By Ellen Laipson – The leadership in both Iraq and the United States agree on many things regarding Iraq’s security and America’s role in it. Both Prime Minister Maliki and his key ministers and the Bush Administration believe that a continued US military presence is needed as Iraqis consolidate recent gains in achieving more self-sufficiency in security matters. They agree that an abrupt departure of American forces could make Iraq vulnerable again to violent domestic forces, some aided by outside actors such as al-Qaeda and Iran. They agree that important progress has been made, but know that the new Iraqi army has not really been battle tested (except in Basra earlier this year) and that sectarian divisions and insufficient professional training could still expose grave weaknesses in the national forces.
They also agree that the occupation should end, and that the special status that governs foreign forces in Iraq under UN Chapter VII needs to be terminated and replaced with a more normal legal arrangement that authorizes the presence of foreign forces but recognizes the full sovereignty of the Iraqi state. Prime Minister Maliki informed the UN at the annual renewal in December 2007 that he would not seek a further extension of the UN mandate for foreign forces; the United States responded with understanding, and began to gin up a complicated and hurried plan to achieve an overall bilateral political agreement and a status of forces agreement (SOFA) by late 2008.
As a practical matter, political leaders in Baghdad and Washington understand that the politics of articulating a long-term security arrangement are very hard. Both governments seem to share an interest in finding a solution that does not require them to win formal approval from either the US Congress or the Iraqi parliament. For the US side, this means that any agreement has to be within the authority of the executive branch, and cannot have treaty obligations that require Senate consent. Legal experts have interpreted Iraq’s Constitution as requiring legislative approval for a status of forces agreement; Iraqis have publicly called for a parliamentary role or a national referendum on any new agreement.
As of mid-July, these are moot points. The two sides have virtually conceded that a SOFA is too hard to achieve, and diplomats have referred to a broad statement of principles about the bilateral relationship, identifying core areas for cooperation but falling far short of an alliance relationship, and they hope to be able to manage the issue of foreign forces with an interim agreement, possibly one that would have a UN imprimatur.
It was perhaps always unrealistic to think that the mutual interest of the two leaders could be easily translated into a binding document that would pass political and legal muster. As with elections in 2005, the United States tried to rush a process that, even in countries not at war, usually takes years not months to prepare.
Asymmetry of legal and political capacity. Imagine the teams of Pentagon lawyers with decades of experience from the dozens of SOFAs the US has with other countries arriving at the Ministry of Defense. The Iraqis are serious and are working hard – they have reportedly visited at least two countries outside the Middle East to seek advice about negotiating with Washington – but they cannot be expected to have enough knowledge to respond to a long list of American demands for special rights and privileges for the forces and the dozens of military installations in Iraq.
Maliki’s political requirements; US military requirements. The two sides are driven by different needs. Maliki has to respond to a broad public demand for an end to occupation, even as he realizes that stability of the government depends on US forces remaining, at least for the near future. For the US, military considerations are paramount; i.e., immunity for forces, control of military installations where US soldiers reside for basic security reasons, freedom of maneuver in the air and on the ground for combat operations.
Meanwhile, the security situation is favorable for a gradual withdrawal of at least some US forces over the next year or more, and the regional environment is improving, with three Arab states ready to return Ambassadors and resume normal relations (Jordan, Kuwait, and the UAE).
Ellen Laipson is the President and CEO of the Stimson Center and directs the Southwest Asia/Gulf project. She is the former Vice Chair of the National Intelligence Council.