In Iraq, Washington had originally hoped to achieve a formal Status of Forces Agreement to grant immunity, but that was effectively vetoed when Sistani and other Iraqi politicians said no unelected Iraqi government could enter into a treaty with other countries. The United States now hopes to negotiate a status agreement next year, after a government is elected.
In the current negotiations over Order 17, a senior Iraqi official said, the basic concept is to cover 'soldiers and foreign nationals working in operations conducted by mutual consent or understanding with the Iraqi interim government and the command of the multinational force. But what that means remains to be seen.'
The United States hopes to include some foreign contractors, many of whom are engaged in security operations, the Iraqi official added, while Iraq is pressing to retain sovereignty.
'It's going to be a political hot potato, and we're worried it'll be used as a hot potato in a way that is not good for either the interim government or the multinational force,' the official said.
As a legal basis, Iraq's transitional law, which was worked out between Bremer and the now-disbanded Iraqi Governing Council, may be considered too weak a foundation for granting immunity. Sistani argued against it because it was not the work of elected officials.
The U.N. resolution also has no direct reference to immunity for foreign troops. The only reference is in a letter from Powell to the Security Council attached to the resolution, which says contributing states in the multinational force must 'have responsibility for exercising jurisdiction over their personnel' but does not mention prosecution or other specific activity.
The Transitional Administrative Law continues all CPA orders and regulations until such time as the elected Transitional National Assembly can amend or revoke them. Between 30 June and the election the Iraqi Transitional Government has no legislative power at all.
Sovereignty, apparently, does not extend to the dangerous idea of an Iraqi judge issue a writ of habeas corpus to the prison at Abu Ghraib.