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"The Proposed U.S. Security Commitment to Iraq: What Will Be In It and Should It Be a Treaty?"

Testimony before the House Foreign Affairs Committee

Subcommittee on International Organizations, Human Rights, and Oversight; and

Subcommittee on the Middle East and South Asia

Michael Rubin, Ph.D.

Resident Scholar, American Enterprise Institute

Senior Lecturer, Naval Postgraduate School

Editor, Middle East Quaterly

January 23, 2008

Chairman Delahunt, Chairman Ackerman, Honorable Members. Thank you for this opportunity to testify.

This hearing seeks to determine whether any proposed U.S. security commitment to Iraq should constitute a treaty. It is an important question, but there is no cut-and-dry answer: Too much depends upon the content of the agreement.

On November 26, 2007, President George W. Bush and Iraqi Prime Minister Nuri al-Maliki released a “Declaration of Principles for a Long-Term Relationship of Cooperation and Friendship between the Republic of Iraq and the United States of America.” Among the principles they outlined were:

Provision of “security assurances and commitments to the Republic of Iraq to deter foreign aggression against Iraq that violates its sovereignty and integrity of its territories, waters, or airspace.”

Support for “the Republic of Iraq in its efforts to combat all terrorist groups…consistent with mechanisms and arrangements to be established in the bilateral cooperation agreements…” and

Support for “the Republic of Iraq in training, equipping, and arming the Iraqi Security Forces to enable them to protect Iraq and all its peoples, and completing the building of its administrative systems, in accordance with the request of the Iraqi government.”

On December 7, 2007, Maliki formally requested the extension of the UN Security Council’s mandate of the Multi-National Force-Iraq (MNF-I) to the President of the Security Council. On December 18, 2007, the Security Council obliged with passage of Resolution 1790 which extended the MNF-I mandate until December 31, 2008, subject to review by June 15, 2008.

Throughout this year, the U.S. and Iraqi government will negotiate the details of a security agreement to replace the UN’s Chapter VII mandate. The details are crucial to the question at hand, but remain unclear. The proposed agreement could take many forms and, indeed, could be a package of multiple agreements, ranging from a Status of Forces Agreement (SOFA) to economic development packages to basing agreements, to a formal defense treaty.

SOFAs apportion rights and responsibilities between a host government and our stationed or deployed forces. Typically, they serve to vest the United States with criminal jurisdiction over our forces in a host country. Usually, this entails a commitment to hold our troops and personnel legally responsible for any criminal conduct under the Uniform Code of Military Justice or some such arrangement. Unknown in the case of Iraq would be the status of private security contractors. Many SOFAs also address exemption from inspections and customs duties, travel document requirements, and tax exemptions for the PX. Today, the United States has approximately 100 SOFAs.

Generally, SOFAs constitute agreements rather than treaties. It is a rare occurrence if a SOFA is sent to the Senate for approval. With regard to NATO, Japan, and Korea, security guarantees are covered in separate treaty structures above and beyond the SOFA itself. For example, in 1953, the United States and the Republic of Korea signed a Mutual Defense Treaty, which the Senate ratified in 1954. The Pentagon then negotiated in 1966 a “Facilities and Areas and the Status of United States Armed Forces in Korea” which came into force on February 9, 1967, with an exchange of letters rather than separate ratification.

To determine whether ratification is necessary, what an agreement is called is less important than its contents. There is a point that an agreement can go so far in obligating the United States to defend another country that the Senate should ratify it. That line is when the obligation to defend another country becomes legally binding under international law. If such language is embedded in an Iraq SOFA, then there is little question that the SOFA should be voted on as a treaty by the U.S. Senate.

It is possible that the White House will stress that they consider any pact with security guarantee language to be an agreement rather than a treaty, and so not legally binding to the extent that a treaty would be. Should the White House try to adhere to this fine line, however, the Iraqi government would take note and consider the U.S. commitment ephemeral and perhaps demand a more formal treaty.

Basing agreements are more nebulous and controversial. The differentiation within U.S. discourse between permanent and non-permanent bases is more political than legal. For the United States to establish or lease a base in another country often requires an agreement rather than a treaty. Many of these basing agreements or their renewal agreements involve political and economic commitments. This has been the case, for example, with the Incirlik Air Base in Turkey. Ankara frequently requests economic incentives. During the 2005 renegotiation, the Pentagon sought a “blanket” agreement in which the U.S. military would have full use for the period of the agreement, while some Turkish officials demanded that Ankara be able to approve every flight in order to maintain their leverage over Congressional discussions of the Armenian Genocide Resolution and other issues. Rent was the major subject of U.S.-Kyrgyz base renewal talks in 2006, while expansion of facilities to provide better force protection became the issue dominating discussions to expand Camp Lemonier in Djibouti. Sharing of maintenance costs for U.S. facilities in Japan is the contentious issue in U.S.-Japanese negotiations.

Sometimes host countries wish to receive security guarantees in exchange for hosting a U.S. base or U.S. forces. Again, whether or not the basing agreement should be subject to Senate ratification depends upon the strength of the guarantee. Such demands for assurances are not always stated upfront, and often enter the conversation over years or during renewal discussions.

It is not the House Foreign Affairs Committee’s duty to pre-empt negotiations over specific clauses of an agreement not as yet written, but it will become the Senate’s duty to ratify the resulting product should it include security guarantees binding under international law. It is ironic that the House Foreign Affairs Committee seems more intent on defending the Senate’s prerogative than the Senate itself.

As our diplomats and military officials negotiate such an agreement, they will be seeking to underline our commitment to Iraqi stability and that country’s success fighting the extremists and terrorists that threaten both Iraqi and U.S. security. They will seek to preserve our military’s maneuverability. While some critics of the Bush administration’s Iraq policy suggest that the United States should confine itself to a limited number of forward operating bases or even redeploy its forces “over the horizon” into neighboring countries or Iraqi Kurdistan, such a strategy would hamper our ability to respond and protect the U.S. forces training Iraqi counterparts and providing the space for Iraqi politicians to advance reconciliation efforts. The insurgency spread when U.S. forces were confined to a handful of bases and forward operation bases (FOBs). Part of General Petraeus and General Odierno’s “surge” strategy involved saturating troops throughout their areas of operation. The strategy worked. U.S. and Iraqi negotiators will not be anxious to roll back success by again concentrating Multinational Forces to a few FOBs, but will rather seek to maintain the security regime until political reconciliation can occur. Any language, however, which would commit U.S. forces to defend Iraq in the face of an external threat would transform the agreement into a treaty subject to Senate ratification.

In such a case, not only would the eyes of Tehran and Damascus be on the U.S. Senate, but also observers in Taipei, Jerusalem, and Seoul, for the U.S. willingness to support and defend our allies regardless of where we are in the election cycle is at the heart of our credibility and our relationships not only in Iraq, but the world over.

Thank you. I welcome your questions.