Analysis of the Frameworks for Foreign Presence from an International Operational Perspective

After analysing the application of the ground rule within the framework of stationing allied forces on co-belligerent territory during armed conflict in Chap. 3 it was concluded that the scope of the ground rule during armed conflict is not fixed, contributing to the practice of dealing with criminal jurisdiction over the foreign forces by treaty. These SOFAs illustrate that the wartime application of the ground rule is almost absolute; in general, the forces are subject to the exclusive criminal jurisdiction of the sending States. Exceptions to exclusive criminal jurisdiction are allowed for forces outside the area of operation and whose tasks do not directly contribute to the military effort.

As already discussed, State officials enjoy functional immunity. The question in this section is whether and to what extent operational practice can explain the armed forces’ more extensive immunities from criminal jurisdiction. The point of departure is that when States deploy their forces on allied territory during armed conflict, the host State will have given its consent to the use or armed force by the visiting forces. Thus, the host State also has implicitly acknowledged that the foreign forces remain under the highest political authority and military command of the sending States.

One of the basic principles of military operations is the unity of effort.²⁸ This principle requires the commander to synchronise assets and activities to achieve his objective. The most solid basis for unity of effort is single command. The armed forces operate under Full Command of the respective sending States (see Sect. 11.​3), within which subordinate commanders lead their units. In order to operate effectively, the commanders must be able to lead their units without interference of foreign authorities and the military chain of command must be maintained at all times.

The host State’s exercise of criminal jurisdiction over visiting forces would affect the military command lines and the execution of the operations. The commander must be able to carry out his operational tasks, independently of the host State. The same applies to activities in direct support of the operations, such as supply activities or the repair of equipment. Such activities are elementary to the success of combat operations, meaning that also with regard to these activities the military lines of command must be respected.

This leads to the conclusion that the operational tasks of the deployed forces bring about the functional necessity of full criminal immunity of these forces. Full immunity is essential to the effective execution of the operation. Therefore, it must apply to all acts and not only the acts performed on duty. At the same time, the operational tasks demand that sending States retain full control over the forces and are able to exercise their criminal jurisdiction accordingly. For this reason, as mentioned above, SOFAs emphasise the exclusive jurisdiction of the sending States, instead of concentrating on immunity of forces. In other words, because of operational necessity forces are subject to the exclusive criminal jurisdiction of the sending States and enjoy full criminal immunity from the host State’s courts.

Already in 1879, in the Dow v. Johnson case, restrictions on the sending State’s exercise of criminal jurisdiction were considered undesirable. The judge noted that the local tribunals’ possibility to summon servicemen would destroy the efficacy of an armed force.²⁹ This approach can also be recognised in the negotiations of the Civil Affairs Agreements at the end of World War II (see Sect. 3.​3). At the start of the negotiations Norway proposed to shape the arrangements on the exercise of criminal jurisdiction over Allied forces in Norway in the same manner as provisions applicable to foreign forces in the UK.³⁰ The UK did not accept the proposal and emphasised that in Norway UK forces would operate under different circumstances than the Norwegian forces in the UK. When conducting combat operations, British commanders would have to have full control over their forces³¹ and to be able to take all measures necessary for the execution of the mission,³² which required exclusive jurisdiction of the UK over its forces.

Article XV of the NATO–SOFA is based on a similar reasoning. This provision states that in the event of hostilities to which the NATO Treaty applies, the Contracting Parties will immediately review Article VII on criminal jurisdiction and make modifications, if desirable. Initially, it was the intention that the NATO–SOFA would remain applicable without any modification during armed conflict.³³ However, during the negotiations the US expressed the wish to exercise exclusive jurisdiction over its forces:

In time of war, it would be inadvisable that members of the Force or assimilated personnel should be withdrawn from the control of their military authorities by reason of their subjection to the jurisdiction of the receiving State.³⁴

The final version of the provision is a compromise between the two ideas. In a commentary, Lazareff remarks that the sending State’s exercise of criminal jurisdiction contributes to the maintenance of discipline and prevents servicemen eluding their national commanders’ authority by committing minor offences.³⁵ According to Lazareff, the compromise reflected in Article XV does not do justice to this concern. He holds that the NATO–SOFA should contain the provision that the sending State has exclusive criminal jurisdiction over its forces in the event of hostilities.³⁶

Notwithstanding the discussion above, it has to be noted that today exercise of criminal jurisdiction may take place outside the military chain of command. Many legal systems have abolished the system of courts martial as the only courts responsible for military criminal trials. Instead, hybrid civilian courts are responsible for the prosecution of military personnel, taking into account operational circumstances and developing and securing a sufficient level of operational situational awareness.³⁷

Today, a consistent and widely accepted international practice exists that military personnel deployed abroad enjoy full criminal immunity and are subject to the exclusive criminal jurisdiction of the respective sending States. It is difficult to identify and to prove to what extent States regard this practice as a legal obligation. However, in my opinion, the existence of a rule of international customary law can be assumed, as there are strong operational arguments pleading for immunity and exclusive criminal jurisdiction, which have not been contradicted by States.

