Speaking of SOFAs, here's a German Supplemental Agreement question

I understand that in 1993, the parties to the German Supplemental Agreement to the NATO SOFA negotiated an amendment that included the following Article 18A:

1. The authorities of a sending State shall notify the competent German authorities without delay in the event that they decide, in exercising jurisdiction under Article VII of the NATO Status of Forces Agreement, to undertake a prosecution which may lead to the imposition of the death penalty.

2. Taking into consideration the provisions of German law, the authorities of a sending State shall not carry out a death penalty in the Federal Republic nor carry through a prosecution which may lead to the imposition of such a sentence in the Federal Republic.

Does anyone know whether this provision was actually ratified? If so, does it still remain in effect? (This may be an instance where CAAFlog's navalcentric nature may be a drawback -- very few Devil Dog or Squid lawyers will be familiar with Germany's SOFA provisions.)

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.

Have SOFAs become less comfortable over time?

The No Man is on the cutting edge of Iraq-U.S. SOFA developments, so I'll provide the knife's dull back side of history.

In his indispensable book on Army lawyers in combat, Army JAG Corps Regimental Historian Fred Borch discusses the status of forces in military operations from 1959 through 1994. Frederic L. Borch, Judge Advocates in Combat: Army Lawyers in Military Operations from Vietnam to Haiti (2001) (available here new and here used).

Here's what Colonel Borch tells us about the legal status of U.S. forces in Vietnam:

[O]fficers [held] diplomatic status, which carried with it complete criminal and civil immunity from Vietnamese law. Enlisted soldiers enjoyed diplomatic status equivalent to that of clerical personnel assigned to the U.S. embassy. The government of South Vietnam thus had neither criminal nor civil jurisdiction over [U.S.] soldiers . . . and criminal jurisdiction . . . was exercised exclusively under the Uniform Code of Military Justice, an arrangement that continued throughout the duration of the conflict.

Id. at 6.

COL Borch adds: "As the American buildup began in the early 1960s, . . . the United States and the Republic of Vietnam chose not to negotiate a Status of Forces Agreement like those used in Japan, Korea, and the Philippines. Consequently, all U.S. forces remained immune from Vietnamese criminal and civil law until the end of the war in 1975." Id. at 53 n.7.

Concerning our military operations in Grenada in 1983, COL Borch reports: "Prior to the U.S. intervention in Grenada on 25 October, there existed, of course, no [status of forces] agreement regarding the United States and its military personnel." Id. at 78. A post-military operations SOFA accorded U.S. forces "the same status provided the technical and administrative staff of diplomatic missions, a limited form of diplomatic immunity." Id. at 79.

During 1990 disaster operations in Western Samoa, the U.S. obtained "diplomatic status for all joint task force personnel equivalent to that afforded to the administrative officers and technical staff of a diplomatic mission." Id. at 281. And during 1991 relief operations in Bangladesh, U.S. forces received "diplomatic status equivalent to that provided members of the administrative and technical staff of the U.S. embassy in Bangladesh." Id. at 290.

Then-LTC Marc Warren observed that "[i]n Kuwait, United States forces were initially and unilaterally granted complete immunity. During Operation Desert Storm, Saudi Arabia extrapolated an earlier limited agreement to apply to arriving United States forces." LTC Marc L. Warren, Operational Law -- A Concept Matures, 152 Mil. L. Rev. 33, 49 (1996). A May 1995 agreement with Haiti "provided U.S. Support Group, Haiti, personnel with the 'same status as that provided to the administrative and technical staff' of the U.S. embassy." Borch, supra, at 262.

No Man, does the new U.S.-Iraq SOFA provide at least the same level of A & T status diplomatic immunity that U.S. servicemembers received in most of these historical examples? Or are our servicemembers in a hostile zone more vulnerable to the exercise of host nation jurisdiction than were servicemembers in previous combat operations and operations other than war over the past half century?

Iraqi SOFA Signed For . . . With Unexpected Delivery Charges for PM Maliki [UPDATED]

Have you ever had that moment, just after signing the receipt when you buy a new piece of furniture, that you feel that somehow you have been duped into doing something you didn't want to do? You intended to spend $500 on a sofa, but with delivery charges and the Rolls Royce fabric protection plan you ended up spending $750? I wonder if Iraqi PM Maliki feels that way today. According to multiple reports, AP and the NYT, to name a few, Maliki expended significant political capital to get the US-Iraq SOFA through Parliament last week. The only remaining step to its approval in Iraq is approval by the 3 person Presidential Council, which is expected to happen shortly.

