COMMITTEE ON FOREIGN AFFAIRS TOM LANTOS, California, Chairman HOWARD L. BERMAN, California GARY L. ACKERMAN, New York ENI F.H. FALEOMAVAEGA, American Samoa DONALD M. PAYNE, New Jersey BRAD SHERMAN, California ROBERT WEXLER, Florida ELIOT L. ENGEL, New York BILL DELAHUNT, Massachusetts GREGORY W. MEEKS, New York DIANE E. WATSON, California ADAM SMITH, Washington RUSS CARNAHAN, Missouri JOHN S. TANNER, Tennessee GENE GREEN, Texas LYNN C. WOOLSEY, California SHEILA JACKSON LEE, Texas RUBEN HINOJOSA, Texas JOSEPH CROWLEY, New York DAVID WU, Oregon BRAD MILLER, North Carolina LINDA T. SANCHEZ, California DAVID SCOTT, Georgia JIM COSTA, California ALBIO SIRES, New Jersey GABRIELLE GIFFORDS, Arizona RON KLEIN, Florida ILEANA ROS-LEHTINEN, Florida CHRISTOPHER H. SMITH, New Jersey DAN BURTON, Indiana ELTON GALLEGLY, California DANA ROHRABACHER, California DONALD A. MANZULLO, Illinois EDWARD R. ROYCE, California STEVE CHABOT, Ohio THOMAS G. TANCREDO, Colorado RON PAUL, Texas JEFF FLAKE, Arizona MIKE PENCE, Indiana JOE WILSON, South Carolina JOHN BOOZMAN, Arkansas J. GRESHAM BARRETT, South Carolina CONNIE MACK, Florida JEFF FORTENBERRY, Nebraska MICHAEL T. McCAUL, Texas TED POE, Texas BOB INGLIS, South Carolina LUIS G. FORTUNO, Puerto Rico GUS BILIRAKIS, Florida ROBERT J. WITTMAN, Virginia Robert R. King, Staff Director Yleem Poblete, Republican Staff Director Subcommittee on International Organizations, Human Rights, and Oversight BILL DELAHUNT, Massachusetts, Chairman RUSS CARNAHAN, Missouri DANA ROHRABACHER, California DONALD M. PAYNE, New Jersey RON PAUL, Texas GREGORY W. MEEKS, New York JEFF FLAKE, Arizona JOSEPH CROWLEY, New York Cliff Stammerman, Subcommittee Staff Director Natalie Coburn, Subcommittee Professional Staff Member Phaedra Dugan, Republican Professional Staff Member Elisa Perry, Staff Associate (II) 2 We are joined to my right by a distinguished member of the Con- gress, Jim McDermott from the State of Washington. He is not a member of this committee, but I would request that he be allowed to sit as a member of this subcommittee. He has been interested in these issues for some time. If there is no objection from Mr. Rohrabacher? Mr. Rohrabacher. No objection. Mr. DELAHUNt. No objection. Welcome, Mr. McDermott. I am going to make a brief opening statement. We have a distin- guished panel in front of us. Today's hearing is entitled, "The Ex- tension of the United Nations Mandate for Iraq: Is the Iraqi Par- liament Being Ignored?" Last night the U.N. Security Council passed a resolution to ex- tend the mandate of the United States-led multinational force in Iraq until December 31, 2008. In a previous letter to the Iraqi exec- utive branch and to the United Nations Security Council, a major- ity of the Iraqi Parliament denounced as unconstitutional the deci- sion by Prime Minister Maliki to request this extension without the approval of the Parliament. So as chairman of the subcommittee that has primary jurisdic- tion regarding issues implicating the United Nations and as one of the two congressional delegates to that international body, and frankly, as a Member of Congress who has observed the expendi- ture according to the Congressional Research Service of some half a trillion dollars as well as the loss of almost 4,000 Americans and well over 100,000 Iraqi lives since the initial invasion nearly 5 years ago, I must say I found this letter and this issue profoundly disturbing, particularly if at this moment there is this deep divi- sion between the Parliament and the executive. The hope is to witness and observe reconciliation. I would sug- gest that this is far from reconciliation, but to the contrary, we con- stantly hear the refrain from the administration that the rule of law must be respected in all countries, and if we are to restore our international credibility, it is critical that those words do not ring hollow. So today's hearing explores whether there are in fact some seri- ous questions about whether the Iraqi executive branch followed the rule of law in its request for an extension of the United Nations mandate. On October 15, 2005, almost 10 million Iraqis approved a Constitution that paved the way for a new Iraqi Parliament known as the Council of Representatives, and subsequently, 275 members were elected. The new Constitution confers upon the Parliament the power to approve international treaties and agreements. A majority of the Parliament has now stated that their constitutional prerogatives are being ignored, their constitutional responsibility is being ig- nored by the executive. I certainly do not claim to be an expert on the Iraqi Constitution, but I find it difficult to imagine that a request to have foreign troops occupy your sovereign territory would not be considered the sort of an international agreement contemplated by the Iraqi Con- stitution or for that matter by any Constitution worthy of the name. 3 In a democracy, the rule of law is not an on-and-off thing to be followed if it is convenient. It is an all-the-time thing to be followed even if it is unpleasant, messy and difficult. We Members of Con- gress experience that frequently. I remember the year 2000 when the results of an election were disputed where the Supreme Court made a ruling, and Democrats certainly were not clicking their heels over that particular decision, but we respected the Constitu- tion. In any event, I don't know if the Maliki government has acted in a way that is consistent with the Iraqi Constitution, and that is what our witnesses are here to help us with. I do know that our own Congress, which as the first branch of government has the constitutional obligation to oversee the actions of our executive branch, it has