I've been railing pretty hard against SOFA agreements lately because they appear to be slanted in favor of the United States, with the countries signing them getting the worst of the deal with regards to justice (for example-what happens if a US soldier rapes someone in one of the many countries the US is occupying? a SOFA covers that). An example:

It is difficult to determine the precise number of US servicemen accused or convicted of unlawful killings during the war. A June 6 Associated Press article concluded that "since the Iraq war began, at least 10 US military personnel have been convicted of a wide array of charges stemming from the deaths of Iraqi civilians. But only one sentence has exceeded three years." Those 10 convictions do not reflect the dozens of investigations that have not produced court martials nor the large number of prosecutions that have led to acquittals.

The case of Ilario Pantano is typical of the way the scales of justice tip in occupied Iraq. Pantano was a Marine lieutenant accused of killing two Iraqi captives, Hamadaay Kareem and Taha Ahmed Hanjil, in April 2004, after the platoon he commanded captured them as they drove away from a house the Marines had just raided as a suspected insurgent hideout. The two officers with Pantano at the time allege that he ordered the captives' handcuffs removed, had them assume defensive positions, instructed his soldiers to look away, then shot Kareem and Hanjil in the back. Pantano emptied two magazines into them.

And I'm suspicious about any signing of one NOW in Iraq because, um, we're LEAVING, right??????????

But what if

There is nothing unusual in American soldiers being judged under US jurisdiction (and by their peers, as they are in the military justice system) rather than the Iraqi courts, Bassiouni says. Such matters are usually covered by a so-called Status of Forces Agreement (SOFA) that defines relations between US forces and their host country - like the one between the US and Japan. "In the SOFA the US has the primary jurisdiction to prosecute," Bassiouni told Asia Times Online, "but it has the obligation to prosecute." If it fails to do so, the host country gets the opportunity. "But the Bush administration has refused to have a SOFA not only with Iraq but with Afghanistan," Bassiouni notes. This affords American soldiers total impunity from Iraqi or Afghani courts.

Bassiouni points out that the issue surfaced on Afghan President Hamid Karzai's June 15 pilgrimage to the White House. "[When] Karzai was here he raised the question once again. He said we need a SOFA, you have no right to detain Afghani citizens in Afghanistan," says Bassiouni. "And Bush says absolutely not. I mean, that arrogance of power." Instead, a "memorandum of understanding" for a long-term security "partnership" was signed, offering only joint "consultation" on military operations.

I believe this may be in reference to the United States airstrikes in Afghanistan in May 2006 that killed 35 civilians in the Kandahar province.

Ratner says the policy of giving US servicemen and high officials impunity to order or carry out torture or killings is no accident.

"I think it's intentional," Ratner told Asia Times Online. "The military is saying, in Afghanistan and Iraq, 'if you mess with us you're going to die and no one is going to be held accountable'." The motivation is twofold, he believes. "Part of it is terrorizing the population and part of it is they want our army to be killers. They're frightened that if they discipline or prosecute them, they'll hold back." If the intention is to terrorize the population, ordinary Iraqis are apparently getting the message. Reports from Iraq indicate that Iraqis stay as far away as possible from trigger-happy convoys of US troops, which are a prime target of insurgent attacks. But the use of excessive force and concomitant impunity is also poisoning what little remains in the well of Iraqi goodwill towards America.

"What we are doing politically through the Abu Ghraib situation, through the non-punishment of people, through the policy of basically giving plausible deniability to all of the officers," says Bassiouni, "is reinforcing the popular perception of anti-Americanism and that's the strongest support we're giving to the resistance." ...

It is not only Iraqis who feel hard done by Bush-era US military justice. When Italian special forces agent Nicola Calipari was shot dead by US soldiers on March 4 while driving towards a checkpoint as he attempted to deliver Italian journalist Giuliana Sgrena to Baghdad airport (after apparently freeing her from her insurgent kidnappers) , many assumed America's relations with its key coalition ally would ensure due diligence. But despite evidence that little warning was given before US soldiers fired on the Italian convoy, a joint US-Italian investigation - the conclusions of which the Italians refused to cosign - found no US soldier at fault.

The Calipari case shows that the US is willing to go to great lengths to hold its soldiers above the law, says Ratner. "Right now the Bush administration is not about to prosecute anybody for any crime in a serious way," he says. "Even with someone who politically they had to get along with like the Italians, it didn't make any difference to their bigger aim, which is to protect their soldiers and basically have them be looked at as a killing force that's just not accountable."

The high cost of impunity
That American soldiers are perceived by Iraqis as being above the law has serious implications for the US-Iraqi relationship. It feeds Iraqi cynicism about the legitimacy of the transitional government and reinforces assumptions that Americans are the ultimate arbiters of Iraq's purported sovereignty.

"[Iraqis] have absolutely no illusions that the present government has very little ability to exercise sovereignty," says Professor Bassiouni. "Thirty years under Saddam's regime brought people a certain type of realism. Power, control - corrupt absolutely. Saddam controlled absolutely, now the Americans are controlling absolutely."