Effective Jan. 1, 2009, the agreement states that US troops are subject to some forms of Iraqi court jurisdiction for a narrow band of criminal actions off base and US government contractor employees (including those subject to the UCMJ) are subject to Iraqi criminal (and civil) jurisdiction for actions on Iraqi soil. A footnote to the negotiations is that all this could change come July 2009 when the agreement goes to a national referendum in Iraq.

UPDATE at 1:00 pm: Here is a link to the official White House (.gov) version of the SOFA. I did not notice any differences from the version we earlier posted.

US-Iraq SOFA Vote on Wednesday

Looks like US servicemembers will know before the Detroit Lions play whether they'll be packing things up this winter or have a SOFA to rely on after January 1, 2009. AP (via the WSJ, here) reports that Iraqi lawmakers will vote on the current draft of the US-Iraq SOFA on Wednesday, November 26. See our prior coverage, here, and a signed English language version of the proposed SOFA, here.

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.

Resource Alert: Naval Law Review Back Online

The latest issues of Naval Law Review are up on the Navy JAG website, here. A few months back we bemoaned their absence from the web, here, but all is well in Newport, RI and they are back up. I won't preview all the relevant articles, but ones that caught my attention (and CAAFlog's back in February) were:

Volume 56:

Wexler, Ian, A Comfortable SOFA: The Need for An Equitable Foreign Criminal Jurisdiction Agreement with Iraq (making an interesting argument about the Iraqi SOFA in light of recent events, see here and here).

Rush, Trevor, Mayfield, FISA, and the Fourth Amendment (arguing, I believe, for the constitutionality of FISA after Mayfield).

Volume 55:

Gonzalez, David M., The Continuing Fallout From Crawford

Lofland, Keith B., The Neglected Debate Over Sexual Assault Policy in the Military

Ahmad, Syed, The Unconstitutional Prosecution of the Taliban Under the Military Commissions Act (from the intro, the article argues that "the declaration that detained Taliban are unlawful enemy combatants is in violation of the law of war, and, as a result, Congress exceeded its authority under Article I, section 8, clause 10 of the U.S. Constitution by subjecting members of the Taliban to trial by a military commission."---or my alternate description, "How to become persona non grata at DoD OGC.")

Hudson, Faralick, and Sautter, Lightning But No Thunder: The Need For Clarity in Military Courts Regarding the Definition of Mental retardation in Capital Cases and for Procedures in Implementing Atkins v. Virginia.

H/T to LCDR Wexler

The Ever Changing Iraqi SOFA

News outlets, WSJ (AP), Reuters, Aljazeera (I am just the messenger), etc., are confirming today that the Iraqi government is sending the draft Iraqi SOFA back to U.S. negotiators with revisions concerning troop presence and, possibly, jurisdiction over US military personnel. As we previously reported here and here, the issue of jurisdiction over US military personnel for crimes committed in Iraq has been a big part of the on-going negotiations.

We also previously reported, here, that the issue of jurisdiction over crimes committed by US military/government contractors in Iraq seemed to be settled. An AFP story, here, indicated that the Prime Minister suggested that private security contractors (PSCs) working in Iraq would be subject to Iraqi law beginning on January 1, 2009. However, a WSJ story today makes me think that those prior statements were either limited to PSCs or limited to non-criminal law. Here is what the AP report said, via WSJ:

The agreement would call for U.S. troops to leave the cities by the end of June and withdraw from the country by Dec. 31, 2011 unless the government asked them to stay. The draft would also provide limited Iraqi jurisdiction over soldiers and contractors accused of major, premeditated crimes committed off post and off duty.

That statement isn't a model of clarity, but the same general statement was repeated in other reports by AFP and the BBC. BBC reported that the current draft agreement stated:

The pact is said to grant Iraqi judicial authorities limited ability to try US troops and contractors for major crimes committed off-duty or off-base - and only then if a joint US-Iraqi committee agrees.

We'll update this post as more information becomes available.

UPDATE at 1721, 21 Oct 08: Two sources, WaPo and CNN, confirm that one of the "hot-button issue[s]" in the Iraqi Cabinet's opposition to the SOFA is jurisdiction over US forces.

