Uncertainties cloud Iraq SOFA

Barring further delays, the Iraqi parliament will vote on a status of forces agreement (SOFA) with the US on Wednesday. Lacunae in the pact raise significant questions concerning its pragmatic application.

US President George W Bush's administration has appeared set on driving the SOFA through without proper congressional scrutiny, a fact that has drawn questions concerning his purported overstepping of presidential prerogatives.

While the SOFA envisions a three-year troop drawdown, President-elect Senator Barack Obama has pledged to withdraw US combat troops by the summer of 2010. Only around one-third of US servicemen in Iraq are combat troops according to official estimates.

It is important to state the obvious: Iraq remains a country under occupation whose sovereign powers are severely delimited by the presence of the foreign forces on which it leans for support.

The transition towards full suzerainty, while likely to be uneven and halting, is brought into question by the SOFA, which contains significant loopholes that appear to leave the door open to a future Iraqi request for the ongoing presence of US troop beyond the scope of the agreement.

Clearly envisaged in initial US positions on the negotiations, the future presence of US military bases issue is fudged somewhat in external page Article 5 of an unofficial translation of the pact. This states: "The U.S. shall return the rest of the installations and agreed upon areas to the Iraqi government when the validity of this agreement comes to an end […] or when the U.S. no longer needs the installations" in accord with a future joint committee decision.

Obama has made it clear that he opposes the establishment of permanent bases in Iraq but may come under pressure to relent on the issue if the security situation degenerates.

The SOFA negotiating process did lead to some important achievements for the Iraqi government likely to further bolster the standing of Prime Minster Nouri al-Maliki. Through pointing to existing domestic political divisions, he succeeded in drawing out the talks to his administration's advantage, having resisted seeming Bush administration pressure to force the SOFA through ahead of the US presidential elections.

Al-Maliki appears to have secured the acquiescence of at least some Sunni legislators to the agreement. In the likelihood that the SOFA is approved by parliament, this should act to prevent the sectarian demarcation of stances thereon ahead of possible provincial polls in the new year.

US forces will be prevented under the SOFA from holding detainees without charge and from conducting household searches without an explicit Iraqi judicial order. If implemented, these strictures may act to delimit the scope of US troop activities in a manner that encourages their withdrawal. This also raises the possibility of both mass releases and prisoner transfers to the overburdened Iraqi judicial and prison systems, provoking serious concerns regarding the potential violation of detainee rights.

In a welcome move, foreign private security contractors operating in Iraq will no longer be immune from prosecution by the Iraqi judicial system. This may encourage a sharp attenuation of operations and the potentially prohibitive rise of contracting costs.

Under the SOFA, US servicemen are also potentially subject to Iraqi law when they commit major crimes off-base while not on an authorized mission. Here, the al-Maliki government may deem it politic to promote judicial activism, at least in relation to private security firms, in a bid to create the popular impression of substantive change through the pact.

Other Iraqi victories in the negotiations, including the handing of control over Iraqi airspace to the government and stipulated pullout of US forces from cities and towns by 30 June 2009, are less likely to promote immediate action given ongoing fighting and instability, particularly in Mosul.  

The passage of the SOFA will be a blow to Moqtada al-Sadr's movement and political faction, which now find that their calls for a withdrawal of foreign troops have been co-opted by their Shiite political rivals.

Al-Sadr's recent threat to order a return to arms over the pact appears little more than bombast given his movement's current struggles to cope with its isolation from the levers of national power and their military defeat at the hands of US and Iraqi forces earlier this year.

Clearly, the gradual drawdown of US troops will pose significant security challenges that it is far from clear that Iraqi forces are capable of meeting.

Nevertheless, the US public clearly voted for an end to the US presence in Iraq and it is clear that, with the Afghan crisis burgeoning, the incoming Obama administration is determined to push ahead with the withdrawal process.

Given the exigencies, this will still probably marry more closely to the 2011 deadline envisaged in the SOFA than to Obama's 16-month timetable, which is likely to have provoked trepidation amongst regional allies concerned at a potential precipitous decline in Iraq security.

Importantly, with Iran influential in both the quasi-independent northern Kurdish region and central government in Baghdad, an expansion of the hesitant US dialogue with Tehran on Iraq stabilization, while of limited pragmatic consequence to the actual reconstruction of the country, can play an important role in encouraging divergences of opinion within the Iranian power structure on relations with the US.

The rehabilitation of US Middle East policy must also be negotiated with Congress, with the current financial squeeze and rise in Iraqi oil revenues likely to create significant momentum for a gradual attenuation of disbursements.

The US Joint Chiefs of Staff have set their stall on the withdrawal process, with chair Admiral Mike Mullen external page confirming last week that the military prefers a withdrawal based on security conditions rather than set timetables.

Once in office, Obama's administration will undoubtedly come under significant pressure to delay troop withdrawals. It must break free from narrow security interests in order for the drawdown process to gain both traction and legitimacy in the eyes of the Iraqi public and political factions. 

Iraq has been brought to and beyond the point of collapse as a cogent nation-state through the precipitous invasion of 2003 and the disastrous failure of the US and allies to envisage a subsequent, rapid process of stabilization and withdrawal.
 
The removal of foreign forces and moves to promote more than titular sovereignty must now begin in earnest, with the recognition that the future modes of Iraqi sectarian and ethnic cohabitation and resource-sharing will only emerge in the absence of outside dictation.