The Iraqi parliament recently approved an agreement with the United States that sets a much-heralded timetable for the withdrawal of U.S. troops. But another part of that so-called Status of Forces Agreement may ultimately make withdrawing those troops difficult.
One reason the Bush administration has been able to keep troop levels so low in Iraq (relative to the size of the country) has been a widespread reliance on private contractors to provide services that might otherwise fall to the military. Nearly 200,000 contractors currently work in Iraq, and by some estimates more than 1,000 have been killed in the course of their work.
Until now, these private contractors enjoyed complete immunity from prosecution in Iraqi courts for actions that occurred during the performance of their duties. That immunity, decreed by the U.S.-led occupation government in Iraq in 2003-2004, was highly unusual and anachronistic. To many Iraqi leaders, immunity for American civilians is a humiliating sign that Iraq remains under the thumb of an imperialistic power.
Withdrawing this immunity, as the new U.S.-Iraq agreement does, is long overdue. Yet it will create a new set of problems.
Companies such as Blackwater, a large employer of private security contractors, say the removal of immunity will make it much harder to retain and recruit contractors to work in Iraq. If they are right, and the military has to take over operations now being performed by civilians, a rapid troop withdrawal will be much more challenging.
Still, it's not hard to understand why Iraqis bridled so vehemently at immunity provisions. Just think back a year or so, when newspapers, including this one, gave wide coverage to the deaths of 17 Iraqi civilians gunned down by Blackwater guards who feared an attack on the convoy they were leading.
Iraqis demanded the heads of those responsible, particularly because Blackwater had acquired a reputation for "spray and pray" tactics, in which bullets are sprayed into a crowd with a prayer that they will eliminate a threat. The Iraqi government vowed to prosecute the killers but was quickly stymied by the immunity rules.
The Blackwater incident virtually guaranteed that immunity would be a huge issue in the Status of Forces negotiations, which were supposed to end early last summer but lasted well into autumn. Victory on the issue was crucial to Iraq's sense of itself as a sovereign nation.
The Bush administration fought hard but was forced to concede several points. First, American troops in Iraq, who now enjoy total freedom from prosecution in Iraqi courts, will no longer have such sweeping immunity. For "grave premeditated felonies" that occur off-base and off-duty, U.S. service members can be tried by Iraqi prosecutors. Private contractors like Blackwater will lose their legal immunity entirely.
The immunity system put in place during the occupation was not unique to Iraq. For more than 200 years, the U.S. had similar arrangements around the world. A century ago in China, for instance, ordinary Americans who killed Chinese could not be tried by Chinese authorities. Instead, they were tried by U.S. officials; until 1943, there was even a U.S. District Court for China that operated in Shanghai. Similar laws protected Americans in Japan, Morocco and throughout the so-called uncivilized world. They were known as "capitulations" and "unequal treaties," and as these names suggest, they were not welcomed by the nations involved.
Eventually, this system was overturned as the idea of sovereign equality took root. In the 1950s, the U.S. terminated its last unequal treaty. At the same time, however, the U.S. was busily negotiating a new set of immunity treaties. These were aimed not at civilians in "uncivilized" nations but at protecting our troops, now stationed around the world. The idea was that U.S. troops, as they guarded such nations as South Korea during the Cold War, needed to be free from local prosecution.
Today, they generally are free from that threat except for serious crimes such as murder.
The enormous scope of immunity enjoyed by U.S. forces in Iraq, and by private contractors, is consequently a throwback to the distant, imperial past. Like current troop levels, this immunity is unsustainable and causes more harm than good. The ill-will engendered by such events as Blackwater's killing of 17 civilians has serious political repercussions. Excessive immunity not only harms American interests in Iraq, it also feeds the broader perception that the United States believes it is above the law and can bully other nations into submission.
For these reasons, the new Status of Forces accord points in the right direction. But the catch is that the agreement may also make it much harder for the incoming Obama administration to meet the public's expectations for a rapid withdrawal of American troops.
Kal Raustiala is a professor of law at UCLA and director of the Ronald W. Burkle Center for International Relations.