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A Close Look At The Iraq Status Of Forces Agreement [Part 1]

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There has been a lot of ink spilled over the ramifications of the agreement recently struck between the United States and Iraq on our presence there for the next three years. The Status Of Forces Agreement ("SOFA") was passed by the Iraqi Parliament and signed by all three members of the Iraqi Executive Council, meaning it will have the force of law come the first of January, 2009. President Bush has decided that his signature was enough for America to enter the agreement, so Congress never got their say on the document. But with such commentary flying left and right, I thought I would go to the document itself to see what it actually says (versus how people are interpreting it).

What I found is that the Iraqis got almost everything they had pushed for, and the Bush administration got almost nothing of what they wanted. This agreement was tailored for Iraq's political situation, and not America's. The Iraqis used a combination of a ticking clock and their own public pressure to insist on several points that must have horrified the Bush people. Actually, two ticking clocks -- our own elections (and Bush's lame duck status), and the fact that the United Nations authorization for us being in Iraq expires at the end of this year. Neither country, for their own individual reasons, wanted to extend the U.N. mandate, and Prime Minister Nouri Al-Maliki used this as a giant lever to get pretty much everything he wanted from Bush.

That's the overview. For the details, you have to read the document itself. It's not as widely available as you might think online, but the New York Times does have a PDF version available.

The first section worth noting comes from Article 4 -- "Missions" -- which states that Iraq gets veto power over American military operations. Here are the relevant paragraphs:

2. All such military operations that are carried out pursuant to this Agreement shall be conducted with the agreement of the Government of Iraq. Such operations shall be fully coordinated with Iraqi authorities. The coordination of all such military operations shall be overseen by a Joint Military Operations Coordination Committee (JMOCC) to be established pursuant to this Agreement. Issues regarding proposed military operations that cannot be resolved by the JMOCC shall be forwarded to the Joint Ministerial Committee.

3. All such operations shall be conducted with full respect for the Iraqi Constitution and the laws of Iraq. Execution of such operations shall not infringe upon the sovereignty of Iraq and its national interests, as defined by the Government of Iraq. It is the duty of the United States Forces to respect the laws, customs, and traditions of Iraq and applicable international law.

The U.S. did get one tiny concession out of the Iraqis here, with the last paragraph, which basically states that if fired upon, U.S. forces are going to fire back. Since this is standard, though, it isn't really much of a concession at all.

5. The Parties retain the right to legitimate self defense within Iraq, as defined in applicable international law.

Article 5 was interesting as well -- "Property Ownership." All those mega-bases America has built, which have cost billions of dollars, will be handed over to the Iraqis free and clear from any debt when we leave.

1. Iraq owns all buildings, non-relocatable structures, and assemblies connected to the soil that exist on agreed facilities and areas, including those that are used, constructed, altered, or improved by the United States Forces.

2. Upon their withdrawal, the United States Forces shall return to the Government of Iraq all the facilities and areas provided for the use of the combat forces of the United States, based on two lists. The first list of agreed facilities and areas shall take effect upon the entry into force of the Agreement. The second list shall take effect no later than June 30, 2009, the date for the withdrawal of combat forces from the cities, villages, and localities. The Government of Iraq may agree to allow the United States Forces the use of some necessary facilities for the purposes of this Agreement on withdrawal.

In other words, we have until next July to hand over all bases except for the ones the Iraqis deem sufficient to complete our full withdrawal. More on this June 30 date in a bit.

Another big concession the Iraqi's won was control of their airspace. Now, the Iraqis aren't yet able to actually assume control of their own airspace but the principle was important to them. As far as they see it, it's their airspace and they're letting the U.S. perform air traffic control up to the point when the Iraqis themselves are ready to take over. But at that point, there will be no discussion of terms for a handover, because legally the Iraqis will be controlling it from January first of next year. From Article 9 -- "Movement of Vehicles, Vessels, and Aircraft" -- the relevant sentence:

3. Surveillance and control over Iraqi airspace shall transfer to Iraqi authority immediately upon entry into force of this Agreement.

Article 12 -- "Jurisdiction" -- is worth quoting in its entirety. This is an extraordinary section, since the U.S. military (and Bush) wanted to maintain legal jurisdiction over all Americans, in uniform or not. Whenever possible, when negotiating SOFAs with other countries, America likes to reserve the right to try their own soldiers for any crimes, whether committed on duty or not. So this was an enormous concession won by the Iraqis. When American troops are in uniform and on a mission, American (military) jurisdiction will still prevail. But off duty and off American bases, Iraqi law now will claim jurisdiction first. And security contractors (such as Blackwater) will be under Iraqi law at all times. Paragraph five does state that Americans will be handed back over for detention while awaiting trial, so anyone arrested won't have to wait in Iraqi prisons, but that's about the only real concession the Iraqis made, it seems. Bush fought against this entire idea very hard, and there is indeed a bit of wiggle room in the language, but the fact that this section even exists is noteworthy.

Here is the full text of Article 12 (note: paragraph numbers for the first six paragraphs were omitted from the New York Times PDF file, and have been added here for clarity).

Recognizing Iraq's sovereign right to determine and enforce the rules of criminal and civil law in its territory, in light of Iraq's request for temporary assistance from the United States Forces set forth in Article 4, and consistent with the duty of the members of the United States Forces and the civilian component to respect Iraqi laws, customs, traditions, and conventions, the Parties have agreed as follows:

1. Iraq shall have the primary right to exercise jurisdiction over members of the United States Forces and of the civilian component for the grave premeditated felonies enumerated pursuant to paragraph 8, when such crimes are committed outside agreed facilities and areas and outside duty status.

