ASIL Insights

---

            On June 30, 2004, the Coalition Provisional Authority (CPA) in Iraq is scheduled to dissolve, with sovereign power to be turned over to a transitional Iraqi Administration.  More than 100,000 Coalition forces will remain in the country with their legal status very much in doubt unless steps are taken to clarify the situation.

            At present, Coalition forces in Iraq are subject to the exclusive jurisdiction of their parent states.  One of the early orders issued by the CPA specifically stated that Coalition forces were immune from Iraqi legal process. [1]   Consequently, under the present legal regime, non-Iraqi judicial processes determine what actions by Coalition personnel constitute a crime.  For example, an American serviceman is bound to uphold international law such as the Fourth Geneva Convention and relevant American law such as the Uniform Code of Military Justice.  However, adjudication of any alleged violations of the foregoing is done by an American court martial.  If an Iraqi claims he is unlawfully detained or that he has been tortured, he could not at present call the Iraqi police or ask for relief from an Iraqi court.  His sole remedy would lie in a foreign court.

            After June 30^th, however, Coalition troops will no longer be forces of occupation.  Yet, exactly what Coalition forces will be the day after the transfer of sovereignty is very much a mystery. 

            Not only do Coalition troops lose their status as occupying forces, they may lose their authorization to be in the country as part of a U.N. multinational force.  U.N. Security Council Resolution 1511 authorized the creation of a multinational force to bring stability to Iraq. [2]   However, operative paragraph 15 provides that the mandate of that force expires upon the completion of a political process that restores sovereignty to Iraqis, although it expresses readiness to consider on that occasion any future need for the continuation of the multinational force, taking into account the views of an internationally recognized, representative government of Iraq.  Part of the political process outlined in Resolution 1511 included the drafting of a permanent Constitution and the holding of national elections ultimately leading to a transfer of sovereignty.  Although Iraq after the handover will still have to write a permanent Constitution and hold elections, the provisions of Resolution 1511 seem to suggest a transfer of sovereignty is sufficient for the multinational's force's authorization to expire.  Thus, until the transitional government gives explicit authorization for those troops to be on its soil, or unless the Security Council authorizes the continuation of the multinational force, Coalition forces would be on the territory of a sovereign state without legal justification.

            This is not to say that the transitional administration intends to expel Coalition forces.  To the contrary, Article 59 of Iraq's interim Constitution states that Iraqi forces will work in partnership with multinational forces under relevant Security Council resolutions, in order to maintain peace and security during the transitional period.  Furthermore, Article 59 states that this arrangement should last until the ratification of a permanent constitution and the election of a new government.

            Initially, though, it was envisioned that a series of bilateral Status of Forces Agreements (SOFAs) would be negotiated prior to the handover of sovereignty.  SOFAs are international agreements that delineate the relationship between foreign forces and host governments.  They cover a broad range of issues such as taxes, compensation for claims, the exit and entry rights of forces, and most importantly criminal and civil jurisdiction over foreign forces.  Traditionally, most SOFAs grant the host country jurisdiction over service personnel who are alleged to have violated domestic laws.  There are generally two exceptions to that rule: the foreign government retains jurisdiction over its nationals when their alleged crimes are against its other service personnel or when the national's alleged offense took place in the scope of his or her official duties. [3]   For example, a soldier who mistakes civilians for insurgents during a raid is performing an official act and would generally be subject to his or her own government's jurisdiction.  In regard to Iraq, where operations are actively ongoing, it is likely that Coalition members will seek extremely broad protection for their personnel.

            Historically, SOFAs have often proved to be a source of tension between the United States and other governments.  Two years ago, protests erupted in South Korea when two American servicemen were prosecuted and acquitted by an American court martial after their tank ran over two teenage girls.  The SOFA between the US and Japan has led to strained relations in regard to crimes committed by American serviceman on the island of Okinawa.  And in the 1970s, the Ayatollah Khomeini railed against the SOFA between Iran and the US, arguing it was a source of national shame.

            The November 15, 2003 Agreement between the CPA and the Iraqi Governing Council outlined the steps for the restoration of Iraqi sovereignty.  The most noted part of the agreement was the drafting of a fundamental law or interim constitution for the transitional government.  Equally important, though, was Section 2 of the Agreement, calling for SOFAs between Coalition countries and Iraq to be completed by the end of March 2004.