As discussed in Chap. 4, during the execution of crisis management operations, armed forces of the participating States are subject to the exclusive jurisdiction of Sending States resulting in full immunity of the forces. It has been explained that these extensive rights result from, inter alia, the forces’ international function. This begs the question whether and to what extent operational practice supports broad immunity of the forces.

When answering this question, special attention should be paid to the changing nature of crisis management operations, which have become more complex in the course of time. The possibility to use force has increased due to, inter alia, more extensive mandates. Besides, the military are now required to carry out tasks traditionally of a non-military nature, such as law enforcement. These developments have led to situations in which, from a criminal law perspective, servicemen have become more vulnerable and can increasingly be held accountable for their acts.³⁸

The crisis management operations discussed in this book have taken place with host State consent.³⁹ As a consequence, host States have accepted the possible use of armed force by the participating forces on their territory and, implicitly, they have recognised that the foreign forces operate under national command and control or that of the international organisation in charge of the operation. In the latter situation the forces remain under the highest political authority and military command of the relevant national bodies. Thus, the host States have consented to have no command and control over the forces.

If forces are under the command of an international organisation, they constitute a subsidiary body of the organisation. As such the international forces must be able to carry out their tasks independently from host States and, from an international law perspective, are entitled to functional immunity. Units operating under national command also enjoy functional immunity, as bodies of the sending State. In practice, however, sending States have exclusive criminal jurisdiction over their forces, which implies full criminal immunity.

Similar to the stationing of allied forces on co-belligerent territory during armed conflict, as discussed above, the nature of the forces’ tasks during crisis management operations must be taken into account. These forces operate in an unstable and possibly hostile environment. In general, they are armed and authorised to use force in self-defence or in accordance with the Rules of Engagement.

The final objective of the operations is not to defeat an enemy force, as is the case in armed conflict, but depends on the international mandates. Since the 1990s the scope of mandates has been extended, including the tasks of international forces⁴⁰; a development that has increased the probability that in implementing the mandate the use of armed force is required. Even though the use of military force in the highest spectrum of violence is generally not the primary goal of contemporary crisis management operations, the possibility must be taken into account. Even in relatively peaceful situations with hardly any violence, or no violence at all, the commander implementing the international mandate must be able to immediately deploy armed units, if circumstances so require. Regardless of whether he is commander of an international force or a national unit, in such situations a commander must be able to make free use of his forces and give them orders. It is highly detrimental if in such situations the host State, by exercising criminal jurisdiction over the servicemen, would have the possibility to cut across the chain of command and possibly influence or even hamper the execution of the military mission.⁴¹

It is not unlikely that during crisis management operations international forces encounter obstruction from host States. Sometimes this is simply because local authorities may not always be aware of the existing SOFAs.⁴² Problems like these can quickly be resolved, in contrast to situations in which host States deliberately disregard the SOFA. Although host States may have consented to the presence of foreign forces, that may have been the result of international pressure and may not fully reflect the host State’s interests. A reluctance to fully implement the SOFA, or even deliberate non-compliance with the SOFA, may be the consequence.

In practice, it regularly occurs that host States attempt to restrict the essential freedom of movement of the forces,⁴³ which is part and parcel of every crisis management SOFA.⁴⁴ Likewise, the host States do not always provide the agreed areas and premises required for conducting the mission in time.⁴⁵ The host States’ attitude in such matters can have a negative impact on the mission.⁴⁶ If host States were also to have jurisdiction over foreign forces, they might abuse this right and further obstruct the operation.

This leads to the conclusion that the operational tasks of deployed forces entail the functional necessity of their full criminal immunity both within the framework of crisis management operations and when stationed on allied territory during armed conflict. Immunity is necessary for an effective execution of the operation, and, for this reason it cannot be restricted to acts performed on duty. At the same time, the operational deployment requires that sending States retain control over their forces and exercise criminal jurisdiction over their personnel. For this reason SOFAs emphasise the exclusive jurisdiction of the sending States instead of concentrating on the forces’ immunity. In other words, out of operational necessity the forces are subject to the exclusive criminal jurisdiction of the sending State and they enjoy full criminal immunity from the courts of the host State.

In Sect. 9.​6.​2 it was concluded that the exclusive jurisdiction of sending States over their forces participating in crisis management operations, entailing the forces’ full criminal immunity from jurisdiction of the host State’s courts, has acquired the status of a customary norm. The operational reasons for full immunity and exclusive criminal jurisdiction put forward in this section shore up that conclusion.

