Has Everyone Forgotten the Iraq SOFA?
Why there was more to the 2011 withdrawal than political expediency.
In recent days, multiple sources have claimed that the withdrawal of the vast majority of U.S. combat forces from Iraq in 2011 was a grave mistake by President Obama. The Washington Post called the move politically expedient ahead of the 2012 presidential election. Former generals and members of Congress have criticized the move as short sighted and detrimental to security in the region. The hasty withdrawal has become the go-to example for every strategist arguing against timeline-based withdrawals in favor of conditions-based operational considerations. The rise of ISIS and the destabilization of Syria, to some degree, are blamed directly on perceived premature U.S. abandonment of Iraq.
There is some degree of truth to all of these claims, but they leave out important realities that many seem to have forgotten — specifically, the failure to agree with the Iraqi Government on a new Status of Forces Agreement (SOFA) governing U.S. troops in country. The resulting lack of legal protection for service members was a significant on-the-ground condition that, at least partly, dictated the need for U.S. forces to un-ass the AO with haste.
Revisionist history in an election year comes as no surprise, and I am not so naive as to think the SOFA was the only consideration in making the decision on when to withdraw combat forces. It was certainly politically expedient for President Obama to make good on a prior campaign promise as he transitioned into his re-election campaign. Likewise, it was expedient for his opponent in that election to criticize the move as shortsighted and dangerous. The generals who ran the war were certainly correct, in hindsight, that despite a drastic reduction in violence from previous years and an arguably more stable government in Baghdad, security conditions were not yet right for a full withdrawal.
It is also important to remember that President George W. Bush signed a SOFA with Iraq in 2008 that set the timetable for full withdrawal at December 31, 2011. It was understood at the time that the agreement would be re-negotiated in the ensuing three years, but negotiations broke down in October of 2011, on President Obama’s watch, over the issue of legal protections for U.S. troops. Iraqi Prime Minister Nouri al-Maliki allegedly supported the deal, which would have kept a residual force in country beyond 2011, but the Iraqi Parliament would not entertain any perceived infringements on Iraqi sovereignty, including legal immunity.
Thus, the lack of a SOFA did, and rightly should have, play a large part in the decision to withdraw by the end of 2011.
What is a SOFA and why does it matter?
SOFAs are common international agreements that the U.S. enters into with virtually any country to which it sends troops, either permanently or temporarily. They cover a wide variety of subject matter — logistics, port access, tariffs, taxes, trade, status of dependents, etc. — but arguably the most important, certainly with respect to Iraq, are provisions covering legal jurisdiction over service members present in the country for official purposes. These provisions determine when, how, and under what circumstances U.S. service members can be called into host nation courts to answer for crimes or other civil infractions. They determine whose laws apply to those Soldiers and what will be done in the event they are violated.
Why is this important? Consider this — Soldiers are driving an armored vehicle through a foreign country as part of official exercises and get into an accident with a local national that results in the local’s death. In the absence of a SOFA, the host country could be well within their rights to charge the Soldiers with murder, involuntary manslaughter or negligent homicide, depending on how local laws were written. They could likewise be sued, in their individual capacity, by the family of the victim, resulting in significant monetary judgments against them. That is for what is essentially an accident in a peaceful environment. The host nation’s interest in asserting jurisdiction is even more pronounced in more violent crimes, like bar brawls or robberies, to say nothing of intentional crimes like murder and rape.
Transpose such a construct onto an active combat zone and the risk to U.S. troops becomes enormous. Without SOFA protections guaranteeing that the Soldiers fighting the war will only be held accountable by U.S. officials under U.S. law, actions that are necessary and even encouraged in combat could land Soldiers in host nation jails. Host nations get to define their own laws. What one side characterizes as a permissible combat action may very well be murder to the other.
