This Article will examine the Iraq SOFA’s use of duty status as a basis for determining which State has primary jurisdiction over U.S. service members for alleged criminal misconduct in Iraq. In the third section, the Article will briefly explain what a SOFA is, and how and why they are used, focusing on the North Atlantic Treaty Organization (NATO) SOFA. This section will also utilize examples of U.S. service member misconduct, both associated with and detached from official duty, to illustrate the application of an acts-based SOFA jurisdiction article. The fourth section turns to the Iraq SOFA’s status-based jurisdiction article, exploring how the U.S. military defines duty status and whether using that definition renders the concept of Iraq jurisdiction over U.S. service members a nullity. The fourth section also describes the potential discrepancy between the U.S. and Arabic definitions of duty status and suggests how the law governing treaty interpretation might resolve the conflict. The fifth section discusses possible U.S motivations for using for a duty status based jurisdiction construct. Ultimately, this article concludes that status-based criminal jurisdiction was borne out of a U.S. belief that the Iraqi judicial system would not adequately protect the rights of U.S. service members. Linking jurisdiction to ever present duty status might seem to benefit the U.S. by allowing exclusive jurisdiction over its service members, but such an assertion will be viewed as over reaching at best, and the benefits are likely politically impossible to retain.
A Sense of Duty: The Illusory Criminal Jurisdiction of the U.S./Iraq Status of Forces Agreement,
San Diego Int'l L.J.
Available at: https://digital.sandiego.edu/ilj/vol11/iss2/4