LAW AND DISORDER: Lessons on Legal Diplomacy from Status of Forces Agreement Negotiations Between the United States and Iraq

Abstract

Legal diplomacy is an interesting tool that could open new possibilities for American negotiators. While scholarship on “lawfare” already examines how laws may be manipulated to directly impact operational objectives during combat, it does not seem directly transferable into higher-level strategic objectives. Legal diplomacy offers one possible explanation for how American officials may rely on law to achieve their policy goals with a wide range of negotiating partners in complex conflicts.

This thesis identifies several lessons on the use of legal diplomacy for more militarily strategic purposes through studying the negotiations of a bilateral Status of Forces Agreement (SOFA) between the United States and the Republic of Iraq. Iraq offers a particularly interesting case study because an official SOFA was never reached. I review the typical structure and scope of SOFAs, including several historical examples, to determine the agreement’s primary function and potential areas for expansion. Furthermore, I explore the strategic goals of American and Iraqi officials going into the 2008 SOFA negotiations in tandem with the development of the Gulf Wars that impacted the two sides’ bargaining positions to determine how their goals were eventually represented in law. Finally, I review the moral and political implications of implementing a SOFA and argue why they should not impede policymakers from giving their full support.

From the lessons learned in this analysis, I offer five policy recommendations: 1) identify and deal with negotiation partners’ strategic objectives and cultural sensitivities, 2) create a SOFA as soon as a sovereign government is recognized, even if with only a transitional government, 3) allow for legal flexibility by separating military from political objectives, 4) leave violent criminal jurisdictions to domestic courts while helping to develop these judicial institutions, and 5) maximize American military operational autonomy. These recommendations provide insight into the use of legal diplomacy through SOFAs in future conflicts that will increasingly involve powerful non-state actors rather than opposing states.