The armed forces are State organs and keep that status when deployed abroad and under command and control of an international commander, as sending States retain the highest political and military command and control over their forces. Also, when sending States have extended their legislative jurisdiction with respect to the armed forces they may be able to exercise criminal jurisdiction over their deployed forces, as military personnel is at least entitled to functional immunity. Warships, military aircraft and their crews traditionally enjoy a special status under international law and are entitled to absolute immunity.

8.1 Introduction

As States depend on their national armed forces to protect their external security, armed forces and the State are closely interrelated in spite of the increasing international military cooperation and use of civilian contractors. When considering criminal jurisdiction over forces stationed abroad from an international law perspective, it is essential to analyse the relationship between the State and its armed forces. In this context two aspects need to be addressed: the State’s jurisdiction over its forces abroad and the immunity that the forces enjoy in a foreign State. This chapter determines the position of the armed forces within the State and analyzes to what extent the sending State can exercise its jurisdiction over its deployed forces.

As an organ of a sovereign State the armed forces benefit from the immunity of the State. However, over the years immunities of armed forces have developed into a regime with special features next to the immunity regime of the sovereign State.¹ Due to the close relationship between the State and its armed forces developments in the field of immunities cannot be considered separately. A clear example are warships that since long have called at foreign ports, representing their State. Immunities of high-ranking State officials, such as Heads of Government, as discussed in the previous chapter, are also closely related to State immunity and, with a view to this shared background, are also relevant to understand the development of immunities of the armed forces.

This chapter commences with an analysis of the armed forces as an organ of the State, and addresses the extraterritorial exercise of criminal jurisdiction over the armed forces (Sect. 8.2). This section is followed by a study of the legal basis of immunity of armed forces under international law considered from the view of the absolute doctrine of State immunity doctrine and the restrictive doctrine of State immunity (Sect. 8.3). The discussion includes the status of warships and military aircraft.

8.2 The State, the Armed Forces and Jurisdiction

Apart from the requirement for a sovereign State to have a government,² international law does not attach any conditions to the State’s organisation and administration. In the Western Sahara case, the ICJ concluded that international law does not require a State to be organised in accordance with a particular structure.³ As a result, disposing of armed forces is not a constitutive element of the State’s existence under international law.⁴ Conversely, the existence of armed forces is closely related to the State.⁵ This section focuses on the relation between the State and its armed forces, followed by the discussion on the criminal jurisdiction over the armed forces.

8.2.1 Relationship Between the State and Its Armed Force

Although States may be organised and administered differently, the government’s exercise of public authority is essential for a State.⁶ The most important function of the State is protection of its citizens and national legal order. For this reason the government has at its disposal a police force and armed forces to exercise its ‘right of the sword’,⁷ making the armed forces one of the fundamental State security institutions.⁸

Originally, the relationship between the State and the armed forces was not as strong and close-knit as it is today. In the seventeenth century European States hired private entrepreneurs, who would not just provide logistic support, but fighting power as well.⁹ Later States largely took over the entrepreneurs’ position and concluded treaties that put complete regiments at the disposal of other States.¹⁰ Since the nineteenth century under the influence of, inter alia, the French Revolution and the introduction of conscription, European States have come to rely on national armed forces instead of contracted foreign military personnel, thus tightening the bond between State and armed forces. As a consequence, nation armies became the primary means to wage wars with other States¹¹ to guarantee external security of the State¹² and to protect its vital interests.

In the past few decades the international security situation has changed dramatically. The ideological East-West division has made way for new dangers that threaten the international community as a whole, as a consequence, expanding the armed forces’ tasks to include the protection of the international legal order. As a result, today’s national armed forces are deeply involved in crisis management operations and assist in fighting terrorism and piracy, etc. Notwithstanding this international orientation, armed forces remain the States’ exclusive means to project force¹³ and its position and function are usually laid down in the Constitution or in an Act of Parliament.

