Foreign Armed Forces on Allied Territory During Armed Conflict

According to Mettgenberg, Germany considered extraterritoriality of foreign forces as a rule of international law⁵ with the restriction that it applied to “geschlossener Truppenverbände”. Viewed from this angle, individual foreign servicemen in Germany were only subject to their home States’ criminal jurisdiction while on duty. Servicemen on leave and servicemen that had left their garrison without permission were subject to German jurisdiction.⁶ This is exemplified in the criminal case against a Greek soldier belonging to the Greek Fourth Army Corps who fled to Germany.⁷ The German judge concluded he had jurisdiction over the soldier, as the Greek Army Corps was not in Germany in dienstlicher Eigenschaft and their presence on German territory was not on orders from the competent Greek authorities. In fact, they had sought refuge in Germany against their orders.

Agreements between the Central Powers with respect to the stationing of forces on each other’s territory were mainly adopted at the executive level, for instance, as military agreements concluded by the general staffs.⁸ They were not all formally published, obscuring details on the practice of the parties. However, various sources indicate that, generally, sending States had exclusive jurisdiction over their forces. A joint decision (Erlaß) of the German Ministers of Justice, the Interior and War of 27 May 1916 stated the following with regard to Austrian-Hungarian forces on German territory:

Strafanzeigen gegen Angehörige von österreichisch-ungarischen auf deutsches Gebiet Eingerückten Truppenteilen sind, soweit nicht eine unmittelbare Abgabe an die ortsanwesende österreichisch-ungarische Militärbehörde einfacher ist, der nächsten deutschen Militär-(Kommando-) Behörde zu übergeben; im Falle der Festnahme ist ihr der Beschuldigte unverzüglich zuzuführen. Dieser Behörde liegt die Weiterleitung an die nächste österreichisch-ungarische Militärbehörde zur Veranlassung des weiteren an zuständiger Stelle ab.⁹

This regulation suggests that criminal offences committed by members of the Austrian-Hungarian armed forces in Germany were judicially reviewed as soon as possible by the Austrian-Hungarian military authorities, or if necessary, through German military authorities. The explanatory notes to the publication of the joint decision in the German Armee–Verordnungsblatt stated that similar measures were adopted for German forces on the territory of Austria-Hungary. In Turkey, the legal status of the German military mission and the combined German-Turkish unit Heersegruppe Yildirim (Falke) was laid down in the military agreement of 18 November 1916.¹⁰ The literature suggests that both States applied the ‘Recht der Fahne’, which meant that the German forces fell under exclusive German criminal jurisdiction.¹¹

In comparison to World War I, the Allied Powers’ practice¹² during World War II gives a more mixed impression. Status arrangement continued to be set out in treaties; however, these agreements were more elaborate documents than during World War I and comprised provisions on other subjects than criminal jurisdiction only. Although in most cases sending States had exclusive criminal jurisdiction over their forces, host States did not always waive their jurisdiction over foreign forces to the full extent.

The agreements concluded by the UK and the US in their capacity as sending States contain, without exception, a host State’s waiver of their rights to exercise criminal jurisdiction over visiting US and UK forces.¹³ In cases where no agreements were adopted, practice shows that the host States did not exercise jurisdiction over UK and US forces. For instance, the Netherlands never prosecuted UK or US forces on the territory of the Netherlands Antilles or US forces on the territory of Surinam during World War II.¹⁴ In the court case of In re Gilbert a Brazilian judge concluded that the Brazilian courts did not have jurisdiction over a soldier who had killed a Brazilian citizen while on guard duty, and that the US judiciary bodies could exercise jurisdiction instead. Apparently, the fact that the US forces assisted Brazil in the “…emergency situation arising out of the need for the defence of the nation…” was decisive for this conclusion.¹⁵

One of the few exceptions to the exclusive jurisdiction of the US over their forces can be found in the Leased Bases Agreement ¹⁶ between the US and the UK, which built on the Destroyers for Bases Agreement. ¹⁷ Article IV of the Leased Bases Agreement restricted US criminal jurisdiction over its forces as the UK did not waive its jurisdiction with regard to offences that were not of a military nature and committed outside the leased areas.¹⁸ With regard to all other offences, the US had “the absolute right in first instance to assume and exercise jurisdiction”.

