Iraq's SOFA Agreement and Will This Become A Permanent Military Presence Issue? Somervell County Salon-Glen Rose, Rainbow, Nemo, Glass....Texas


Iraq's SOFA Agreement and Will This Become A Permanent Military Presence Issue?

15 May 2007 at 10:05:10 PM

I've been reading Chalmers Johnson's book "Nemesis" this month, just an excellent book. I have to keep putting it down to mull over aspects of the book that I hadn't considered before, such as the effects of debris in space from spent satellites. He makes some points about United States imperialism as manifested in our troops being stationed in *host* countries, that actually pay for the privilege of having our bases there. He calls it Protection Money and a number of middle eastern countries pay it.

One part of this is the Status of Forces Agreement (s) that are signed that set conditions for how American troops will act in the host countries, including under the host country's laws.  Chapter 5 discusses how this works.

In seeking permission to build or use one or more military bases in a foreign country, the United States first negotitates a fundamental contract- one that commonly creates an "alliance" with the other state. These basic agreements are usually short, straightforward treaties that express "common objectives" related to "national security" and "international threats to the peace". .. Once the United States as concluded this basic documents, it then negotiates a Status of Forces Agreement (SOFA) intended above all to put any US forces stationed in the host country as far beyond its domestic laws as possible. What SOFAS do.. is give American soldiers, contractors, Department of Defnes civilians and their dependents a whole range of special privileges that are not available to ordinary citizens of the country or to non-American visitors..  p 171.

The CPA (Coalition Provisional Authority under Paul Bremer) attempted to get a SOFA signed before the *sovereignty* handover in 2004.

  At present, Coalition forces in Iraq are subject to the exclusive jurisdiction of their parent states.  One of the early orders issued by the CPA specifically stated that Coalition forces were immune from Iraqi legal process. [1]   Consequently, under the present legal regime, non-Iraqi judicial processes determine what actions by Coalition personnel constitute a crime.  For example, an American serviceman is bound to uphold international law such as the Fourth Geneva Convention and relevant American law such as the Uniform Code of Military Justice.  However, adjudication of any alleged violations of the foregoing is done by an American court martial.  If an Iraqi claims he is unlawfully detained or that he has been tortured, he could not at present call the Iraqi police or ask for relief from an Iraqi court.  His sole remedy would lie in a foreign court.

            After June 30th, however, Coalition troops will no longer be forces of occupation.  Yet, exactly what Coalition forces will be the day after the transfer of sovereignty is very much a mystery.  ..

Initially, though, it was envisioned that a series of bilateral Status of Forces Agreements (SOFAs) would be negotiated prior to the handover of sovereignty.  SOFAs are international agreements that delineate the relationship between foreign forces and host governments.  They cover a broad range of issues such as taxes, compensation for claims, the exit and entry rights of forces, and most importantly criminal and civil jurisdiction over foreign forces.  Traditionally, most SOFAs grant the host country jurisdiction over service personnel who are alleged to have violated domestic laws.  There are generally two exceptions to that rule: the foreign government retains jurisdiction over its nationals when their alleged crimes are against its other service personnel or when the national's alleged offense took place in the scope of his or her official duties. [3]   For example, a soldier who mistakes civilians for insurgents during a raid is performing an official act and would generally be subject to his or her own government's jurisdiction.  In regard to Iraq, where operations are actively ongoing, it is likely that Coalition members will seek extremely broad protection for their personnel.

            Historically, SOFAs have often proved to be a source of tension between the United States and other governments.  Two years ago, protests erupted in South Korea when two American servicemen were prosecuted and acquitted by an American court martial after their tank ran over two teenage girls.  The SOFA between the US and Japan has led to strained relations in regard to crimes committed by American serviceman on the island of Okinawa.  And in the 1970s, the Ayatollah Khomeini railed against the SOFA between Iran and the US, arguing it was a source of national shame.

You see? The SOFA allowed the US military to be above the law of Japan, in that instance.

