MARITIME INTERNATIONAL LAW PART 25

STATUS OF FORCES AGREEMENTS 

American Admiralty Books Safety & Privacy Policies   EU VISITORS WARNING POSSIBLE COOKIES AHEAD

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   STATUS OF FORCES AGREEMENTS

 Status of Forces Agreements are a service-wide examination subject for senior and master chiefs and should be an area of concern for the entire commissioned officer corps any senior petty officer subject to shore patrol duty. Many U.S. status of forces follow the pattern of the North Atlantic Treaty Organization (NATO) Status of Forces Agreement. This agreement defines on a multilateral basis the jurisdictional arrangement of allied military personnel stationed in countries signatory to NATO. This agreement has provided the pattern for other similar agreements with various allied Pacific powers. A review of some of its key features provides insight into the general subject.

  Article VII of the NATO Status of Forces Agreement spells out the jurisdictional regime. Its key features include:

"1. The military authorities of the sending state exercise within the receiving state all criminal and disciplinary jurisdiction conferred on them by by the law of the sending state over all persons subject to the military law of that state. (It should be noted, U.S. Supreme Court decisions rule that the U.S. military may not administer military law over its civilian employees in peace time, even when deployed on foreign soil.

2. The authorities of the receiving state shall have jurisdiction over members of a force or civilian component and their dependents and their dependents with respect to offenses committed within the territory of the receiving state and punishable by the law of that state.

3. The military authorities of the sending state shall have the right to exercise exclusive jurisdiction over persons subject to military law of that state with respect to offenses, including offenses relating to its security, punishable by the law of the sending state, but not by the law of the receiving state.

4. The authorities of the receiving state shall have the right to exercise exclusive jurisdiction over members of a force or civilian component and their dependents with respect to offenses, including offenses relating to the security of that state , punishable by its law but not by the law of the sending state. A "security offense" includes:

                (a) Treason
                (b) Sabbotage, espionage, or violation of any law relating to official secrets

5.  In cases where the right to exercise jurisdiction is concurrent, the following rules apply:
(a) The military authorities of the sending state have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to:
     (i) Offenses solely against property or security of that state, or offenses solely against the person or property of another member of the force or civilian component of that state or of a dependent.
     (ii) Offenses arising out of any act or omission done in the performance of official duty.

(b) In the case of any other offense, the authorities of the receiving state shall have the primary right to exercise jurisdiction.

(c) If the state having the primary right decides not to exercise jurisdiction it shall notify the authorities of the other state as soon as practicable. The authorities of the state having the primary right shall give sympathetic consideration for a request from the authorities of the other state for a waiver of its right in cases where that other state considers such waiver to be of particular importance.

6. The foregoing provisions of this Article shall not imply any right for military authorities of the sending state to exercise jurisdiction over persons who are nationals of or ordinarily resident in the receiving state, unless they are members of the force of the sending state.

7. (a) The authorities of the receiving and sending states shall assist each other in the arrest of members of a force or civilian component or their dependents in the territory of the receiving state and in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions.

    (b) The authorities of the receiving state shall notify promptly the military authorities of the sending state of the arrest of any member of a force or civilian component or dependent.

    (c) The custody of an accused member of a force or civilian component over whom the receiving state is to exercise jurisdiction shall, if he is in the hands of the sending state, remain with that state until he is charged by the receiving state.

8. (a) The authorities of the receiving and sending states shall assist each other in the carrying out of all necessary investigations into offenses and in the collection and production of evidence, including the seizure and, in proper cases , the handing over of objects connected with an offense; the handing over of such objects, may however be made subject to their return within the time specified by the authority delivering them.

    (b) The authorities of the contracting parties shall notify one another of the disposition of all cases in which there are concurrent rights to exercise jurisdiction.

9.  (a) A death sentence  shall not be carried out in the receiving state by authorities of the sending state if the legislation of the receiving state does not provide for such punishment in a similar case.

      (b) The authorities of the receiving state shall give sympathetic consideration to a request from the authorities for assistance in carrying out a sentence of imprisonment pronounced by the authorities of the sending state under the provisions of this Article within the territory of the receiving state.

10. Where an accused has been tried in accordance with the provisions of this Article by the authorities of one contracting party and has been acquitted, or has been convicted and is serving his sentence, or has been pardoned, he may not be tried again for the same offense within the same territory by authorities of another contracting party. However, nothing in this paragraph shall prevent the military authorities of the sending state from trying a member of its force for any violation of the rules of discipline arising from an act or omission which constituted an offense for which he was tried by the authorities of another contracting party.

11. Whenever a member of a force or civilian component or a dependent is prosecuted under the jurisdiction of the receiving state he shall be entitled-

 (a) to a prompt and speedy trial;
   
 (b) to be informed, in advance of trial , of the specific charge or charges made against him;
   
 (c) to be confronted with witnesses against him;
 

 (d) to have compulsory process for obtaining witnesses in his favor, if they are within the      
       jurisdiction of the receiving state;
 
  (e) to have legal representation of his own choice for his defense or to have free or assisted
        legal representation under the conditions prevailing for the time being in the receiving state;
   
  (f) if he considers it necessary, to have the services of a competent interpreter; and
   
  (g) to communicate with a representative of the government of the sending state and, when the
       rules of the court permit, to have a representative present at his trial.

12. (a) Regularly constituted military units or formations of a force shall have the right to police any camps, or establishments or other premises which they occupy as a result of an agreement with the receiving state. The military police of the force may take all appropriate measures to ensure the maintenance of order and security on such premises.
      (b) Outside these premises, such military police shall be employed only subject to arrangements with the authorities of the receiving state and in liaison with those authorities, and in so far as such employment is necessary to maintain discipline and order among the members of the force.

13. Each contracting party shall seek such legislation as deemed necessary to ensure the adequate security and protection within its territory of installations, equipment, property, records and official information of other contracting parties, and the punishment of persons who may contravene laws enacted for that purpose."

All of the foregoing not withstanding, the U.S. Supreme Court has declared that court-martial jurisdiction over civilians in peace time is unconstitutional. Thus, despite provisions to the contrary in Status of Forces Agreements, Department of Defense civilian personnel aboard are generally not subject to the Uniform Code of Military Justice (UCMJ) in other than time of declared war. Such personnel are generally subject to the courts of the receiving state, as provided in the Status of Forces Agreement. In war time the U.S. military retains the constitutional right to try civilian employees by court-martial. The Court of Military Appeals has interpreted "wartime" to mean only a war declared by congress.

CONCLUSION:

 Upon the territorial seas, internal waters, and in ports, international law and regulation are very effectively enforced. The commercial ship master or naval commander entering this realm must have a general understanding of the privileges and immunities that apply to his class of vessel. If the vessel is a merchant vessel, very few privileges and immunities attach as the ship is totally subject to the receiving state. If the vessel is a warship, the ship itself is virtually immune as is the crew while aboard. When the warship's crew goes ashore the situation becomes more complex. The best guides to those complexities in most places where U.S. warships regularly call is the applicable status of Forces agreement, if one applies. The knowledge of status of forces agreements should not be confined to commanding and executive officers but should extend all the way to the senior petty officer level.

TO BE CONTINUED: NEXT THE START OF THE SUBJECTS ASSOCIATED WITH WAR AT SEA AND IN THE LITTORAL ZONE.

 

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