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Iraq: Healing needed for effective rule of law

NewsNotes, November-December 2008

In the closing weeks of the U.S. presidential election campaign, news of the world economic crisis overshadowed developments in the conflicts in Iraq and neighboring Afghanistan. One exception was a proposed U.S.-Iraq security agreement, intended to maintain the legal presence of U.S. troops in Iraq after Dec. 31. Ultimately, all sectors of Iraqi society will have to come together to resolve their own differences. But stubborn sectarian divisions continue to pose a threat to Iraq’s democratic aspirations.

Earlier this year, much of the political discussion focused on whether to set a timeline to withdraw U.S. troops. The question largely disappeared after Iraqi President Nouri al-Maliki said in July he thought a 16-month period following the U.S. presidential inauguration January 20 “would be the right timeframe for withdrawal.”

By October, much of the news about Iraq was about draft language in the proposed security agreement. (See Iraq: U.S., Iraqi lawmakers question security pact in NewsNotes, July-August 2008). Unless the current mandate of the UN Security Council is extended – or a bilateral agreement is signed – the presence of U.S. troops in Iraq would be illegal after the UN mandate expires Dec. 31.

The draft language calls for U.S. troops to leave Iraqi cities by the end of June 2009 and to withdraw from the country altogether by 2012, unless the government asks them to stay. (As early as June 2005, a third of the 275 democratically elected members of Iraq’s National Assembly asked the U.S. to set a timetable for withdrawal. Until this year, most Iraqi government officials opposed a withdrawal or even a timetable.)

One of the most controversial issues in the draft accord is that of legal jurisdiction. The Pentagon insists on having sole legal jurisdiction over U.S. troops in most foreign countries. However, the draft says U.S. soldiers can be subject to Iraqi law if they are accused of committing a major crime while outside their bases and off duty. The draft also makes private U.S. security companies and other contractors subject to Iraqi justice in criminal cases.

Another big question is whether the agreement constitutes a treaty. With the draft language the Iraqi government requests “the temporary assistance of U.S. forces for the purpose of supporting its effort to safeguard security and stability in Iraq including cooperation in carrying out operations against al Qaeda, other terror groups and outlawed groups.”

Proponents say the proposed pact is a status of forces agreement (SOFA), which sets the rules for U.S. troops on foreign soil but does not commit those troops to the defense of Iraq. SOFAs normally do not require congressional approval. However, lawmakers including Rep. William Delahunt (D-MA) say draft language regarding U.S. military obligations makes it clear the agreement is more than a SOFA. “Of course this is a treaty,” says Delahunt. “They can call it what they want, but this section irrefutably implies a treaty.” And that would require ratification by the Senate.

Meanwhile, an Iraqi panel Oct. 3 in Washington, D.C., discussed ongoing challenges to unifying Iraq since its constitution was narrowly approved in a 2005 referendum. Panel member Feisal Istrabadi said the constitution was not a national compact since Sunnis, the second largest group at 31 percent, rejected it by a wide margin. Istrabadi, a law professor and former Iraqi ambassador to the UN, also criticized the U.S. for pushing Iraq to write its constitution before a national consensus had been reached.

A justice official on the panel said Iraq has one million security personnel, or one for every 30 persons. Raid Juhi al-Saidi, former chief investigative judge of the Iraqi High Tribunal, also said 33 judges and prosecutors had been killed from 2004-2008. “Does power lie with the military or with the rule of law?” he asked.

“Violence never again! War never again! Terrorism never again!” Pope John Paul II declared in 2002, a year before the U.S. invasion of Iraq. Pope Pius XII, too, spoke directly to Catholic social teaching when he said in 1943, “Violence has achieved only destruction, not construction.” How different an attitude from that of Donald Rumsfeld who, as defense secretary, told a news conference on Sept. 18, 2001, “We have a choice, either to change the way we live, which is unacceptable, or to change the way that they [Muslims in the Middle East] live, and we chose the latter.”

Such arrogance aside, changing our attitude toward other nations and religions could go far toward winning friends and building up peace – something akin to what this country’s founders called “a decent respect to the opinions of mankind.”


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