Status of Forces: Liability in Iraq

A Status of Forces Agreement (SFA) between the U.S. and Iraqi governments has received recent attention in the press. The agreement specifically details liability for crimes committed by private military companies and U.S. military personnel in Iraq. Unfortunately, the text of the agreement is unavailable, and online sources provide few details about provisions of the agreement. White House Press Secretary Dana Perino stated in a press briefing on October 17, 2008, that she could not provide details on the jurisdictional issue, i.e., whether Iraqi courts will be able to try U.S. military personnel for abuses committed in Iraq.

A New York Times article notes that “the agreement would make private American security companies and other contractors subject to Iraqi justice in criminal cases.” This drastically alters Coalition Provisional Authority (CPA) Order 17, which provided immunity to foreign contractors from prosecution under Iraqi law. Despite calls to respect Iraqi law, CPA Order 17 concluded that “[c]ontractors [should] be immune from Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a Contract or any sub-contract thereto.”

Unlike private military companies, U.S. military personnel retain immunity from Iraqi law unless thy engage in “serious or premeditated felonies . . . outside of their official duties.” A CNN article further notes that these individuals retain immunity as long as their actions occur inside U.S. facilities. Another provision in the SFA would establish a committee to review suspected crimes of U.S. military personnel and grant that committee the discretion to refer these matters to Iraqi courts, according to a New York Times article.

The SFA does not appear to address civil liability for private military companies. Private military companies are business entities, and business entities are often the most vulnerable to monetary sanctions in civil suits. The enforcement of criminal liability – and not civil liability – might result in criminal convictions of individual contractors, while private military companies face no sanction. With regard to U.S. military personnel, a number of questions arise. First, who will fall within the classification of “U.S. military personnel”? Second, what conduct will constitute “serious or premeditated felonies”? Third, what conduct will be considered on-duty or off-duty conduct? Fourth, who will compose the committee charged with referring matters to the Iraqi courts and what level of discretion will this committee have? This provision could quickly lose any force depending on how these terms are defined.

Historically, the U.S. government has prevented the Iraqi justice system from ensuring accountability and failed to prosecute wrongdoers within the United States. The U.S. government has taken advantage of the military services provided by private military companies. These companies act at the behest of the U.S. government, yet they are not affiliated with the government and are often composed of individuals who are not U.S. citizens. The U.S. government is thereby able to contract away liability for military action in Iraq. Although the SFA presents the opportunity for accountability, the terms of the agreement could result in more of the same.