ACTION REQUEST: MANAGING NATO EXPECTATIONS FOR

C O N F I D E N T I A L SECTION 01 OF 02 BAGHDAD 000072

SIPDIS

E.O. 12958: DECL: 01/08/2019
TAGS: PREL PGOV MARR MOPS IZ NATO
SUBJECT: ACTION REQUEST: MANAGING NATO EXPECTATIONS FOR
FUTURE NTM-I LEGAL AGREEMENT

REF: A. USNATO 000006

B. USNATO-BAGHDAD POL-MIL EMAILS 7-9 JANUARY 2009

Classified By: Ambassador Ryan C. Crocker for reasons 1.4 (b)
and (d).


1. (U) This is an action request; see paragraphs 6 and 7.


2. (C) Summary: According to USNATO (Ref A and B),in the
North Atlantic Council (NAC) meeting on 7 January, NATO
member states proposed to send Assistant Secretary General
for Operations Howard and Legal Advisor DeWidts to Baghdad to
clarify the legal status of the NATO Training Mission-Iraq
(NTM-I) and pursue a new security agreement with the
Government of Iraq (GOI). In light of the difficulties Post
anticipates NATO would face pursuing a legal agreement
equivalent to the U.S.-Iraq security agreement, as some
member states called for, Post recommends that USNATO seek to
manage member states' expectations by impressing upon them
what Post assesses to be their viable options. These include
either continued reliance on the 21 December 2008 exchange of
letters with National Security Advisor al-Rubaie or
acceptance of most likely more limited legal protections in a
new agreement. Post supports NATO's desire to send
representatives to explore their options directly with the
GOI, but assesses NATO's best chances for a stronger future
legal arrangement lie in approaching the GOI gradually and
without unrealistic initial demands. Post also recommends a
demarche to the Italian Government to impress upon them the
importance of their continued participation in NTM-I and to
seek to assuage their concerns. End Summary.


3. (C) NTM-I is currently operating on the basis of an
exchange of letters (EOL) with Iraqi National Security
Advisor Dr. al-Rubaie on behalf of the GOI, which some
(including the Iraqi Prime Minister's legal advisor) find
ambiguous, in addition to the subsequent Iraqi Council of
Representatives (COR) Resolution 50 of 23 December 2008. The
Rubaie EOL provides assurances that NTM-I will be accorded
all the authorities, immunities, and exemptions contained in
the U.S.-Iraq Security Agreement. The Iraqi Prime Minister's
legal advisor has said that he does not consider the EOL to
be a legally binding international agreement, as it was not
approved by the COR and was superseded by COR Resolution 50.
Rubaie assured NATO Assistant Secretary General for
Operations Howard on 8 January in Washington, however, that
the EOL had been initialed and approved by the Iraqi PM and
was binding on the GOI. COR Resolution 50 establishes the
legal authorities and immunities of remaining Coalition
forces, including NTM-I, pending their withdrawal by July 31,

2009. These immunities fall short of those provided in the
U.S.-Iraq Security Agreement, giving the GOI more authority
to prosecute Coalition forces than U.S. forces when those
forces commit acts outside of agreed facilities and military
installations.


4. (C) According to USNATO (Ref A, B and earlier
communications),some NATO members have expressed concern, on
the one hand, about the uncertainty as to whether the GOI
plans to uphold the broader legal protections under the
Rubaie EOL and, on the other, the inadequacy of the
protections offered by the COR Resolution. We understand that
at the NAC meeting on 7 January, some members indicated that
if they do not achieve a new agreement confirming the same
legal protections as the U.S.-Iraq Security Agreement, they
Qlegal protections as the U.S.-Iraq Security Agreement, they
will withdraw their forces by July 31, 2009. Given these
concerns, we understand NATO is planning to send Howard and
Legal Advisor DeWidts to Baghdad at the end of January to
seek confirmation of the commitments provided by the Rubaie
EOL and to pursue negotiations for a new agreement that will
govern NTM-I's future status and role beyond July 31, 2009.


5. (U) In Embassy Baghdad's view, pursuing a new agreement is
not without risks. The PM's legal advisor has said that the
GOI has no constitutional basis for concluding legally
binding executive agreements with foreign states; all
treaties must be approved by the COR, increasing the scrutiny
of and political pressure on negotiations involving foreign
troops and Iraqi sovereignty. The Iraqi Council of Ministers
(COM) authorized the Minister of Defense, on behalf of the
GOI, to conclude Memorandums of Understanding (MOUs) with
remaining Coalition and NATO member states on the basis of a
template drafted by the PM's legal advisor. The COM has given
the MOD discretion to negotiate only two things with the
Coalition states and NTM-I: (1) their respective tasks and
activities; and (2) their facilities and bases. The MOD has
made clear that it cannot negotiate any other issues,
including jurisdictional issues. When concluding MOUs with

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the UK and Australia, the MOD hewed closely to the
COM-approved template. Romania's draft MOU, moreover,
remains stalled because of its demand for a single,
unexceptional sentence affirming Iraq and Romania's
international legal obligations in the field of human rights.
Bottom line: the MOD has little flexibility to negotiate
without going back to the COM.


6. (C) Post thus recommends that USNATO impress upon NATO
member delegations the obstacles they face under Iraq's
current legal framework and political environment, and our
analysis of NATO's realistic near-term options as they
prepare to send Howard and DeWidts to Baghdad:


A. Members may choose to continue relying on the Rubaie EOL,
which offers the broadest assurances available and
constitutes a strong political commitment from the Prime
Minister's office, while accepting the uncertainty of its
ambiguous legal standing from the perspective of some
authorities in the GOI. Howard and DeWidts could seek to
engage the GOI in discussions about NTM-I's future role in
Iraq without asking for official, written confirmation of the
EOL, which might involve other GOI authorities and invite
them to contradict Rubaie's assessment of its standing. A
new Exchange of Letters with Rubaie, with a text that might
be even more to NATO's liking, might sound attractive but
would suffer from the same ambiguity.


B. Alternatively, NATO may choose to seek explicit
confirmation from the GOI of NTM-I's legal status and pursue
a more certain legal agreement for the mission relatively
soon, in which case they will most likely obtain only the
protections provided by COR Resolution 50. In the latter
option, NTM-I may have to accept the withdrawal of personnel
from those member states who do not consider the COR
Resolution protections sufficient for their continued
participation.


C. The NATO negotiating team may pursue a staged approach to
NTM-I's future, if members can accept relying on the Rubaie
EOL for the near term. Negotiating a new agreement that is
substantively different from the COM-approved draft MOU would
likely take at least several months and involve multiple
Iraqi authorities with varying agendas. Post recommends at
the least that NATO explore arrangements for NTM-I's future
at a measured pace that does not invite GOI officials to
declare NATO's desired agreement impossible from the start,
nor entangle NTM-I's status with the remaining Coalition
member negotiations, particularly given the sensitivity of
the public to issues involving foreign troops as Iraq
prepares for provincial elections at the end of January.


7. (C) Given the possibility that some NATO members may be
compelled to withdraw, we judge it essential that NTM-I
retain the participation of the Italian forces, who are
conducting indispensible training of Iraqi Security Forces,
both in quantity of contributed forces and in the unique
competencies provided by the Italian Carabinieri. Post
recommends that Department and/or Embassy Rome demarche the
Italian Government to impress upon them the keystone role
played in NTM-I by the Italian contingent - and the continued
commitment of the U.S. to ensure Coalition partners do not
face undue legal or political risks while supporting the
mission in Iraq.
CROCKER