In his indispensable book on Army lawyers in combat, Army JAG Corps Regimental Historian Fred Borch discusses the status of forces in military operations from 1959 through 1994. Frederic L. Borch, Judge Advocates in Combat: Army Lawyers in Military Operations from Vietnam to Haiti (2001) (available here new and here used).
Here's what Colonel Borch tells us about the legal status of U.S. forces in Vietnam:
[O]fficers [held] diplomatic status, which carried with it complete criminal and civil immunity from Vietnamese law. Enlisted soldiers enjoyed diplomatic status equivalent to that of clerical personnel assigned to the U.S. embassy. The government of South Vietnam thus had neither criminal nor civil jurisdiction over [U.S.] soldiers . . . and criminal jurisdiction . . . was exercised exclusively under the Uniform Code of Military Justice, an arrangement that continued throughout the duration of the conflict.Id. at 6.
COL Borch adds: "As the American buildup began in the early 1960s, . . . the United States and the Republic of Vietnam chose not to negotiate a Status of Forces Agreement like those used in Japan, Korea, and the Philippines. Consequently, all U.S. forces remained immune from Vietnamese criminal and civil law until the end of the war in 1975." Id. at 53 n.7.
Concerning our military operations in Grenada in 1983, COL Borch reports: "Prior to the U.S. intervention in Grenada on 25 October, there existed, of course, no [status of forces] agreement regarding the United States and its military personnel." Id. at 78. A post-military operations SOFA accorded U.S. forces "the same status provided the technical and administrative staff of diplomatic missions, a limited form of diplomatic immunity." Id. at 79.
During 1990 disaster operations in Western Samoa, the U.S. obtained "diplomatic status for all joint task force personnel equivalent to that afforded to the administrative officers and technical staff of a diplomatic mission." Id. at 281. And during 1991 relief operations in Bangladesh, U.S. forces received "diplomatic status equivalent to that provided members of the administrative and technical staff of the U.S. embassy in Bangladesh." Id. at 290.
Then-LTC Marc Warren observed that "[i]n Kuwait, United States forces were initially and unilaterally granted complete immunity. During Operation Desert Storm, Saudi Arabia extrapolated an earlier limited agreement to apply to arriving United States forces." LTC Marc L. Warren, Operational Law -- A Concept Matures, 152 Mil. L. Rev. 33, 49 (1996). A May 1995 agreement with Haiti "provided U.S. Support Group, Haiti, personnel with the 'same status as that provided to the administrative and technical staff' of the U.S. embassy." Borch, supra, at 262.
No Man, does the new U.S.-Iraq SOFA provide at least the same level of A & T status diplomatic immunity that U.S. servicemembers received in most of these historical examples? Or are our servicemembers in a hostile zone more vulnerable to the exercise of host nation jurisdiction than were servicemembers in previous combat operations and operations other than war over the past half century?