            The November 15, 2003 Agreement between the CPA and the Iraqi Governing Council outlined the steps for the restoration of Iraqi sovereignty.  The most noted part of the agreement was the drafting of a fundamental law or interim constitution for the transitional government.  Equally important, though, was Section 2 of the Agreement, calling for SOFAs between Coalition countries and Iraq to be completed by the end of March 2004.

             However, the Governing Council has now stated that any possible agreement will have to wait until the establishment of a sovereign government after the June 30th handover.  Indeed, SOFAs are traditionally negotiated between sovereign governments.  In fact, it is questionable whether any agreement between the CPA and the Governing Council could legally bind the transitional administration.  While the Governing Council in conjunction with the CPA may be able to form domestic fundamental law for a transitional administration, their ability to commit Iraq to durable international agreements is a different matter.

So, there was no SOFA signed before the handover nor has there been one after. However, as this article from MSNBC says, from June 2006, there HAS been an *Order 17*.

What Bremer did not mention in his book is a document—Coalition Provisional Authority Order Number 17—that he signed on June 27, 2004, just one day before he scuttled out of there, that continues to set the ground rules for the American occupation of Iraq. It is not a “Status of Forces Agreement” (SOFA) like the ones we have with our NATO allies or Japan or other countries where U.S. forces might be based. Those have to be negotiated, and the talks are tough, because truly sovereign countries think sovereignty truly is important. They never like the idea that American soldiers who commit crimes on their territory are not subject to their laws.

But Order 17 was not negotiated with the Iraqis, it was promulgated by the Americans, and it’s purely of the people, by the people and for the people that the United States brought into Iraq. Under its provisions, they are exempt from Iraqi laws, cannot be arrested, prosecuted, tried or taxed. Nor do they have to pay rent for the buildings and land they turn into bases. Ambassador Barbara Bodine, who served in Baghdad immediately after the invasion and subsequently negotiated military agreements with other countries before leaving the State Department in 2004, describes what Bremer pulled off as “a SOFA on steroids.” It’s all about what the Americans get to do, and what the Iraqis get to do for them.

Order 17 applies not only to soldiers but to the rest of that vast, motley array of foreigners that originally came in with Bremer and stayed, under different guises and in ever-growing numbers, after he left: consultants, contractors and the “security contractors,” known in other places and times as mercenaries.  Under Order 17, as long as they’re working on U.S. government contracts and subcontracts they are immune to arrest and prosecution, taxes and duties imposed by Iraqi law. (I would invite readers to look at the text.) Implicitly and in fact, Order 17 has given these characters a license to kill.

Why talk about it now? Because today—and this is no mean accomplishment for the American occupation and for the Iraqi people—there actually is a sovereign government in Baghdad under Prime Minister Nuri al-Maliki.

That brings me to the article I saw the other day, from Gulf Daily News.

BAGHDAD: The leader of Iraq's largest Shi'ite political party on Saturday called for a "security agreement" to be negotiated between Iraq and US-led forces to outline the authorities of each side in a further indication of growing frustration over America's role in Iraq.

Abdul Aziz Al Hakim did not give more details of the proposed pact, but he has in the past repeatedly complained that the US military's lead in the fight against Sunni insurgents hampered the work of Iraq's Shi'ite-dominated security forces, contending they were better qualified to fight them given their knowledge of the terrain and language.

Al Hakim's party, however, has been firm that US and other foreign troops in Iraq should not leave before the country's fledgling security forces are competent enough to take over the responsibility for security.

"We are working toward reaching a security agreement to define the authority of each side," Al Hakim told a news conference after a two-day meeting of his party, the Supreme Council for the Islamic Revolution in Iraq.

What does this mean? Is this SOFA to be decided ONLY until /unless US mliitary forces are brought home? Or, as the second part of what he says, that US forces should not leave until Iraq's security forces are competent enough to take over, would the SOFA have a limited time frame or will it be, like other SOFAS, designed to set US military parameters for an indefinite period of time that soldiers will be in Iraq? We already know that there is some sleight of hand going on with Congress, where congress is attempting to say that the mission will be redefined, with military staying in Iraq AFTER some supposed bringing them home, but now they will be "Fighters of Al Qaida". All that does is call the military something different.... so is this person in Iraq colluding with the United States to create a SOFA for a long term presence?

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