Global Policy Forum

Iraqi Leaders Question US Troops' Immunity


By Jonathan Finer and Joshua Partlow

Washington Post
July 6, 2006

Following a recent string of alleged atrocities by U.S. troops against Iraqi civilians, leaders from across Iraq's political spectrum called Wednesday for a review of the U.S.-drafted law that prevents prosecution of coalition forces in Iraqi courts. Prime Minister Nouri al-Maliki told reporters during a visit to Kuwait that "the immunity given to members of coalition forces encouraged them to commit such crimes in cold blood," adding, "That makes it necessary to review it."

The demand could widen a rift between U.S. and Iraqi authorities over killings and other crimes allegedly carried out in recent months. Maliki, who said last month that excessive force by U.S. troops was commonplace, also said Monday that the government would open its own investigation into allegations of rape and murder by American soldiers during a March attack on a family in Mahmudiyah.

A top U.S. military spokesman told reporters during a briefing in Baghdad that investigations into the Mahmudiyah case and several others are "being pursued vigorously." "We will hold ourselves accountable for our actions," Maj. Gen. William B. Caldwell IV added, saying that if crimes occurred they would be an aberration and that U.S. forces have made many positive contributions.

The dispute centers on a rule with the force of law enacted two years ago by the U.S.-led Coalition Provisional Authority, which governed Iraq after the fall of Saddam Hussein. Known as CPA Order 17, it stipulates that coalition forces, diplomatic personnel and contractors working for coalition forces or for diplomats "shall be immune from the Iraqi legal process." But challenges to the immunity order have gained momentum, beginning with the November killing of 24 civilians in Haditha, which came to light in March when Time magazine reported the incident.

In a rare unified stance by factional leaders, members of Iraq's Kurdish and Sunni Arab political blocs endorsed Maliki's call to revisit the immunity issue. "In the name of immunity a lot of crimes have occurred, whether it is foreign forces or the security guards they have," said Mahmoud Othman, a Kurdish lawmaker. Alaa Makky, an official with the Iraqi Islamic Party, the country's largest Sunni Arab political group, said his organization had long criticized the immunity policy. While U.S. forces will investigate certain "high-profile" cases, such as those in Mahmudiyah and Haditha, he said, "there are thousands of these events, really, that are vile and that never get noticed." An Iraqi government official, who spoke on the condition that he not be named, said Maliki hoped to revise Order 17 when the U.N. resolution authorizing the presence of U.S. forces in Iraq comes up for renewal at the end of the year.

Caldwell called the immunity question a legal matter and said he would consult military lawyers before articulating a position. However, he appeared to leave room for negotiation on the issue. "We are here as guests of the Iraqi government. They're a sovereign nation," Caldwell said. "We're going to sit and discuss with them whatever they want to discuss."

But allowing Iraqi authorities to try U.S. troops, who unlike contractors are subject to military courts-martial when accused of crimes, would be an unlikely, if not unprecedented, concession, legal experts said. Immunity from prosecution is a common stipulation when U.S. forces are sent abroad. The Bush administration has declined to join the International Criminal Court at The Hague, in part out of concern that U.S. forces could be prosecuted for actions committed during foreign deployments. And a law passed by Congress in 2002 restricts U.S. involvement in U.N. peacekeeping missions unless American forces are deemed immune from prosecution.

Allison Danner, an international criminal law specialist at Vanderbilt University in Nashville, said that while the United States has occasionally allowed foreign governments to prosecute American troops, including in the Philippines and Japan, such decisions were made on a case-by-case basis, leaving the immunity intact. "I can't see them allowing the Iraqi government to decide when that should happen," she said.

The case in Mahmudiyah, an insurgent stronghold south of Baghdad, has provoked a particularly strong reaction from Iraqi officials because of the attitude toward sex crimes in Islamic culture. U.S. soldiers are alleged to have raped a girl as young as 15 in her home, before fatally shooting her and three family members. On Monday, former Army Pfc. Steven D. Green was arrested near Asheville, N.C., on federal charges of rape and murder. Army officials said Wednesday that Green, 21, was sent from his unit in Iraq back to the United States in April because of an unspecified "personality disorder" that was interfering with his performance as a soldier but that the Army was unaware at the time that Green was allegedly involved in the Mahmudiyah incident. Green officially left the Army on May 16, according to an Army spokesman. At least four other U.S. soldiers still in Iraq are under investigation. The U.S. Army unit responsible for Mahmudiyah, the 502nd Infantry Regiment, is the same unit whose soldiers were abducted by insurgents from a checkpoint at nearby Yusufiya in early June and later found dead, their bodies mutilated. Caldwell said Wednesday that there was not "any indication whatsoever" the incidents were linked.

Elsewhere in Iraq on Wednesday, U.S. and Iraqi forces continued a large-scale operation to free Tayseer al-Mashhadani, the Sunni lawmaker whose abduction led Sunni parties to boycott meetings of parliament. Officials with the Iraqi Islamic Party, to which Mashhadani belongs, said Wednesday that the kidnappers had submitted demands, including the withdrawal of U.S. forces from Iraq on the party's timetable, the release of certain prisoners and a halt of attacks by Sunnis on Shiite mosques. Mashhadani was abducted last weekend in a northern Baghdad neighborhood controlled largely by the Mahdi Army, a powerful Shiite militia believed by many politicians to have carried out the kidnapping. "Either they have done it or they didn't stop it," Othman, the Kurdish lawmaker, said Wednesday.

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