U.S. Troop Immunity Barrier to Iraq Status of Forces Agreement

BY Herschel Smith
5 years, 10 months ago

The Status of Forces Agreement (SOFA) between the U.S. and Iraq had been in the works for some time now, and there is one remaining hurdle. It’s a big one, and it’s very important for the sanctity of certain core legal principles in American jurisprudence. It has to do with the immunity of U.S. soldiers.

Legal protection for U.S. troops in Iraq is the most difficult issue still to be settled in U.S.-Iraqi talks on a new security pact, a senior Iraqi official said on Wednesday.

Deputy Prime Minister Barham Salih told Reuters in an interview that Baghdad was awaiting a response from the United States on a number of questions and proposals Iraq had put forward regarding immunity and some other outstanding issues.

“(Immunity) is probably the most contentious issue,” Salih said. “There is a history to it. It is very sensitive.”

There have been a number of high-profile incidents involving American soldiers killing or abusing Iraqis since the U.S.-led invasion that toppled Saddam Hussein in 2003.

Iraqis were horrified by photos in 2004 of U.S. soldiers abusing Iraqi detainees at the Abu Ghraib prison.

In 2005, U.S. Marines were accused of killing 24 civilians in Haditha, west of Baghdad. Most Marines charged in a U.S. military court have had their cases dismissed or been acquitted.

Abu Ghraib was an isolated incident, and the events surrounding Haditha have thus far proven that the Marines were entirely within their rights and rules of engagement in the room clearing operations that fateful day. Continuing:

Iraqi officials say such incidents have colored bilateral talks aimed at striking a deal to govern the U.S. troop presence here after a U.N. mandate expires at the year’s end.

Prime Minister Nuri al-Maliki has vowed that no foreigners will receive “absolute” immunity, and said last month that “the sanctity of Iraqi blood must be respected.”

Indeed! No foreigners will received absolute immunity! The U.S. always has the right to try U.S. servicemen under the appropriate laws, but if Maliki’s statement means that Iraq retains some sort of sovereignty over a Soldier’s or Marine’s legal status, such that the U.S. is not empowered to find innocence if appropriate (i.e., Iraq is granted veto over decisions in U.S. courts or given the right to their own court proceedings which must be respected by the U.S.), then The Captain’s Journal questions whether that is a legal arrangement. The U.S. constitution is a guarantor of the rights of all U.S. citizens whether Iraq wants a say or not.  No treaty trumps the U.S. constitution.  It reigns supreme over American laws and citizens.

But there is an even more pragmatic issue regarding jurisprudence. The societies are so different as to be incomparable, leaving one to question whether it is even possible for an American to have a “fair” trial in Iraq. To mention one, recall TCJ article Iraq: Land of Lies and Deceit, in which cited a Hawaii Reporter article on the nature of witness-bearing in Iraq as it had to do with the Haditha case. It is lengthy but very important.

A British case which speaks directly to the credibility of tribal witnesses and to the Islamic tribal tradition of “blood money” collapsed November 3, 2005. On trial were seven British soldiers charged with murder stemming from a May, 2003 incident in Ferkah, Iraq. All charges were dismissed after it became clear that the key witnesses were lying in order to gain “blood money”. The BBC describes the collapse of the trial as follows:

“…it has become clear to everyone involved as the trial has progressed that the main Iraqi witnesses had colluded to exaggerate and lie about the incident.”

Three women had admitted lying about being assaulted by British soldiers and one witness had told the court that Mr. Abdullah’s family encouraged others to tell lies, Judge Blackett said.

Witnesses some distance from the scene “could not possibly have seen what they said they saw”, he added.

And Iraqi court witnesses had used the case to seek “compensation to what were patently exaggerated claims”, he said.

One witness at the court martial, Samira Rishek, a Marsh-Arab who had claimed to have been brutally beaten by the soldiers while she was pregnant, admitted to the court it was a “wicked lie”.

The court heard that Mrs. Rishek, along with other witnesses, was paid $100 a day to give evidence at the trial and that she only agreed to give evidence after being told she would be paid.

