Military Cooperation

Since World War II the stationing of forces within the framework of international military cooperation has led to the conclusion of a large number of SOFAs. The agreements continued the practice established by the allied forces in both World Wars to set out status arrangements in treaties, like SOFAs. In my opinion, the use of treaties can be explained by the unprecedented large-scale and semi-permanent peacetime military presence on the territory of friendly States. Besides, military personnel were often accompanied by their families and lived among the local population, which promoted the interaction between the two groups. These circumstances required clear and detailed arrangements.¹⁰⁷

Another explanation for the increasing use of SOFAs can be found in the changing views on the exercise of criminal jurisdiction over visiting forces. With respect to military cooperation the strict application of the ground rule does not seem self-evident. In general visiting forces are to a certain extent subject to the jurisdiction of the sending States. However, to what extent and under what conditions sending States can exercise jurisdiction will have to be established by mutual consent. To that end SOFAs are an appropriate instrument to set out the arrangements.¹⁰⁸

In practice, States thus allow for application of the ground rule while taking into account host States’ interests. Never before had these interests been so explicitly included in States’ practice, although to a certain extent sending States did retain the right to exercise jurisdiction over their forces. A reason for this shift could be the reluctance of States in the post-World War II period to grant other states extraterritorial rights while at the same time arrangements tending towards colonialism were critically reviewed.¹⁰⁹ The right to exercise jurisdiction over foreign forces was considered as an expression of State sovereignty; a topic particularly sensitive for States that had recently gained their independence.¹¹⁰

Furthermore, within the framework of international cooperation, the interests of the States working together are more balanced,¹¹¹ which is, for instance, reflected in the reciprocal nature of the NATO–SOFA. The balance can be described as a sort of quid pro quo commitment between two equal States. The host State grants the sending State certain rights, for example, to use a foreign base or training area, thus accepting a certain restriction on the exercise of its sovereign rights. In return the sending State provides the host State with collective defence, military support or financial benefits.¹¹² Under these circumstances the element of dependency can still be relevant and sending States may have a stronger bargaining position than host States, resulting in arrangements that are more favourable to the sending States’ forces, for example, with respect to the exercise of jurisdiction by the sending States’ authorities.

In addition, the specific circumstances under which the stationing of forces abroad takes place will have an impact on the SOFAs. Since World War II, these circumstances have become fundamentally different from those of the period before that, during which the impact of visiting foreign forces was limited both in time and place. Today States often accept the long-lasting and large-scale foreign military presence on their territory, which is not just restricted to a single garrison or base, but sometimes extends to the whole territory of the host State. Forces and individual soldiers can freely travel between the locations where they are stationed. The servicemen and their families often live amongst the local population and can spend their period of leave in the host State. Interaction with the host State’s civilians increases even further, as local personnel are employed at the bases and camps or work for the sending State’s forces.

Under these circumstances there is an increasing chance that by committing criminal offences foreign military personnel violate the legal order of the host State and affect the civilian population’s interests. Consequently, the host State’s interest to exercise criminal jurisdiction over foreign military personnel grows stronger. Besides, as offences may occur off base and outside the performance of official duties, the exercise of jurisdiction by the sending State seems less logical. On the other hand, prosecution of all offences committed by foreign visiting forces may become a burden to the judicial institutions of the host State. Therefore, sharing the right to exercise criminal jurisdiction is in the interest of either States. To what extent a State can exercise these rights will depend on their mutual trust and dependency.

Military cooperation can in part overlap with situations that have been discussed in the previous chapters. For example, a sending State that has deployed forces in support of a crisis management operation taking place in a third State will consider its deployed forces as part of the operation, which would call for full immunity of its forces. This point of view may be less evident for the host State, which can consider the foreign military presence as a form of cooperation, warranting a less far-reaching restriction of its jurisdiction.¹¹³ In these situations it is hard to draw a clear line between the different legal bases for foreign military presence, resulting in room for negotiations on the exercise of criminal jurisdiction over the visiting forces.

Besides, the nature of the cooperation can change over time, for example, when an armed conflict arises. These circumstances can justify revision of SOFAs. Article XV(1) of the NATO–SOFA starts by stating that the treaty remains applicable during hostilities that fall under the scope of the NATO Treaty. Article XV(2) then continues that in that situation each of the parties to the NATO–SOFA has the right to suspend the application of any of the provisions of the agreement. Moreover, they will immediately review Article VII on criminal jurisdiction. The travaux préparatoires of this provision shows that under those conditions the US deemed it necessary to exercise exclusive criminal jurisdiction over its forces.¹¹⁴ In this way the Treaty provides States with the possibility to apply the ground rule more rigorously, if required.¹¹⁵

This chapter has analysed the scope of the ground rule within the framework of international military cooperation. Right after World War II, States seemed to find it hard to cope with the status of the large numbers of foreign forces still present on or in transit through their territory. In occupied States the situation was quite clear. Occupation law applied and when there was a need for a prolonged foreign military presence, the States concluded agreements on the basis of which forces were subject to the exclusive criminal jurisdiction of the sending State.

The first SOFAs concluded by allied States in the aftermath of the war, gave the impression that, on the one hand, some States were eager to oblige their allies with respect to criminal jurisdiction and, therefore, agreed to continue the wartime arrangements¹¹⁶; on the other, States were searching for a new balance, as the emergency situation that served as justification for the exclusive jurisdiction over foreign friendly forces was no longer in existence. To that end States emphasised the principle of territoriality and thus the jurisdiction of the host State.¹¹⁷ This principle was pivotal, for instance, in the SOFA to the Treaty of Brussels, which meant that the provision on jurisdiction accorded a key position to the host State. The host State did not automatically waive its jurisdiction when approving the visit of the foreign forces, but it could do so at the request of the sending State.

The NATO–SOFA offers sending States more clarity, because it explicitly states under which circumstance sending States will have primary jurisdiction: offences committed by its forces that, in short, are directed against the interests of the sending State, or committed in the performance of official duty. In other cases host States retain primary criminal jurisdiction. As the NATO–SOFA meets the interests of both host States and sending States, this balanced approach is also widely applied outside NATO.

However, other provisions are often agreed upon, pursuant to which some host States almost completely waive their criminal jurisdiction, while other host States only waive their jurisdiction under certain conditions. The different approaches States take can be explained by the fact that they not always share the same interests and that the circumstances under which the foreign forces are present may differ. What all arrangements have in common is that sending States will always retain a certain level of jurisdiction over their forces.