Delay in Implementing Certain Aspects of the U.S.-Iraq SOFA against U.S. Contractors

January 5, 2009

The Status of Forces Agreement (SOFA) between the United-States and Iraq was scheduled to take effect on January 1, 2009.  Since the SOFA agreement became final on November 28, 2008, contractors operating in Iraq have had numerous questions on how the SOFA will be implemented and what effect it will have on their business operations.  One of the primary concerns for U.S. contractors has been what would happen on January 1, 2009, when the new SOFA was scheduled to take effect.

Notwithstanding the SOFA’s effective date, at the request of the U.S. Embassy in Iraq, the Iraqi government has agreed to delay certain aspects of the SOFA.  On December 30, 2008, the Iraqi Ministry of Interior (MOI) issued an order stating that no law enforcement or other legal action will be taken against U.S. contractor employees for an indefinite time period of time on several matters contained in the new SOFA.  Instead, the Iraqi government will delay enforcement of these provisions against U.S. contractors while a newly formed joint committee develops policies and procedures to facilitate compliance with Iraqi laws and regulations related to the these matters. These matters include: the licensing of private security contractors, drivers licenses and vehicle registration, registration of firearms, customs, duties, tariffs, taxes and inspection, and procedures for entry and exit into and out of Iraq.  The joint committee working to resolve these matters will include members of the Iraqi government, the U.S. Embassy in Baghdad, and U.S. military forces. 

While the MOI directive delays implementation of several of the provisions of the SOFA, other SOFA provisions take effect immediately.  For example, on January 1, 2009, Iraqi Security Forces assumed the lead in providing security in the International "Green" Zone.  While Iraqi Security Forces are checking identification badges as people come in and out of the Green Zone, American forces remain in place and continue to play a crucial role in making security decisions.  It is expected that in the coming weeks and months there will be fewer American forces and more Iraqi forces making the key security decisions inside the Green Zone.

It also remains unclear how Iraqi criminal law will be enforced against U.S. contractors. While the MOI directive does not provide U.S. contractors with a grace period from Iraqi criminal prosecution, there is still uncertainty on exactly how Iraqi criminal law will be enforced, and if Iraqi criminal jurisdiction extends to U.S. contractors who are supporting non-DoD agencies such as the State Department or USAID.  To date, the Iraqi government has not issued any guidance on how it will deal with the investigation and prosecution of U.S. contractors.

The new SOFA significantly alters the environment for contractors operating in Iraq. While the recent directive from the Iraqi government delays the implementation of certain aspects of Iraqi law against U.S. contractors, there remain various legal and business challenges for private contractors operating in Iraq.  Gibson Dunn & Crutcher has been and will continue to work with its clients to resolve these challenging issues.

Gibson, Dunn & Crutcher LLP  

Gibson Dunn & Crutcher’s lawyers,  are available  to assist clients in addressing any questions they may have regarding this issuePlease contact the Gibson Dunn attorney with whom you work, or Karen L. Manos, (202-955-8536, kmanos@gibsondunn.com),   Joseph D. West (202-955-8658, jwest@gibsondunn.com), or Brian C. Baldrate, (202-887-3717, bbaldrate@gibsondunn.com), all in the in the firm’s Washington, D.C. office.

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