ARLINGTON, Va. — U.S. citizens in Iraq can’t be prosecuted for crimes by the courts there until elections are held in January, according to agreements that spell out the transfer of authority to the new Iraqi interim government.
The agreements protect not just U.S. troops in Iraq, but U.S. civilians accompanying troops, and have been written with the “very unusual” provision that provides immunity for private contractors, said Michael Noone, a law professor at Catholic University of America in Washington, D.C. Noone specializes in SOFAs and is a retired Air Force colonel who served as a Judge Advocate General officer.
Status of Forces Agreements, or SOFAs, spell out the precise legal status of military troops stationed in other nations, and their relationships to the host governments’ civilian authorities.
Because Iraq does not yet have a government that is recognized by the United Nations as permanent, the U.S. government has been unable to negotiate the SOFA that usually governs laws, which affect U.S. military personnel on foreign soil.
Although there is no formal SOFA with the Iraqi government, “a SOFA is not necessarily a document that’s required” in order for U.S. troops to operate independent of a host nation and its legal system, Army Maj. Joseph Yowsa, a Pentagon spokesman, said Monday.
“There’s other legal documents that allow us to operate” in the absence of a formal SOFA in Iraq, Yowsa said — four, to be precise.
In fact, the four documents pertaining to the transfer of authority are binding, Noone said.
The document that spells out the immunity in the most detail is a new version of the 17th order issued by the Coalition Provisional Authority.
The order was written by the CPA in 2003 to grant immunity “from Iraqi legal process” to all U.S. government personnel, as well as civilian and military personnel from coalition countries.
Such individuals are “subject to the exclusive jurisdiction” only of the country that sent them to Iraq, and are “immune from any form of arrest or detention other than by persons acting on behalf of their sending states.”
Last week, U.S. civilian administrator L. Paul Bremer and Ayad Allawi, prime minister of the interim Iraqi government, worked on the order directing the interim Iraqi government.
The CPA was dissolved in the wake of Monday’s handover, but the CPA order is still in effect, thanks to a second key immunity document: the Transitional Administrative Law.
Better known as Iraq’s “interim constitution,” the TAL includes a number of provisions, such as a bill of rights for the Iraqi people.
The law also contains an annex that prohibits the interim government from making any changes to either CPA orders or to the main Transitional Administrative Law.
There are also two United Nations Security Council Resolutions, U.N. 1546 and U.N. 1511, that spell out immunity for the U.S. troops.
Taken together, “these four standing documents allow us to continue to do our operations in lieu of a SOFA,” Yowsa said.
The immunity from prosecution in local Iraqi courts remains intact until elections are held next year. A U.N. resolution dictates they must be upheld until Jan. 31, 2005.
“The CPA order says the transitional government cannot tamper with these arrangements as written, so servicemembers are protected until Iraq and a stable government. Troops’ immunity from local law remains as long as the transitional government is in power,” Noone said.
The documents also protect private contractors, Noone said.
“Typically, the protection [from local prosecution] does not extend to private contractors. The benefit to extending the protection is “because the country is so unstable and … they are recreating a legal system. Contractors otherwise might not be willing to send employees to a justice system that hasn’t worked for years.”
But there’s a loophole, he said.
“And that loophole may be that an American contractor could commit a crime overseas and the Iraqis couldn’t prosecute because of these documents and American authorities couldn’t prosecute. … American law traditionally didn’t travel overseas. If an American contractor in Germany shoots someone, it’s up to German authorities to prosecute them. American murder laws didn’t work overseas.”
However, it is possible that contractors and other U.S. civilians could be prosecuted by U.S. authorities under provisions in the American Servicemember and Citizen Protect Act of 2003, passed to keep American citizens from being prosecuted under the International Criminal Court.
“It seems to be that’s what Congress intended to do, but it’s a brand new law and we just don’t know how it’s going to work,” Noone said.