BBC correspondent Paul Adams said there was an “underlying sense” that some of the witnesses were “out to try and get something for themselves”.

A number of questions were going to be asked about why the trial had been mounted, he added.

Roger Brice, solicitor for defendant Pte Samuel May told BBC News there had never been a case to answer.

“What the judge has done today is stop the case when the prosecution have concluded… there was never a case for any of the defendants to answer.

“He summed up the fact that the evidence as it came out in these last two months has been one of acknowledged lies.”

Why all the lies for a paltry $100 per day? It makes sense for a tribal person who believes that the blood money system is the way of the world. A February 2, 2004 BBC article explains the workings of the blood money system in a case involving only Iraqis:

On the side of a road in a ramshackle tent tribal elders have gathered for a court case, but it is not an ordinary law court, it’s a tribal court. The case defies logic – one brother has killed another, but the tribe they belonged to is blaming a rival tribe for the killing.

Their argument is that if there had not been a feud with the other tribe, the killing would not have taken place; they are now demanding $20,000 in blood money….

At the tribal court, the discussion is heated, but not about guilt or innocence. Through a complex network of tribal support, both sides know where they stand, now it is just a matter of agreeing the money.

Eventually the price is knocked down to $4,000 and a woman, her value to be determined in later negotiations.

For many Iraqis it’s a system that works, and in a violent region recompense appears much more practical than locking someone away.

The logic in the British case and possibly in Haditha is simple: If the coalition did not have a fight with the insurgents, the deaths would not have occurred. The deaths cause a loss in the resources of the tribe. The tribe cannot file a claim with Zarqawi–he might chop their heads off–therefore it is the coalition that owes blood money. In the eyes of tribal people such as Haditha residents, this debt is owed regardless of who actually killed the 24 people in Haditha or the circumstances of those deaths. The payment of blood money is not an admission of guilt; it is a balancing of tribal obligations.

[ ... ]

In Islamic and Arab traditions, blood money is the money paid by the killer or his family or clan to the family or the clan of the victim. It is unlawful for a believer to kill a believer except if it happens by accident. And he who kills a believer accidentally must free one Muslim slave and pay ‘Diyat’ to the heirs of the victim except if they forgive him. The tradition finds repeated endorsement in Islamic tradition; several instances are recorded in the Hadith, which are the acts of the Prophet Mohammad.

The Blood – Money tradition has found its way into legislation in several Islamic countries, including Saudi Arabia, Iran and Pakistan. Some of these countries also define, by lawful legislation, a hierarchy of (cash) rates for the lives of people….

Are lies being told to obtain blood money payments? Some insight comes in this response to the collapse of the British trial by Stephan Holland, a Baghdad-based US contractor.

I’ve been in Iraq for about 18 months now performing construction management. It is simply not possible for me to exaggerate the massive amounts of lies we wade through every single day. There is no way – absolutely none – to determine facts from bulls*** ….

It is not even considered lying to them; it is more akin to being clever – like keeping your cards close to your chest. And they don’t just lie to westerners. They believe that appearances–saving face–are of paramount importance. They lie to each other all the time about anything in order to leverage others on a deal or manipulate an outcome of some sort or cover up some major or minor embarrassment. It’s just how they do things, period.

I’m not trying to disparage them here. I get along great with a lot of them. But even among those that I like, if something happens (on the job) I’ll get 50 wildly different stories, every time. There’s no comparison to it in any other part of the world where I’ve worked. The lying is ubiquitous and constant.

With this understanding of how one people relates to another, how can the U.S. even consider the possibility of relinquishing sovereignty over the disposition of charges against U.S. servicemen? In our judgment, the SOFA is not so important that we must give up our rights to sovereignty over our own jurisprudence. Hopefully, this is a nonnegotiable in the process.


You are currently reading "U.S. Troop Immunity Barrier to Iraq Status of Forces Agreement", entry #1294 on The Captain's Journal.

This article is filed under the category(s) Iraq,Lawfare and was published September 10th, 2008 by Herschel Smith.

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