Immunity Pact For American Troops in Iraq Still Unsettled 

Status-of-Forces Agreement Establishes Rules for Forces 

By Walter Pincus

Friday, January 23, 2004: (Washington Post) The United States has yet to begin serious negotiations with Iraqis on an agreement to guarantee that American troops in Iraq will remain immune from arrest and prosecution by local authorities once a new Baghdad government takes over in June, according to U.S. and Iraqi officials.

The status-of-forces agreement, often one of the most sensitive pacts reached between the U.S. and countries that host American troops, will also set the rules for where U.S. troops will be based and the conditions under which they will operate.

"All these things have to be negotiated and agreed upon -- the areas they [American troops] will be deployed, their bases and so on," Iraqi Governing Council President Adnan Pachachi said this week. "But we are still waiting for a draft" agreement from the United States, he added.

The U.S. timetable calls for reaching a forces agreement by March 31 with the governing council -- the U.S.-appointed group helping temporarily to run the country. 

U.S. officials assume, but have no guarantees, that the agreement would be honored by the yet-to-be-created Iraqi government. 

The open questions surrounding the future status of U.S. forces are among many uncertainties facing the United States as it heads toward a self-imposed deadline for ending the occupation of Iraq.

Much of the public debate over the transition has centered on whether the United States can deal effectively with the Iraqi insurgency, whether Kurds will retain autonomy, and whether the new government will be created through elections, as demanded by some Shiite leaders, or through a system of caucuses as proposed by the United States.

But brokering a deal authorizing U.S. troops to remain -- and in particular getting a guarantee of legal immunity for troops -- are among the other important details to be settled by June.

"Along with resolution of the Shiite questions and the Kurds on federalism, it is a big issue," said Noah Feldman, an assistant professor at New York University School of Law who has consulted with the U.S.-led Coalition Provisional Authority about Iraq legal matters.

"The idea that if American troops do something wrong they are not tried under your country's laws is hard for [the Iraqi] people to understand," he said. "At the same time, if there are 100,000 American troops there, they want legal protection."

The Defense Department, under U.S. law, is required "to protect . . . the rights of United States personnel who may be subject to criminal trial by foreign courts and imprisonment in foreign prisons."

Any status-of-forces agreement in Iraq will be negotiated "so our men and women would continue to be protected under U.S. jurisdiction and the host nation [Iraq] is protected, knowing they will be brought to justice" by the U.S. military, said State Department spokesman Richard Boucher.

In Iraq, U.S. officials have investigated a range of accusations against U.S. troops, including the alleged shooting of noncombatants, the arrest of innocent people, mistreating prisoners and destroying property. When the military finds wrongdoing, troops are to be punished under U.S military law, not Iraqi law.

Such arrangements become highly sensitive when local citizens are caught up in military operations conducted by U.S. troops.

Last week, for example, Brig. Gen. Mark Kimmitt told reporters in Baghdad an investigation was underway in Tikrit by the 4th Infantry Division into allegations that a family was killed when their car tried to pass a U.S. Army convoy. Investigators, Kimmitt said, "have not found any reports of any troops that were involved in that incident. But we certainly want to put to rest any perception that the troops are not operating within the rules of engagement."

In the 1970s, the status-of-forces agreement that kept U.S. soldiers out of Iranian courts became a rallying cry for Ayatollah Ruhollah Khomeini in his revolution against the shah of Iran, said William Quandt, who was then a member of President Jimmy Carter's National Security Council. "It was a big issue, the idea if Americans do anything wrong they are not tried in your country," Quandt said.

Patrick Lang, a retired U.S. Army colonel who was the Defense Intelligence Agency's senior analyst in the region, said status-of-forces agreements can be seen by some in the Islamic world "as an alliance with an infidel power."

For years, he said, the U.S. military training mission in Saudi Arabia was described to the people there as a hired mercenary force. "When the U.S. military presence on air bases grew larger," Lang said, "Osama bin Laden began using it as a reason for attacking the government and the U.S."

Normally, a status-of-forces agreement is negotiated with an independent, sovereign government and not, as apparently will be the case in Iraq, with a body -- the Iraq Governing Council -- whose members were appointed by the United States. 

Last week, Dan Senor, spokesman for the chief U.S. administrator in Iraq, L. Paul Bremer, told reporters in Baghdad, "The status of the American security [forces] in Iraq will move in a matter of months from occupational force to invited guest." Negotiations over the terms of that invitation, when they formally begin, will take place between the United States, he said, "and the future Iraqi leadership. That is part of the political process."

Pachachi said U.S. troops assigned to security roles will be eventually replaced by Iraqi police and soldiers. Nonetheless, he sees a continuing presence.

"American troops will be of course needed for a while to protect Iraq from any outside incursions," he said. "It will take time to rebuild an Iraqi army that can withstand the pressures from two powerful neighbors, for example, Iran and Turkey, plus the other smaller neighbors of the Arab world."

© 2004 The Washington Post Company