Status-of-forces agreements play a vital role in preserving command authority, guaranteeing fair treatment of individual service members, and conserving scarce resources. Consequently, an important first question to ask in planning an Air Force operation or activity overseas is whether an agreement exists. Your servicing legal office can help you answer this question. How to proceed in the absence of a status-of-forces agreement is a separate matter requiring a decision at the highest policy level.
Status-of-forces agreements are not basing or access agreements. Rather, they define the legal status of U.S. personnel and property in the territory of another nation. The purpose of such an agreement is to set forth rights and responsibilities between the United States and the host government on such matters as criminal and civil jurisdiction, the wearing of the uniform, the carrying of arms, tax and customs relief, entry and exit of personnel and property, and resolving damage claims.
Status-of-forces agreements generally come in three forms. These include administrative and technical staff status under the Vienna Convention on Diplomatic Privileges, commonly referred to as A and T status; a “mini” status-of-forces agreement, often used for a short-term presence, such as an exercise; and a full-blown, permanent status-of-forces agreement. The appropriate arrangement is dependent upon the nature and duration of U.S. military activity within the host country, the maturity of our relationship with that country, and the prevailing political situation in the host nation. Specialists who work status-of-forces agreement issues within the Air Force, the office of the secretary of defense, and the department of state are available to help make this assessment and to assist in negotiating any necessary agreements.
The SOFA is usually an integral part of the overall military bases agreement that allows U.S. military forces to operate within the host country. Each SOFA is negotiated separately with the host country (although the United States has a multilateral SOFA with NATO members). Generally speaking, SOFAs have no standard points of differences; some, however, may deal with particular circumstances unique to particular country.
Negotiating a SOFA begins with the assumption that the presence of U.S. military forces is in the interests of the host government as well as the U.S. government. The starting proposition is that the host country exercises complete authority over all of its territory and over anyone who is in that territory, subject to any agreements that make exceptions to that authority.
Although each SOFA is unique, all SOFAs normally deal with issues necessary for day-to-day business, such as entry and exit of forces, entry and exit of personal belongings (i.e. automobiles), labor, claims and contractors, and susceptibility to income and sales taxes. In situations where U.S. forces will be present for a lengthy period, SOFAs may also deal with ancillary activities such as postal offices, and recreation and banking facilities.
More importantly, SOFAs deal with civil and criminal jurisdiction. They are a vital means by which the Department of Defense carries out its policy directive "to protect, to the maximum extent possible, the rights of United States personnel who may be subject to criminal trial by foreign courts and imprisonment in foreign prisons."
Most SOFAs recognize the right of the host government to "primary jurisdiction," which is to say the host country exercises jurisdiction for all cases in which U.S. military personnel violate the host country's laws. There are two exceptions, however, which generally apply only in criminal cases involving U.S. forces personnel: When the offense is committed by Americans against Americans ("inter se" cases), and when the offense is committed by Americans in carrying out official duty. In these situations, the United States has primary jurisdiction over the accused American.
As a minimum, these agreements uniformly provide that the United States—and not the foreign government—has the primary right to exercise criminal jurisdiction over U.S. personnel for offenses arising out of the performance of official duty. In this way, the U.S. government ensures that its officers and employees remain accountable only to it for the way in which they perform their functions and duties. In those agreements that give host nations primary jurisdiction over some offenses, other than official duty, Department of Defense personnel are protected by fair trial guarantees, including provision of defense counsel, interpreters, trial observers, and prison visits. Similarly, relief from taxes and customs duties conserve limited defense dollars. Claims provisions provide for prompt payment to third parties who have suffered loss or injury as a result of U.S. military activity, but within a formula of checks and balances that protects against excessive claims while maintaining good host nation relations.
In 1998, 5,092 cases were processed by host country governments under SOFA -- these included minor offenses involving the operation of motor vehicles, such as reckless driving. And as of June 1, 1999, there were 41 military personnel serving sentences in foreign prisons.
U.S. military commanders are responsible for seeing that individuals under their authority who run afoul with host-county laws receive fair trials from the host country under all circumstances. DoD directives list 14 "fair trial" safeguards or guarantees that are considered applicable to U.S. state court criminal proceedings by virtue of the 14th Amendment of the Constitution of the United States. These safeguards include the right of the accused person to be tried without unreasonable delay, to be tried by an impartial court, and to be protected from the use of a confession obtained by torture, threats, or violence.
Under American law, the burden of proof is on the government in all criminal trials. While U.S. military commanders must consider U.S. trial rights, they are directed by DoD not to consider a trial by the host country unfair merely because it is not identical with trials held in the United States. Nonetheless, if the U.S. commanding officer believes an American under his authority is not being protected under the host country's legal system because of the absence or denial of constitutional rights the accused would enjoy in the United States, he will request that the host country waive its SOFA rights. If the host country authorities refuse, the U.S. commander will inform the Department of State to press the request through diplomatic channels. U.S. military commanders may seek waivers from the host country for reasons other than the absence of trial protection, and in most countries waivers are routinely granted.
Differences in culture and differences in legal approach can cause problems. Some of the crimes that the local government may consider to be very egregious, the United States may not and vice a versa. The U.S. government, however, is very much concerned that justice be done, that the accused be punished appropriately, and that the case be settled within a reasonable period of time. In some countries, it is not unusual for a case to take five years for completion. In contrast, the U.S. military strives to process a case within 90 days.
The United States recognizes that as threat perception diminishes around the world, so too does general tolerance for the presence of foreign troops. In addition, there is a growing misperception by almost every country that the SOFA in that country favors the United States, particularly vis-a-vis SOFAs in other countries.
Today’s world is a complex one. Not only does the US continue to station forces at fixed bases in Europe and in the Pacific, but the US is are pursuing initiatives that include access arrangements to support force projection and the Partnership for Peace program. Other initiatives, which were previously used, are being pursued with greater intensity—foreign military sales, exercises, individual and unit exchanges, and visits. In addition to traditional military operations and humanitarian relief efforts, the US is now engaged in new undertakings such as drug interdiction and U.N. peace operations.
At the end of the Cold War, the U.S. had permanent status of forces agreements with approximately 40 countries. Today the number has grown to more than 90 which means the U.S. has agreements with 46 percent of the more than 190 nation-states comprising the world community. The U.S. government and the Department of Defense has devoted considerable attention to these agreements over the past few years. For any overseas activity, whether an access arrangement, peacekeeping, military exercise or foreign military sales case, unit exchange or aircraft visit, careful thought should be given to the questions of what status-of-forces agreement arrangements exist and what additional arrangements are necessary.