SOFA Still in the works

>> Thursday, October 16, 2008

I have to give the Bush Administration credit. They are really working hard to get this Status of Forces Agreement (SOFA) done before the new year. The reported major sticking point has been iraqi legal jurisdiction over american forces abroad. that may be on the verge of resolution,

Iraqi officials familiar with the draft say it allows American troops to be tried in Iraqi courts for major crimes committed off base and when not on missions. The officials, who spoke on condition of anonymity because they were not supposed to release the information, say it also calls for U.S. troops to leave Iraqi cities by the end of June and withdraw from the country by Dec. 31, 2011, unless the Baghdad government asks them to stay.

this raises some interesting legal mechanics questions. The biggest i can see is that the Iraqi's will be able to demand extradition of soldiers from the US if they want to charge them for one of these crimes in Iraq. That may lead to a situation where a former marine or army soldier is discharged then charged by Iraqi's with a crime. He would have to be extradited from the US to Iraq to stand trial. That could be very ugly.

The second point to consider is the definition of "on mission". this will be one of the most interesting negotiations because a broad definition of on mission is likely to undercut the oversight clause. Once the language is revealed we will know whether this is a real agreement with major teeth for the Iraqi's or just a pr release designed to make it look like al-maliki won out over the united states.

It will also be an interesting procedural question as to how this is eneacted into law in iraq. When the issue of not making the deal in time first arose the deadline was july because any proposed deal had to go through the parliment and it appeared at the time that there was no chance of that happening should negotiations extend past july. Well, we are well past that point. Juan Cole had part of a post on this topic,

McClatchy is reporting that Iraqi vice president Tariq al-Hashimi, a Sunni Arab, is expressing severe doubts that any security agreement can be concluded by the end of the year. He tells Leila Fadel that even if its text were soon finalized, the agreement would have to be passed by the cabinet, by the national security council and by parliament in time to take effect January 1.

Hashimi is also worried about a return of large-scale violence at the end of the year. How the Shiite-dominated government treats the Awakening Councils or pro-American Sunni militias, which it is now assuming responsibility for, will help determine if the civil war returns.

The alternatives to concluding the agreement are few. Iraq could go back to the UN Security Council for a one-year extension of its mandate to the Multinational Forces in Iraq, giving US troops legal standing to perform security duties in a foreign country. Moreover, Russia may raise difficulties in the UNSC, in retaliation for Washington's siding with Georgia in the recent police action there.

Or the prime minister, Nuri al-Maliki, could sign an executive memorandum of agreement with George W. Bush in hopes that it would take on the force of law with time. Both steps have drawbacks. Iraqis are not eager to postpone their return to full sovereignty in international law for yet another year. And, an executive-branch memorandum of agreement could easily be challenged.

The nightmare scenario is that a US platoon gets in a firefight in a village and accidentally shoots up a house full of civilians, and are overwhelmed by Iraqi troops and police and dragged before the local qadi and summarily executed. Without a Status of Forces Agreement, it is not even clear that the Iraqi police and judge in such a situation would be brought up on charges; after all,they had just arrested and punished foreign "murderers" with no legal standing to be in Iraq in the first place.

As noted in the article the way to get this proposed agreement into law is not clear and every option has significant negatives. Stay tuned...


O-le,O-le, O-le, O-le! O-le, O-le!

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