Last (?) Thought on the US-Iraq SOFA

Interesting Washington Times editorial today, here, on the US-Iraq SOFA in light of CAAFlog's post below. It highlights some "flaws," according to the author, in the SOFA, including the 900 pound gorilla in the room, whether the agreement has retroactive application.

The story contains one error that highlights another issue in the SOFA. Art. 12, ¶ 2 is the provision that waives immunity for some subset of US government contractors previously given to them in CPA Order No. 17, for an in depth discussion see our prior coverage here. The story incorrectly attributes this provision to ¶ 1. Paragraph 1 is actually the provision granting Iraq very limited jurisdiction over servicemembers for "grave premeditated," off base, and off duty felonies. The SOFA then grants servicemembers some comfort in ¶ 8, stating, "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 mistake of combining the contractor clause (¶ 2) with the servicemember clause (¶ 1) makes it seem like the SOFA gives contractors these due process guarantees. However, the reality is that the SOFA text does not, though an agreement to that effect could be struck. Rather, US government contractors who lose their immunity pursuant to the agreement are guaranteed no protections other than those in the Iraqi legal system. A rather startling change, but that's what the text says. And this state of affairs is a common one in nations with more developed court systems. For example, DoD contractors in Japan were subjected to Japanese law pursuant to the 1960 US-Japan SOFA. See Article XIV of US-Japan SOFA here. However, the 1966 US-Korea SOFA and agreed minutes provided contractors with rights similar to those given to servicemembers in the US-Iraq SOFA, e.g. due process protections. See US-Korea SOFA, Art. XV, available here. Thus, contractors in Iraq received the less cushioned version of the "SOFA rights" spectrum.

As far as the retroactivitiy issue, the only servicemembers that would want to follow the issue would be someone like former Army Private Steven D. Green who is accused of raping an Iraqi girl and murdering her and her family near Mahmoudiya, see prior coverage here. Green's case just wrapped up a suppression hearing, after delays due to the big Kentucky quilt show earlier this year, see here. Others involved in the case received 90-110 year sentences at courts-martial, see CNN report here. As for contractors, see reports here and here about their reactions.