Published April 23, 2004
WASHINGTON – When American soldiers wake up on July 1, they may still be fighting insurgents and rebuilding the country, but one thing that is almost certain to change is their legal status.
The Bush administration still plans to hand over sovereignty of Iraq to the Iraqis by June 30. With Iraq as a sovereign nation, the United States will have to negotiate a legal framework under which its troops remain in the country.
Washington has several options, and the most likely are negotiating a Status of Forces Agreement (search) or a Status of Mission Agreement (search). However, in lieu of successfully completing such a pact, another possibility would be to remain in Iraq under a previous United Nations Security Council resolution.
America has Status of Forces Agreement with many allied countries, such as Japan, Germany, Italy and others that house American bases. SOFAs are bilateral treaties that outline the legal basis for which American troops are in the country. They list the rights and responsibilities of each country, including under what laws the troops will be governed, and how they will be prosecuted if they commit crimes. But sometimes the SOFA becomes its own source of tension.
"Status of forces agreements are issues that can be potentially very troublesome," Joe Stork, Middle East expert at Human Rights Watch (search), told Foxnews.com.
Stork said that in the 1970s, Iranians perceived the SOFA governing American troops in Iran as unfair because troops were exempted from parts of Iranian law. In Japan and South Korea, crimes and accidents involving American soldiers have caused stress between the nations as citizens of those countries demanded the U.S. soldiers be tried under local law rather than military law.
"It's an issue of nationalism," Stork said.
In NATO countries and other allied nations, the United States negotiates which crimes will be tried by local courts and which by military courts. America prefers to try its soldiers rather than hand them over to a foreign judicial system.
A SOFA would also govern what territory the troops could use and what their rules of engagement with terrorists or insurgents would be.
A common stipulation in these SOFAs is the immunity of American soldiers from prosecution by the International Criminal Court (search). However, it is very unlikely this will be an issue with Iraq, because neither the United States nor Iraq is a signatory to the ICC treaty.
Marjorie Cohn, a professor at Thomas Jefferson School of Law in San Diego, warned that Iraqis could reject the legitimacy of a SOFA. She was skeptical that any successive government to the "handpicked" Iraqi Governing Council (search) would have legitimacy in the eyes of the Iraqi people.
"This Iraqi Governing Council is not the legitimate constituted government of Iraq," Cohn said. Under the IGC or a new government lacking the support of the Iraqi people, "whatever is negotiated ultimately would not have legitimacy in the eyes of the Iraqi people."
The Coalition Provisional Authority (search) and the Iraqi Governing Council (search) had imposed a March 31 deadline for the completion of a SOFA. That date has come and gone, and it is not clear that one will be completed before the June 30 handover of sovereignty.
If no agreement arises, U.S. officials have indicated that they may rely on a part of the U.N. resolution authorizing the United States and United Kingdom to serve as occupying powers. That resolution said the mandate would end "upon the completion of the political process." The U.S. could argue that the political process is not complete until a permanent Iraqi government is in place.
If the White House seeks more U.N. involvement, which it has signaled it might do in order to bring more allies into Iraq, a Status of Mission Agreement (search) may be negotiated. A SOMA is a legal contract between the United Nations and the host country. Under such an agreement, soldiers from the United States and other countries would have immunity from Iraqi law, said Harpinder Athwal, spokeswoman for Citizens for Global Solutions (search).
"All the U.N. mission can do is take them out and send them to their home country," Athwal said. "These agreements are set up so that the U.S. government will always have full jurisdiction."
Cohn expected few de facto changes even if the law governing Iraqi troops were to change. "It's really symbolic and nothing more than that," she said. "The U.S. intends to maintain military strength and keep effective control over the Iraqi army, police and civil defense forces."
In fact, after June 30, America plans to maintain a troop presence in Iraq of 120,000. And at least initially, the U.S. will control Iraqi security forces. A document released earlier this month by the CPA clearly stated who would control Iraqi forces.
"All trained elements of the Iraqi armed forces shall at all times be under the operational control of the commander of coalition forces for the purpose of conducting combined operations," it said. The document also described plans for CPA Administrator L. Paul Bremer (search) to appoint Iraqi military leaders.
This statement notwithstanding, the Pentagon has made it clear that June 30 will be a meaningful date in terms of how Iraqi security is organized.
"The Iraqi police, border patrol, and facilities protection forces – 80 percent of the Iraqi Security Forces – will be under the new Iraqi Interior Ministry. The Iraqi Civil Defense Corps and Iraqi Army will, for purposes of operational control, be under the unified command of the Multi-National Force Iraq, commanded by General Sanchez," Deputy Secretary of Defense Paul Wolfowitz told Congress on Wednesday.
CPA Spokesman Dan Senor described how the role of the U.S. military will change after sovereignty is handed over. "This is the end of an occupation. This is Iraqis taking control of their political future. We have security forces in many parts of the world where we play a supporting role — in some cases, depending on the nature of the local threat — to the local governments or the local countries. Those countries are not occupied by the United States of America."