Desire and Reality: Proposed law designed to drive US forces out of Iraq

Recent calls on United States troops to pull out from Iraq is not an entirely new development but rather an idea that has grown following US President Donald Trump’s unannounced visit to American soldiers at Al Asad Airbase in western Anbar province  in December 2018. Additionally, President Trump’s latest comments in January that the presence of American troops in Iraq is necessary to “watch Iran” has further intensified tension.

Some reports suggest the two primary Shia parliamentary blocs in Iraq, the Fatih Alliance and election-winner Sairoon, have seized the opportunity to prepare a proposed law designed to drive US troops out of the country as well as terminate the US-Iraq security agreement.

The political blocs argue that under the terms of the US-Iraq security agreement, American troops should have left Iraq by the end of 2011. However, the current US military presence is in response to an invitation by the Iraqi government in 2014 to assist in the fight against the Islamic State. The Shia blocs believe the Islamic State is largely defeated in the country and, as a result, there is no reason for foreign forces, including US troops, to remain on Iraqi soil.

Indeed, in November 2008, the Iraqi Parliament approved two major agreements with the US administration:

1. US-Iraq Status of Force Agreement (SOFA) – A legally binding agreement which defines temporary presence and activities of US military personnel, crucial protection and operational powers, and the eventual date for a US troop withdrawal from Iraq.

2. US-Iraq Strategic Framework Agreement (SFA) – A broader agreement for long-term bilateral cooperation between the two countries in areas including political, diplomatic, defense, security, economic, energy, and law enforcement.

The first of these agreements was enforced for three years. Under its terms, US troops withdrew from Iraq by the end of 2011. The second agreement stipulates that either party to the US-Iraq SFA shall terminate or amend terms of the agreement following certain legal and constitutional measures.

According to Section 11 of the SFA, any party to the SFA with an intention to terminate the agreement must provide written notice to the other party, and the termination shall be effective one year after the date of such a notification. Furthermore, the terms of the SFA may be amended with the mutual written agreement of the parties and according to the constitutional procedures in effect in both countries.

With these measures in place, it is possible, but difficult, that a parliamentary vote would end or limit US military presence in Iraq. A successful parliamentary vote on this matter requires support from different political factions in parliament.

Not all political blocs in the Iraqi Parliament are expected to back proposed law. Shia political factions who initiated the proposed law would largely back a parliamentary vote. The Kurds, meanwhile, believe the US-Iraq SFA should be respected and would reject the proposed law. According to some reports, Sunni parliamentarians fear for the security of their regions which have recently been liberated from the Islamic State and would rather delay the enactment of the law. 

Whether parliament enacts the proposed law or issues a decision on the future role of US forces in Iraq, the implementation would certainly not be straightforward. A decision issued by the parliament is not binding on the government and would not be respected. However, if parliament succeeds in enacting the law, it would have serious political, financial, and security consequences, and could even open the door for potential US sanctions on Iraq.

The third possibility is that the government might challenge the constitutionality of the law before the Federal Supreme Court. The court is likely to block the legislation. The Court previously ruled unconstitutional legislation which put a financial obligation on the government if the law had been proposed and enacted by the parliament without being transferred to draft law first.

Overall, the legal path some political functions have taken in this regard is unlikely – at least not in the near future – that would allow them to achieve their desired result. Furthermore, Baghdad and Washington are parties to the SFA which was approved according to constitutional and legal rules. Additionally, there have been reports of talks over the signing of a new US-Iraq SOFA for the post-Islamic State era. Any attempt to push for legislation that would terminate the current US-Iraq SFA or change its terms requires careful considerations for potential political, financial, and security consequences.

Majida S. Ismael holds a Ph.D. in Public Law/Constitutional Law from the University of Liverpool, England.

The views expressed in this article are those of the author and do not necessarily reflect the position of Kurdistan 24.

Editing by Karzan Sulaivany