EDITORIAL: Problems with the SOFA

By | Tuesday, December 2, 2008

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The new U.S.-Iraq security agreement ratified last week by the Iraqi Parliament a mixed bag. At one level, it ratifies a new and positive strategic reality - specifically, the success of the U.S. troop surge and the defeat of terror networks inside Iraq. But it contains some objectionable provisions, including an end to legal immunity for Defense contractors.

Under the Status of Forces Agreement (SOFA), which would take effect Jan. 1, U.S. troops will withdraw from Iraqi cities, towns and villages by June 30, and all U.S. troops must leave Iraq by midnight on Dec. 31, 2011. To win support from Sunni members of parliament, Iraqi Prime Minister Nouri al-Maliki made a number of 11th-hour concessions - linking the deal to the enactment of political reforms and to approval by the Iraqi public in a July 2009 referendum. If Iraqi voters reject the agreement, then U.S. forces would have to leave the country within a year unless a new arrangement is put in place.

The U.S.-Iraq agreement represents a defeat for Iran, which lobbied unsuccessfully to kill it. Iran reversed course several weeks ago and said Baghdad had done "very well" to approve it. In a real sense, Tehran had no choice. U.S. and Iraqi forces have been very successful in capturing Iranian Revolutionary Guard members and other agents who cross the border to commit acts of violence. Given its inability to change the realities on the ground, the Iranian government decided to put the best face on things by endorsing the agreement for now.

But the agreement - an executive accord, which does not require Senate approval - nonetheless contains some major flaws. U.S. negotiators yielded to the Iraqi demand to strip legal immunity from American contractors in Iraq. "Iraq shall have the primary right to exercise jurisdiction over United States contractors and United States contractor employees," Article 12, paragraph 1 of the agreement states. In Article 12, paragraph 8, the agreement adds, "Where Iraq exercises jurisdiction pursuant to paragraph 1 of this Article, members of the United States Forces and of the civilian component shall be entitled to due process standards and protections consistent with those available under United States and Iraqi law."

The agreement provides no guidance on a number of critical questions: What happens when the United States and Iraq disagree over a due process standard? Could Iraq prosecute Americans for past "crimes"? This last question is particularly important because the Iraqi government's insistence on ending legal immunity for American contractors results in large part from the September 2007 Blackwater incident, during which security guards who came under fire in downtown Baghdad killed 17 Iraqis in a firefight. The Iraqi government's hurried decision to blame Blackwater despite the weight of evidence that its guards were ambushed does not bode well for American contractors in Iraq who try to protect themselves against future attacks.

Washington's failure to insist on retaining jurisdiction over U.S. contractors could prove very harmful over the next few years.

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