The multilayered structure of the law of visiting forces
For various reasons, however, this structure may not always be recognisable. The legal basis and the SOFAs are sometimes either combined in one single agreement,35 or to be found in different types of agreements, such as treaties or the non-legally binding MOUs36, or not made public at all. Furthermore, practice may even often be more complex due to the conclusion of additional multilateral and bilateral agreements.
Criminal jurisdiction over armed forces is a key aspect in the structure of the law of visiting forces. In practice it can be the breaking point in negotiations, which may have consequences for the stationing of forces abroad. For example, NATO planned to base personnel in Bahrain, Qatar and the United Arab Emirates in support of its operations in Afghanistan and the anti-piracy operation ‘Ocean Shield’. However, the essential visiting forces agreements could not be concluded due to the insurmountable difference of views on the provisions on the exercise of criminal jurisdiction.37 The failure to reach an agreement required the revision of the operational plans and repositioning of units. Another example is the withdrawal of the US forces and the NATO Training Mission from Iraq at the end of 2011, the prime reason being Iraq’s refusal to grant full immunity to US and NATO personnel after this year.38
SOFAs define the legal position (status) of the sending State’s forces on the territory of an allied State. Viewed from a military operational law perspective, SOFAs should also create a practical framework to shore up the effective execution of the mission. For that reason the SOFA provisions should cover all aspects related to the foreign deployment of the forces and should respond to the operational circumstances and practice at hand.39 The nature of the mission and the ordered duties of the forces have a clear impact thereon. However, the interests of the sending State and those of the host State are equally important. A SOFA reflecting the right balance of the interests of all parties involved contributes highly to the acceptance of the foreign forces’ presence and, consequently, to the success of the mission.40
In order to make an effective contribution to the execution of the forces’ duties, SOFAs also have to take military operational practice into account. This brings about an interaction between the SOFA, being part of military operational law, and operational practice. However, this interaction cannot lead to a situation in which practice dictates the content of the SOFA, and hence the law. The relevant general principles of law, on which military operational law is based, will remain applicable. Consequently, operational practice remains subordinate to the law.
Viewed from a military operational law perspective, SOFAs aim to support the effective execution of the mission by expediting the forces’ entry into a foreign State and facilitating their stationing and operation on foreign territory.41 Therefore, SOFAs should preferably be adopted well before the foreign stationing takes place,42 in order to support the execution of the foreign activities. Experience with various crisis management operations demonstrates that delay in adopting a mission-specific SOFA may result in a delayed launch of the mission and impede its execution.43
Military operational law consists of different parts of national and international law that are applicable to the planning and execution of military operations. It cannot be considered separated from the operational context in which the commander and his staff apply and interpret the law. It contributes to the execution of the mission and is, therefore, an instrument at the commander’s disposal. An important component of military operational law is the law of visiting forces, which includes the legal status of the forces.
The host State’s consent to the stationing of foreign forces on its territory is the cornerstone of the law of visiting forces. If consent or any other recognised legal basis is absent, the entry of the foreign forces can be considered as an internationally wrongful act, for which the sending State can be held accountable. In contrast, if a host State grants its consent, the foreign forces are free to enter its territory, stay and execute the duties the sending State and the host State have agreed upon.
Therefore, it is essential for the States involved that the purpose of the foreign military presence and the conditions attached to the entry of the forces into the host State are absolutely clear. In general, the States involved set out their understandings on these issues in treaties, which are referred to in this work as ‘visiting forces agreements’. This term is a generic reference to all agreements allowing the entry of foreign forces, which carry a wide diversity of labels referring to the specific nature of the stationing at hand, such as training agreement. Visiting forces agreements constitute the specific legal basis for the foreign presence of military forces. Likewise, these agreements are often based on other, more general agreements. Together these agreements, in combination with the consent of the host State, constitute the legal basis for the extraterritorial presence of the forces; the jus ad praesentiam.
These agreements are the foundation of SOFAs that define the legal status of forces; the jus in praesentia. Viewed from a military operational law perspective, SOFAs function to support the effective execution of the mission by expediting the entry into a foreign State and by facilitating and supporting the forces’ presence and operations. In this way, the legal bases and SOFAs together embody the multi-layered structure of the law of visiting forces.
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