There is no doubt that the armed forces are State organs. In the commentary to Article 2 of the UN Convention on State Immunity the ILC includes ministries, governmental departments and armed forces in the scope of the definition of State.¹⁴ A memorandum written by the UN Secretariat considers the armed forces as one of the most important bodies of the State and their status of the utmost importance when it comes to immunities.¹⁵ Likewise, in McElhinney, the ECtHR concluded that part of the “…core area of State sovereignty…” is:

the acts of a soldier on foreign territory which, of their very nature, may involve sensitive issues affecting diplomatic relations between States and national security.¹⁶

A Greek court considered the acts of the armed forces one of the most important expressions of state sovereignty: “…state sovereignty, the main expression of which are acts carried out by its armed forces”.¹⁷ Furthermore, Article 4(1) of the Draft Articles on Responsibility of States for Internationally Wrongful Acts ¹⁸ stipulates that the acts of any organ of the State, including the executive organs, shall be considered as acts of that State.¹⁹ Finally, the ILC derives from the fact that States exercise criminal jurisdiction over their forces participating in UN crisis management operations that the forces consequently act as an organ of the State.²⁰

Although the armed forces are State organs, military tasks can be delegated to private contractors and command and control over military units can be transferred to an international commander. These situations will be briefly discussed in the next sections.

8.2.1.1 Private Contractors

The past two decades there has been an increasing trend of contracting out services formally belonging to the military domain to private companies. In particular during recent operations in Iraq and Afghanistan the use of these so called contractors has largely increased and included controversial tasks, like armed security services. This development can be partly explained by the increasing number of international crisis management operations established after the Cold War, which involve significant numbers of troops. As States lacked capacity to carry out these demanding tasks, they turned to the private market to fill the gap and contracted out services to private companies. These contractors in their turn could furnish the services, because of the large number of former military personnel that had become available due to the downsizing of armed forces.

These developments were in line with the worldwide tendency of States to privatise or contract out governmental services to private enterprises. Besides, operations were more and more undertaken in or from States with limited possibilities for Host Nation Support.²¹ When such support was inadequate, States could rely on contractors to ensure execution of the operations.

However, the increasing use of private contractors cannot lead to the conclusion that the armed forces have lost their monopoly as the State’s exclusive means of force. The contractors’ services are auxiliary to military activities and in principle they are subordinated to the military authorities.²² Besides, many States, organisations and interests groups are extremely critical of the use of contractors and they aim to regulate and control their activities. From that perspective the argument of the armed forces as a State’s exclusive means of force can even be used to limit the activities of the contractors.

8.2.1.2 Delegation of Command Authority

During their foreign presence military units remain part of the State and stay under its State authority, which, however, does not exclude the possibility to partly transfer command and control authority over these units to a foreign military commander. When participating in international operations, sending States generally transfer Operational Control (OPCON) over the participating units to the commander of the international force. Although States transfer the authority

[…] to direct forces assigned so that the commander may accomplish specific missions or tasks which are usually limited by function, time, or location; to deploy units concerned, and to retain or assign tactical control of those units to assign missions or tasks to subordinate commanders, to deploy units, to reassign forces, and to retain or delegate operational and/or tactical control as the commander deems necessary. ²³

they always retain the supreme command (Full Command)²⁴ over their units (see further Sect. 11.3). As such the unit remains an organ of the sending State.

The right of the sword of the armed forces constitutes an elementary part of the sovereign State’s authority and is vital to its survival. Even when the sending State deploys forces abroad, for instance, to participate in a crisis management operation, they will continue to fulfil this elementary function. In case of emergency the forces must be kept at the disposal of the sending State for national tasks.²⁵ For this reason States want to be in the position to exercise authority and jurisdiction over the forces.

8.2.2 Criminal Jurisdiction and the Armed Forces

National criminal law can in part be applicable to citizens abroad (see Sect. 6.4.2). However, with respect to the military this claim can be broader. Many States, including ‘common-law’ States that normally do not favour extraterritorial jurisdiction, have either in part or entirely extended the applicability of national criminal law to military personnel stationed abroad.²⁶ It concerns the legislative jurisdiction only and not the executive or adjudicative jurisdiction and it should be stressed that this situation does not preclude the jurisdiction of the foreign State (see discussion below in Sect. 8.3).