the duty to raise precisely this sort of issue and bring it to the attention of the American people for their perusal and reflection and analysis. To further my understanding of the facts in this dispute, I wrote to Secretary Rice on December 5 seeking clarification before the U.N. Security Council acted. However, the Secretary of State has not yet responded to my letter. We in fact had requested a witness from the Department of State, but unfortunately the individual that could have added to this discussion today was unavailable, I think it is Deputy Sec- retary Satterfield, who is currently traveling, while we have four witnesses today and all of them have certain expertise in various aspects of the Iraqi political system. Our witnesses will be, in order: Dr. Michael Rubin, a resident scholar at the American En- terprise Institute who advised the Coalition Provisional Authority in Iraq following the United States invasion and was an advisor to Secretary Rumsfeld; Mr. Issam Saliba, senior foreign law specialist at the Law Library of Congress and an expert in legal matters in the Middle East; Dr. Ken Katzman, who has appeared before this committee frequently and could be described as our favorite analyst on Iraq, from the Congressional Research Service; and Mr. Raed Jarrar, the Iraq consultant for the American Friends Service Com- mittee in its program for Iraqi refugees, who has also worked in Iraq on reconstruction issues for the Agency for International De- velopment. Before formally introducing the witnesses, let me turn to my dear friend from California and ranking member, Dana Rohr- abacher, for any comments he may wish to make. Mr. RoHRABACHer. Thank you very much, Mr. Chairman. I was in Iraq, I guess 3 weeks ago, and I did not spend my time being shown around by our State Department. In fact, they told me I would have to leave after 4 hours or they wouldn't be able to pro- vide me any security. So I said, "It is okay, I don't really need it." So actually I went and was not shown around by the State Department and our mili- tary and had a lot of great conversations and got to know some things I think probably I wouldn't have had time to know if I had only spent 4 hours on the ground. There is no doubt whether I was in Urbil, but there is no doubt that throughout the whole country, there seems to be a great deal of progress being made in terms of creating a more stable environ- 7 Iraqi political leaders to address political reform and reconciliation. As the U.S. congressional leaders know, hard fought political com- promises on even minor issues can take weeks and months. Those involving fundamental constitutional interpretations and reforms take months, if not years. An attempt to stoke bickering between the Iraqi Council and the President over the decision to extend the multinational forces mandate will undermine the very reconcili- ation process which we have worked so hard to protect. Finally, the extension of the U.N. mandate for Iraq addresses a key problem of legitimacy for that world body that should not be dismissed, for while many in the west see the United Nations through the prism of the noble goals of its founding charter, many Iraqis view the U.N. through the prism of the Oil for Food Program corruption and former U.N. Secretary General Kofi Annan's warm relations with Saddam Hussein. Restoring U.N. credibility in Iraq is an important goal, and this resolution will enable time for political discussion, greater security force training and may allow time for the disarmament, demobili- zation and reintegration of militiamen. Mr. Chairman, honorable members, the Iraqi political process is far from perfect, but its best chance for success lies not in second guessing an elected Iraqi Prime Minister's request to the United Nations Security Council but in respecting his very responsible de- cision to deny populous temptations and focus on the tough reforms ahead. With regard to a direct referendum of the people, I would submit that is synonymous with a national election which is forthcoming in the Iraqi context. Thank you. [The prepared statement of Mr. Rubin follows:] Prepared Statement of Michael Rubin, Ph.D., Resident Scholar, American Enterprise Institute for Public Policy Research Mr. Chairman, Honorable Members. Thank you for this opportunity to testify. On December 10, Iraqi Prime Minister Nouri al-Maliki sent a letter to the UN Security Council requesting that the Council extend the mandate of the U.S.-led Multinational Forces for one year, beginning December 31, 2007. Maliki's actions are perfectly permissible under terms of the Iraqi Constitution. They are also permissible under precedent: The Security Council's November 28, 2006 extension of the mandate of the Multinational Force's presence in Iraq until December 31, 2007 was also in response to a request by the Iraqi Prime Minister. Under Article 58 of the Iraqi Constitution, it is the job of the Iraqi Council of Rep- resentatives to ratify international treaties. This requires a two-thirds margin of support. Then, according to Article 70, the measure goes to the President to ratify the treaty. Such treaties are considered ratified after 15 days. None of this is relevant to the case of the Prime Minister's request to extend the Multinational Force's mandate. The simple fact is that neither Maliki's communique nor UN Security Council resolutions any more constitute treaties for Iraq than they would for the U.S. Congress. Despite the indisputable fact that this UN Security Council resolution does not constitute a treaty, the Iraqi Council of Representatives does have recourse if it dis- agrees with the Prime Minister's actions: A no-confidence vote requires