Monday, December 01, 2008

Have SOFAs become less comfortable over time?

The No Man is on the cutting edge of Iraq-U.S. SOFA developments, so I'll provide the knife's dull back side of history.

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?


Mike "No Man" Navarre said...

I would say the newly minted US-Iraq SOFA accords US troops a level of immunity similar to that seen historically and leaves only a very narrow band of conduct potentially subject to host nation jurisdiction. Iraq has jurisdiction only over pre-meditated, off base, off duty offenses committed by Servicemembers. Further, I think, as JO'C pointed out to me, that the initial blanket immunity for troops was consistent with recognized international law that occupying forces have immunity from host nation law. The new SOFA is thus a recognition that the situation in Iraq is evolving. As the history of US SOFAs with other nations where we formerly had occupying forces might demonstrate, Japan and Germany, for example, SOFAs evolve over time as the judicial system of the country matures and the US establishes a level of trust that the nation will handle US servicemember cases in a just fashion. I would imagine political considerations come into to play as well, but the perception of justice is probably a big factor in permitting greater host nation jurisdiction.

Dwight Sullivan said...

To follow up on JO'C's point, here's another excerpt from COL Borch's book: "Under international law, a foreign combatant force engaged in hostilities does not require a Status of Forces Agreement. At the conclusion of hostilities, however, a status arrangement is generally required with any foreign force invited by a host country to remain on its territory." Frederic L. Borch, Judge Advocates in Combat: Army Lawyers in Military Operations from Vietnam to Haiti 78 (2001).

Anonymous said...

I feel that the standards have changed. The counter-point to that is that the situations have changed that combat personnel are in these days. Coupled with the extremists, I am not exactly certain where to stand on the question.