LAW FROM THE CENTER

Fox News runs a story today about the progress (or lack of) of negotiating a Status of Forces Agreement (SOFA) with the emerging Iraqi government. After the transfer of authority on June 30, Iraqis will be in charge of the criminal justice system. Without a SOFA, US troops who commit crimes in Iraq could, at least in theory, be tried by Iraqi courts. Although a SOFA was originally supposed to be in place by March 30, three months before sovereignty transfer, members of the governing council have indefinitely shelved the issue (I wrote about that development here and here). Some options in place of a sofa:

1. Prior UN Resolutions. Since prior UN resolutions governing Iraq have never been technically repealed, US forces could cite the language in them describing us as an "occupying force," granting us exclusive criminal jurisdiction over our own troops.

2. SOMA (Status of Mission Agreement). Assuming that the US is successful in getting the UN a greater role in the development of a successor Iraqi government, a SOMA could grant us exclusive criminal jurisdiction. A SOMA is an agreement with the UN similar to a SOFA with a specific nation.

As I wrote earlier, we need to promulgate some theory of exclusive criminal jurisdiction soon, to ensure that our troops our not stuck in a legal "no-man's land."