© T.M.C. Asser Press and the author 2015Joop VoetelinkStatus of Forces: Criminal Jurisdiction over Military Personnel Abroad10.1007/978-94-6265-057-2_11
Faculty of Military Science, Netherlands Defence Academy, Breda, The Netherlands
11.2.1 The Scope of ‘on Duty’
11.3 Command and Control
The phrase ‘in performance of official duty’, often used with respect to the law of immunities, can be translated as ‘on duty’ within the context of military operational law. In SOFAs ‘on duty’ is hardly ever defined, but logically a nexus is required between a specific act and the nature of the ordered tasks. In general, the visiting commanding officer will decide whether an act was performed ‘on duty’. Military command and control over the armed forces can be exercised at various levels and a part of that authority may be transferred to a foreign, international commander. However, the sending States will always retain Full Command over their deployed forces.
Viewed from a military operational law perspective, the basic principles for conducting military operations play a leading role in executing assigned military tasks. Before elaborating on this aspect in the next chapter, the present chapter discusses terminology specific to the field of military operational law. In general, it can be stated that legal terminology consists of a variety of terms, to which the different disciplines of law each can attach a specific meaning. Terms are not always strictly defined, leaving room for various interpretations. Needless to say, military operational law leans heavily on existing legal terminology, in particular terminology used in international law. However, it also contains specific terms derived from military practice. This chapter aims to clarify some of these specific legal military terms.
Section 11.2 clarifies the phrase ‘in performance of official duty’, a phrase often used in SOFAs, which mainly has a functional application. Section 11.3 concentrates on command and control over the deployed armed forces. From a legal point of view, command and control include authority and control over forces, which touches upon the concepts of accountability and liability.
11.2 In Performance of Official Duty
In the field of the international law regarding immunities the phrase ‘in performance of official duty’ is used frequently, which can be paraphrased within the military context as ‘on duty’. In SOFAs variations of this phrase are used mainly in relation with the exercise of criminal jurisdiction and settlements of claims (Chap. 13). This section concentrates on its meaning in respect of criminal law and its procedures.1
With respect to the functional immunity of State officials, the sending States will as a matter of course reserve the right to exercise criminal and disciplinary authority over members of their forces acting in performance of their duties. Military personnel present on the territory of a foreign State with its consent and acting in accordance with sending States’ instructions, act on behalf of these States and consequently cannot be prosecuted by a local criminal court. In the military context this form of immunity reflects the sending States’ authority and control over their armed forces and the servicemen’s accountability before the sending States’ courts. Armed forces stationed in another State are under the orders and under political control of the sending States’ authorities, emphasising that members of the armed forces do not visit the host State in a personal capacity, but as State organs functioning under the mandate and political authority of the sending States. Members of the visiting forces continue to be in the service of the sending States and their presence in the host State results directly from the sending States’ orders to execute their tasks in the host State.
The latter aspect, however, does not imply that members of the forces are continuously on duty. During their foreign stay they can temporarily be relieved from their duties or be on leave. Depending on the circumstances, they can travel in the host State and be in contact with the local population and so on.
SOFAs that explicitly connect the exercise of criminal jurisdiction with on duty acts seldom define the scope of the term. Furthermore, most regulations do not specify who has the authority to determine whether an act has been carried out while on duty. As a result, the term ‘on duty’ has further developed in practice. Both the scope of the term and the authority to determine if an act is performed while on duty are discussed in the following sections.
11.2.1 The Scope of ‘on Duty’
Even though armed forces are stationed abroad on sending States’ orders, this does not mean that every activity which is undertaken during a foreign visit qualifies as being ‘on duty’. The scope of ‘on duty’, however, is not unambiguous, as many SOFAs, including the NATO–SOFA and the EU–SOFA, do not specify the meaning of the term. Draft proposals for the NATO–SOFA initially spoke of “in performance of official duty” and “pursuant to a lawful order issued by the military authorities of the sending State”.2 The examples provided at the time of the negotiations related to members of the armed forces one of whom, injured a civilian of the host State, when driving a service vehicle on duty while another, an over-zealous sentry, injured an intruder.
In the negotiations, Italy proposed a more detailed definition of ‘on duty’ by including the phrase “within the limits of that official duty”. The example was given that a driver making a detour with a service vehicle for personal reasons does not act within the limits of his official duty.3 The US seemed to prefer a broader interpretation of the concept, but apparently refrained from bringing forward their ideas during the negotiations of the NATO–SOFA.4 However, neither points of view can be found in the agreement, leaving the interpretation to the Contracting Parties.
However, even though SOFAs generally do not provide a definition of ‘on duty’, several additional agreements clarify the concept to some extent.5 The Agreed Minutes to the SOFA between Korea and the US determine that the term official duty does not cover each act conducted during official duties.6 The term is applicable to “acts which are required to be done as functions of those duties which the individuals are performing”.7 Furthermore, the Agreed Understandings specify that acts deviating considerably from acts normally necessary to execute the specific tasks, can be regarded as an indication that the person has acted beyond the scope of official duty.8
This interpretation rules out that each act performed by a soldier while in service automatically falls under the scope of an on duty activity and puts more emphasis on the actual performance of the duties. Thus, the act is related to the nature of the duties rather than merely to the time during which it is committed.9 This approach was followed in the Girard-case.10 Girard, a US soldier based in Japan, was ordered to guard a machine gun on a shooting range. During the execution of this task, he fired empty shell cases with his rifle-mounted grenade launcher. One of the cases killed a Japanese woman, who was collecting spent cartridge cases on the range.
On the basis of the 1951 Japan–US Security Treaty the US and Japan had concluded a SOFA including criminal jurisdiction provisions similar to relevant provisions of the NAVO–SOFA. The US were of the opinion that Girard had acted “in performance of official duty”, as meant in Article XVII, para 3 of the Administrative Agreement,11 entailing primary jurisdiction for the US. This approach would be in accordance with the interpretation that Girard had acted to protect the machine gun, even though the performance was excessive in nature. However, Japan was of the opinion that Girard had acted “beyond the scope of official duty”, which would follow another version of the incident: Girard had supposedly encouraged the woman to enter the range and had jokingly fired an empty shell case.
Notwithstanding their legal argumentation in the Girard-case, other documents reveal that, in their interpretation of the term official duty included in the Administrative Agreement, the US followed the same reasoning as adopted in the agreements with Korea12 (a definition that refers to the acts required to be done as functions of the duties which the individual are performing). Bearing in mind the Japanese interpretation of the facts, it can be concluded that the acts performed by Girard deviated considerably from acts normally necessary to perform guard duties and, consequently, indicate that the act was conducted beyond the scope of duty.13
A somewhat different approach can be found in the agreement between France and the United Arab Emirates (UAE), which defines the concept ‘en service’ (‘on duty’) as:
Les membres du personnel de l’Etat d’envoi, lorsqu’ils se trouvent sur le territoire de l’Etat d’accueil, sont considérés comme étant en service sur les lieux d’accomplissement de leurs missions et activités liées à la mise en oeuvre du présent accord et à l’occasion des trajets qui s’y rattachent. Ils sont considérés comme n’étant pas en service lorsqu’ils exercent une activité dépourvue de tout lien avec la mise en oeuvre de l’accord.14
However, an extensive description as included in the Agreement between France and the UAE is exceptional in SOFAs. In my opinion, due to the ambiguity over the scope of the term ‘on duty’, a more precise definition in a SOFA linking the act with the nature of the duty is preferable.