US-Iraq deal awash in 'wiggle words'
By Phyllis Bennis
Despite the recent surge of attention to the United States-Iraqi negotiations
over an agreement to keep US 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 Nuri al-Maliki - neither of whom actually wants the US
troops to leave. (Maliki's government would not likely survive the withdrawal
of US troops, and Bush remains committed to permanent US control of Iraq, its
oil, and its strategic location for US 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 US domination, with
politically acceptable language extolling Iraqi sovereignty.
The negotiations are officially aimed at producing a bilateral agreement
between the United States and the US occupation-backed Iraqi government that
would set the terms for how US 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 US-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 31, and the Security Council has not extended
the mandate, the US 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withdrawn from the country.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 US 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 US-led occupation, both the resistance forces targeting
the US 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 US Senate for ratification, as the
US 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'ite cleric Muqtada 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
US 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 US has with Germany or Japan. But of course there's
no war being fought by US 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 US occupation. That would
constitute a huge advance for global anti-war forces, including here in the US.
So challenging the legitimacy of any new agreement is a continuing obligation.
Time horizon
Article 25 of the draft agreement describes "withdrawal of US forces from Iraq"
and the first paragraph states that "the US 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 US 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 US electoral discourse.
But the existence of that text doesn't indicate a serious US 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 US
forces to remain in Iraq - for "the purposes of training and support of the
Iraqi security forces". Such "support" of the US-trained, US-armed, and still
US-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 US troops would have to get
approval from the military Iraqi in a joint coordination committee for military
operations. As to the detention of Iraqis, US 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".
US military immunity
As to the hot-button issue of immunity versus accountability for US troops
committing crimes against Iraqis - immunity largely wins the day. There does
seem to be a claim of Iraqi sovereign control over US contractors who commit
crimes against civilians - according to Article 12, "Iraq has the primary legal
jurisdiction over contractors with the US and their employees."
It remains to be seen how Blackwater and other mercenary companies deal with
that. But as to US troops, the US maintains "primary legal jurisdiction over US
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 US bases and "while troops are off duty". But how convenient -
US troops essentially never leave their bases except for military activities,
and several paragraphs later the text gives the US the explicit right to
determine whether the troops involved were off duty or not.
US bases also remain unchallenged. The US is to submit a list of all
"installations and areas used by the US forces" for the purpose of "being
reviewed and agreed upon by both sides" by June 30, 2009. There are references
to the US 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 and respect for the
Iraqi constitution and laws. 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.
What comes next?
The agreement does nothing to end or even curtail US efforts to control Iraqi
oil. It states the US 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 US efforts to control Iraq's oil, such continuation remains very dangerous.
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 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 US
forces ever being held accountable in the Iraqi judicial system, despite the
clear reality that the text itself provides myriad ways to prevent such an
occurrence.
There's already a move in Congress, led by Massachusetts Democrat Bill
Delahunt, 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 December 31 instead. This would mean repeating the common tactic
of using the UN to provide political, and in this case legal, cover for illegal
US actions - potentially even for war crimes that may be committed by US troops
following illegal orders.
If the December 31 expiration of the UN mandate looms closer, and the US-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.
Peace movement
The December 31, 2008, expiration of the UN mandate should lead to an immediate
recognition of the illegality of the US 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 US troops to their bases, and begin the process
of immediate withdrawal of not only combat troops but also US-paid non-Iraqi
contractors, and closure of the US 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 US-Iraq agreement to maintain the US occupation, whether it's for
one month or three years.
Opposing any such agreement being negotiated or signed without US 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 US-led occupation in Iraq; 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 and The US-Iran Crisis: A Primer, both published
by Interlink (www.interlinkbooks.com).
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