Prosecuting U.S. Troops Under Iraqi Law .. ?

The United States and the Iraqi government are currently engaged in serious deliberations to outline the provisions of the Status Of Forces Agreement between the two countries. Under the tentative agreement, U.S. troops will relocate from Iraqi cities to outside bases and completely withdrawal from Iraq by December 31, 2011. The government of Iraq will also have "limited jurisdiction" to prosecute U.S. military personnel and contractors who commit crimes on Iraqi soil. This is all provided the deal is ratified before the present U.N. mandate ( Resolution 1790) expires at the end of the year. Progress? Maybe. However, there are too many ambiguities and unanswered questions that need to be addressed before we finalize a deal that will subject our troops to the Iraqi criminal justice system.

In order to justifiably prosecute U.S. soldiers in Iraqi courts there are stipulations to be reviewed and criteria to be met. For example, our troops would have to commit crimes outside of U.S. bases, when they're not on duty, or on an unauthorized mission.

Going by this rationale, one can assume that if you're within the confines of a U.S. military base located in Iraq, you're on domestic soil. So if an American serviceperson or contractor commits a crime at that location they'll be prosecuted by the United States. Short of stealing from the PX, it's hard to imagine what types of crimes our troops or civilian personnel would commit - murder or assault? Prosecution for criminal activity on military bases overseas by the U.S. government is automatic and an established precedent - it has always been that way. So why is this concept being factored into the Status Of Forces Agreement in Iraq? It's not as if we are ever going to allow something as senseless as the Iraqis arresting and prosecuting us for crimes we commit against each other.

It is almost impossible for our troops not leave U.S. bases in Iraq. It is a certainty they will be called upon almost daily by the Iraqi government to assist the Iraqi army on security missions. They will also need to run logistical convoys for supplies to and from Kuwait and U.S. airfields inside of Iraq. Therefore, it is inevitable that our troops will continue to be attacked, hit with improvised explosive devices, and engage in combat operations. Suffice it so say this will produce a significant level of unintended collateral damage -- innocent Iraqis killed for being in the wrong place at the wrong time.

When I was in Iraq I was on duty 24/7. So for the life of me I can't envision a scenario where U.S. troops would be committing crimes against Iraqis while they're off duty. When in a combat zone it could hit the fan blades at any given moment. Our troops are on a constant state of alert and need to be "Ocsar Mike" or "REDCON-1" within moments of a commanding officers' orders.

It is highly probable that any potential crimes committed by U.S. troops or contractors would occur outside of U.S. bases and while on duty. Having established that, would our troops still be subjected to Iraqi prosecution? Or would they be exempt because it's an authorized mission?

So the real questions are: What defines an authorized mission? Would we have to get approval from the Iraqis prior to leaving our bases? That would turn most FOBS in Iraq
into Fort Apache. Our troops would be confined to bases receiving incoming fire while pulling security hoping for the mortars to stop falling. There is no way for our military to operate in Iraq if every single troop movement requires prior coordination with the Iraqi government and security forces. How do you conduct a QRF, close air support mission, or all those other things that can't be predicted, if you need prior authorization from the Iraqis.

The last time I checked the mission is still disguised with the title Operation Iraqi Freedom. If a policy is implemented that turns our troops over to Iraqi tribunals and jails for prosecution, the mission is officially over. So for all those who will accept nothing short of "victory" in Iraq here's a request: please get on the same page as the rest of us or at least have your head examined.

Sending others into an immoral situation and expecting them to behave morally is absurd. If our troops are going to be hung out to dry in foreign courts, those who put them on foreign soil should be held accountable in some capacity as well. The truth is the American people will never tolerate our troops being tried in Iraqi courts no matter how heinous the crime. For our government to even entertain this nonsense in order to placate the Iraqis into allowing us to have a permanent presence on their land is just another speed bump prolonging the inevitable - an end to the occupation.

Comments

[Pointmann]

The author concludes that the SOFA would mean "the end to the occupation­." Are we an occupation force in Iraq? I do believe that the SOFA did not end when Germany and Japan became sovereign states, My niece, a former Army captain wrote: SOFA was still in effect when I was in Germany 1981-84 and as far as I know, still is. My understanding of it is that it has nothing to do with the sovereignty of a nation or occupation forces. It is simply an agreement between two countries as to how a guest military relates to the laws of the host nation in peacetime. Most common examples are when G.I.s are involved in automobile accidents or, heaven forbid, assaults upon local nationals. There is language in the SOFA that addresses U.S. service members being returned to U.S. authorities for prosecution rather than being tried by the local nationals. The SOFA we have with Japan (Okinawa) is the reason why most Marines accused of assault are actually tried by a military court rather than the local jurisdiction.
While the author makes the argument that all sevice members are are on duty 24/7 and he "can't envision a scenario where U.S. troops would be committing crimes against Iraqis while they're off duty" the SOFA is being crafted for the event, even if unlikely, that a more relaxed, non-combat environment will evolve. Always plan for the unexpected.

