The Ground Rule

© T.M.C. Asser Press and the author 2015
Joop VoetelinkStatus of Forces: Criminal Jurisdiction over Military Personnel Abroad10.1007/978-94-6265-057-2_2

2. The Ground Rule

Joop Voetelink 

Faculty of Military Science, Netherlands Defence Academy, Breda, The Netherlands



Joop Voetelink


In 1812 the US Supreme court addressed the status of armed forces passing through the territory of a foreign friendly State and concluded that consent of that State implied its waiver of all jurisdiction over the visiting forces. Based on this court case and subsequent case law a general ground rule on the exercise of jurisdiction can be framed: A host State refrains from exercising criminal jurisdiction over armed forces of a sending State, in case it has given consent to their entry and presence on its territory, thus allowing the sending State to exercise criminal jurisdiction over its forces abroad. Case law and the literature limit the scope of the ground rule somewhat, indicating that it applies to visiting forces as an organised military unit and while the members of the forces are present at the designated military bases and installations or are on duty outside the bases and installations.

2.1 Introduction

Throughout the centuries States have deployed their armed forces abroad in order to protect or further their national interests, which could generally be defined in terms of the law of armed conflict as international armed conflicts and occupation. In the past, armed forces largely consisted of soldiers recruited by private entrepreneurs that later in history were partly replaced by regiments hired from other States. During the first part of the nineteenth century, the introduction of, inter alia, mandatory military service put an end to this practice in Continental Europe and the armed forces developed into an instrument of the sovereign State in its relations with other States. In the same period the legal status of armed forces stationed in other States started to find a place in both case law and the literature.

This chapter examines in what ways ideas on criminal jurisdiction over military forces based abroad took shape during the nineteenth century and have further evolved since then. It starts with a discussion of the first court case in which the status of visiting forces was addressed: The Exchange v. McFaddon-case (Sect. 2.2).1 Considerations of the decision are confirmed by later American court decisions (Sect. 2.3). In this chapter, these decisions serve as a reference for the formulation of the ground rule on criminal jurisdiction over armed forces of sending States on foreign territory (Sect. 2.4). This rule appears to be absolute in nature. However, case law and the literature will clarify that the status of armed forces can be interpreted in a more balanced way (Sect. 2.5). In this approach the application of the ground rule is subject to specific conditions that affect the scope of the exercise of criminal jurisdiction (Sect. 2.6).

2.2 The Exchange v. McFaddon

In 1812, a case concerning a vessel called The Exchange was brought before the US Supreme Court. The vessel, property of two American citizens, was seized on the high seas in 1810 on orders of the French Emperor Napoleon who had commissioned it under the name of Balaou as a French naval vessel. During a voyage to the Caribbean The Exchange sustained damage forcing its crew to dock at the port of Philadelphia for repairs. When the US owners, including McFaddon, learned about this, they had the vessel put under embargo on 24 August 1811 and claimed its restitution to them. In 1812, the case was brought before the US Supreme Court, which rejected the claim.

The key question of the case was whether an American citizen could claim ownership of another State’s warship that was within the US territorial waters. Although this was a civil court case, the considerations of Chief Justice Marshall had broader implications. He noted that the jurisdiction of a State within its own territory is exclusive and absolute. Any external restrictions upon it would result in an abatement of sovereignty. Therefore, all exceptions to the jurisdiction must be traced to the express or implied consent of the State itself, which had already become customary practice between equal States.

According to Marshall, this full and absolute territorial jurisdiction did not confer any extraterritorial power. A sovereign can enter foreign territory only under the express license, or in the confidence that the immunities belonging to his independent sovereign position implicitly extend to him. In State practice, this led to situations in which a State was supposed to have partly refrained from its full territorial jurisdiction.

One of the situations to which Marshall refers was the presence of foreign armed forces. When the sovereign explicitly allowed foreign forces free passage through his territory, his action implied a waiver of all jurisdiction over the forces and the recognition that they were subject to the criminal jurisdiction of their commander:

The grant of a free passage therefore implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline and to inflict those punishments which the government of his army may require.

