US Troops Leaving Iraqi Cities

[Ken White]

...something has to be in place by 31 Dec.

Serious question.

[jmm99]

Now the serious answer.

Our present legal basis for military action in Iraq is a UN resolution, summarized in the Operational Law Handbook 2007 (p.1-3):

g. UN Security Council Resolution 1511 (2003) authorized “a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq.”

That resolution (which put the US in command) has been renewed, as stated in Pres. Bush's War Powers Act Report of 13 Jun 2008:

The U.N. Security Council authorized a Multinational Force (MNF) in Iraq under unified command in U.N. Security Council Resolution 1511 of October 16, 2003, and reaffirmed its authorization in U.N. Security Council Resolution 1546 of June 8, 2004, U.N. Security Council Resolution 1637 of November 8, 2005, U.N. Security Council Resolution 1723 of November 28, 2006, and U.N. Security Council Resolution 1790 of December 18, 2007, set to expire on December 31, 2008.

http://www.fas.org/irp/congress/2008_rpt/warpowers.html

Without renewal of the UN mandate, or ratification of the SOFA, US forces would have to be confined to bases with limited rights of self-defense.

-------------------------------------------
The legal basis for OIF was different. As summarized in the Operational Law Handbook (p. 1-3):

2. OPERATION IRAQI FREEDOM.

a. In the months leading up to the U.S.-led invasion of Iraq in 2003, U.S. diplomats worked feverishly to obtain UN Security Council support for a new Resolution explicitly authorizing the use of military force. When these diplomatic efforts failed, many pundits opined that, as a result, the U.S. lacked a legitimate basis for using force against Iraq.

The Bush Administration countered that authority existed under previous Security Council resolutions. Looking back to November 1990, the Security Council had passed Resolution 678, which:

Authorize[d] Member States co-operating with the government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;

b. Significantly, UNSCR 678 authorized the use of force not only to expel Iraqi forces from Kuwait (implementing Resolution 660), but also “to restore international peace and security in the area.” In an attempt to bring this goal of peace and security in the northern Arabian Gulf region to fruition, the Security Council passed UNSCR 687, which formalized the cease-fire between coalition and Iraqi forces.

As a consequence, UNSCR 687 placed certain requirements on the government of Iraq, including:

(1) Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of: all chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities related thereto; and

(2) Iraq shall unconditionally agree not to acquire or develop nuclear weapons or nuclear-weapon-usable material or any subsystems or components or any research, development, support or manufacturing facilities related to the above.

c. The U.S. position is that UNSCR 687 never terminated the authorization to use force contained in UNSCR 678. It merely suspended it with a cease-fire, conditioned upon Iraq’s acceptance of and compliance with the terms contained in the document and discussed above. While the Government of Iraq accepted the terms, compliance was never achieved.

The Security Council recognized this situation in November 2002 with the adoption of UNSCR 1441, which provided in part that “Iraq has been and remains in material breach of its obligations under relevant resolutions, including Resolution 687 (1991)….”

It was the position of the U.S. Government that, since Iraq remained in material breach of UNSCR 687, the cease-fire contained therein was null and void, and the authorization to use “all necessary means” to return peace and stability to the region (based on UNSCR 678) remained in effect. Under this rationale, a new Security Council resolution again authorizing “all necessary means” was politically advisable, yet legally unnecessary.

However, the U.S. argument is not without its critics.

I am not one of the critics - in short, I argue that Gulf II was simply a legal continuation of Gulf I. Given the military actions and economic sanctions taken between the two "Gulfs", that was also factually true.

But, when we decided to get into "nation building" big time - new constitution, new governmental structure, etc., the justification for our initial military action went by the boards ("Old Iraq", the culprit, ceased to exist).

Hence, the need for UN Res. 1511 and its renewals, which recognize the independent state of Iraq, to justify a continued US military presence.

