Iraqi Sovereignty Cuts Two Ways

In a recent article on the release of Bilal Hussein, I discussed how the case was emblematic of the tension between the expansive mandate claimed by U.S. military forces in Iraq and the limited sovereignty of the Iraqi government, particularly with respect to the detention regime.  I also argued that these sorts of conflicts will increase in the future as Iraqi governmental institutions mature and become assertive in challenging the decisions of the U.S. military.  These looming battles over Iraqi sovereignty will play an important future role in shaping the dynamics of bilateral relations and will inflame nationalist sentiment in Iraq against a long-term U.S. military presence. 

Much of the criticism of the United States’ exercise of veto power in the context of the detention regime has focused on the refusal of the U.S. military to release detainees who have been cleared of charges or had their cases dismissed by the Iraqi criminal justice system. Within this context, the decisions by the United States are seen as not only usurping Iraqi sovereignty but also infringing upon the rights of individual detainees.  However, it is also worth noting that the fragmented nature of the current Iraqi political system creates the potential for sectarian considerations to drive decision making in dangerous directions; in such cases it is not unusual for the decisions of the Iraqi government to represent potential infringements upon the rights of its own citizens.  Decisions made by the Iraqi government on the basis of sectarian animus present the United States with a difficult political and legal problem.  Indeed, in such instances the United States suffers the political and security consequences of rash or ill-considered decisions or policies.  The execution order for former Defense Minister Sultan Hashim Ahmad al-Tai is a case in point.

Al-Tai was convicted in June 2007 by the Iraqi High Criminal Court (IHCC), the tribunal established to prosecute the regime crimes of Saddam Hussein and other high-level Ba’athists, in connection with the Anfal Operation that decimated the Kurdish north.  He was sentenced to be executed by hanging, a judgment that was affirmed by an appeals court.  Iraqi President Jalal Talabani, himself a Kurd, has refused to endorse the sentence and has argued for leniency due to the coercive power brought to bear by Saddam Hussein against many professional officers such as al-Tai.  As a result, the three-member Presidency Council, which Talabani heads, has not formally endorsed the sentence. The Sunni political parties have also come out in opposition to the sentence and have characterized the execution order as political “revenge” against an officer who fought bravely during the Iran-Iraq War. 

However, the Shi’a-led government of Nuri al-Maliki has argued that the decision to carry out the IHCC execution order is not dependent on the approval of Talabani or the Presidency Council and that under Iraqi law the sentence must be implemented within one month following a final appellate decision. 

Al-Tai has yet to be executed and remains in U.S. custody after a September 2007 incident in which the U.S. military refused to hand over al-Tai to Iraqi authorities for execution in consideration of the assurances made to him in 2003 when he voluntarily surrendered to General David Petraeus in Mosul.  These assurances were given in light of his extensive contacts and cooperation with the U.S. military prior to the March 2003 invasion.  Ostensibly, the decision by the United States to retain custody of al-Tai was based upon the ongoing dispute among high-level Iraqi officials as to the legal basis for carrying out the execution order.  The execution of al-Tai would have political ramifications and could serve to further alienate former Sunni members of the Iraqi military, who have formed a large part of the Sunni insurgency.  Cast in this light, the decision to block transfer was made primarily in furtherance of U.S. policies aimed at reconciliation and political accommodation with the Sunni community. 

The refusal to relinquish custody is in tension with the wishes of the al-Maliki government, regardless of its wisdom, and places the United States in the awkward position of parsing ambiguous statutory authorities and blessing the legal sufficiency of requests made by the head of a sovereign government.  Even assuming legal grounding for the refusal to turn al-Tai over to the Iraqis, such direct intervention in the internal affairs of the Iraqi government represents an infringement of Iraqi sovereignty for key members of the governing coalition and the Shi’a community.   

This predicament is the direct outgrowth of the presence of massive numbers of U.S. military personnel and combat forces in Iraq, which necessitates an outsize U.S. role with respect to the security sector. The end result is that in certain circumstances the United States has received condemnation for infringing Iraqi sovereignty while at other times it has been accused of acquiescing in the prejudicial decisions of the Iraqi government.  The legacy of intrusive U.S. involvement in Iraqi governmental affairs and the massive military footprint of the United States in Iraq guarantee that the U.S. role in decision-making in Iraq will be highly scrutinized. 

The only practical way to extricate the United States from this problematic position is the establishment of normalized bilateral relations following a renunciation of long-term military arrangements and an orderly phased withdrawal of combat forces from Iraq.  Until such time the United States will be in the tenuous position of balancing its security and political interests against the sovereign rights of the Iraqi government and people.