The Status of Our Forces in Iraq

As violence continues to decline in Iraq, regional elections are set for January and disparate political and ethnic forces move closer to political reconciliation, the unfinished Status of Forces Agreement (SOFA) between Iraq and the United States looms increasingly large. Members of JINSA’s leadership met in September with a senior government official involved in the negotiation, who explained the key points of divergence and efforts to overcome them.

As violence continues to decline in Iraq, regional elections are set for January and disparate political and ethnic forces move closer to political reconciliation, the unfinished Status of Forces Agreement (SOFA) between Iraq and the United States looms increasingly large. Members of JINSA’s leadership met in September with a senior government official involved in the negotiation, who explained the key points of divergence and efforts to overcome them.

American and coalition forces operate in Iraq under the terms of a UN Security Council Mandate that expires 31 December. The Iraqi government, eager to assert sovereignty over its territory and population, does not want the Mandate extended and prefers a bilateral arrangement with the United States. In anticipation of that, American and Iraqi negotiators have been promulgating rules for American troops. The original timeline was to have a strategic framework, including the SOFA agreement, in place by 1 August. “We were ready in February 08,” the government official said.

“It was an educational process for the Iraqis – we had done this many times and expected a generally ‘boilerplate’ agreement. They had no experience and wanted something entirely new,” he said. To make it more complicated, SOFAs are executive agreements in the United States, but the Iraqi prime minster – concerned about public reaction to a secret or private document – decided to pass the agreement through the Iraqi parliament and make the terms public. “Given the history of Iraq, Prime Minister al Maliki was worried that people would otherwise think he had signed the country over to foreign interests. We had to be sensitive to that. We want them to have an open government, and this is one way for them to have it.”

The Americans, he added, were also sensitive to Iraq’s desire to find a way to say that U.S. combat troops would not be permanent. “We agreed to consider an ‘aspirational’ withdrawal timeline.”

American “Red Lines”

At the same time, the Americans stood fast on three points: immunity for American soldiers; the right to detain Iraqis; and operational authority.

Department of Defense policy is, “to protect, to the maximum extent possible, the rights of United States personnel who may be subject to criminal trial by foreign courts and imprisonment in foreign prisons.” While a host country can ask to try Americans under certain circumstances, the government official told JINSA, “The Iraqis want jurisdiction over American soldiers when they are off-post and in non-combat situations. We said no; we will not agree that the Iraqi government can try American soldiers. No American soldier will lose his Constitutional rights while serving the United States Government in Iraq.”

He added, “The Iraqis want to control foreign forces on their soil. That is the issue with detaining people. When Iraqis are being taken prisoner, they want to know why. We want to continue to operate in a military way, including detaining people we need to detain.”

Future Options

While he said firmly that both sides are negotiating in good faith, and that he expects a document to emerge, less-good-case scenarios did emerge:

• The governments of Iraq and the United States could sign a letter of understanding, extending the rules for U.S. forces in Iraq first developed by Coalition Provisional Authority (CPA). That, however, would be considered a step backward by the Iraqis, who now have a sovereign government and no desire to reinstitute CPA rules.
• The UN Security Council could also extend the Mandate under which the coalition operates in Iraq. This, too, would undermine the authority of the Iraqi government right before the next round of elections.
• In the worst-case scenario, nothing happens. There is no agreement and U.S. forces find themselves with no military legal authority to operate in Iraq after 31 December. “Troops will simply stop doing what they do and will be confined to their bases until they can leave the country.”

At that point, the Iraqi government and military would be fully responsible for the security of the country, ready or not. A participant in the meeting asked, “Have the Iraqis learned the lesson of the Vietnam War for the Vietnamese? If we leave Iraq under negative circumstances and the Iraqis are not able to maintain security control of their country, we won’t be back. Do they understand that there is no second chance on this?”

The official replied that while some members of the “political elite” in the United States and Iraq, “might have an over-appreciation of the military situation and the role of the Iraqis in security matters,” negotiators were trying to be realistic. “There is a question – did the surge destroy the violence in Iraq, or just suppress it? How will you know?”

He answered his own question. “You won’t.”