[Ken White]

lacking some of the minutia. I understand that the SOFA is not a done deal for several reasons and why that is so even though Sistani yesterday told the Sadrists to chill. I am broadly conversant with the difference between and occupier and a 'guest' in a sovereign nation; with the fact that Al Maliki and the Presidents can approve the, in the absence of a SOFA, certainly desirable UN extension -- and with the fact that all that is very nice and we do really want to be all legal and aboveboard -- well, legal, anyway -- here.

I'm also aware that harsh reality sometimes makes the law not only difficult but impossible to follow...

We'll see.

Thank you for taking the time to answer and for the added detail.

[jmm99]

on the sometimes uncertainty of things legal. Posting below some more media stuff - two general background pieces by Reuters; and one WT piece that gave me pause.

I suppose the legal fallback is a renewed UN mandate - last year's was near the last minute (18 Dec 2007). However, this year's situation smells different - e.g., the OP article in this thread suggests that military considerations are more involved here than legal niceties.

As you say, we shall see.

[jmm99]

Reuters has these bullet points guides to the Iraq SOFA and the Iraqi approval process.

FACTBOX-Pact on withdrawal of U.S. forces from Iraq
REUTERS
Reuters North American News Service
Nov 21, 2008 07:15 EST

Nov 21 (Reuters) - The United States and Iraq signed a pact this week which would require U.S. forces to leave Iraq by the end of 2011, more than eight years after the invasion that toppled Saddam Hussein. Demonstrators protested against it on Friday, ahead of a vote in Iraq's parliament expected next week. Here are the main provisions of the pact. .....

http://wiredispatch.com/news/?id=461881

FACTBOX-Iraqi parliament to vote on US troops pact
REUTERS
Reuters North American News Service
Nov 21, 2008 09:53 EST

BAGHDAD, Nov 21 (Reuters) - Iraq's parliament is debating a pact that would allow U.S. forces to remain in the country for three years and is expected to vote on it next week. Its passage is seen as likely but not assured. Here are some facts about the vote: .....

http://wiredispatch.com/news/?id=461997

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Don't shoot the messenger on this one.

Washington Times
EXCLUSIVE: U.S. to begin using search warrants in Iraq
Status-of-forces agreement might require authorization
Richard Tomkins
Friday, November 21, 2008

EXCLUSIVE:

BAGHDAD | Some U.S. troops in Iraq could begin applying for warrants before detaining terrorist suspects or searching Iraqi homes as soon as Dec. 1 -- a month before they might become required to do so under a new status-of-forces agreement.

Military sources, who asked not to be identified because of the sensitivity of the topic, said at least some units of the 4th Infantry Division in Baghdad would begin obtaining warrants from Iraqi legal authorities next month before making arrests or searching homes for weapons caches and other contraband in noncombat situations.

U.S. military officials would not confirm or deny the report.
.....
"I really don't know how it is going to work out," said Maj. Geoff Greene, executive officer of the 1st Battalion, 68th Armor Regiment, which operates in east Baghdad. "I don't know how to get them yet," he said of the warrants, adding that he expects to "receive guidance soon."
.....
Maj. Rob McMillan, operations officer with 1st Battalion, 68th Armor Regiment, said any early start of the mandated warrant searches would help identify problems in procedures. "This is the Army and we like to practice things," he said.

http://www.washingtontimes.com/news/...rants-in-iraq/

Much more in the article.

[jmm99]

where lives are lost each day, the twists and turns of the Iraqi SOFA would be a humorous farce.

So, we find that the adminisrtration will not release the English version to Congress (and, which is the same thing, to the press). That version is now "sensitive but unclassified", as McClatchy notes here:

Posted on Tuesday, November 25, 2008
U.S. staying silent on its view of Iraq pact until after vote
By Adam Ashton, Jonathan S. Landay and Nancy A. Youssef | McClatchy Newspapers

WASHINGTON — The Bush administration has adopted a much looser interpretation than the Iraqi government of several key provisions of the pending U.S.-Iraq security agreement, U.S. officials said Tuesday — just hours before the Iraqi parliament was to hold its historic vote.

