JURIST Guest Columnist Leila Sayed-Taha, DePaul University College of Law Class of 2012, currently works as a translator for Ace Languages Centre, where she aids asylum seekers at the Immigration Advisory Service. Here she discusses the ongoing issue of immunity as troops withdrawal and private contractors remain, and she examines the circumstances in which Iraqi citizens previously employed by the US military have been left...
In October, the Iraqi Parliament refused to grant immunity to American servicewomen and men serving in Iraq after the initially agreed upon withdrawal date. This withdrawal date had been established by the Bush administration in 2008. After almost nine years of US military engagement in Iraq, Operation New Dawn has come to an end. Regardless of whether this is to be considered a mission accomplished or the prelude to a sectarian war, the fact remains that nothing is certain. The current debate concerning whether withdrawal was a wise move on behalf of President Barack Obama, a popular criticism made by the current presidential candidates, fails to illustrate a clear picture of the reasoning behind the withdrawal. This failure is misleading both politically and legally. The current administration clearly prioritized troop legal protection over military presence in Iraq. After the events that took place at Abu Ghraib and in Haditha, and the legal complexities caused by Blackwater, one cannot blame the Iraqi people for choosing to refuse legal immunity. Ironically, hundreds of private military contractors, a major source of mistrust for many Iraqis, have remained in Iraq after the military withdrawal.
The US-Iraq Status of Forces Agreement [PDF] (SOFA) explicitly states that all US forces stationed in Iraq would be completely withdrawn by December 31, 2011. The implementation of the agreement caused much controversy because the Bush administration withheld the English version of the agreement until after the vote on its legislative enactment by the Iraqi Parliament. Disagreements concerning the interpretation and meaning of some provisions caused the Iraqi government to initially proclaim the agreement to be deadlocked. Areas of dispute included legal jurisdiction over US servicewomen and men responsible for the deaths of Iraqi citizens that occur as a result of operations while on duty. Whilst the Iraqi government in declaring its sovereignty wished to opt for Iraqi legal jurisdiction in such matters, the US preferred all its forces to be legally subject to the Uniform Code of Military Justice. Despite such areas of disagreement, Article 12 of the agreement stipulated that the US would have primary jurisdiction over its members of the armed forces and Iraq shall have primary jurisdiction over US contractors that commit crimes in Iraq in addition to crimes committed by US armed forces in Iraq that do not have active duty status. The latter stipulation was considered a controversial construct, as basing legal jurisdiction on the duty status of the service member is not clear-cut or straightforward. The agreement further stipulated that the US would determine whether or not an alleged offense arose during active duty. According to Army Regulation, duty status has numerous and complex categories, and even if killed or kidnapped a soldier is still considered to have active duty status. The authors of SOFA failed to provide an explicit definition of the term "duty," and its transliteration in the Arabic version of the agreement was argued to be vague and misleading. Without a definitive meaning given to the term, it has been speculated that SOFA failed to establish a common understanding of the word in both the Arabic and English versions of the agreement, and thus the Obama administration was not capable of extending the agreement, specifically in relation to immunity, with the administration of Iraqi Prime Minister Nouri al-Maliki beyond the stipulated expiration date.
Prior to the enactment of SOFA, private contractors were considered to be immune to prosecution under Iraqi law for criminal acts as stated in Order 17 [PDF] of the Coalition Provisional Authority. After the events in Nassour and Haditha and the controversy caused by Blackwater, SOFA was considered to be a means to prevent such a reoccurrence. With the expiration of SOFA, the legal status in terms of jurisdiction and immunity of such contractors remains to be seen. It was reported in October that after the withdrawal of the troops from Iraq, as many as 5,000 private contractors would be employed in order to ensure security of US diplomats. The US Department of State, rather than the military, will be in charge of monitoring the specified roles and contractual duties to be carried out by these private security agents. Currently, the State Department has not released information on the exact nature of the contracts or duties to be carried out by these private contractors aside from providing diplomatic protection.
While the immunity of soldiers and military contractors alike is certainly a serious and ongoing issue, the precarious situation in which Iraqi citizens, formerly employed by the US military, have been left should not be forgotten. Particularly impacted by the withdrawal are those Iraqis who were employed by the US military as interpreters. Many of them, considered to be traitors in their own society, are now targets of Islamic militias, even more so in the face of the present instability. While the 2008 Refugee Crisis in Iraq Act contains provisions that grant fast-track refugee status to those Iraqis employed by US forces, particularly those facing an ongoing threat to their livelihood, the implementation of this legislation has fallen short. Unfortunately, the limitations of the system failed to efficiently provide visas for such individuals, resulting in many applying separately for asylum in European countries out of desperation. In many situations, after waiting for months for their application to be screened, asylum seekers are rejected without any explicit explanation and are not granted any opportunity to appeal. The special visa process, as provided by the statute, allows 5,000 visas per year beginning in 2008. As of October 2011, only 3,415 visas have been granted in the past five years.
Regardless of the supposed justifications for initiating US intervention in Iraq, the justifications for ending this intervention are of a completely different nature. Some may call it a matter of convenience, an ending very far from a stabilized, democratic and peaceful society as proponents of the intervention envisioned. In early December, Vice President Joe Biden declared that Iraq's violence reached an all-time low whilst on a diplomatic trip to the country. However, on January 5, 78 Iraqis were killed near a Shia shrine in Sadr City, the worst attack to hit the country in more than a year. Al-Maliki declared December 31 to be Iraq Day, a symbol of national sovereignty, independence and social unity. Yet the US leaves behind the largest US embassy in the world, twice the size of the White House compound, with a speculated 17,000 employees. Private contracting companies are moving quickly to gain licenses in order to function in Iraq. Even Blackwater (now known as Academi) seeks a license despite being banned from the country. In the face of all this, the plight of those Iraqis who assisted the very forces that sought to liberate them are currently living in fear for their lives, as the legislation put in place some five years ago has failed to fulfill its goal of providing protection. The future of the independent Iraq is anything but certain.
Leila Sayed-Taha is currently an LL.M. candidate at DePaul University College of Law and is focusing her studies on international law with a particular emphasis on human rights law. She works as an intern at Black Association of Women Step Out, where she carries out policy and legal research, and has also volunteered at Bristol Refugee Center, Asylum Justice and Amnesty International Wales. She received her LL.B. from Cardiff University in Wales.
Suggested citation: Leila Sayed-Taha, Uncertainty for Iraqis as Troops Withdrawal and Private Contractors Remain, JURIST - Dateline, Jan. 13, 2012, http://jurist.org/dateline/2012/01/leila-sayed-taha-iraq.php.
This article was prepared for publication by Elizabeth Imbarlina, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org