only a sim- ple majority. Despite grandstanding among some members of the parliament, espe- cially among parties more sympathetic to Iran, none have chosen to avail them- selves of the constitutional right to a no-confidence vote. While it is tempting in the American political context to second-guess the elected Iraqi government on this matter, there should be little doubt that doing so under- mines the nascent Iraqi democracy and is counterproductive to Iraqi security and stability. In turn, it will be that security and stability that creates an environment which will ultimately enable a U.S. draw down. 12 Witness Statement of Issam Michael Saliba - December 19, 2007 The Law Library of Congress - 3 Under no circumstances could the failure of Parliament to enact the procedural law result in discharging it from its constitutional duty to approve international treaties and agreements and send them to the President of the Republic for final action, as reflected in Article 73. section two IV. Does the Request to Extend the Mandate of the Multinational Forces Come Under the Definition of International Treaties and Agreements? During the discussions leading to the June 5, 2007 Resolution calling upon the Government to seek parliamentary approval for future extension of the mandate of the multinational forces in Iraq, some members of the Iraqi Parliament expressed the view that such extensions are not international treaties or agreements subject to the approval of Parliament/ Some media accounts also quoted Prime Minister al-Maliki as claiming that the Constitution does not refer to the U.N. mandate6 when addressing international treaties and agreements International agreements include, but arc not limited to, formal treaties, conventions, protocols, charters, and covenants; they also include instruments of any form by which two or more states and/or international organizations resolve disputes, establish common understanding on contentious issues, or regulate matters of mutual concern. An article published by the United Nations entitled Definition of Key terms used in the UN Treaty Collection cites Art. 3 of the 1969 Vienna Convention on the Law of Treaties to confirm that international agreements also include oral promises such as one made by the Minister of Foreign Affairs of one State to his counterpart of another State. It states the following: Agreements The term "agreement" can have a generic and a specific meaning It also has acquired a special meaning in the law of regional economic integration. a) Agreement as a generic term: The 1969 Vienna Convention on the Law of Treaties employs the term "international agreement" in its broadest sense. On the one hand, it defines treaties as "international agreements" with certain characteristics. On the oilier hand, il employ s Ihc lcnn "imcrnalional agreements" for inslnimcnls, which do nol meet its definition of "lrealy". lls Art. 3 refers also to "international agreements not in written form". Although such oral agreements may be rare, llicy can have the same binding force as treaties, depending on the intention of the parlies. An example of an oral agreement might be a promise made by Ihc Minister of Foreign Affairs of one State to his counterpart of another State. The term "international agreement" in its generic sense consequently embraces the widest range of international instruments 5 See minutes of the thirty -fourth session of Parliament held on June 5. 2007. available in Arabic at http://w'ww\|XTrliamcnt.iq/modulcs.php?nainc=Ncwsifcfilc=articlc&sid=?^5 6 See Joshua Holland and Raed Jarrar. Iraqi Government to US: 'Don't Extend Mandate for Bush's Occupation. FOMCY.TCRT, Nov. 9. 2007, available at http://www .dobalpolic\.ora/seL'iinrA:/issnes/iraci/electioii/2007/l 109iraqtomi.htm. The UN article. Definition of key terms used in the UN Treaty Collection, is available at the Unilcd Nations Website. htlp:/Amtrcarv n.oi^/English/guidc.asp (last visited Dec. 16, 2007). 13 Witness Statement of Issam Michael Saliba - December 19, 2007 The Law Library of Congress - 4 Under the United Nations definition, the request made in the past by the Prime Minister of Iraq, the promise made by the U.S. Secretary of State on behalf of the multinational forces, and the resolution of the UN Security Council to extend the mandate of these forces constitute an international agreement that is subject to parliamentary approval under the Constitution of Iraq. The same applies to the present requests. V. Does it Matter whether the June 5, 2007 Resolution Is Binding or Not? Contrary to some media reports, the resolution adopted by the Parliament on June 5, 2007, is not a binding law. This is what Speaker Mahmoud al-Mashhadani also asserted in response to a question raised during the May 27, 2007 parliamentary session in which the resolution was first debated.8 The non-binding nature of that resolution does not, however, affect die necessity of obtaining parliamentary approval for any extension of the mandate of the multinational forces in Iraq. This is because the Government is required to seek such an approval under Section two of Article 73 of the Constitution rather than under the June 5 Resolution. The June 5 Resolution is a reminder to the Government of one of its constitutional obligations. VL Conclusion Based upon the foregoing, it is my conclusion that the Government of Iraq has a constitutional obligation to seek parliamentary approval with respect to any request submitted to the UN Security Council orthe multinational forces to extend their presence in Iraq. * See minutes of the 32nd session of Parliament held on May 27, 2007, in Arabic, available at lntp:/Av w.TOi1inmcnt.i(Vmodulcs.php"'namc^Nc s