Legal Status of US Forces in Iraq from 2003-2008

By Bassiouni, M. Cherif | Chicago Journal of International Law, Summer 2010 | Go to article overview

Legal Status of US Forces in Iraq from 2003-2008


Bassiouni, M. Cherif, Chicago Journal of International Law


I. INTRODUCTION

Just before the end of President George W. Bush's second term, the UN Security Council resolution authorizing US operations in Iraq as part of a MultiNational Force in accordance with international humanitarian law expired.1 To ensure a legal basis for the continued US military presence and military operations in Iraq, the US and Iraqi governments negotiated a Status of Forces Agreement (SOFA),2 as well as a "Strategic Framework Agreement for a Relationship of Friendship and Cooperation between the United States of America and the Republic of Iraq" (Framework Agreement).3 The details of these two documents are of great importance, as their stipulations will inform the crucial developments in the US-Iraqi relationship, including the eventual US withdrawal of combat troops from Iraq.

President Bush and Prime Minister Nouri al-Maliki signed the "Agreement Between the United States of America and the Republic of Iraq on the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq," (Iraq SOFA) in Baghdad on December 14, 2008, just two weeks before the Security Resolution's expiration.4 In its final form, the Iraq SOFA varies significantly from other US SOFA agreements in several ways. Primarily, the agreement regulates ongoing active military Operations, with emphasis on Iraqi sovereignty and US accountability.5

As with the Iraq SOFA, the Framework Agreement proved quite distinct from other US "friendship" agreements, which traditionally deal with cultural and commercial concerns.6 In the Framework Agreement with Iraq, strategic issues are scattered throughout the document, as if to camouflage their presence among the more traditional cultural concerns. The Bush Administration likely structured the agreement that way to avoid having to submit it to the Senate, as it was required to do with the Iraq SOFA. The Framework Agreement overlaps with the Iraq SOFA with regard to strategic considerations. Both should be read in pari materia.

This Article describes and assesses these two agreements, as well as prior relevant legal instruments (US, Iraqi, and international), bearing upon the legal status and operations of US forces in Iraq. It also examines one issue which was not addressed by these agreements: US legal obligations in light of the "protected persons" status it gave to an estimated 3,400 Iranians who oppose the Iranian regime, and who have been living at Camp Ashraf in Diyala Province, Iraq, under US protection since 2003.

II. LEGAL AUTHORIZATION FOR THE DEPLOYMENT OF US FORCES IN IRAQ PRIOR TO THE IRAQ SOFA OF 2008

On October 31, 1998, the US Congress passed the Iraq Liberation Act in support of a democratic government to replace Saddam Hussein's regime, laying the foundation for forceful regime change in that country.7 Then, after alQaeda's September 11, 2001 attack on the US8 - in which Hussein's regime played no part - a Joint Resolution of the House and Senate authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided" in those attacks.9 This Resolution did not specifically mention Iraq, leaving that decision to the President, but the same language was subsequently included in another Joint Resolution of Congress, the Authorization for Use of Military Force Against Iraq Resolution of 2002, which mentioned Iraq specifically.10

The Resolution allowed the president to "defend the national security of the United States against the continuing threat posed by Iraq,"11 in conformity with the international law of self-defense reflected in Article 51 of the UN Charter.12 This premise was based on the assumption that the Bush Administration's assertions were true, and that Iraq constituted a threat to US security.13 The Administration claimed Iraq had weapons of mass destruction, and that Saddam Hussein was capable of using them against the US. …

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