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Status of Forces and Criminal Jurisdiction

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Abstract

This article examines the legal status of armed forces present in friendly foreign territory with a special focus on criminal jurisdiction. Traditionally, this issue has been considered from the perspective of public international law in which immunities play an important role. However, this perspective does not fully cover the criminal jurisdiction provisions in the international agreements dealing with the status of visiting forces (Status of Forces Agreements). This article introduces military operational law as an additional perspective to better understand this specifc approach of Status of Forces Agreements.

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  24. The EU also drafted a Model SOFA: Revised Draft Model Agreement on the Status of the European Union Led Forces between the European Union and a Host State, EU Doc. 12616/07, 6 September 2007 in conjunction with EU Doc. 11894/07, 20 July 2007 and EU Doc. 11894/07 COR 1, 5 September 2007.

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  29. Ibid.

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  34. In the Lotus case the idea was expressed that a state, ‘failing the existence of a permissive rule to the contrary’ may ‘not exercise its power in any form in the territory of another State’. At present, it seems that a restrictive approach is favoured, whereby ‘States are generally prohibited from extending the scope of their laws to cover extraterritorial activities, although international law may permit doing so under specifc circumstances’; R. Liivoja, An Axiom of Military Law: Applicability of National Criminal Law to Military Personnel and Associated Civilians Abroad’ (Helsinki, Centre of Excellence in Global Governance Research 2011) pp. 55 et seq.

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  44. An act can be attributed to the state if an offcial ‘acts in an apparently offcial capacity, or under a colour of authority’; ILC Report on the Work of Its Fifty-third Session, UN Doc. A/56/10 (2001), ch. IV, State Responsibility, comment on Art. 14, para. 13.

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  48. UN Doc. A/CN.4/601 (2008), supra n. 39, at para. 88.

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  50. Memorandum by the Secretariat, Immunity of State Offcials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/596, 31 March 2008, para. 90.

  51. Idem, at paras. 22–23.

  52. Fox, supra n. 41, at p. 1.

  53. Art. II(1), Immunity from Jurisdiction of the State and Persons Who Act on Behalf of the State in Case of International Crimes; Resolution of the Institut de Droit International, Napels 2009.

  54. Arrest Warrant case, supra n. 49, at para. 51.

  55. For an overview and discussion of the arguments see: UN Doc. A/CN.4/631 (2010), supra n. 45, at paras. 56 et seq.

  56. ICJ 3 February 2012, Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, para. 91.

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  58. E. g., Brownlie only dedicates a short paragraph to the status of forces; Brownlie, supra n. 32, at pp. 372–375. Fox touches upon the distinct position of visiting armed forces and stresses the uncertainty surrounding the law relating to the immunities of armed forces: Fox, supra n. 41, at pp. 717–724.

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  70. Such as: the governmental agencies of both the sending state and the host state, civilian contractors, governmental and non-governmental organizations, and police units.

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  73. Idem, at pp. 49 and 353. Obviously, jus in praesentia and jus ad praesentiam cannot be separated and sometimes agreements even seem the merge elements of both, e. g., the Agreement between the United States of America and the Republic of Iraq on the Withdrawal of US Forces from Iraq and the Organisation of their Activities during their Temporary Presence in Iraq; 17 November 2008, supra n. 7.

  74. Voetelink, supra n. 4, at p. 217.

  75. Idem, at pp. 234–238.

  76. Idem, at pp. 240 et seq.

  77. This particular link between exclusive jurisdiction and immunity was, inter alia, assumed in a study on the UNEF, where it was stated that members of UN forces should be immune from the criminal jurisdiction of the host state and, therefore, should be under the exclusive jurisdiction of their respective national states; Summary Study of the Experiences Derived from the Establishment and Operation of the Force, Report of the Secretary-General, UN Doc. A/3943 (1958), 9 October 1958, para. 136.

  78. An exception can be observer missions in which military observers operate unarmed.

  79. UN Doc. A/3943 (1958), supra n. 77, para. 136.

  80. E. g., para. 2, Annex A, Arrangement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste Concerning the Restoration and Maintenance of Security in Timor-Leste; Dili, 25 May 2006, www.laohamutuk.org/reports/UN/06SOFAs.html#Australia, visited June 2013, provides for ‘the status equivalent to that accorded administrative and technical staff of the Contributing Governments under the Vienna Convention on Diplomatic Relations of April 18, 1961’, which implies criminal immunity for the visiting forces.

  81. The Model UN SOFA, para. IV(6) mentions the ‘customary principles and practices which are embodied in the model status-of-forces agreement’, supra n. 22. The UN Offce of Legal Affairs also refers to the customary principles and practices specifcally with regard to exclusive criminal jurisdiction; Offce of Legal Affairs, Letter to the Acting Chair of the Special Committee on Peacekeeping Operations, United Nations, Regarding Immunities of Civilian Police and Military Personnel, 14 April 2004, United Nations Juridical Yearbook 2004 (New York, United Nations, Offce of Legal Affairs 2004) pp. 323–325.

  82. The International Law Commission mentions in its commentary on draft Art. 4 on the responsibility of international organizations that ‘the State retains disciplinary powers and criminal jurisdiction over the members of the national contingents’, UN Doc. A/59/10 (2004), supra n. 61. Recently, Italy claimed jurisdiction over two marines who were detained by India based, inter alia, on the argument that ‘the immunity of peacekeepers working within the framework of UN resolutions must be reasserted, along with “assertion of immunity and national jurisdiction as general and broadly recognized principles”’, Press release by the Italian Ministry of Foreign Affairs, www.esteri.it/MAE/EN/Sala_Stampa/ArchivioNotizie/Approfondimenti/2012/03/20120330_prosue.htm?LANG=EN, visited June 2013. With respect to its forces participating in the International Force in East Timor (INTERFET) New Zealand claimed that international customary law relative to crisis management operations had developed to the point that absent a SOFA the New Zealand forces were subject to its exclusive jurisdiction in respect of criminal offences, K. Riordan, ‘Operations Law — Peacekeeping Operations in East Timor: A New Zealand Military Perspective’, New Zealand Armed Forces L Rev. (2001) p. 19 at p. 23.

  83. Voetelink, supra n. 4, at p. 247.

  84. As has been stated by the ICJ: ‘Law cannot be divorced from politics or power’; ICJ 20 February 1969, North Sea Continental Shelf, Judgment, ICJ Reports (1969) p. 3 at pp. 42–43.

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  1. Netherlands Defence Academy (NLDA), the Netherlands

    Joop Voetelink (Associate Professor of Military Law)

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Voetelink, J. Status of Forces and Criminal Jurisdiction. Neth Int Law Rev 60, 231–250 (2013). https://doi.org/10.1017/S0165070X12001179

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