To the US it was self-evident that the allied forces temporarily in the US to participate in courses and training enjoyed immunity from criminal jurisdiction. According to the US, international law recognises:

…the immunity from local jurisdiction in criminal matters of members of the armed forces of a foreign sovereign on the territory by permission or with the consent of the local sovereign.¹⁹

This interpretation is clearly reflected in subsequent US legislation²⁰ and, for instance, the draft agreements of 1941 and 1942 proposed by the US to the Netherlands to regulate the stationing of US forces in Surinam. Article 1(1) reads:

United States military authorities shall have exclusive jurisdiction as provided by international law over their own forces in all respect…²¹

There were certain circumstances under which foreign armed forces would not always enjoy full immunity from the criminal jurisdiction of the host States’ courts. These cases particularly concerned European forces that sought refuge abroad after the German invasion of their countries. In France, the newly established Czechoslovakian armed forces were even fully subject to the French military criminal law and courts martial.²²

Most agreements, however, did not completely deny States jurisdiction over their armed forces that had sought refuge on the territory of another State.²³ In the UK, the Allied Forces Act and some bilateral agreements, concluded between the UK as host State and sending States, contained a provision on the status of the forces that had fled their countries.²⁴ These agreements restricted the sending States’ criminal jurisdiction over their forces as the agreement with Norway illustrates²⁵:

the offences of murder, manslaughter and rape shall be tried only by the Civil Courts of the United Kingdom. (Article 3)

Acts or omissions constituting offences against the law of the United Kingdom other than murder, manslaughter and rape will be liable to be tried by the Civil Courts of the United Kingdom. (Article 4)²⁶

British rules had a direct effect on legislation in the British colonies and dominions of the Commonwealth of Nations (hereafter: the Commonwealth). Their legislation had been based on the Allied Forces Act and provided the visiting allied forces with rights similar to the ones applicable in the UK.²⁷

The Soviet Union also restricted the criminal jurisdiction of sending States over their forces that had sought refuge within Soviet territory. The status of Polish forces was regulated in a military agreement of 14 August 1941.²⁸ Article 8 states that Polish soldiers on Russian territory:

…will be subject to Polish military laws and decrees. Polish military courts will be established in the units for dealing with military offences and crimes against the establishment, the safety, the routine or the discipline of the Polish Army.

However:

For crimes against the State soldiers of the Polish Army on the territory of the U.S.S.R. will be answerable to the military courts of the U.S.S.R.

As a result, Polish servicemen were subject to Soviet criminal jurisdiction in case of crimes committed against the Soviet Union. A similar agreement with Czechoslovakia was adopted on 27 September 1941.²⁹

It is not entirely clear to what extent these agreements allowed Poland and Czechoslovakia to exercise jurisdiction over their own forces. The Soviet Union applied the concept of ‘crimes against the State’ in a broad sense covering counter-revolutionary crimes and especially dangerous crimes against the Soviet State.³⁰ The repressive nature of the Soviet regime at the time leads to the presumption that under Soviet law a crime would easily be interpreted as a crime against the State, limiting the possibility for sending States to exercise criminal jurisdiction over their forces.³¹

As World War II entered its final stage, the Soviet Union, the UK and the US and several other States adopted the so-called Civil Affairs Agreements. These treaties addressed the administration of occupied territories in Europe and Asia during and directly after the liberation. One of the first agreements was concluded with Norway on 16 May 1944, which served as an example agreement for a number of States.³² On the basis of these Civil Affairs Agreements allied forces exercised exclusive criminal jurisdiction over their forces on the territories of the occupied States during the liberation.³³ Although not mentioned in the agreements adopted by the Soviet Union, the wording of the documents leads to the conclusion that the exercise of the jurisdiction over Soviet forces by the host State was excluded.³⁴

Although there have not been armed conflicts comparable to either of the World Wars since 1945, many other armed conflicts were fought in which States have supported their allies by sending armed forces. This section discusses some examples.

In 1950, after the armed attack on the Republic of Korea (South Korea) by forces of North Korea, the UN Security Council recommended UN Member States to render assistance to South Korea.³⁵ The armed forces provided by States responding to the request were placed under “a unified command under the United States of America”.³⁶