© T.M.C. Asser Press and the author 2015Joop VoetelinkStatus of Forces: Criminal Jurisdiction over Military Personnel Abroad10.1007/978-94-6265-057-2_13
13. Specific SOFA Provisions
Faculty of Military Science, Netherlands Defence Academy, Breda, The Netherlands
13.3 Use of Force
13.3.2 Rules of Engagement
13.3.3 Right to Self-defence
Viewed from a military operational law perspective, SOFAs support the effective execution of a military mission by expediting the entry into a foreign State and by facilitating and supporting the forces’ presence and operations. Therefore, SOFAs may address a wide range of subjects, including criminal jurisdiction, civil immunities, privileges and other rights and obligations. All provisions are closely linked and can have an impact on the exercise of criminal jurisdiction over the deployed forces, like provisions on the use of armed force and the settlement of claims for damages.
The previous chapters concentrated on criminal jurisdiction as the central feature of SOFAs. In combination with other provisions SOFAs aim to expedite visiting armed forces’ entry into foreign States and to facilitate the presence and operational activities of these forces on foreign territory. Viewed from a military operational law angle, SOFAs can be considered as an instrument that helps commanders achieve their foreign mission. To this end SOFAs, in addition to the provisions on criminal jurisdiction, include provisions on civil immunities, privileges and other rights and obligations. All provisions together are closely linked and form a coherent structure. Consequently, considering one element requires the consideration of the whole structure. As provisions on the use of armed force and settlement of claims are closely linked with criminal jurisdiction, these topics call for special attention. This chapter addresses the question how these specific SOFA-provisions may affect the exercise of criminal jurisdiction by sending States.
SOFAs often include a provision requiring members of armed forces to respect local law, which is subject to further consideration in Sect. 13.2. State armed forces constitute the State’s right of the sword: the right to use armed force in executing their tasks is inherent to their military status. When stationed abroad, depending on the circumstances, use of force may sometimes be inevitable. If armed force is used, it has to have a clear legal foundation and be justified by special instructions on the use of force. The instructions must be in accordance with criminal law of the State that is entitled to exercise jurisdiction based on custom or treaty (Sect. 13.3).
In contrast to criminal immunity, civil immunity of foreign forces hardly causes any controversy. However, it has to be noted that the adoption of supplementary procedures for the settlement of claims is crucial to enhance the local population’s acceptance of the foreign forces’ presence (Sect. 13.4). In the course of time these claims procedures have progressively developed and claims-provisions ultimately became a standard element of SOFAs. Supplementary procedures may indeed have an impact on the exercise of criminal jurisdiction as a sending State’s flexible and expedient approach to settle claims may cause host States to waive their exercise of criminal jurisdiction.
13.2 Respect for Local Law
Many SOFAs contain a provision that instructs soldiers from sending States in how to respect host State law.1 For example, Article II of the NATO–SOFA reads:
It is the duty of a force and its civilian component and the members thereof as well as their dependents to respect the law of the receiving State.2
This provision begs the question: What does respect for local law really mean?3 In the literature experts sometimes refer to the psychological aim of the provision that reflects the mutual respect between NATO States.4 Such an interpretation seems to suggest that the provision is a mere duty of courtesy to take host State law into account. Other authors are of the opinion that host State law only applies to the extent in which it has been incorporated in the law of the sending States,5 which reduces the scope of the duty to respect local laws.
In my opinion, the requirement to respect host State law is related to legislative jurisdiction and the applicability of law. In Chap. 6 it was established that on the basis of the territorial principle States have the power to apply their laws within the borders of their territory. Other jurisdiction principles allow them to extend application of their laws to a certain extent beyond their borders as well. However, extraterritorial application of legislative jurisdiction does not affect other States’ laws. Host State law continues to apply and SOFA provisions dealing with respect for local laws are, strictly speaking, superfluous: visiting forces have to observe it.
However, parties to a SOFA may agree upon restrictions on the exercise and applicability of host State law by granting immunities and privileges.6 Granting immunities does not imply that host States waive their legislative powers. Their laws continue to apply to the foreign visiting forces that enjoy immunity.7 Therefore, officials who enjoy immunity are not exempt from the duties imposed by local law.8 Immunity concerns adjudicative and enforcement jurisdiction resulting in host States refraining from enforcing their laws and starting legal proceedings against officials enjoying immunity. Therefore, immunity is not substantive law, but a formal, procedural rule.9
If this were different and host State law would not apply to officials enjoying immunity, this could cause problems. If, for instance, a sending State waived immunity of a serviceman who committed murder in the host State, host State law would only become applicable when the sending State waives the immunity, meaning that at the moment the serviceman committed murder that crime would not have been punishable according to local host State law.10
Applicability of host State law to foreign officials or to staff members of international organisations is not always desirable and necessary. Therefore, host States may grant officials privileges with regard to specific regulations,11 mostly in the field of customs, fiscal law, and social security law. Unlike immunities, privileges are not procedural but substantive in nature and exempt officials from certain host State obligations or rules. As these rules do not apply to officials adjudication and enforcement of these rules is not an issue.12
Closely connected to privileges are international practices based on international courtesy. Strictly speaking, these practices do not oblige host States to refrain from applying national rules, although this is what is generally the case. For example, on the basis of Article 27(3) of the Vienna Convention on diplomatic relations 13 a diplomatic bag of a diplomatic mission is not to be opened by a host State. This prohibition does not extend to a diplomat’s suitcase. However, it is international practice to leave the suitcases untouched, unless there are reasonable assumptions that the diplomat has violated host State law.
