Today, with a quorum of 172 MPs present out of the 329 total seats in the legislature, the majority in attendance at an emergency legislative session voted to ask the Iraqi government to end foreign troop presence in Iraq. Most of the MPs in attendance represented Shiite interests, as the Kurdish factions of parliament and most Sunni MPs boycotted the session.
The non-binding resolution consists of five articles. The first article stipulates that the Iraqi government end the work of the International anti-ISIS Coalition in Iraq due to the defeat of ISIS in Iraq. While it is true that ISIS has been territorially defeated in Iraq, the organization maintains an active and deadly presence in the country.
The second article stipulates, “[the] Iraqi government work on ending the presence of any foreign force in Iraqi territory and preventing it from using Iraqi territorial waters or airspace for any reason whatsoever”.
The resolution further requested that the Iraqi Minister of Foreign Affairs file a complaint at the United Nations against recent US airstrikes. The Iraqi Ministry of Foreign Affairs announced on Sunday that it has done so.
Because the resolution is not binding, it carries no immediate consequence, legal or otherwise. There are also some tricky legal questions at play due to Iraq’s precarious political situation leading into the current crisis.
Caretaker Government
Iraq’s Prime Minister Adil Abdul-Mahdi submitted his resignation to Parliament on November 29, and now leads a caretaker government as Iraqi legislators negotiate the formation of a new cabinet and the appointment of a new prime minister.
The Iraqi PM, during a December 4, 2019 Council of Ministers session, asserted that his caretaker government was unsure whether it had the authority to send a budget bill to the parliament. This begs the question of whether or not the caretaker government can engage in foreign policy decisions.
In his speech to parliament on Sunday, Abdel-Mahdi explained that the status of his cabinet as a caretaker government and the sensitivity of the topic led him to raise the issue with the legislature despite not having a constitutional obligation to do so.
“We could, according to the explanations of the Iraqi Minister of Foreign Affairs and legal experts…take the decision that the Iraqi government deems as ensuring Iraq’s interests without returning to the honorable council of representatives,” the PM said in his speech to the parliament.
However, he went on to say:
“The reality of the current government and conditions in the country, and because this topic is extremely important due to what is ongoing in Iraq and the region and the expected ramifications following the martyrdom of two great commanders like Muhandis and Soleimani…we present before your honorable Parliament to seriously think and study options and the ramifications of each before making a decision.”
He proceeded to outline two policy options concerning the presence of foreign troops: either the immediate removal of troops using urgent measures, or a gradual withdrawal over time.
“The recommendations that I recommend as the Prime Minister and the Commander-in-Chief of the armed forces is the first choice, despite the internal and external difficulties that could face us, but it remains best for Iraq practically and fundamentally,” the PM argued.
Iraqi law does not originate in Parliament
According to article 61 of Iraq’s constitution, the Iraqi Parliament can enact federal laws, among other tasks, but cannot make decisions that fall within the Federal government’s codified responsibilities. This includes decisions about whether or not foreign military forces can operate within Iraq’s sovereign territory.
Furthermore, Article 60 and article 80 of the Iraqi constitution specify that it is the Iraqi president and the prime council of ministers (cabinet), led by the prime minister, who can send draft laws to the parliament. Thus, the parliament does not seem to have the power to force the government to carry out a parliamentary resolution.
“Today's parliamentary session was voted on by a parliamentary decision stipulating the cancellation of the 2016 agreement that states Iraq’s membership in the international coalition to combat ISIS, and there is no evidence to evacuate US or foreign forces, and the parliamentary decision is far from canceling the 2008 Iraqi-American agreement,” Husham al-Hashimi, an Iraqi researcher on extremism, said in a tweet.
“According to a legal expert who advises the parliament, there are precedents in which the Federal Court has cancelled more than once parliamentary decision like this. There is no legal or constitutional value to any decision made by the Parliament, since it is not among the duties of the Parliament to legislate decisions, and the government is not bound by any decision issued by the Parliament,” al-Hashimi added, explaining parliamentary resolutions were just “recommendations”.
“Basically, the session was a show. The decision simply asks Government to do whatever it should do to limit and gradually end foreign forces in Iraq, arms under Gov control only. No decision to expel trainers,” Sarkawt Shams, a Kurdish MP in the Iraqi Parliament, said in a tweet.
The US has thousands of troops in Iraq, along with a formidable array of military equipment including planes. They have been critical in the fight against the Islamic State in Iraq, conducting combat operations in addition to advising, training, and assisting Iraqi forces. Their removal could severely impact the fight against ISIS.
