture, given the reality of Iraq.)
–With a now sovereign Iraq, the two governments can negotiate agreements defining their future political and military relations. The latter might include cooperation in combating terrorism, whether by using US forces stationed in Iraq or available over-the horizon; US overflight and landing rights; ongoing military assistance programs involving training and weapons sales. Special provision might be needed for the protection of the US diplomatic establishment by a reduction in size and the according of diplomatic immunity for a protection force assigned to the Embassy and a generous periphery thereof.
A new US Administration might also bear in mind that the successful termination of the war in Iraq could well contribute to the opening of discussions with Iran, leading to the normalization of relations.
Helman “was United States Ambassador to the European Office of the United Nations from 1979 through 1981.”