Statement of Ruth Wedgwood
Edward B. Burling Professor of International Law and Diplomacy
The
Before the House Committee on Foreign Affairs
Subcommittee on International Organizations, Human Rights, and Oversight
Hearing on “The November 26 Declaration of Principles: Implications for
UN Resolutions on
I appreciate the invitation by the Chairman and members of
this Subcommittee to comment on the “Declaration of Principles” issued on
I have been asked to comment as well on the type of international instrument commonly called a “Status of Forces Agreement” – and the relationship between the November 2007 Declaration of Principles and this type of agreement.
We are all aware that it is an election year. There has been widespread speculation in the
public press, indeed even in the new journalistic world of “blogs,” as to
whether the November 2007 Declaration of Principles is somehow an attempt to
“tie the hands” of a future President.
There has been speculation as to whether the Declaration somehow would exclude
the Congress from its important role in developing the nature of
In my judgment, both characterizations are inaccurate. With the end of the regime of Saddam Hussein,
and the ongoing efforts to quell the terrorist attacks against civilians in
For any observer who wonders why there is some temporal urgency for thinking about the period when the United Nations mandate will end, a chronology of the requests of the Iraqi government may help to provide an answer.
In particular, on
But
On
Thus, there could be a need to address the status of any
foreign personnel in
I do not read the November 2007 declaration of principles to
be any attempt to steal the show, or preempt future judgments by the Congress
or the next President. Rather, it is a rehearsal of the needs that
A pledge of cooperation in addressing these needs is
something that every state in the international community owes to the people of
The November 2007 declaration of principles is not a defense
treaty. It is not the equivalent of
Article 5 of the NATO Treaty. It is, no
more or no less, a pledge to look for ways in which
In a hearing before the House Armed Services Committee, this
last Wednesday afternoon, on
“we do not want, nor will we seek permanent bases in
So, too, on
Mr. Gates also noted that “my view is that there is nothing
in the Status of Forces Agreement, that we are just beginning to negotiate,
that would bind a future administration.
It basically, like other Status of Forces Agreements, sets forth the
rules by which we continue to operate in
To be sure, Mr. Chairman, it is my private view that any
future President will be obliged to consider the long-term reputation of the
************
For clarity, let me briefly address the general nature of “status of forces” agreements – often called “SOFA’s” – and what they typically entail. These are relatively commonplace agreements. The United Nations uses SOFA agreements. NATO has them, as does the Partnership for Peace or PfP. They are used in United Nations peacekeeping missions. And of course, there are also bilateral SOFA agreements.
SOFA agreements are designed to clarify the important question of legal jurisdiction over visiting forces. They are often rather dull. In a technical but useful book called The Handbook of the Law of Visiting Forces (Oxford University Press 2001), German legal scholar Dieter Fleck has noted (at page 3) that SOFA agreements are an attempt “to elaborate clear status provisions for military and civilian personnel of foreign armed forces in a receiving state” and may be used for “exercises and even for transit operations.”
Thus, even in an exercise of the Partnership for Peace or the Proliferation Security Initiative, as well as United Nations peacekeeping, it is important to have SOFA agreements to determine which state has jurisdiction over the activities and status of soldiers, sailors, airmen and marines. Typically, a NATO SOFA is practically applied so that any mishaps arising in the course of official duties are handled by the state of the so-called “sending state,” whereas completely private acts will fall under the concurrent jurisdiction of the so-called “receiving state.”
SOFA’s are important in protecting our armed services
personnel all over the world. During the
negotiations of the treaty for the International Criminal Court, the
In layman’s terms, a SOFA can be likened to an immunity treaty for diplomats or consular personnel. The common element is that the responsibility to investigate and proceed against any wrongful acts committed in the course of official duties is left to the country of the alleged offender’s nationality, i.e., the so-called “sending” country. A SOFA is not a pledge to station a certain number of forces or indeed, any forces at all. There is no mystery or diplomatic intrigue in a SOFA.
In our security posture around the world, there are difficult issues to be addressed, including the status and supervisory mechanism for private contractors, and other non-military personnel. But again, a SOFA has no implications for the size, duration or intensity of any military involvement. The virtue of a standing SOFA agreement is that the matter does not have to be addressed anew, each time official personnel are visiting or transiting or working in a foreign country.
This is not to prejudge our future
relationship with the people of
But no matter who is chosen as the next President, and what
view is taken of
[1] The
extension of the mandate of the Multi-National Force for
[2] So, too, in a colloquy with Congressman Joe Courtney, Secretary Gates stated: “The status of forces agreement will not have a security component to it. It will not be a security agreement with the Iraqis.//
It will be like virtually all – well, like most status
of forces agreements, basically, the rules of the road and an agreement on how
we are able to operate in