Update on Iraqi SOFA - Cushions May Get Harder

CAAFlog mentioned, here, the draft Iraqi SOFA making its way through the Iraqi political process. Though many news outlets are focusing on the demands made by a faction of the Iraqi parliament for certain US troop withdrawal timetables, I noticed that the same bloc was also making demands concerning jurisdiction over US military personnel. From the front page of the WaPo:

The Shiite bloc, which includes Prime Minister Nouri al-Maliki's Dawa party, also insists that Iraqi officials have a bigger role in determining whether U.S. soldiers accused of wrongdoing are subject to prosecution in Iraqi courts, said Sami al-Askeri, a political adviser to Maliki. That proposal has been resisted by the Pentagon.

Uncomfortable SOFA

Just in time for Halloween, this is scary:

"Iraq would have the first crack at prosecuting American troops and Pentagon contractors accused of major, premeditated crimes committed outside U.S. bases and when they were off duty under a draft security pact governing military operations in the country, Iraqi officials said Wednesday."

The rest of the article, courtesy of AP, the Air Force Times, and NIMJ in turn, is available here.

Afghan SOFA - Exclusive UCMJ Jurisdiction Under Review?

The WaPo reported (two weeks ago) that, after a US led airstrike in Azizabad reportedly killed 90 civilians (a claim the US is investigating, see NYT here), the Afghan government was reviewing its SOFA with the US. I have finally found an unofficial copy of the agreement between the US and Afghanistan on LEXIS. For those interested, the cite is 2002 U.S.T. LEXIS 100. The relevant paragraphs on immunity for US forces make relatively clear that US military personnel have immunity similar to Embassy administrative and technical staff. The agreement goes on to state that the US shall have authority to exercise criminal jurisdiction over "US personnel."

While the agreement's wording is not a model of clarity, I'll excerpt the relevant portion for you below to draw your own conclusions about whether it grants the US authority to prosecute US military personnel, US civilian employees, and US government contractor personnel. The agreement uses the phrases US civilian personnel and contractor personnel elsewhere, so that may inform your interpretation of the term "US personnel." Diplomatic Note No. 202:

The Government of Afghanistan recognizes the particular importance of disciplinary control by United States military authorities over United States personnel and, therefore, Afghanistan authorizes the United States Government to exercise criminal jurisdiction over United States personnel. The Government of Afghanistan and the Government of the United States of America confirm that such personnel may not be surrendered to, or otherwise transferred to, the custody of an international tribunal or any other entity or state without the express consent of the Government of the United States.

Iraqi SOFA: Servicmember Legal Jurisdiction Still at Issue

Following up on our report yesterday on legal jurisdiction over US forces in Iraq, we note that the WaPo is reporting here that the primary remaining issue in negotiations with Iraq is the question of application of Iraqi law to US forces in Iraq. Here is what the Post story reported:

The question of immunity for U.S. troops and Defense Department personnel from Iraqi legal jurisdiction -- demanded by Washington and rejected by Baghdad -- remained unresolved. Troop immunity, one U.S. official said, "is the red line for us." Officials said they were still discussing language that would make the distinction between on- and off-duty activities, with provisions allowing for some measure of Iraqi legal jurisdiction over soldiers accused of committing crimes while off-duty.

The story also stated explicitly what we inferred from prior reports, "the United States abandoned its immunity demand for contractors."

Iraqi SOFA (or, uhm, MOU or something) Completed?

The WaPo is reporting that, "Iraqi and U.S. negotiators have completed a draft security agreement that would see American troops leave Iraqi cities as soon as June 30, Iraqi and American officials told The Associated Press on Wednesday." The story notes that the agreement includes language regarding the status of U.S. forces and, specifically, legal jurisdiction over them. However, the story seems to diverge from its initial "completed a draft" tag line when discussing the immunity issue,

[Another] official said a compromise had been worked out on the contentious issue of whether to provide U.S. troops immunity from prosecution under Iraqi law, but he did not give details. In Washington, the senior military official said the draft agreement reflects the U.S. position that the United States must retain exclusive legal jurisdiction over its troops in Iraq. While Iraqi negotiators signed off on the draft, another official close to Prime Minister Nouri al-Maliki said the country's political leadership objected to parts of the text, including the immunity provision.

Seems like they aren't any closer to resolving the issue.

