International Law

Lake and Rogin on Absence of Immunity for U.S. Troops in Iraq

By Jack Goldsmith
Monday, June 23, 2014, 10:05 AM

Eli Lake and Josh Rogin have a revealing story entitled Obama Flips on Immunity for U.S. TroopsIt begins:

President Obama pulled U.S. forces out of Iraq in 2011 because he couldn’t get Iraq’s parliament to offer U.S. soldiers immunity from Iraqi prosecution. But now Obama has promised to send in hundreds of special operations forces before securing even a simple promise that these soldiers will not be tried in Iraq’s famously compromised courts for actions they are taking in defense of Baghdad.

Lake and Rogin note that in 2011 the Obama administration balked at the immunities provided in a negotiated Status of Forces Agreement (SOFA) after concluding that it would not be binding in Iraq absent parliamentary approval, which was not forthcoming.  They continue:

Yet this time around, Obama is willing to accept an agreement from Iraq’s foreign ministry on U.S. forces in Iraq without a vote of Iraq’s parliament. “We believe we need a separate set of assurances from the Iraqis,” one senior U.S. defense official told The Daily Beast. This official said this would likely be an agreement or exchange of diplomatic notes from the Iraq’s foreign ministry. “We basically need a piece of paper from them,” another U.S. official involved in the negotiations told The Daily Beast. The official didn’t explain why the parliamentary vote, so crucial three years ago, was no longer needed.

The piece closes:

[F]or now, one major obstacle to any further U.S. intervention in Iraq will be the issue of legal immunity. Speaking to reporters on Friday, Pentagon spokesman, Rear Adm. John Kirby, said, “We are pursuing something in writing. The secretary is absolutely committed to making sure that our troops have the legal protections. He would not do that on a nod and a wink.”