             However, the Governing Council has now stated that any possible agreement will have to wait until the establishment of a sovereign government after the June 30th handover.  Indeed, SOFAs are traditionally negotiated between sovereign governments.  In fact, it is questionable whether any agreement between the CPA and the Governing Council could legally bind the transitional administration.  While the Governing Council in conjunction with the CPA may be able to form domestic fundamental law for a transitional administration, their ability to commit Iraq to durable international agreements is a different matter.

            The capacity to be bound by a treaty is inherently an incident of national sovereignty.  Security Council Resolution 1500 considers the Governing Council "an important step towards the formation . of an internationally recognized, representative government that will exercise the sovereignty of Iraq.." [4]   In Security Council Resolution 1511, the Council went further, noting that the Governing Council and its interim ministers embody Iraqi sovereignty until the internationally recognized government is established. [5]   Yet, nowhere does the Security Council explicitly state that the Governing Council actually exercises Iraqi sovereignty in the sense that it could bind the Iraqi state to international obligations that would outlast its period of governance.   The Security Council noted in Resolution 1511 that an internationally recognized, representative government established by the people of Iraq will eventually assume the responsibilities of the CPA. [6]

            In the absence of a SOFA, Coalition forces would be subject to Iraqi jurisdiction.  All states possess territorial jurisdiction unless they choose to waive it, for example, via a SOFA. [7]   Thus, Iraqi Courts at least in theory would have the right to try Coalition forces for any alleged offenses.

            Indeed, the absence of a SOFA could lead to possible jurisdiction over Coalition forces by the International Criminal Court (ICC) if the Iraqi transitional administration decides to ratify the Rome Statute for the International Criminal Court.  Some Coalition members are already parties to the Rome Statute and hence are already under its jurisdiction.  For those states, Iraqi ratification of the Rome Statute matters little.  The United States, however, has declared its unwillingness to participate in the ICC and would be greatly concerned by any potential assertion of jurisdiction by that body.  With a SOFA, the United States could avoid jurisdiction by the ICC even if Iraq were to ratify the Rome Statute.  Article 98 of the Rome Statute prohibits the Court from requesting the surrender of a suspect to the ICC if it would require the requested state to violate an international agreement such as a SOFA. [8]

            The ICC does not have primary jurisdiction over Coalition forces in any event.  Under Article 17 of the Rome Statute, the ICC must defer to a local investigation unless a state is unwilling or unable to investigate or prosecute the alleged offense.  If either Iraq or a Coalition member were investigating a particular matter, the ICC would be precluded from pursuing the matter under the terms of its Statute.  In addition, Article 16 of the Rome Statute says that no investigation or prosecution may be conducted for 12 months after the Security Council, acting under Chapter VII of the U.N. Charter, requests the ICC to that effect.  The Security Council has made annual requests that the ICC not investigate or prosecute acts or omissions of a United Nations-authorized operation.  Presumably it will continue to make these requests, and they would apply to any Security Council-authorized continuation of the multinational force in Iraq.

            As of now, the Coalition has essentially two options.  First, it could try to persuade the Governing Council to reconsider its decision about negotiating a SOFA despite the possible legal infirmities outlined above, with the hope that the transitional administration will honor the agreement.  Second, the Coalition could obtain a Security Council Resolution under Chapter VII of the U.N. Charter that would extend the mandate of the multinational force and limit Iraqi jurisdiction over those troops.  As a member of the United Nations, Iraq must abide by any Security Council resolution adopted under Chapter VII, even if it conflicts with domestic laws or any other international agreement. [9]   This strategy, however, requires obtaining nine votes in the Security Council and avoiding a veto by any permanent member.  The advantage of this strategy is its legal certainty and its ability to be in force upon the transfer of sovereignty.

            The June 30 handover will mean a restoration of sovereignty for Iraq.  It will not, however, mean the immediate restoration of order and peace in Iraq.  For at least some amount of time after the handover, Coalition forces will be needed to provide security to the Iraqi people.  In this interval, what legal instruments will provide security to Coalition forces is uncertain.

About the Author:
Mayur Patel will be joining the law firm of Dewey Ballantine LLP this fall.

---