Marshall reasoned that if the host State were to exercise its jurisdiction over the foreign armed forces:

…the purpose for which the free passage was granted would be defeated and a portion of the military force of a foreign independent nation would be diverted from those national objects and duties to which it was applicable, and would be withdrawn from the control of the sovereign whose power and whose safety might greatly depend on retaining the exclusive command and disposition of this force.

In this consideration, Marshall emphasises that by allowing the passage of foreign forces, the host State acknowledges the purpose for which the foreign forces are present on its territory. He also confirms the nexus of a State and its armed forces, even in case the forces are deployed abroad for the protection of the State’s interests.

Host State consent to the free passage of foreign armed forces was considered by Marshall to be a key element. If forces of one State entered the territory of another State without its consent, the latter could consider this act as hostile and the ‘visiting’ armed forces would by no means be entitled to any privileges.

Admitting warships into its ports was less dangerous and problematic for a State than granting a foreign army free passage through its territory. If a State had not closed its ports for warships, they were considered to be open to the public ships of other States. Marshall reasoned that warships were part of the military force of a State under direct command of the sovereign, who commissioned the vessels for national tasks. If other States prevented warships from executing their tasks, it would prejudice the State’s dignity. On these grounds, Marshall considered that visiting warships were implicitly exempted from foreign jurisdiction. In applying the above-mentioned principles to the Balaou, Marshall concluded that at the time the ship docked at the port of Philadelphia, it was exempted from the jurisdiction of the US, as it was classified as a French warship.

2.3 Coleman v. Tennessee and Dow v. Johnson

The US Supreme Court built on The Exchange v. McFaddon in two later cases relating to the American Civil War. Although this book does not address the status of armed forces under the law of armed conflict, both judgments contain relevant considerations that refer back to The Exchange v. McFaddon. In both cases, the judge decided in general terms on the jurisdiction of a host State over foreign military forces. Consequently, the validity of the decisions extends to situations beyond those of armed conflicts.

The case of Coleman v. Tennessee 2 concerned an American soldier who murdered a woman in Tennessee. A court martial had sentenced the soldier to death for this offence, but for reasons unknown, the sentence had not been carried out. After the war had come to an end, a local court in the state of Tennessee convicted the soldier once more for the same offence. The Supreme Court considered that at the time of the offence, the Southern Confederate States were regarded as hostile territory. This also applied to the part of Tennessee where the murder had taken place and which was occupied by the US Army. On the basis of the rules of war, courts-martial of the US had the exclusive jurisdiction to prosecute their own servicemen for crimes committed. Consequently, members of the armed forces were only accountable to their own government and were not subject to the jurisdiction of local laws and courts.

In his considerations the judge referred to the Supreme Court’s decision in The Exchange v. McFaddon. He noted that it was generally accepted that an army having the approval to enter, or be stationed on, the territory of a friendly State would be exempted from the State’s civil and criminal jurisdiction. Consequently, if this were the case, it would be evident that an army having invaded an enemy State would not fall under the State’s jurisdiction.

One year later, the case Dow v. Johnson was brought before the Supreme Court.3 In 1863, Bradish Johnson had taken his case against US Army General Neil Dow before the court of New Orleans. Johnson claimed that on General Dow’s orders US forces had confiscated sugar from his plantation and plundered the Johnson residence. The Supreme Court had to decide whether a local court in an enemy State had civil jurisdiction over an officer of the US Army. The judge referred to the above mentioned consideration in the Coleman v. Tennessee case and its reference to Exchange v. McFaddon, concluding that servicemen in times of war were only accountable to their own government and were not subject to the criminal jurisdiction of local laws and courts. The judge concluded that the same reasoning would apply here with respect to civil jurisdiction.4

2.4 The Ground Rule

Case law, as in Coleman v. Tennessee and Dow v. Johnson, 5 confirms what had already been decided in The Exchange v. McFaddon on the jurisdiction over armed forces abroad and even widens the scope of that case from the free passage of forces to the stationing of forces. The judge noted that this practice was “well-settled”. So, in his opinion it was a generally accepted practice that host State consent to the entry and presence of foreign armed forces implied its waiver of jurisdiction over the sending States’ forces.

It is hard to establish to what extent this practice reflects international customary law. In The Exchange v. McFaddon the judge interpreted the facts on the basis of general principles and indicated that he was not led by precedents or by lex scripta

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