Is America's presence in Iraq legal? by Jack Miles

International Herald Tribune


Occupational Hazard
by Jack Miles
Thursday, August 30, 2007

Is America's presence in Iraq legal?

As Republicans and Democrats debate the ethical and practical considerations for and gainst the withdrawal of the United States forces, this question scarcely comes up. But within a few months, it could, suddenly and with potentially decisive impact.

In May 2003, just weeks after the overthrow of Iraq's government, United Nations Security Council Resolution 1483 recognized "the Authority" - which was to say "the occupying powers under unified command" - as Iraq's effective legal government.

In October 2003, it took a further step and mandated that the United States-led multinational force establish security and stability in Iraq. While noting that this mandate would expire within a year, the council expressed its "readiness to consider on that occasion any future need for the continuation of the multinational force, taking into account the views of an internationally recognized, representative government of Iraq."

In June 2004, Security Council Resolution 1546 stipulated that "by 30 June 2004, the occupation will end and the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full sovereignty." Subsequently, as sovereign Iraq has moved by stages through elections and complex deliberations to the formation of its current government, the United Nations has renewed the mandate for the multinational force at the request of successive Iraqi prime ministers - Ibrahim al-Jaafari in 2005 and Nuri Kamal al-Maliki last year.

The current mandate expires at the end of December. Will it be renewed? In June, the Iraqi Parliament passed a bill requiring that the next renewal should not be made without its advice and consent. Maliki has not signed the bill and could conceivably veto it. However, given the worsening of his relations with Washington, it seems increasingly likely he will give it his signature and, come December, do as it instructs.

The Iraqi Parliament, for its part, has already passed a nonbinding resolution calling for a timetable for a withdrawal of foreign forces. If it voted in December not to seek a renewal of the mandate, the American troops deployed in Iraq would be there illegally.

Would this legal difference make a material difference? The Bush administration is of course unlikely to give too much heed to any Security Council resolution. But the expiration of the mandate may matter greatly to the Iraqis, even to the point of becoming the signal for a general uprising of Shiites against foreign forces.

The 2004 siege of Najaf - the one collective uprising of Shiites that Iraq has seen since the war began - extended American troops to the limit. Najaf multiplied many times over might precipitate a very different kind of endgame than the United States command now seems to contemplate. Moreover, Moktada al-Sadr, who led the Najaf uprising, has become perhaps the most popular and powerful Arab in Iraq.

Another way in which the legal difference over the American presence would make a material difference would be if Maliki (or his successor) were to follow through with his recent threat to "find friends elsewhere." He issued that warning to the Bush administration, significantly enough, at a news conference in Syria.

Another possible "friend" is increasingly truculent Russia. Moscow would not grieve if after the Iraqi debacle the United States were demoted from the status of sole superpower to that of one great power among several.

But the most obvious and presumably most willing new partner for Maliki would be Shiite-dominated Iran.

If things head that way, while U.S. troops are still on the ground, should the United States attack Iran pre-emptively? Some in high places favor this, but a pre-emptive American attack on Iran could quickly lead to an Iranian counterattack closing the Straits of Hormuz at the lower end of the Persian Gulf. The American forces would then be trapped - both their main supply line and their main evacuation route cut off.

It may be time to change the slogan on the yellow ribbon from "support the troops" to "defend the nation." Rather than see the American army of liberation humiliatingly voted out of Iraq or have its avenue of exit cut off by opportunistic enemies, the Senate should join the Iraqi Parliament, through a "sense of the Senate" resolution, and call for the next Security Council mandate to be one that requires the progressive withdrawal of all foreign forces from Iraq, without haste but with all deliberate speed.

Jack Miles is a senior fellow for religious affairs with the Pacific Council on International Policy and a professor of English and religious studies at the University of California, Irvine.