Commentary

Losing Sleep over SOFA

If, as now seems possible, Iraq and the United States cannot finalize a Status of Forces Agreement governing U.S. troops there, private military contractors will be sighing in relief.

The agreement, known as SOFA, is basically a document signed by a country and a foreign nation stationing military forces there. The SOFA is intended to clarify the terms under which the foreign military is allowed to operate. Typically, purely military issues such as the locations of bases and access to facilities are covered by separate agreements. The SOFA is more concerned with the legal issues associated with military individuals and property.

At the end of the Cold War, the United States had permanent status of forces agreements with approximately 40 countries. Today the number has grown to more than 90, meaning the United States has agreements with 46 percent of the more than 190 nation-states comprising the world community.

The Iraq SOFA covers everything from prosecuting violations of law to establishing operational command and a deadline for withdrawal. The United States wanted it to be completed before Dec. 31, when the United Nations mandate, Security Council Resolution 1790, covering the presence of foreign troops in Iraq expires.

Without a signed SOFA, U.S. troops will lack legal authority to remain in Iraq. U.S. officials say they would have to cease operations and confine troops to bases unless some other arrangement, such as an extension of the U.N. mandate, could be worked out.

With respect to Iraq, U.S.-led Coalition forces participating in the 2003 invasion of Iraq were initially subject to the exclusive jurisdiction of their parent states. Since the handover of sovereign power to an Iraqi administration, Coalition forces in Iraq are nominally subject to Iraqi jurisdiction, and operate without any Status of Forces Agreement. Theoretically, Iraqi courts have the right to try Coalition forces for any alleged offenses, though this right has never been exercised.

In actuality, the United States has not been working all that hard on trying to negotiate a SOFA. In an interview on Jan. 24, 2008, U.S. Defense Secretary Robert Gates indicated that work on a SOFA had barely been started.

On July 1, 2008, Iraqi Foreign Minister Hoshyar Zebari said he had briefed members of the Iraqi Parliament that U.S. contractors no longer would have immunity from Iraqi prosecution under the SOFA’s negotiated terms.

About two weeks ago, Iraq essentially called for reopening negotiations to address objections to the SOFA draft that would require U.S. forces to leave Iraq by the end of 2011.

The proposed SOFA would make private American security companies and other contractors subject to Iraqi justice in criminal cases, which was a major Iraqi demand. By contrast, the United States retains “primary” jurisdiction over soldiers and Pentagon employees for alleged offenses committed on American facilities or during military operations. This language is expected to shield troops from prosecution for accidentally killing civilians caught in the crossfire.

Although no official versions of the proposed SOFA have been publicly released, a leaked version dated Oct. 13, titled “An agreement regarding the temporary U.S. presence in Iraq and its activities and withdrawal from Iraq, between the United States and the Iraqi government” was recently posted online.

When you read the language, you see why contractors are worried. Article nine states, “While respecting relevant aviation laws, the U.S. government aircraft and civilian aircraft contracted with the U.S. Department of Defense are authorized to fly in Iraqi airspace, refueling in the air, landing and departing in Iraq.”

The problem is that there are many aircraft, planes and helicopters that belong to contractors who are working for clients other than the Department of Defense. For example, Blackwater, which shares the Worldwide Personal Protective Services contract with Triple Canopy and DynCorp, has MD-530F Little Bird helicopters, the civilian version of the military OH-6 scout helicopter. Under the SOFA this would seem to indicate that these helicopters would not be authorized for operations.

However, that may be less of a concern than many think. The SOFA covers the Department of Defense and associated personnel; military, civilian and contractors. It does not cover the Department of State and associated personnel.

A senior private military industry executive told UPI, “We are under the WPPS contract and as such enjoy diplomatic immunity like (State Department Bureau of Diplomatic Security) agents, whose functions we are in fact performing. This SOFA will not apply to us, although sections 9.2 and 9.5 with respect to aircraft is ambiguous.”

In the worst case, the helicopter mission could simply be picked up by the Defense Department.

Article 12 states, “Iraq has the primary legal jurisdiction over contractors with the U.S. and their employees.”

This is the provision that most unsettles contractors. The industry official said: “Having said all of that, I think if we fell under this, we would be very uncomfortable with section 12.3, as should all contractors supporting U.S. (military) operations. Currently, worldwide we fall under U.S. laws. Under this SOFA, we would not.

“I would not work for (the Department of Defense) in Iraq if this were signed. I also think if you were working for a U.S. contractor and this was signed, you would have cause for resigning and having them pay your way back.”

U.S. Navy veteran David Isenberg is a military affairs analyst. He is an adjunct scholar with the Cato Institute and the author of a forthcoming book, Shadow Force: Private Security Contractors in Iraq