These include a provision that bans the launch of attacks on other countries from Iraq, a requirement to notify the Iraqis in advance of U.S. military operations and the question of Iraqi legal jurisdiction over American troops and military contractors.

Officials in Washington said the administration has withheld the official English translation of the agreement in an effort to suppress a public dispute with the Iraqis until after the Iraqi parliament votes. ....
....
Among the areas of dispute are:

Iraqi legal jurisdiction over U.S. troops or military contractors who kill Iraqis on operations. The agreement calls for Iraq to prosecute U.S. troops according to court procedures that have yet to be worked out. Those negotiations, administration officials have argued, could take three years, by which time the U.S. will have withdrawn from Iraq under the terms of the agreement. In the interim, U.S. troops will remain under the jurisdiction of America's Uniform Code of Military Justice.

A provision that bars the U.S. from launching military operations into neighboring countries from Iraqi territory. Administration officials argue they could circumvent that in some cases, such as pursuing groups that launch strikes on U.S. targets from Syria or Iran, by citing another provision that allows each party to retain the right of self-defense. One official expressed concern that "if Iran gets wind that we think there's a loophole there," Tehran might renew its opposition to the agreement.

A provision that appears to require the U.S. to notify Iraqi officials in advance of any planned military operations and to seek Iraqi approval for them, which some U.S. military officials find especially troubling, although Robert Gates, the secretary of defense, Army Gen. David Petraeus, the head of the U.S. Central Command, and Army Gen. Raymond Odierno, the top U.S. commander in Iraq, all have endorsed it.

"Telling the Iraqis in advance would be an invitation to an ambush," said one U.S. official, who said the Iraqi government and security forces are "thoroughly penetrated by the insurgents, the Iranians, the Sadrists (followers of anti-American Shiite cleric Moqtada al Sadr) and ordinary folks who just sell scraps of intelligence."

http://www.mcclatchydc.com/227/story/56474.html

But, from the same article, you can find not only a translation of the Arabic version, but the official English version,

McClatchy's Baghdad bureau last week produced an unofficial English translation of the agreement based on the Arabic text. McClatchy on Tuesday also obtained an official English version.

which is here:

http://media.mcclatchydc.com/smedia/...filiate.91.pdf

Haven't done a word for word, but this looks like the same version as one could find by Googling into a NY Times webpage, which we reported 6 days ago in the adjacent Iraq SOFA Draft thread (post # 8).

-------------------------------------
Progress on the Iraqi approval process has been deferred until tomorrow, according to this:

Iraq Delays Vote on Security Pact
By ALISSA J. RUBIN
Published: November 26, 2008

BAGHDAD — Iraq’s Parliament has delayed by at least 24 hours a vote on a security agreement with the United States as some Parliamentarians worked to finalize a political reform package to constrain the power of the government of Prime Minister Nuri Kamal al-Maliki that would be voted on at the same time as the agreement....
.....
But the agreement’s final passage through Parliament is now being held up by the negotiations over the political reforms that the political blocs have agreed will accompany the pact. Those discussions mean the final agreement on the security pact may now drag on for days or even weeks, possibly closer to the final end-of-year deadline when the current United Nations resolution governing the foreign military presence expires.
....
The vote on the security agreement had already been postponed from Monday, and intensive negotiations continued Tuesday and Wednesday as the agreement’s proponents tried to corral enough votes for approval by a significant majority of Parliament.

If the pact fails to win approval, the United States military will have no legal basis to continue operations in Iraq after Dec. 31, when the United Nations resolution governing the foreign military presence ends.

http://www.nytimes.com/2008/11/27/wo...ll&oref=slogin

What this boils down to is that the Sunnis want some piece of the pie (or perhaps, a continued US presence to protect them). Since the Sunni VP can veto the agreement even if parliament approves it, some sort of deal seems likely with the Sunnis - if such a deal is even possible.