During armed conflicts and crisis management operations forces remain subject to the sending State’s exclusive criminal jurisdiction, which implies that the forces enjoy immunity when executing their extraterritorial tasks. Although the same is true for the framework of international military cooperation (see Chap. 5), there is room for an approach allowing the host State to exercise criminal jurisdiction over foreign forces to some extent.

Similar to the frameworks discussed above, during international military cooperation the visiting forces remain under the political authority and the highest military command of the sending State. Depending on the nature of the cooperation part of the command and control authorities may be transferred to an international commander, for instance, in the context of an international exercise or a multilateral partnership. As a sending State organ the units retain their right to functional immunity.

Such units carry out their tasks in a host State under normal peacetime conditions. Viewed from an operational point of view, these tasks may contribute to keeping up a sufficient level of training and the operational readiness of the unit. To carry out this task, the commander must be able to exercise his command of the unit without interference. However, it is likely that in these circumstances a host State’s exercise of its criminal jurisdiction has less impact on the execution of the forces’ tasks and, consequently, immunity beyond functional immunity would not strictly be necessary.⁴⁷

From an operational point of view the host State’s exercise of criminal jurisdiction may even be preferable in certain circumstances. When the host State cannot exercise its criminal jurisdiction in criminal cases that have shocked a local community, it may affect the locals’ acceptance of the foreign forces’ presence. If, subsequently, a decision of a judge from the sending State does not meet the local sense of justice,⁴⁸ it can give rise to fierce reactions among the local population and authorities and may impede the execution of the forces’ tasks. For instance, the acquittal by a US court of US servicemen in Korea,⁴⁹ who killed two school children with their armoured vehicle, led to protests and marches that were also directed against the US military presence in Korea in general.⁵⁰ In addition, the Court’s decision led to direct actions against US bases and to other activities making the presence of the forces ‘less pleasant’.⁵¹

If international military cooperation is based on defence and security agreements and when the risks of armed conflict increase, the host State’s exercise of criminal jurisdiction may indeed impede the preparations of military operations. Cooperation between the host State and the sending State is based on the understanding that the sending State’s forces may execute military actions from the territory of the host State, if the security situation so requires. In that case, and similarly in crisis management operations, the commander must be able to deploy his forces to carry out the agreed tasks without interference of the host State exercising criminal jurisdiction.

None of the SOFAs discussed in Part I include a provision that amends the SOFA in accordance with the actual security situation. Nor do SOFAs include a provision that restricts the exercise of criminal jurisdiction by the host State, if the risk of an armed conflict increases. However, some SOFAs allow certain provisions to be suspended or modified in case of hostilities. For instance, the NATO–SOFA contains such a provision,⁵² but despite the sometimes high threat levels in the Cold War era NATO member States never suspended Art. VII in order to secure more extensive rights of criminal jurisdiction over their forces.

During crisis management operations the participating forces are subject to the exclusive criminal jurisdiction of the respective sending States. Thus, the jurisdiction of the sending State is emphasised rather than the immunity of the forces. This approach reflects the idea that (as follows from Sect. 12.3.2) the sending States will exercise their criminal jurisdiction, ensuring that servicemen committing crimes abroad will be prosecuted. In an operational setting immunity should not lead to impunity. A decision to refrain from prosecution would not only be difficult to justify legally and morally, but may run counter to the interest of the deployed armed force and the international mission and could damage the image and credibility of the States and international organisations involved as well.

It is especially during the last decades that crisis management operations have been confronted with serious misconduct of participating personnel, which not always resulted in prosecution of the perpetrators by the sending States. This section discusses this topic and the resulting implications for the status of forces. Because of UN experiences in this field and the interest of effective crisis management operations to the organisation this section focuses on the UN practice.

Frequent misconduct, sometimes serious crimes against the local population by personnel participating in UN operations have been the subject of news reports since the 1990s.⁵³ Media and human rights organisations reports on misconduct in refugee camps in West Africa gave rise to a UN investigation. In the resulting report, the UN Secretary-General confirmed several cases of sexual abuse of girls and women by peacekeepers and civilian staff of the UN in the West African refugee camps.⁵⁴

Some years later the UN was again confronted with reports of misconduct. This time the reports concerned the MONUC-mission in de Democratic Republic of Congo (DRC). An extensive investigation of the Office of Internal Oversight Services shed light on approximately 20 cases of sexual exploitation and abuse by UN peacekeepers from three different contingents⁵⁵ and revealed a pattern of sexual exploitation.

In addition to the afflictions suffered by the victims, the fact that the offenders were staff members of the peacekeeping mission, expected to bring relief to the suffering population, had huge negative implications. This is clearly expressed in the 2005 Zeid report, written by the special advisor to the Secretary-General appointed to define a strategy to prevent sexual exploitation and abuse in UN operations⁵⁶