Say what you will (and many have) about the rules of engagement (ROE) and how they too strictly limit Soldiers’ ability to prosecute the war and keep themselves safe, but those rules can also provide valuable protections. The ROE represent U.S. policy implementation of the Law of Armed Conflict (LOAC). They provide detailed instructions for warfighters on how to apply LOAC principles to the specific actions and situations of combat. The converse of the rules regarding what you cannot do, such as target civilians, torture, or cause unnecessary suffering, are an explicit acceptance of what you can do, like kill legitimate military targets with the amount of force necessary to counter the threat. Thus, when properly following the ROE, Soldiers have combatant immunity, which means they cannot be prosecuted for the death and destruction resulting from lawful acts of warfare, which in any other context would be heinous crimes, because those actions are tacitly and explicitly sanctioned by the LOAC.
But what if the host nation does not share U.S. views on LOAC or subscribe to the laws at all? What if a host nation could, theoretically if not practically, charge a Soldier with murder for engaging a legitimate enemy? What about for collateral damage? Unintentional civilian casualties? Destruction of infrastructure? All of these circumstances can rightly be described as the inevitable and expected results of warfare, but in the absence of sufficient legal protections and a restrained host nation, nothing would prevent Soldiers and their commanders from facing heinous charges in local courts for committing such acts.
Now, superimpose such a lack of protections (embodied by the lack of a SOFA) on Iraq on January 1, 2012. Imagine the feelings of large portions of the Iraqi population, who ultimately choose the leaders who enact Iraqi law, toward the U.S. military’s actions there. Imagine the lens through which people who lost their homes, families, and livelihoods to American bombs and guns would view our occupation. Imagine if Moqtada al-Sadr, who still has enormous political influence, or former followers of Abu Musab al-Zarqawi, got to decide what was illegal and criminal in Iraq. Imagine if there was nothing that prevented American forces from being charged and sentenced under those laws in kangaroo courts governed by whatever the host nation’s idea of due process was.
Our consciences and the court of public opinion could never allow U.S. service members acting under orders on behalf of their country to be banished to foreign jails, or worse, for doing their jobs. Soldiers, and perhaps the commanders and political leaders who gave the orders, would quickly be deemed war criminals. The host nation would parade these “war criminals” in front of the world as symbols of their defiance of American influence, proof positive that they were not in bed with the Americans.
I am painting an admittedly extreme picture, but those were the real stakes of out-staying our SOFA protections in Iraq. The United States has declined to submit to the jurisdiction of the International Criminal Court for these very reasons, and the ICC is not in an active war zone. Many fear, and some would probably advocate for, former President George W. Bush being dragged into court as a war criminal like Milosevic or Goering for the 2003 Iraq invasion. Where would that leave the average private who was just doing what he was told? “I was just following orders” did not work for the Nazis at Nuremburg or Calley after My Lai, but that was largely because those “orders” to kill civilians were illegal under the LOAC. If all orders to kill or destroy could be interpreted as illegal under the host nation’s law, no one involved in the war would be safe from prosecution.
To characterize the 2011 withdrawal from Iraq as a matter of political expediency or simple irresponsibility is to ignore the potential risk the U.S. would have assumed, the brunt of which our service members would have born, had we not left when we did. Legal conditions on the ground dictated that the risk to service members was too great to stay. Critics, even from within, have argued that the Obama Administration could have pushed harder to achieve an agreement in late 2011, but Iraqi officials later admitted that the agreement likely never would have made it through the Iraqi Parliament.
The small contingent left behind fell under the ambit of the U.S. Embassy in Baghdad and were therefore protected by diplomatic immunity. Had combat forces remained en masse, even if their job was simply to advise and assist, they would have been subject to the whims of Iraqi politicians and the laws they created. Indeed, if U.S. forces were not present in a combat role, as was primarily the case during Operation New Dawn, the Iraqis could have determined that none of their actions were protected by the LOAC and any inadvertent brush with combat would have legal consequences.
The risk this presented was simply too great to allow, and no amount of political expediency or security-consciousness could override that basic requirement to prevent the nation’s warfighters from ending up on the wrong side of a foreign courtroom.