As mentioned above, the requirement to respect local law is without prejudice to host State legislative jurisdiction and, therefore, foreign visiting forces are subject to local law. However, host State law may not be entirely applicable to the visiting forces as parties to SOFAs may agree upon exceptions to host State law that take the form of immunities or privileges. Consequently, the formulation in SOFA “to respect local law” means that forces are subject to the laws of the host States except where agreed immunities and privileges are exceptions in their favour. Use of the term ‘respect’, therefore, is not without obligation and reflects a legally binding duty.14
13.3 Use of Force
States have the exclusive right to use armed force.15 They dispose of armed forces which are equipped and trained to exercise this right. National legislation provides the legal basis for deployment of these forces and regulates the use of force.16 When deployed abroad, the visiting forces’ right to carry arms and use armed force is also subject to host State law and international law. Generally, local law restricts or even prohibits the right to carry arms and use force. The following subsections discuss exceptions resulting from SOFAs, Rules of Engagement and the right to self-defence, and their link with criminal jurisdiction.
Most SOFAs contain the right to bear arms,17 to which the host State may attach conditions, for example, to carry arms only during specific activities.18 However, few SOFAs deal with the use of arms or any other use of force. For instance, the Dutch-Ukrainian agreement concluded in the aftermath of the downing of flight MH17 on 17 July 2014 allowed members of the multinational International Mission “to possess and carry weapons and to use force in self-defense and for fulfillment of its activities under this Agreement”.19 Various SOFAs on crisis management operations include indirect references when emphasising respect for international humanitarian law.20 Some SOFAs contain specific provisions. For instance, Article 12 of the Supplementary Agreement with Germany states that personnel “responsible for safeguarding of cash or property or are particularly endangered by the special nature of their official position or activities” may carry and possess arms and use them in conformity with specially drafted provisions based on the German right to self-defence (‘Notwehr’).21 The SOFA between the Netherlands and Rwanda allows the use of firearms only during training activities on locations specified by the host State. The 2008 SOFA between Iraq and the US is somewhat different in the sense that provisions were included on the execution of operations by US forces.22 However, many SOFAs, such as the NATO–SOFA, do not mention the use of arms.23
13.3.2 Rules of Engagement
The lack of provisions on the use of armed force in SOFAs is striking in the sense that in general the use of force must conform to criminal law, to which end SOFAs provide for a balanced right to exercise jurisdiction.24 This section analyses military directives on the use of force, the so-called Rules of Engagement (ROE), and the possible criminal implications of the use of force. Within this context the layered structure of the law of visiting forces must be kept in mind. As explained in Sect. 10.3.2, SOFAs do not stand alone, but, instead, build on the general and specific legal bases for the foreign presence of visiting forces. Authority to use force flows from the same legal bases. For instance, if the legal basis is a defence agreement, in which States agree to assist each other in the event of an armed attack, it is obvious that when a State is attacked and allied States send their armed forces to help, the sending States forces may use their fighting power. Or, if the legal basis is a UN mandate for a crisis management operation, the participating forces must be able to use arms when implementing the mandate. Also, the nature of the mission may require additional authority relating to the use of force, e.g. arrest and detention.
These legal bases do not specify the extent to which use of force is allowed. This can be found in another part of military operational law: the ROE, which NATO defines as:
directives to military forces (including individuals) that define the circumstances, conditions, degree, and manner in which force, or actions which might be construed as provocative, may be applied.
ROE are a political and operational instrument to control the use of force within the applicable legal frameworks,25 such as international law and national law of the States involved.26 States involved in a joint mission shall individually27 or jointly adopt ROE.28 In case of crisis management operations, the organisations that are in charge of the operations will undertake this task.
Whether and to what extent States recognise the legal implications of ROE depends on the laws of the States involved.29 For military personnel who may have to use force during operations abroad it is important that their actions are tested against the law on which their training on Tactics, Techniques and Procedures (TTPs) with respect to the use of force are based. As armed force should in principle be used in the line of duty, for which military personnel enjoy functional immunity, this should not cause any problems. If, however, military action would have to be tested against host State law every time States deploy their forces, TTPs and training would have to be geared to host State law as well. This aspect further reinforces the necessity to grant the sending States’ forces (functional) immunity.
Another issue is the level of secrecy.30 ROE are a commander’s instrument to execute the mission, which, viewed from an operational perspective, may make secrecy necessary. If host States do not participate in that mission, which is normally the case in crisis management operations, they will not have access to classified operational documents, like ROE. As a result ROE cannot be taken into consideration during criminal procedures before host States’ courts.