Wednesday, December 31, 2008

Iraq on the couch

Iraq on the SOFA, is more like it.
SOFA, of course, is the acronym for Status of Forces Agreement, the generic term for a pact concluded between a country wishing to send its troops to a foreign land and a country that’s willing to receive foreign troops.
Governments in the United States and Iraq are about to implement a pact designed to define relations between the 2 countries for the next 3 years. Media have referred to the pact as a SOFA, and the text available here does include the expected provisions; for example, one setting forth which country has primary jurisdiction over which persons in the event a criminal case arises. (Private contractors are destined to lose immunity from Iraqi jurisdiction.) This pact is more than an ordinary SOFA, however, as its full name belies:
Agreement Between the United States of America and the Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organizations of Their Activities during Their Temporary Presence in Iraq.
Indeed, it is Article 24, “Withdrawal of the United States Forces from Iraq,” that provokes perhaps the widest interest. Article 24 specifies that U.S. forces -- which invaded Iraq, leading a “coalition of the willing,” in March 2003 – “shall withdraw from all Iraqi territory no later than December 31, 2011.” Withdrawal from parts of the country is to occur much sooner:
All United States combat forces shall withdraw from Iraqi cities, villages, and localities no later than the time at which Iraqi Security Forces assume full responsibility for security in an Iraqi province, provided that such withdrawal is completed no later than June 30, 2009.
On November 17, the 2 states’ executive officers subscribed to this speedy timetable, along with the rest of the pact. There is a proviso, however; each state’s government must secure domestic approval.
In the United States, criticism has been muted (though not entirely absent; Tom Hayden colorfully called the pact Frankenstein in Mesopotamia). The Administration of President George W. Bush managed to quell debate by resort to a “sole executive agreement” – a pact that the President concludes with another country and without having to secure the approval of Congress. (Our colleague Frederic L. Kirgis has posted a most helpful international-agreements primer here.) But that decision in itself drew criticism. Indeed, law professors Oona Hathaway (right) and Bruce Ackerman have argued here and here that the Constitution requires Congress’ input for this kind of pact – either the OK of both Houses or the advice and consent of 2/3 of the Senate. Hathaway reiterated her objections at the Northern California International Law Scholars’ roundtable earlier this month. Pointing in particular to the pact's abrogation of contractor immunity, she maintained that if U.S. officials had negotiated the pact with the knowledge that they would have to “sell it to Congress,” the result would have been better. In her view, the lack of any need to get an OK at home “made them weaker, not stronger.”
In Iraq, debate was both more widespread and more heated. Last month “tens of thousands” of Iraqi protesters marched to the Baghdad square where, years earlier, another crowd famously toppled statue of Saddam Hussein. There, “to denounce” the pact, they “dragged down … an effigy of President Bush.” “A fistfight broke out in Iraq's parliament,” NPR reported. Soon, however, Iraq legislators approved the pact, by a vote of 149 to 35, with 14 members abstaining and another 77 absent for the vote. Iraq completed its internal adoption process on December 4, when the 3-member Presidential Council approved the pact.
Along with a similar resolution pertaining to British and other non-U.S. troops, the pact thus takes effect tomorrow, New Year’s Day.
The U.N. mandate authorizing foreign troop presence expires, like this year, at midnight.

(With thanks to California-Davis law student Veronica Capron, whose research interest in this pact piqued my own)

1 comment:

Diane Marie Amann said...

And thanks to Bruce Ackerman for letting us know that he and Oona Hathaway posted on this same agreement this same day. Their commentary begins:

"The Bush administration is ringing in 2009 with a fresh constitutional mess.

"The Bush administration’s infatuation with presidential power has finally pushed the country over a constitutional precipice. As of New Year’s Day, ongoing combat in Iraq is illegal under US law."

To read on, go to