Prosecution of U.S. Troops under Iraq SOFA

BY Herschel Smith
6 years ago

In U.S. Troop Immunity Barrier to SOFA (Status of Forces Agreement) one month ago, The Captain’s Journal fired a warning shot on the issue of Iraqi right to prosecute U.S. troops regardless of the sovereignty of U.S. laws and rules of engagement. As it turns out, our warning was prescient and this is indeed a problem.

American troops could face trial before Iraqi courts for major crimes committed off base and when not on missions, under a draft security pact hammered out in months of tortuous negotiations, Iraqi officials familiar with the accord said Wednesday.

The draft also calls for U.S. troops to leave Iraqi cities by the end of June and withdraw from the country entirely by Dec. 31, 2011, unless the Baghdad government asks some of them to stay for training or security support, the officials said.

It would also give the Iraqis a greater role in U.S. military operations and full control of the Green Zone, the 3½-square mile area of central Baghdad that includes the U.S. Embassy and major Iraqi government offices.

One senior Iraqi official said Baghdad may demand even more concessions before the draft is submitted to parliament for a final decision. The two sides are working against a deadline of year’s end when the U.N. mandate authorizing the U.S.-led mission expires.

The Iraqi officials, familiar with details of the draft, spoke on condition of anonymity because they were not supposed to release the information.

In Washington, the State Department confirmed a draft had been finalized but refused to discuss any details.

“There is a text that people are looking at,” spokesman Sean McCormack told reporters. “Nothing is done until everything is done. Everything isn’t done. The Iraqis are still talking among themselves. We are still talking to the Iraqis.”

U.S. officials declined to discuss details of the draft but characterized it as the administration’s final offer, saying no more concessions would be considered.

With Iraqi approval far from certain and the Pentagon already nervous about the immunity compromise, the officials said the administration was bracing for opposition from U.S. lawmakers, some of whom have already expressed concern about giving Iraq’s fledgling and untested courts any jurisdiction over American troops.

“Major crimes committed off base,” and “when not on missions.” So why should anyone oppose this? Keep reading.

Under the compromise, the U.S. would have the primary right to try troops and Pentagon contractors for alleged offenses committed on American bases or during military operations, the officials said.

Such language would presumably shield troops from prosecution for accidentally killing civilians caught in the crossfire during authorized combat operations.

But Iraq would have first crack at trying U.S. military personnel and contractors for major, premeditated crimes allegedly committed outside American bases and when they are not on an authorized mission, the officials said.

So what does all of this mean? It seems to presuppose that U.S. troops garrison at FOBs and never leave except for “authorized missions” (whatever that means, kinetic operations, patrols, public relations visits, building projects, refueling an empty gasoline tank on an Iraqi Police truck, or whatever – really, whatever). And what might these missions look like?

A joint U.S.-Iraqi committee will be established to coordinate American military operations, which must be carried out in accordance with Iraqi law and customs, the officials said.

They would look like whatever the Iraqis wanted them to look like. So here are some obvious questions. If U.S. troops are going to be garrisoned at FOBs and not contacting the population, what’s the purpose of their presence and why can’t they simply come home? What happens when a Marine is simply at an Iraqi Police Precinct because that is his “mission” for the seven months he is deployed, and he walks outside to take a piss in the latrine, and fires in self defense when he feels threatened because a rifle is pointed his direction? Who has jurisdiction? What laws govern his behavior? What happens when a fire team carries fuel to a Police truck and along the way a family wanting to punish them for perceived historical injustices manages to find a half-dozen “witnesses” to atrocities by this fire team?

Remember that the context of our objections is in part this:

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.

Too much has been given away in our lust to seal a SOFA, and it isn’t worth it. Most sensible people would now oppose their sons being deployed to Iraq under these rules. Even people who support the campaign must now object to further deployment of troops under these circumstances. The Captain’s Journal supports the troops before we support Operation Iraqi Freedom.

A joint U.S.-Iraqi committee. Remember these words. How many people alive today have ever worked in an efficient and effective committee?

Update: Welcome to Instapundit readers, and thanks to Glenn for the link. In further reading on the SOFA, General Odierno pointed out that Iran was attempting to buy off Iraqi parliament votes to reject the agreement (this pitiful agreement that places U.S. troops under the authority of a joint committee). In response, Maliki became enraged and said that Odierno was “risking his position.”



  • Warbucks

    Your cautions can also be seen in the good light of government-to-government progress towards a mutually accepted and respected goal – whatever that goal may be. When government-to-government concerns devolve to the nuance of covering sovereignty of the latrine, perhaps our mission is nearly complete, and force commanders learn to act accordingly.

    There is a good primer on such subtle nuances that many commanders use entitled “Negotiating Across Cultures” by Raymond Cohen, 2nd Edition. It is available through the non-partisan United States Institute of Peace (USIP) book store.

  • Pingback: SOFA (mise à jour) « En Vérité

  • http://www.rokdrop.com GI

    I would have to see the exact wording of the SOFA before drawing any conclusions, but from what I am reading in the media it appears this SOFA is similar to ones the US has with other countries that US troops are stationed in.

    I have written extensively US-ROK SOFA issues and the US-ROK SOFA has the same provision that off duty crimes are tried by Korean courts. And yes there have been US servicemembers sentenced to Korean jail on dubious charges.

    That is why my biggest issue with this is whether or not the Iraqi courts are established enough to ensure a fair trial of a US servicemember that does commit a crime off duty?

    Also the amount of soldiers that would get caught up in the Iraqi criminal court system would be extremely small because unless things have changed in recent years, when I was in Iraq we only left the FOB on missions. Your examples of checking up on community projects, meeting community leaders, working with the Iraqi Army, a Marine spending 7 months in an Iraqi police station etc. should all be considered as being on duty.

    That is why it is important for us to read what the exact wording of the SOFA is before drawing any conclusions condemning it.

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This article is filed under the category(s) Iraq,Iraq SOFA and was published October 17th, 2008 by Herschel Smith.

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