A Sense of Duty: The Illusory Criminal Jurisdiction of the U.S./Iraq Status of Forces Agreement

Abstract

The Status of Forces Agreement (SOFA) between the U.S. and Iraq entered force on January 1, 2009 and established the legal framework by which U.S. personnel continue to operate in Iraq. The SOFA followed lengthy and contentious negotiations, which many commentators claim that Iraq “won,” extracting significant concessions from the U.S. in the process. While that may true in some areas, the opposite seems to be the case in one of the most contentious areas of this or any SOFA – criminal jurisdiction over service members. This article examines the criminal jurisdiction article of the Iraq SOFA and posits that the purported grant to Iraq of primary jurisdiction over U.S. service members is illusory if not an outright nullity.

Lost amidst politically charged issues like troop withdrawal dates and contractor impunity, the SOFA departs from long standing U.S. practice of a jurisdictional framework based on whether there is a nexus between a service member’s acts or omissions and their official duties. Instead, the Iraq SOFA utilizes a jurisdictional construct predicated on U.S. service member duty status. Thus, while the SOFA purports to grant Iraq the primary right of jurisdiction over U.S. service members in certain circumstances, the grant is limited to crimes committed outside duty status. But U.S. service members, even those committing crimes, always have a duty status so the required predicate for Iraq to exercise jurisdiction will never be met. In the years following the U.S invasion of Iraq, U.S. service members have committed a number of serious and high profile crimes against Iraqis, including rape and murder. Prior to the SOFA, Iraq did not have primary jurisdiction over the U.S. service members who committed such crimes. After the SOFA, and seemingly in direct contradiction to lofty SOFA language about Iraq’s sovereign right to enforce its own criminal law, Iraq still lacks primary jurisdiction over U.S. service members, even for rape and murder of Iraqis.

The article concludes that with U.S. troops scheduled to be in Iraq until at least the end of 2011, the likelihood of a U.S. service member committing a violent crime against Iraqis, and bringing much attention to the duty status jurisdictional construct in the process, is high. In the short term, this will almost inevitably create difficulties for the U.S. in its relationship with Iraq. In the long term, the U.S. may have protected its service members from an Iraqi judicial system perceived as not capable of providing due process and a fair trial but the linguistic mechanism for accomplishing that will make future security agreement negotiations with other countries that much more difficult.

Keywords: Iraq, Status of Forces Agreement, SOFA, Criminal Jurisdiction

JEL Classification: K14, K33