[John Bruhns - Huffpost Blogger]

Pointman,

Iraq is no where near comparable to Germany, Japan, or Korea. We are still shooting it out in Iraq on large scale levels , so ... ?

Here is something for you to read:

http://www.armytimes.com/news/2008/10/ap_IraqCourts_101708/

You'll find it interesting.

V/R
John

[JonRaymond]

There is no such thing as victory in war. What millennium are you living in?

But I don't get your confusion. You can't understand how Iraq could prosecute military because they are never off duty and will undoubtedly be engaged in war activities that will cause "collateral damage".

I know this is a stretch, but try to imagine yourself in their shoes. Suppose you are a civilian in Texas occupied by a foreign army, and this type of agreement is made. Would you want to get those foreign troops off your property or town and have them accountable for their "collateral damages"? It does seem nebulous, but in all nebulous legalities they are worked out in court. So if some 'collateral damage' happens you should expect to take it to the judge, just like you would in the good ole US of A.

In other words, get a lawyer.

[John Bruhns - Huffpost Blogger]

JonRaymond,

Here is another answer to your comment:

http://www.youtube.com/watch?v=eCUSFtZeTaI

[JonRaymond]

Thanks. I appreciate this. But your post here seems to be saying we can't make an agreement to get out because of this requirement to prosecute US troops. There are a number of ways to interpret the problem. One is to say remove this requirement. I see your point that it puts troops in the middle in a tough spot. If they carry out orders they could be prosecuted locally.

But I also see why Iraq wants the US to be accountable. It's the leaders who should be accountable when troops act under orders, not the troops.

So, it seems we need to scale down operations to where there won't be anything to prosecute troops for. That means no operations that would create "collateral damage". But you seem to be saying that's not possible.

What I don't get is why we can't just pull out and let the chips fall where they may. Why do we need this interim period where troops will be in this predicament? It looks like it has to be all or nothing. I don't get why it has to be gradual.

[deminmo]

With the costs associated with maintaining troops in Iraq,
and the fact that this occupation could go on for 20 years, can
we afford to continue there? Is it fair to troops who have been
away from family for a couple of years, and know of the financial
issues that the US is facing, which means they have to be
worried. Let them come home. No matter how long we stay
the minute we pull out of the country, there will probably be conflict.
And has anyone defined what exactly "winning" would be? And
besides containing terrorism, how do we completely eliminate it?

[John Bruhns - Huffpost Blogger]

deminmo,

As always, we're on the same page -- bring them home. I'm just touching on a different angle here.

V/R
John

[RightWingMarine]

I agree it is troubling that the US is agreeing to the prosecution of US military servicemembers by a foreign country. At least the US has stated that our military is not subject to the World Court and will invade the Netherlands if need be to rescue our troopers. This leads me to believe that while we might on paper agree to letting US military be tried in Iraqi courts we are going to decide when and if that will happen.

[John Bruhns - Huffpost Blogger]

RightWingMarine,

Thank you for reading and replying with your insight on the matter. I still think it is too risky , even for paper.

V/R
John

[itmaybetoolate]

The idea that the "mighty george bush," of all people, would agree to our soldiers being tried by a foreign government is beyond the pale.

I believe that bush is desperate to announce a breakthrough agreement on Iraq within the next two weeks as a way to boost mcsame's chances, and he wants to craft an agreement that a President Obama would feel pressured to support.

He and his cronies want to control that oil, and they are willing to sell out anyone to get it.

[John Bruhns - Huffpost Blogger]

itmaybetoolate,

I don't know what to make of all this. That is why I wrote the blog -- for answers.

V/R
John

[itmaybetoolate]

After reading your blog, I saw a ticker tape headline on CNN about the SOFA that said the two governments have a basic agreement and it is now undergoing final review. Amazingly, I have heard nothing else about this - anywhere - and would not have paid it much attention otherwise. Thanks for bringing this to our attention!

[itmaybetoolate]

Does anyone know if this would have to be ratified by Congress?

[jcorrington]

Thanks for posting this John. Something that no one has brought out. I just hope that Americans are paying attention. This SOFA could be disastrous, just like the entire war.

[John Bruhns - Huffpost Blogger]

jcorrington,

You're quite welcome. Thanks for reading, replying, and picking up on it.

V/R
John

[peterg76]

Translation: The negotiations are for show.

[John Bruhns - Huffpost Blogger]

peterg76,

I sure hope not because it is long overdue that we get out of there.

V/R
John