Wednesday, November 19, 2008

Iraqi SOFA Text

Here is a link to a copy of the Iraqi SOFA that I believe is under consideration by the Iraqi Parliament today. FYI, consideration of the agreement was interrupted by what the AP called an aggressive approach to a parliamentarian, as he read the agreement, by a Sadrist lawmaker.

Resolving a debate I had with . . . myself, here and here, contractor employees (and contractors) covered by the agreement are subject to Iraqi criminal and civil jurisdiction. See Art. 12, ¶ 2. Other provisions of the agreement exempt contractors and their employees from various taxes, licensing, and regulatory provisions. See e.g. Art. 15.

However, the question that arises when reading the definition of contractors is the potential hole in the agreement. The definition of contractors covered by the agreement may exclude contractors and their employees not contracted "with or for" the US Armed Forces. See Art. 2, ¶ 5. While this class, if it exists, would primarily be non-UCMJ covered contractors, it is an interesting question. As my former NLSO colleague pointed out, the State Department has already gone on record with the WSJ, here, as saying that "[the agreement] also applies to its contractors."

This potential hole brings to mind this question. If there is a class of non-covered US contractors, which is unclear from the text, does CPA Order No. 17 immunity (civil and criminal) still apply to them? In a quick review, I did not find an explicit renunciation of CPA Orders, generally, or CPAO 17, specifically.

As far as members of the armed forces, the immunity provisions are as expected. See Art. 12. This draft talks about Iraqi jurisdiction for off base, off duty, "grave premeditated felonies" to be enumerated later by a joint committee. See Art. 12, ¶¶ 1, 8. The US is given the initial task of certifying whether a member was on or off duty. However, Iraqi authorities may arrest and detain service members provided they turn them over to US authorities in 24 hours. See Art. 12, ¶ 5. In cases of those grave felonies, service members will be held for trial in a US facility. See id.

If this is in fact the final agreement, it is relatively protective of US court-martial jurisdiction. Note also that the agreement is subject to review every 6 months. Considering the level of debate in Iraq over this provision, I'd imagine we'll hear about an Iraqi change proposal on July 1, 2009.

2 comments:

Toussaint-Guillaume Picquet de la Motte said...
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Mike "No Man" Navarre said...
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