Allied Security Forces in Germany. The NATO SOFA and Supplementary Agreement Seen From a German Perspective

• Author: Andrea Gronimus
• Pages: 02

I Introduction

Allied Forces stationed in Germany have been a common feature since 1946. They have been serving here under consecutive iegai arrangements. What started with the Hague Convention of 1907, and developed into the special Four Power Occupation Regime far Germany, is now to be found in the NATO Status of Forces Agreement (SOFA) of 1951 and the Suppiementary Agreement between Germany and the NATO sending States concluded in 1969 (SA/GE).I

Cooperation between German and Allied authorities has developed smooth and time-honored procedures. Nevertheless, the controversy over SATO's "double track decision" exit to modernize its IKF arsenal in 1979 generated substantial criticism of the standing agreements and even more criticism of Allied activities. These lawyers and politicians view the Allied privileges under the SOFA and the SAIGE as an infringement of German sovereignty.

In addition, after reunification the German Federal Government requested, and the Allied sending States agreed to, nego-

I .Agreement Befxeen the Parriea to the North Atlanne Tiear) Regarding the Srarua 01 Their Force3 June 18 1851 4 U S T 1792 TI AS lo 2846, 199 U H T S 67 Iheremafrer NATO SOFA] Agreement fa SYPDIF~PO~the Agreement Befveen rha Par-[lea to the Smrh Atlantic Treaty Regarding rhe Srarus of Their Forces with Res~eer mFarelgn Forces srlnaned ~n the Federal Republle of Germany, Uifh Proracol of S~gnatule, Aug 3. 1868. 14 U S T 531 T I AS Za 6311 481 D

S T S 262 IhereimRe~ SA

GEI The SAT0 S O P and SA have been ~n force m the Federal Republic of Germany since July 1. 1963 See Bundeigeselrblarr IBGBll 1963 I1 ST47 see 8130 Harir Krafr, ha 'VAT0 Status 0, iaicrs Apieemmr and Supnlem~nmiy

Ayrecmml, Anwr LAU

Zar 1990 at3

tiations to review-and probably to amend-the SA;GE. These negotiations already have begun and are scheduled to be concluded in the summer of 1982.

11. The Facts The Protection of hlilitary Security in the Federal Republic of Germany

This article will study the legal authority granted to Allied military police and other security personnel under SOFA and SA/GE provisions. To promote a better understandmg of the IntreGerman legalistic and political discussion, It starts with a comparative analysis based on the technical framework of Ger. man security laws.

1. The Protection of German .Ililitary Security

   The activities of German military police and other security services are governed by the Use of Force (Armed Forces) Act of 1966.

   1. The Approach of the 1965 Act.-This bill was enacted in an era strongly distrustful of any military privileges and focused extensively on the protection of military installations The authority of security personnel is much more restrictive than under any state police act in Germany As a consequence, the law's operation has manifested many legal problems and loopholes. For example. no sufficient authority exists-for technical reasons stemming from the burden of proof3-to stop people outside installations from spying inside The summary arrest of offenders usually is unlawful because of similar technical flaws in the 1965 Act Finally, only specially commissioned personnel can use this problematic authority

   2. The Problem of "Ofj%cial" Self-Defense -The paramount problem of the 1965 Act 1s its assumption that the military police may invoke civil-law rules of self-defense and summary arrest. German administrative law doctrine. however, has es. tablished that the constitutional "rule of law" provisionE re-quires state authorities to invoke specific powers granted by public law and forbids, among other things, recourse to civil. law rules of self.defense In addition, under German admims-

   trative law, acts of a government agency in its official capacity are attributed to the state This "official act'' will be lawful only if specific authority under administrative law exists. The acting person may invoke civil law rules of self-defense exclu. sively in proceedings to establish his or her personal liability under criminal or civil law. Even if these rules are invoked successfully, the "official act" wiil remain unlawful unless the official actor has authority to perform the act under administrative law e

   in contrast to all federal and state police acts, the 1965 Act contains no clause allowing the "official" recourse to self-defense. This puts the acting service member in legal limbo Thus far, the courts have managed to avoid resolving this question

   3. Powers of the State Police.-On the other hand, the state police of the German "Lflnder" are granted full powers to act in the maintenance of security and public order. They may enforce any legally protected interests and public regulations. AS a rule. police may take any necessary measures in the maintenance of security and public order, subject to the principle of proportionality. Accordingly, the "Lfinder" state Police-not federal forces-are tasked to support German military police in the protection of military security and to cooperate with Allied Forces' security agencies in Germany.'