[jmm99]

There are a host of reports on this (with many more to follow). Here are two:

Iraq Approves Long-Debated U.S. Security Pact
By Rania Abouzeid / Baghdad Thursday, Nov. 27, 2008

Iraq's Prime Minister Nouri al-Maliki on Thursday finally got the broad consensus he sought on the Status of Forces Agreement with the U.S. — 149 of the 198 lawmakers present in the 275-member National Assembly gave their support to a deal that allows American forces to remain in Iraq until the end of 2011. But Iraq's legislators also put the prime minister on notice: "We want to tell Maliki that we are building a new democracy, and that we're not ready anymore to let the power be in one man's hands, no matter who he is," said Abdel-Bari al-Zebari, a Kurdish lawmaker.

The wide parliamentary approval for the Status of Forces Agreement (SOFA) opens the final chapter of U.S military involvement in Iraq, setting a firm deadline for withdrawal. The vote, and the divisive deliberations leading up to it, may also mark the beginning of a new season of political conflict in Baghdad, as politicians seek to redistribute power away from the increasingly autocratic prime minister and towards the president and the parliament.
.....
Maliki's Shi'ite and Kurdish allies backed the pact, which requires that U.S troops redeploy out of Iraqi towns and cities to bases in the countryside by June of next year, and completely withdraw by the end of 2011. The Sunni Tawafuk bloc also gave it the nod, after securing concessions on its demands for an amnesty for detainees in U.S custody, and for the holding of a referendum on the security pact next July. A 'no' vote in that referendum could torpedo the deal, and give Washington one year's notice to leave, effectively bringing forward the U.S withdrawal date to the middle of 2010. ...

http://www.time.com/time/world/artic...862660,00.html

Mission Accomplished: Iraq Parliament approves SOFA
November 27, 9:59 AM

Iraq's Parliament, by a vote of 149-49, approved the status of forces agreement (SOFA) dictating the U.S. troop withdrawal from Iraq. The agreement was ratified a week ago by Prime Minister Nouri al-Mailki's cabinet, and is now guaranteed to be approved by Iraq's presidential council.

As noted previously, one of the concessions to resistant Sunni lawmakers was an agreement the pact be voted on in a national referendum occurring no later than July 30, 2009. Should the Iraqi voters reject the SOFA, the United States would be required to have all troops out of Iraq within one year, or July 30, 2010.

In other words, essentially the same timetable that Barack Obama had argued for throughout the presidential election campaign.

http://www.examiner.com/x-243-Progre...?comments=true

---------------------------------------
References to the 2009 referendum pertain to this:

Iraq to hold referendum on US troops pact
1 day ago

BAGHDAD (AFP) — Iraq plans to hold a July referendum on a controversial military pact allowing US troops to remain for another three years that parliament is expected to adopt on Thursday in a delayed vote.

"It is not only the Iraqi parliament that has a role in overseeing this agreement , but the Iraqi people," the country's top negotiator Muwafaq al-Rubaie told Al-Arabiya television, adding that the referendum would be on July 30.

Rubaie, who also serves as Iraq's national security advisor, spoke to the Dubai-based network shortly after parliament delayed a vote on the pact until Thursday amid a flurry of last-minute talks.

He later insisted that Washington would have to accept the decision to hold the referendum, telling AFP that "it is an Iraqi issue and the Americans have to understand our requirements." ....

http://www.google.com/hostednews/afp...orB-y8C1cwLe6Q

Various other deals were cracked with the Sunnis, who seem reluctantly on board.

Technically, there is one last step in Iraqi ratification - approval by the presidential troika, including the Sunni VP. We'll see what kind of deal (has been) (will be) struck there.

Whether this (is) (will be) "Mission Accomplished" will be something for each person here at SWC to decide for himself or herself.

Happy Turkey Day to all - God with and stay safe.