U.S. Trying To “Legalize” Permanent Occupation of Iraq

In early June the Bush administration intensified its longstanding effort to make the U.S. occupation of Iraq permanent. The first choice was to coerce the U.S.-backed Iraqi government to sign an ostensibly "bilateral" agreement—what the White House would like to call a "status of forces agreement" (SOFA). The Administration is pushing its client to meet the July 31 deadline that was earlier agreed to. There are new indications of Iraqi resistance to the proposed agreement—both U.S.-backed Prime Minister Nuri al-Maliki and the influential Shi’a cleric Ayatollah Ali al-Sistani have recently indicated strong opposition. But the U.S. effort to impose a "security agreement" remains in force.

The reason for the Bush administration’s urgency is that the current United Nations mandate expires on December 31, 2008. That mandate, which the U.S. forced on a reluctant, but unwilling-to-resist Security Council, transformed the U.S.-British occupation army into a UN-approved "multi-national force." It provided a veneer of international legitimacy over what would otherwise be understood to be a thoroughly illegal occupation. That veneer will be stripped away on January 1, 2009, making the U.S. occupation officially illegal and leaving the 150,000 or so remaining U.S. occupation troops without immunity from Iraqi law.

The Bush administration claims that the agreement they are trying to impose is not a treaty and thus does not require Senate ratification. They are trying to equate this imposed Iraqi agreement with SOFA agreements the U.S. maintains with other countries—the countries that host the Pentagon’s over 1,000 foreign bases.

But those other countries—such as Germany and Japan—are not at war. The SOFA agreements do not give U.S. troops the right to arrest German or Japanese citizens and hold them indefinitely without charges; they do not give U.S. troops and U.S.-paid mercenaries complete immunity from local laws; they do not give the U.S. the right to supervise German or Japanese police or defense ministries; and crucially, they do not allow U.S. troops to launch military attacks within their countries or against other countries without even pretending to consult with the local government.

The U.S. proposed agreement with Iraq would allow all of that, and more. Although the text has not been made public, numerous leaks (primarily in the Arab and British press) indicate that under the agreement:

  • U.S. troops would remain in Iraq indefinitely, with numbers to be determined by the U.S. and with troops and military contractors immune from accountability under Iraqi criminal or civil law

  • U.S. troops could launch military attacks in Iraq without consulting the Iraqi government

  • The U.S. would maintain its more than 58 military bases in Iraq, including five mega-bases, indefinitely

  • Iraq‘s defense, interior, and national security ministries and all Iraqi arms purchases would be kept under U.S. supervision for ten years

  • The U.S. can determine that any act by another country (read: Iran) constitutes a "threat" to Iraq, and exercise the right to respond to "protect" Iraq

  • The U.S. will maintain control of Iraqi airspace

We should also note that all of the Bush administration plans for maintaining the U.S. economic occupation of Iraq—through control of oil funds, trade practices, privatization, and more—remain in place. However, because of the December 31 UN mandate expiration deadline, the current debate has focused only on the so-called "security" agreement, not on the continuing U.S. goal of a second, broader "treaty" between the U.S. and Iraq.

So far the Iraqi government, facing massive popular and parliamentary opposition, has indicated it will not accept the terms. On June 12 Maliki expressed direct opposition to some aspects of the text. Iraq‘s parliament—also elected and kept in power by the occupation, but which has somewhat closer ties to the population—has opposed the agreement even more strenuously. A wide range of parliamentarians sent a letter to Congress stating their willingness to "ratify agreements that end every form of American intervention in Iraq‘s internal affairs and restore Iraq‘s independence and sovereignty over its land." Nadeem al-Jaberi, one of the Iraqi parliamentarians visiting Washington in June, told a congressional hearing that "the anarchy and chaos in Iraq is linked to the presence of the occupation, not withdrawal from Iraq."

In response to the Iraqi resistance, the Bush administration is reportedly now holding $50 billion of Iraqi oil money—deposited in the Federal Reserve Bank of New York because of earlier sanctions arrangements—hostage to Iraq‘s signing on.

There is a good chance that unless the Administration significantly cuts back the content of the agreement (possible, but unlikely to be sufficient) it will be rejected by the Iraqi government. Prime Minister al Maliki’s opposition stems largely from concern over his close-to-zero public credibility, which is likely to disappear altogether if he signs on with Washington. With provincial elections coming in the fall, Iraqi parties are tripping over each other to win popularity by claiming to oppose the U.S. occupation.

But whatever the motivation, if the Iraqi government ultimately refuses to sign a new agreement, the consequence would be that on January 1, 2009 all U.S. and "coalition" troops and mercenaries would be in Iraq without legal authorization. The occupation would be officially illegal. Crucially for U.S. domestic political purposes, U.S. troops and mercenaries would become vulnerable to Iraqi law.

That would be a good thing, as the occupation is illegal. Recognizing that could force the U.S. to bring home all the troops and mercenaries and to close the bases, because there would be no legal basis for them to remain. But that is unlikely. It is clear that both Bush and his potential successor intend to keep tens of thousands (or more) U.S. troops in Iraq for years to come.

To prevent the possibility that the occupation would be recognized as illegal, Plan B is already in the works. That would involve the Iraqi government returning to the UN Security Council under U.S. sponsorship to ask for an extension of the existing UN mandate, despite the current mandate’s explicit recognition that it would be the last one.

Several countries on the Council—including South Africa, Libya, Indonesia, and possibly Vietnam, along with permanent members Russia and China—likely have some hesitation about the UN being asked once again to provide legitimacy for the U.S. occupation of Iraq and immunity for U.S. occupation soldiers, including immunity for war crimes. But there is little reason to think any of those countries, with the possible exception of South Africa, would be willing to stand up and resist U.S. pressure to give the occupation UN approval.

European Union countries currently on the Council—Britain, France, Italy, Croatia, and Belgium—are likely to follow the British lead of continuing occupation, despite France‘s history of opposition. (All are now led by right-wing governments eager to maintain close U.S. ties.)

In the U.S. there is significant congressional opposition to the Bush administration’s proposed bilateral treaty. Much of it focuses on the right of Congress to be consulted on the agreement and the claim (unlikely at best) that it would tie the hands of the next president. There is some substantive opposition as well to officially "permanent" bases, for instance, although not to the Pentagon’s cleverly-titled "enduring" bases and, unfortunately, not to maintaining large numbers of troops in Iraq. Some important opponents of the proposed U.S.-Iraq agreement have taken the view that the only danger is in a bilateral agreement being taken without U.S. congressional approval. They, therefore, support extension of the UN mandate as a way of protecting U.S. troops from being held accountable to Iraqi law, deeming that more important than the call to simply bring them all home.

The danger of the U.S. succeeding once again at imposing its will on the United Nations, as it has so often throughout the 63 years of its history, is perhaps more significant. The UN stood up to U.S. pressure once—in the run-up to the 2003 U.S. invasion of Iraq—because member governments and the Security Council itself faced massive direct public pressure from social movements around the world, demanding that the UN stand up for its own Charter, its own integrity and independence, and against the U.S. war. The question now is how to make that happen again.


Phyllis Bennis is a fellow of both the Transnational Institute and the Institute for Policy Studies in Washington, DC. Bennis is also the author and editor of books on Palestine, Iraq, the UN, and the New World Order.