One of the stickiest points in efforts to work out a deal on the presence of American forces in Iraq after the United Nations mandate expires December 31 has been the question of immunity for U.S. troops who commit crimes in the country. Iraqi negotiators rejected demands that such offenders be allowed to remain under U.S. jurisdiction, and the Americans balked at ceding control to the other side. Now, after months of wrangling, not to mention posturing, the nit has been smoothed, clearing the way for the Status of Forces Agreement to be signed. Iraq’s Cabinet approved the deal Sunday and the full Parliament should follow suit in another week or so. But things aren’t quite as simple as they appear.
The immunity provisions themselves hardly give Iraq what it wanted: “The United States shall have the primary right to exercise jurisdiction over members of the force and civilian component for matters arising inside agreed facilities and areas; during duty status outside agreed facilities and areas…” On the other side, “Iraq shall have the primary right to exercise jurisdiction over members of the force and of the civilian component for the grave premeditated felonies enumerated [below] … when such crimes are committed outside agreed facilities and areas and outside duty status.” In other words, if an American military staffer commits a major felony when he is off base and not on duty, he may not have immunity.
Prime Minister Nuri al-Maliki, who described the immunity issue as a key obstacle to a deal, now backs the current SOFA. “He’s switched from negative to positive and decided it is better than the alternative, which is no deal,” a Western adviser to the government tells NEWSWEEK. Maliki’s support had been unenthusiastic and low-key, no surprise given opposition by many Iraqis suspicious of any possible diluting of national sovereignty. But he is now preparing a major speech explaining why the nation at large should accept the agreement. Once a reluctant prime minister, he now wants to stay on, get re-elected, and even expand his influence. He therefore has positioned himself as a tough defender of sovereignty while still relying on the Americans to help shore up his political career. But Shiite cleric Muqtada al-Sadr, who has interrupted his studies in Iran to attack the SOFA, has called for a huge demonstration for next Friday. Some more mainstream Sunni and Shiite leaders and politicians also have expressed reservations about the agreement. Only Kurdish politicians have fully embraced the measure.
The government is describing the agreement as the best Iraq can get and one that has strong support among the various political factions. Government spokesman Ali al-Dabbagh points out that 27 of 28 ministers present at the Cabinet meeting voted to approve the SOFA and that many in the 275-member Parliament, irrespective of party affiliation, are expressing support and “relief.” At a press conference after the Cabinet decision, he adroitly defused – at least temporarily – the immunity issue by saying that “anyone who commits a crime will be submitted to a court of law, whether Iraqi or American” and that a committee will study any offenses to determine who should have jurisdiction. He also stressed that the agreement gives Iraq “more sovereignty.” Dabbagh also brushed off suggestions that the country should allow ordinary Iraqis to decide the issue, calling a referendum “not practical” and arguing that Parliament is effectively the people.
Whether the Parliament falls in with the Cabinet and sanctions the SOFA may depend on how the vote is structured. The agreement is more likely to pass if members of Parliament are allowed a secret ballot. A public vote probably would cause some members to abstain rather than risk a public backlash. If feelings run high enough, those who vote yes could well put themselves in peril. “Parliamentarians are looking for immunity from assassination,” observes a high-level adviser familiar with the deliberations. With the SOFA enshrining such important changes as the immediate transfer of control of airspace to Iraqis, transfer of detainees to Iraqi custody, withdrawal of U.S. forces from cities by next June and withdrawal from Iraq itself by the end of 2011, it appears the country’s nationalists will hold their noses and vote yes.