Proof Madame Secretary Rice Reads CAAFlog

Today's Washington Post featured an article written by Sec State Rice and Sec Def Gates . The article, titled "What We Need Next in Iraq," makes the Executive Branch's case for negotiating a Status of Forces Agreement (SOFA) with the Iraqi governemnt, something we discussed here at CAAFlog last year, and assures the American people that a standard SOFA is the subject of negotiations, nothing else. In what I think is an unprecedented step, the Secretaries go so far as to say:

Nothing to be negotiated will mandate that we continue combat missions. Nothing will set troop levels. Nothing will commit the United States to join Iraq in a war against another country or provide other such security commitments. And nothing will authorize permanent bases in Iraq (something neither we nor Iraqis want). And consistent with well-established practice regarding such agreements, nothing will involve the U.S. Senate's treaty-ratification authority -- although we will work closely with the appropriate committees of Congress to keep lawmakers informed and to provide complete transparency. Classified briefings have already begun, and we look forward to congressional input.
In short, nothing to be negotiated in the coming months will tie the hands of the next commander in chief, whomever he or she may be. Quite the contrary, it will give the president the legal authority to protect our national interest -- and the latitude to chart the next administration's course.

On a day when we pass our sympathy to Sec Def, we know exactly how his shoulder feels today, I think we should also give a BZ to Sec State and Sec Def. The idea that our leaders actually tell us why they are doing what they are doing and explain their actions is . . . a great idea. BZ to the Secretaries!

Is that an Afghan SOFA you have?

In a previous CAAFlog discussion, here, we have mentioned the lack of a Status of Forces Agreement between the United States and Afghanistan. I was still under the impression that no SOFA between the U.S. and Afghanistan was in place . . . until yesterday. In an interview with the Associated Press, Ambassador to Iraq Ryan Crocker seemed to indicate that such a SOFA did exist. Here is the excerpt:

QUESTION: Is -- given the unprecedented nature of the -- well, except for perhaps Afghanistan and dealing with it, is there a model or something that you can look to, obviously with revisions for the country specific, is there anything out there that resembles this already? You talk about security agreements with a hundred other countries, but essentially, you know, there's no combat going on in South Korea, there's no combat in Japan, there's no combat in lots of places where there's SOFA agreements.
CROCKER: I think it's going to be a combination of all of those things. Again, looking at agreements that we do have because there are going to be elements of those that are probably pretty common across the board, it will be looking at existing authorities which again are granted through the Security Council Resolution, but figuring out how best to carry those forward from a multilateral to a bilateral context. Looking at precedents in Afghanistan is the one that comes to mind and might be useful there. But then a lot of this is going to be unique to the situation in Iraq.
QUESTION: And what does this do -- and what will it do with CPA 17, particularly the contractor issue?
CROCKER: Yeah, the question of immunities? Yeah, that clearly is going to be part of the negotiation.
QUESTION: Is that included in the Afghan agreement?
CROCKER: I don't know. I don't know. I don't believe the Afghan agreement goes into detail on the immunity issue.

(emphasis added) See the full roundtable transcript here. You tell me, does that suggest there is a signed Afghan-U.S. SOFA? He seemed to back pedal in that last answer, as if he had said something he shouldn't have, or did he just mispeak? If any of our intrepid readers have gouge on this topic please share in the comments, exactly why we allow anonymous comments.

Why Condi Rice Needs a Trip to Pier 1

As was extensively reported last week, the Iraqi Cabinet approved draft legislation that would revoke immunity from Iraqi law for private security contractors operating in Iraq on behalf of the U.S. military or any other U.S. government entity. As the New York Times reported, Thamir Ghadban, chairman of Iraqi Prime Minister Maliki’s council of advisers, summed up the legislative history of the law, "This decision does not just cover Blackwater; it will cover all the foreign security firms operating in Iraq . . . This law will protect Iraqis and Iraq’s sovereignty.”

The provocative part of the story, and military justice relevant portion of the story, was the reference to a statement by a Shiite member of parliament reported by the NYT, "Parliament is likely to amend the measure, but, according to a Shiite member of Parliament, only to make it tougher and more restrictive." Tougher and more restrictive? Hmm, are they thinking of expanding the withdrawal of immunity beyond PSCs or defining PSCs more broadly? Will Parliament expand the revocation to include military members?

This would be an extraordinary development since Iraq is the only country with which the US does not have a SOFA and where significant US forces are based in the country. Interestingly, I have heard some argue that Iraq cannot revoke CPA Order 17, the order giving US contractors immunity from Iraqi law, which seems contrary to what I thought was the prerogative of a sovereign, but I am no I-law expert. Regardless of your thoughts on Iraq's ability to revoke CPA Order 17, I think we can all agree that the best world is one where Sec. State lawyers and uniformed lawyers get that Iraqi SOFA deal done quickly.