The extension of jurisdiction over military personnel abroad cannot be exclusively based on the principle of active nationality, since the legislation of several States allows non-nationals to enlist in their armed forces. For instance, traditionally foreign nationals enlisted with the French Foreign Legion, the British Brigade of Gurkhas and the Royal Irish Regiment. Likewise, lawful foreign residents of the US can join the US armed forces regardless of their nationality.²⁷ Recently, several European States have enacted legislation to enable EU citizens to join their armed forces.²⁸

In addition, the protective principle may also offer a reference point for extending the scope of national criminal law.²⁹ The application of domestic criminal law enables a State to maintain order and discipline over its forces when stationed abroad. Consequently, the extension of the national criminal legislation contributes to the coherence and efficiency of the military force as a whole.³⁰ Likewise, the protection principle has been used to argue that when a State is unable to maintain order in a military unit the security of the State itself is at stake.³¹ This argument considers the vital interests of the State and is as such related to the protection principle.³²

The discussion above has led some authors to classify the jurisdiction over military personnel as a hybrid form of a jurisdiction principle, based on the principle of active nationality and the protection principle, supplemented with its own specific features.³³ For instance, with this special nature in mind, Liivoja argued that this ‘service jurisdiction’ should be considered as sui generis principle allowing a State to establish its legislative jurisdiction.³⁴

Likewise, Sari’s principle of ‘organic jurisdiction’ defends the desirability of a principle independent from the traditional principles of jurisdiction and elaborates on the State’s authority to exercise jurisdiction over its organs and officials. His point of departure is the unalienable right of any State under international law to organise its government and to submit the operation of its bodies to its legislations.³⁵ This right comprises a “reserved domain of domestic jurisdiction”, which includes in its turn the exercise of the jurisdiction over its armed forces.³⁶

The applicability of national criminal law to military personnel abroad makes their position different from other State officials. The possibility to extend the applicability of the national legislation abroad was created specifically for military personnel,³⁷ enabling the courts of the sending State to effectively deal with criminal offences of members of the national armed forces on their return to their home State. However, when exercising these powers abroad, the sending State will have to take into account international law or the explicit consent of the foreign State.

8.3 Armed Forces and the Concept of Immunity

From the discussion above it cannot be concluded that a serviceman suspected of having committed an act punishable under the laws of the sending State will always appear before the sending State’s criminal court. When the host State has penalised the same act on the basis of the principle of territory, the legislative jurisdiction of the sending State and the host State concur. As mentioned above, the extraterritorial application of the sending State’s legislative jurisdiction does not imply that this State can then exercise its executive and adjudicative jurisdiction with the exclusion of the host State. Immunities under international law are decisive for such a situation.

The host State will have to respect immunities when exercising its executive and adjudicative jurisdiction. Therefore, military personnel enjoying immunity abroad are exempted from the host State’s executive and adjudicative jurisdiction. This enables sending States to exercise their jurisdiction over them to the extent that their criminal legislation is applicable to them. The next sections explore the position of armed forces from the perspectives of the doctrines of State immunity, functional immunity of military personnel and the status of warships and military aircraft.

8.3.1 Position of the Armed Forces Under the Absolute and Restrictive Doctrine of State Immunity

Being an organ of the State, the armed forces historically benefit from the immunity of the State when deployed abroad with the host State’s consent. In the past jurisdiction over these forces was based on the absolute doctrine of State immunity as the considerations in The Exchange v. McFaddon case illustrate. At least until the first developments towards the restrictive doctrine of State immunity at the beginning of the twentieth century, the armed forces enjoyed full immunity from the jurisdiction of the local courts, as did the States they served. Because of the applicability of the absolute doctrine of State immunity there was no real need for States to make arrangements on the status of the visiting forces, which can help to explain the lack of specific SOFAs at that time.

The balanced view on the ground rule as expressed in nineteenth century literature and case law was related to this approach, as the immunity of visiting armed forces was assumed to exist with respect to military units deployed abroad as State organs. Exceptions to their immunity brought forward in the literature and case law merely concerned the circumstances that influenced the relation between a serviceman and his unit, for example, a sailor on leave in a foreign port or a soldier off-duty outside his military garrison. Under these circumstances, the soldier was not considered to be part of the State organ and would be denied immunity.

