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The United States and Iraqi governments are currently at loggerheads over the nature of the Status of Forces Agreement (SOFA) which allows US forces to continue in Iraq beyond 31 December 2008. The key issue for an agreement is a clarification of Iraq’s sovereignty.
The Status of Forces Agreement (SOFA), which the USA needs for its forces to continue in Iraq beyond 31 December 2008, is running into the sand. Despite announcements last week by Secretary Gates that if the deal is not signed the US will summarily leave, it seems that this week opportunities for further negotiation have arisen. How can the deal be rescued before the negotiating juggernaut gets irretrievably bogged down?
After months of stressful talks between the USA and the Iraqis, it has become clear that the Iraqi cabinet and National Assembly will not accept the agreement as it is currently drafted. This reveals two important points: that the Iraqi negotiators did not fully represent the Iraqi people and their aspirations; and that the USA was naïve in believing that after an unpopular occupation they could carry on for the next three years as if the Surge were still continuing. It also reinforces the widely held view that those in the International (or Green) Zone in Baghdad are out of touch with the ‘real’ Iraq and are negotiating in an isolated bubble.
The idea of a SOFA to replace the UN mandate has been considered for the last three years, but only in 2008 has it got beyond the initial stages of preliminary discussion: the last minute roll-over of the mandate became a hardy annual. The reason is the fundamental incompatibility of the national positions and the practical and doctrinal difficulties in reconciling them. The Americans want to continue to be able to operate legally in Iraq with the operational capability and jurisdiction over their troops that they have enjoyed up to now. They cannot operate in situations where all plans and orders are subject to Iraqi agreement for reasons of security and timeliness. They cannot allow their troops to be subject to an arbitrary Iraqi judiciary if mistakes are made. The SOFA must safeguard their ability to operate as a discrete military and operational entity or they will be ineffective and vulnerable.
For their part, many Iraqis are desperate to regain some form of sovereignty. This is impossible if you have over 130,000 foreign troops on your soil, particularly when those troops are not totally subject to your government. After the Treaty of Versailles in 1919 the German army was limited to 100,000 to reduce the chance of a heavyweight military unbalancing the state and acquiring a momentum of its own. For a state to accept an even greater number – both numerically and proportionally – of foreign troops on its land for several years, however they are based and controlled, is an admission of subservience.
So the negotiations have been tricky. It is also clear that smoke and mirrors have played their part in creating illusions of sovereignty. But these have not fooled the Iraqi nationalists. They know that when the draft says that US forces will be subject to Iraqi courts for crimes committed when off duty, it will be impossible to decide when soldiers (who are officially on duty 24 hours a day) can be thus convicted. They also know that even if operations are theoretically subject to Iraqi approval, there will always be an emergency ‘national interest’ clause which will be used whenever the USA feels the need to act unilaterally. Furthermore the whole area of contractors has been amorphous, defying clear definition let alone legal constraint. It will be very important for security companies, especially for those working directly for the State or Defence Departments, to be closely regulated and nominally under Iraqi jurisdiction. Few aspects of the occupation have given rise to more animosity than the egregious, unaccountable behaviour of Blackwater and others.
Advocates of sovereignty will call for a faster rate of withdrawal and bringing forward the date from 2011: if the draft says that US forces will be off the streets and out of the city centres by mid-2009, why not go ‘off and out’ of the country altogether? But this has to be balanced against the security needs. There are still large gaps in Iraq’s panoply of defence. The Iraqi Security Forces, despite their large numbers (combined Ministry of Defence and Ministry of Interior figures amount to over 500,000), are still some way from being able to cope independently with all threats. They still rely on the Coalition for most of their logistical support, notably transport and especially air transport. They need access to US strategic intelligence as part of their defence against neighbours and, above all, they have no credible air force. The navy and air force have suffered most in the last twenty years, and although allies can assist the Iraqi Navy in its vital operations in the Northern Gulf to protect oil assets without offending Iraqi sovereignty, the air force – and air defence in general – will need US presence in Iraq for many years to come. And there are other aspects of technical support such as communications and air traffic control that cannot be delegated immediately to locals.
The Kurds present another significant voice in the discussion. They are in no hurry to see the US troops leave. They regard them as a force that not only protected them in the 1990s, but also acts as the main stabilising force in a country that is still violent – and the only bulwark against disintegration or even a potential military coup.
The British position is different from and largely independent of the US negotiations following Defence Secretary John Hutton’s recent statement of intent to withdraw all combat troops next year and leave only trainers and advisers. This would allow for a well-tried agreement similar to those the UK has with Kuwait or Oman, where seconded personnel and training teams perform defined roles in close co-ordination with their hosts. Clearly the recent conflict in Basra and lingering antagonism could complicate the arrangements, but with Britain’s overstretched forces prioritising in Afghanistan there would be little question of reverting to a major combat role.
Recent reports suggest that George Bush is keen to conclude a deal this year and avoid re-activating the UN mandate. But there are also signs that the Iraqis would be happier to sign an agreement with the next administration which, after all, would have to see it through.
One of the problems is the lack of coherence in Iraqi policy. And this has been highlighted by the equivocal reactions provoked by the recent US operation against Syrian border facilitators at Abu Kamal. The spokesman for the Iraqi Prime Minister Nouri al-Maliki, Ali Dabbagh, criticised aspects of the action but portrayed it as 'just deserts' for those who promote foreign militants. Others have condemned the US for using Iraq as a platform to hit neighbours and kill innocents, and argue that Syria only infiltrates militants because of the US occupation. Whatever the view, the agreement should certainly outlaw such actions in the future.
If the Americans are genuinely ready to negotiate further - despite their previous claims of the finality of the last draft - they will have to be prepared to consider and accept the following:
- re-word the withdrawal criteria by avoiding dependence on the tired and despised phrase ‘conditions based’
- give real guarantees that the ‘War on Terror’, largely prosecuted in parallel to the Iraq operation, is controlled and co-ordinated in line with Iraqi aspirations
- make tangible progress in regulating contractors
- develop a more sympathetic understanding of what sovereignty means to the Iraqis.
The views expressed above are the author's own, and do not necessarily reflect those of RUSI.