2. Iraq shall have the primary right to exercise jurisdiction over United States contractors and United States contractor employees.

3. The United States shall have the primary right to exercise jurisdiction over members of the United States Forces and of the civilian component for matters arising inside agreed facilities and areas; during duty status outside agreed facilities and areas; and in circumstances not covered by paragraph 1.

4. At the request of either Party, the Parties shall assist each other in the investigation of incidents and the collection and exchange of evidence to ensure the due course of justice.

5. Members of the United States Forces and of the civilian component arrested or detained by Iraqi authorities shall be notified immediately to United States Forces authorities and handed over to them within 24 hours from the time of detention or arrest. Where Iraq exercises jurisdiction pursuant to paragraph 1 of this Article, custody of an accused member of the United States Forces or of the civilian component shall reside with United States Forces authorities. United States Forces authorities shall make such accused persons available to the Iraqi authorities for purposes of investigation and trial.

6. The authorities of either Party may request the authorities of the other Party to waive its primary right to jurisdiction in a particular case. The Government of Iraq agrees to exercise jurisdiction under paragraph 1 above, only after it has determined and notifies the United States in writing within 21 days of the discovery of an alleged offense, that it is of particular importance that such jurisdiction be exercised.

7. Where the United States exercises jurisdiction pursuant to paragraph 3 of this Article, members of the United States Forces and of the civilian component shall be entitled to due process standards and protections pursuant to the Constitution and laws of the United States. Where the offense arising under paragraph 3 of this Article may involve a victim who is not a member of the United States Forces or of the civilian component, the Parties shall establish procedures through the Joint Committee to keep such persons informed as appropriate of: the status of the investigation of the crime; the bringing of charges against a suspected offender; the scheduling of court proceedings and the results of plea negotiations; opportunity to be heard at public sentencing proceedings, and to confer with the attorney for the prosecution in the case; and, assistance with filing a claim under Article 21 of this Agreement. As mutually agreed by the Parties, United States Forces authorities shall seek to hold the trials of such cases inside Iraq. If the trial of such cases is to be conducted in the United States, efforts will be undertaken to facilitate the personal attendance of the victim at the trial.

8. Where Iraq exercises jurisdiction pursuant to paragraph 1 of this Article, members of the United States Forces and of the civilian component shall be entitled to due process standards and protections consistent with those available under United States and Iraqi law. The Joint Committee shall establish procedures and mechanisms for implementing this Article, including an enumeration of the grave premeditated felonies that are subject to paragraph 1 and procedures that meet such due process standards and protections. Any exercise of jurisdiction pursuant to paragraph 1 of this Article may proceed only in accordance with these procedures and mechanisms.

9. Pursuant to paragraphs 1 and 3 of this Article, United States Forces authorities shall certify whether an alleged offense arose during duty status. In those cases where Iraqi authorities believe the circumstances require a review of this determination, the Parties shall consult immediately through the Joint Committee, and United States Forces authorities shall take full account of the facts and circumstances and any information Iraqi authorities may present bearing on the determination by United States Forces authorities.

10. The Parties shall review the provisions of this Article every 6 months including by considering any proposed amendments to this Article taking into account the security situation in Iraq, the extent to which the United States Forces in Iraq are engaged in military operations, the growth and development of the Iraqi judicial system, and changes in United States and Iraqi law.

As I said, there is a little wiggle room, such as what constitutes a "grave premeditated felony" in the first paragraph. And what exactly that first sentence in the eighth paragraph means. And they stuck in the last paragraph, just in case things don't go well -- the only place in the document where an Article is given its own little mini-timeline.

In other words, lots for lawyers to squabble over if-and-when such questions arise. But while leaving loopholes in such language, the fact that the language even exists is yet another reminded that Maliki got just about everything he asked for, and Bush conceded just about every issue.

For comparison, from one of the first articles I wrote about the SOFA back in June (when Bush was still saying it would be done by the end of July...) here is the list of things Bush originally demanded:

  • 58 U.S. military bases in Iraq (we currently only have 30).
  • American control of Iraqi airspace up to 30,000 feet.
  • The ability to determine for Iraq when it was at war with another country (or the ability to determine that a hostile act from another country... cough, cough, Iran... is aggression against Iraq).
  • Immunity from Iraq law for all private U.S. contractors in Iraq.
  • The agreement will be permanent, and if either side wishes to get out of it, they must provide two years' notice that they are going to withdraw from it.
  • The agreement would not cover any other coalition country's forces in Iraq, just U.S. forces (unlike the U.N. authorization of force currently in effect).

Taking a look back at where the American negotiators started from, and what they wound up having to accept, it becomes painfully obvious that Maliki held all the cards in this game. Bush got virtually nothing he was asking for, and Maliki got virtually everything.

 

[Note: This is the first part of a two-part article, due to length. I will post the second part Tuesday on my site, and will add a link to it here. Part 2 examines (among other details) Iraqi prisoners, and the timeline for withdrawal of U.S. forces.]

[Update: Part 2 of this article has now been posted at ChrisWeigant.com.]

 

Chris Weigant blogs at: ChrisWeigant.com