In the early twentieth century the absolute doctrine of State immunity came under pressure. Treaties reflecting the relative doctrine, did, however, not affect immunity of the armed forces in the field of civil law. As mentioned above, the 1926 Convention for the Unification of Certain Rules concerning the Immunity of State–owned Vessels excluded warships from foreign States’ jurisdiction. In addition to this Convention,³⁸ Article 31 of the European Convention on State Immunity states the following with regard to deployed forces:

Nothing in this Convention shall affect any immunities or privileges enjoyed by a Contracting State in respect of anything done or omitted to be done, or in relation to, its armed forces when on the territory of another Contracting State.

The Explanatory Report to the Convention clarifies that this provision precludes uncertainties over immunities from jurisdiction as a result of visits by naval forces and that the Convention cannot be invoked for stationing of armed forces, to which other more specific agreements apply.³⁹ With regard to the latter the Explanatory Report refers to Article 33 that reads:

Nothing in the present Convention affects existing or future international agreements in special fields which relate to matters dealt with in the present Convention.

The applicability of the UN Convention on State Immunity to military activities is less clear.⁴⁰ When presenting the draft of this Convention to the UN General Assembly, the chairman of the Ad Hoc Committee on Jurisdictional Immunities of States and their Property indicated that it was the Committee’s understanding that military activities did not fall under the scope of the Convention.⁴¹ States have not opposed this interpretation; some States have even ratified the Convention and made explicit declarations stating that it did not apply to military activities.⁴² Nonetheless, the Convention contains several provisions referring to the military.⁴³ Further, Article 26 is of interest, stating:

Nothing in the present Convention shall affect the rights and obligations of States Parties under existing international agreements which relate to matters dealt with in the present Convention as between the parties to those agreements.⁴⁴

The three conventions mentioned above acknowledge the possibility to make different arrangements with respect to armed forces by means of SOFAs. Furthermore, case law shows that acts concerning the armed forces enjoy immunity to the extent they can be classified as acta jure imperii.⁴⁵ This leads to the conclusion that civil law immunity can be restricted for acta jure gestionis, such as the purchase of cigarettes for the military. In general, however, most acts related to the armed forces will concern the sovereign function of the State.⁴⁶

8.3.2 Armed Forces and the Concept of Functional Immunity

In the previous chapter it was concluded that State officials benefit from State immunity in the performance of their official duties. This means that they enjoy functional immunity from the jurisdiction of the courts of foreign States. Military personnel, as State officials, are not excluded from this rule and should at least be entitled to functional immunity in the performance of their official duties abroad.⁴⁷ From the discussion above it can now be concluded that, from an international law perspective, the ground rule as defined in Part I of this book points at the functional immunity of the armed forces.

In the course of time, a special regime for armed forces has developed, just like there has evolved a special regime for diplomats and Heads of State. Today this regime seems to be conventional in nature, as it is reflected in the numerous treaties analysed in Part I of this book. The question is whether this special regime respects the functional immunity of military personnel abroad.⁴⁸

The SOFAs analysed in Part I show that military personnel always enjoy immunity from criminal jurisdiction of the local courts in the extraterritorial performance of their official duties. During crisis management operations and military operations in support of allied States in armed conflict, military personnel virtually enjoy absolute immunity, because they are subject to the exclusive criminal jurisdiction of their own States. SOFAs in the context of international military cooperation generally contain stricter arrangements with respect to immunities of foreign forces. Nevertheless, virtually all SOFAs respect the functional immunity of forces and exceptions are rare.

Examples of these exceptions were the SOFAs concluded by the UK and some Commonwealth States with sending States during World War II. They contained a provision specifying that some specific crimes would be subject to the jurisdiction of host State civil (non-military) courts. These agreements did not contain exceptions for offences committed during the performance of official duties. Other examples are the treaties the SU concluded in World War II, in which the SU retained jurisdiction over crimes committed against the SU. These treaties do not contain an exception for offences committed on duty either.

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The State, the Armed Forces and the Concept of Immunity

8. The State, the Armed Forces and the Concept of Immunity