2. Allied Security Operations

   Allied security regulations come in a variety of technical

   constructions These differences in technical terms can be traced back to different legal traditions The three major allied powers of World War ii-that is, the United States, the United Kingdom, and France-should be sufficient to serve as examples.

   1. L'nited States Forces' Regulations.-The practice of United States Forces in Germany is governed by Department of Defense (DOD) administrative "regulations." The equivalent technical instruments in Germany are known as government ordinances These regulations are Issued by the DOD to maintain common standards throughout the Umted States Armed

   Forces Regional and local commanders may issue supplementary regulations within the framework of DOD regulations to adapt the latter to specific legal and practical requirements.8

   Authority to use force against military personnel can be found in the provisions of the Uniform Code of Military Jus. tice The use of force against civilians IS based on common-law rules of self-defense and summary arrest Special provisions restrict the use of deadly force These provisions are based on the "minimum force doctrine" This doctrine is emphasized strongly in all other cases as well.l2 The right to administer installations as comperent commanders see fit-such as through the use of identity checks, restricted access, and searches-is derived from the slate's title as land owner or rightful tenant to the land l3

   United States regulations explicitly declare ail powers subject to further restriction in compliance with local law or stationing agreements'*. American commanders in Germany maintain thar the SOFA, and to a greater extent the SAIGE, warrant no such restrictions'j Accordingly, the general regula-tions of the different services apply in full Some exceptions are made regarding members of civil support units and local hire guards.lb

   2. British Practice in Gemany.-British forces work in a similar common-law tradition. Common-law rules, such as self-defense and summary arrest, are held to be applicable." While this may be a umversal principle of law, a German lawyer would find that important iegai differences exist. First, the legally protected interests a person may defend by actions of self-defense, prevention of crime, or summary arrest differ

   from country to country. Second, differences in technical terms exist.

   For instance, self-defense is a valid defense in Germany only if the perceived threat actually exists. An honest mistake of fact that prompts an individual to intervene, will not render his or her action lawful. Mistakes of fact are addressed as a matter of personal guilt.18 Therefore, German law divides criminal responsibility into the "factuai" question of lawfulness and the "personal" question of guilt. As to actions of state officers in their official capacities, German administrative law concentrates exclusively on the "factual" lawfulness of the action. This construction is inconsequential in criminal and civil proceedings, in which the personal responsibility of the officer is in question. The implications, however, should be clear concerning suits against the state.

   By contrast, under Anglo-American common-law rules, self-defense is a valid defense if an honest mistake of fact occurs.18 These rules combine both problems by asking whether the force used was "reasonable under the circumstances,"20 and by giving a single answer. This construction may lead to problems of mutual misunderstanding on account of different legal traditions. Because the iaw of the land cannot apply "out of area," United Kingdom authorities assume that British common-law rules do not apply in Germany, while German civil-law rules apply by way of SA/GE articles 12 and 20. Accordingly, separate regulations have been issued with no serious differences in practice

   3. The French Point of Vi'iszL..-France always has put a strong emphasis on national sovereignty.z1 That emphasis even led General de Gaulle to leave KATO's military organization in 1966.22 French troops, however, have stayed in Germany, and the parties firmly have established that the SOFA and the SA/ GE still apply to French forces in Germany 23

   French authorities maintain that standardized practice is a factual necessity, especially for a country deploying troops inmany receiving states, such as the United States. Logically. French commanders will apply their national regulations to the extent arrangements with the receiving state allow The legal title in the sphere of criminal jurisdiction is the sovereignty of the state over members of its armed forces In other cases, stationing agreements have to provide this legal title Criminal procedures are reserved to the courts-martial and the special Gendarmerie of the Army Other security services, such as sentry services and escorts, are provided by local units them. selves. From the French...