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Issue of immunity for American troops in Iraq stymies talks on long-term US troop presence
BAGHDAD (AP) ' The question of whether American troops who stay in Iraq to train Iraqi forces would have immunity from local prosecution is shaping up to be the most contentious issue as the two countries try to hammer out an agreement on whether to keep a small training force here next year.
Iraqi leaders, desperate to assert their sovereignty, say immunity isn't necessary for any American forces who stay in Iraq to train their security forces. But for Americans worried about their soldiers ending up in Iraqi courts, the lack of immunity is a deal-breaker.
"Immunity is the main disputed point. If we do not have agreement on the immunity, there will be no agreement on the number" of trainers, said government spokesman Ali al-Dabbagh.
Iraqi political leaders met Tuesday night to discuss whether to have American forces stay in Iraq when the 2008 security agreement expires at the end of this year and all American forces are supposed to leave the country. After the meeting they announced that Iraq does need American training help but that the trainers should not have immunity, setting the stage for protracted negotiations.
American officials seemed to be scrambling Wednesday to understand what exactly the Iraqi politicians, who excel at brinkmanship politics, really meant.
The Iraqi statement clearly fell short of what the U.S. had wanted, but the cautious statements in Washington avoided any direct criticism of the Iraqi position. That may be an attempt to buy more time for negotiations.
State Department spokeswoman Victoria Nuland said U.S. Ambassador to Iraq James Jeffrey "and others are working with Iraqi leaders today on specifically what they have in mind."
Navy Capt. John Kirby, a Pentagon spokesman, said that officials are reviewing the statement by Iraqi lawmakers "to make sure we have a complete understanding" of the Iraqi position. He declined to go into detail on the U.S. position, saying only: "We are going to make sure that our troops have the legal protections they need."
Already, talks for what likely would be a relatively small force of 3,000 to 5,000 troops are going down to the wire while the American military swiftly reduces its forces still in the country.
Iraqis are especially sensitive to the issue of immunity, and Iraqi politicians do not want to appear to be giving American troops free reign.
Many Iraqis still harbor bitterness toward Americans over the years when they feared being shot at by U.S. troops in passing convoys or as they approached checkpoints. The 2006 rape and shooting death of a 14-year-old Iraqi girl in the town Mahmoudiya is one of the most heinous examples of crimes committed by American troops that Iraqis wish could have been prosecuted in their own courtrooms.
Private security contractors lost their immunity after incidents such as the 2007 shooting at Nisoor Square in Baghdad by Blackwater guards that left 17 Iraqis dead.
Iraqis often allege that American forces violate the security agreement and accuse them of acting unilaterally. American military commanders maintain they act only with Iraqi partners and within the confines of the security agreement.
"The reason we don't want to give them immunity is because of the mistakes made by the U.S. troops since 2003 such as killings of civilians, arrests and raids," said Izzat al-Shahbandar, the head of Prime Minister Nouri al-Maliki's State of Law coalition.
But for the American military, immunity from prosecution is not negotiable. Iraqi political leaders often like to compare Iraq to other countries such as Japan or South Korea where there are significant American troop numbers and where American troops can, in certain circumstances, face local prosecution.
But, analysts point out, the situation in Iraq is entirely different. Even if they're just taking part in a training mission, U.S. forces here can still come under fire when maneuvering around the country or even on their bases, unlike in Japan or Germany.
"It's still a war environment and if you're fired on you're going to react," said Ramzy Mardini, an analyst at the Institute for the Study of War in Washington.
Additionally, many in the U.S. military have little faith in the Iraqi judicial system's ability to investigate fairly and prosecute American forces, especially considering the strong public opinion against American troops.
In August, then-Chairman of the Joint Chiefs, Adm. Mike Mullen, emphasized the need for immunity and said it must be passed by Iraq's parliament to be considered binding.
But there may be ways around the Iraqi and U.S. intransigence on immunity.
When the security agreement was negotiated in 2008, U.S. and Iraqi negotiators figured out a solution that appeased both sides.
The agreement gives Iraq the right to exercise jurisdiction over U.S. troops for "grave premeditated felonies" when those crimes are committed by troops who are off-duty and outside of U.S. bases or facilities.
Since U.S. troops go outside of their bases only on missions and can be considered always on duty in Iraq, the Iraqis' right to try American troops is essentially nonexistent. Even if an American soldier is arrested by Iraqi troops, under the current security agreement he or she must be handed over to the American military within 24 hours. The Americans agree to make the soldier available to Iraqi authorities for the trial and investigation but he remains in American custody.
Even Shahbander indicated that Iraqis would be willing to give the Americans "partial immunity" but gave no indication as to what exactly that meant.
But with less than three months left before the roughly 43,500 American troops still in the country must leave, time is running out for Iraq and the U.S. to come to an agreement.
Associated Press writers Qassim Abdul-Zahra in Baghdad, and Pauline Jelinek and Matthew Lee in Washington, contributed to this report.