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article imageOp-Ed: In Iraq U.S. special forces have immunity from prosecution

By Ken Hanly     Aug 17, 2014 in Politics
Baghdad - The U.S. insists whenever it can that US troops occupying or serving in any country be immune from legal prosecution in that country. Troops who are charged in such countries are tried in US military courts often back in the United States.
A prime example of the immunity of US soldiers was the case of Staff Sergeant Robert Bales who was whisked out of Afghanistan after a massacre in which sixteen civilians were murdered and six others wounded. He was tried and found guilty in a military court in the US. Both candidates contesting the presidency of Afghanistan at present promise to sign a security agreement that would include immunity for US troops who remain after the end of 2014.
The problem of immunity was an issue at the end of 2011 in Iraq when the existing status of forces agreement (SOFA) required all US troops to withdraw. Obama wanted to keep several thousand troops in Iraq. The Iraqi government would not grant this immunity, most likely because Maliki expected that the agreement would not pass parliament and if he tried to agree without that approval he would face political trouble.
The number of US special forces in Iraq as of now is estimated to be more than one thousand. In the early stages of deployment there were negotiations with the Iraqi government over immunity for the US forces and who would have legal jurisdiction over misconduct by US forces. The US demands that any offenses be handled under the US Uniform Code of Military Justice. While the US was not able to negotiate a full status of forces agreement according to Pentagon spokesperson Rear Admiral John Kirby: “Iraq has provided acceptable assurances on the issue of protections for these personnel via the exchange of diplomatic note, We believe these protections are adequate to the short-term assessment and advisory mission our troops will be performing in Iraq. With this agreement, we will be able to start establishing the first few assessment teams,” Kirby
The US and Iraq exchanged diplomatic notes in which the US troops would have protection equivalent to diplomatic immunity of the sort that US embassy staff have at present. While a similar plan arguably could have been used by Obama and Maliki at the end of 2011, the circumstances are quite different. The Iraqi parliament wanted US troops out then but now they want help from the US. Even so the arrangement is just for the short term: U.S. officials have said if U.S. forces need to remain in Iraq for a longer period, a more formal agreement, approved by the country's parliament, likely would be necessary to ensure troops have adequate legal protections. The actual degree of immunity varies from one SOFA to another. South Korea for example now tries many cases. Some analysts point out that an agreement similar to the present one could have been worked out in 2011. Then, Obama is said to have insisted that the immunity provision go through the Iraqi parliament. However this is a short term fix not a longer term SOFA. The new Iraqi parliament is quite likely to support US help to fight IS and so if US troops are to stay for an extended period no doubt there will be a SOFA approved by parliament. The appended video is from an Iranian TV source and is a month old but in it Baghdad is reported not to have granted US troops immunity. It is possible that Maliki or one of his officials at the time was playing games since there was no formal SOFA agreement signed or it could be bad reporting.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of DigitalJournal.com
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