JURIST Contributing Editor Haider Ala Hamoudi of the University of Pittsburgh School of Law says that the American concession in the supposedly final version of the Status of Forces Agreement governing US troops in Iraq that would put US soldiers under Iraqi criminal process in limited instances has been made necessary by Iraqi skepticism over American willingness to try its own soldiers and contractors in US civilian and military courts…

As Iraq continues to struggle with whether or not to accept the United States’ last and supposedly final proposal concerning the presence of American troops on Iraqi soil, a central irony has begun to reveal itself, concerning at least perceived American reluctance to try and convict Americans in the field who may have committed war crimes.

In official circles, United States policy has always been that the very small minority of American soldiers who commit war crimes will be prosecuted for them. While certainly courts martial have taken place for war crimes in Iraq, for the mistreatment at Abu Ghraib, murder and rape in Haditha (which led to a number of life sentences) as well as mass murder in Hamdaniya and Haditha, Iraqis have been understandably skeptical of the United States willingness to prosecute its own citizens for crimes in Iraq. The Abu Ghraib prosecutions focused almost (but not entirely) exclusively on the enlisted and on noncommissioned officers, for example. Often prosecutors seem to have a difficult time proving their cases, as in the Haditha killings, where charges against seven of the eight Marines have been dropped, and the eighth awaits trial for negligent homicide, despite considerable evidence (photographic and eyewitness, both from civilians, including children, and fellow soldiers) of a deliberate massacre of over two dozen Iraqi civilians. The difficulties are compounded in the case of private contractors, where virtually nothing has been seriously investigated. This includes the shooting and killing of a bodyguard in front of numerous eyewitnesses, and any number of incidents involving the shooting deaths of unarmed civilians, in at least one case dozens of them, in crowded, public areas.

More importantly, certain, persistent voices in our political conversation decry virtually any investigation into those activities that appear to be war crimes, describing this as being somehow hostile to the troops and therefore threatening national security. The fear is that excessive prosecution will hinder the troops’ ability to do their jobs effectively and well, because the actions they take in a difficult and deadly combat environment will be judged in hindsight, from those far from the line of fire, to have been criminal in nature.

Certainly the concern of overweening prosecution is a legitimate one, and few doubt that the overwhelming majority of troops do their jobs professionally and well in very difficult conditions. However, a separate issue certainly arises in cases where, as here, the ability and willingness of the United States to prosecute that small minority of soldiers committing war crimes is viewed by the host country, with some degree of justification, with extreme skepticism. When this happens, as it has in Iraq, the host country becomes not only less amenable to the presence of foreign troops on its soil, but also opposes strongly the grant of immunity against prosecution in the host country courts. This threatens American national security, and the interests of American troops, far more than, perhaps, a more robust prosecution in Haditha or Abu Ghraib would have.

Thus, in an attempt to protect troops and serve American national interest, we may end up with something that does less of either. There is that danger in Iraq currently. A source of the impasse in the current negotiations over the Status of Forces Agreement between the United States and Iraq relates precisely to the question of immunity for US troops. While some, such as the Sadrists, simply oppose the US presence and will oppose the agreement no matter what it does or says, a principal sticking point among the vast majority of the political powers in Iraq relates to the extent of immunity granted to US soldiers from Iraqi prosecution. While American media are quick to deride the quality of justice in Iraqi courts, the other side must be taken into account. No Iraqi I have spoken to within government circles takes seriously the notion that American military courts earnestly investigate and prosecute war crimes.

This is an important issue, for our troops and our national security, as it leads Iraqis to stress ever more forcefully the need to prosecute in domestic tribunals. So far, this has led the United States to make an extraordinary, if largely symbolic, concession; namely, that soldiers who commit war crimes when not on base or on a mission may be subject to Iraqi criminal process. This is symbolic in that almost never is an American soldier off base and off mission in Iraq of all places, but still, it is quite unusual for the US to concede this. As an international lawyer who finds value in so many legal systems around the world, I find much to praise in offering such a concession, but I also wonder if it will be enough. If it is not, the entire existence of the agreement is cast into doubt, hardly a win for the US national security interest. It either makes the presence of US troops illegal, or it continues their presence under Security Council mandate rather than through treaty with a sovereign, democratic nation. Even national interest aside, I wonder whether this state of affairs is really more encouraging to troops in the field. I also wonder whether those so terrified of overweening US court martial investigations are truly satisfied with a compromise that actually grants some level of oversight, however small, to Iraqi courts instead of American military ones. Sometimes, if one wants to take American national security and troop morale seriously, a broader perspective might be necessary.

*I am grateful to U.S. Army Judge Advocate (JAG) Dan E. Stigall for his valuable perspective and insight concerning the current state of military prosecutions for war crimes in Iraq.

Haider Ala Hamoudi is a professor at the University of Pittsburgh School of Law. The American-born son of Iraqi parents, he has lived and worked in Iraq and has been a legal advisor to the Iraqi government, experiences he describes in his new book, Howling in Mesopotamia (Beaufort Books). He has a blog on Islamic law at http://muslimlawprof.org.

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