The U.S. Military Death Penalty in Europe. Threats From Recent European Human Rights Developments

• Author: Major John E Parkerson, Jr., and Major Carolyn S. Stoeh
• Pages: 04

1. INTRODUCTION

   Recent human rights developments in Europe are creating an ironic dliemma for an American milit- justice system that generaily pndes itself in its success in securing broad protections for the individual rights of its accuseds. Tensions ~n Europe between US. military authoritled and host nation justice officials oier the ability of American military courts to impose the death penalty for capital offenses committed by U.S. military personnel are disturbing the previously tranquil arrangements concerning exercise of jurisdiction over offenses by American militw members ovemes. Speclfic cases m vital YATO countries, such as the Federal Republic of Germany, The Netherlands. and Italy, are warnings that the hitherto virtually unlimited ability of U.S. military courts to pronounce any punishment permitted by U.S.military law 1s being curbed significantly. By taking account of the 50wmg European consensus agamst the death

   * Judge Advocaw Generals Corm United Stale3 Arm? Currenflv an LL Y cm. didate m international law at National Lax Center The G&ge Wzshkon Univen~. t? Wk5hmgon. UC Formerl) &waned w Associate Professor, Depanmenf of Law Unrted Stater \lilllar) Academy West Pomr. 1886-1888. Legal Liaison Officer CIN CCSARELR LXO. American Embassi.) Bonn, Federal Republic of Germany, 1883-1865 Attorney lofernallOnal Law Dlilslon, HQ USARELR, Heidelberg, Federal Republic of German), 1881-1883 and &3ArsIsfanfStaff Judge Advocate HQ CECOM, Ft Mom-mouth Yen Jeney. 1878-1881 B A , magna Cum laude. Emory Lnnerslt). 1874 kl A (Diplamatie H~Jtorsl. Emory Umvensy, 1875. J D . Emory Lmrersny 1878 M A (In-ternatlonal Relarlonrl Boston Unlrenlo 1886 Member of the ban of the State of

   '' Judge .Advocate Genera's Department. Unfed Sfares Au Fane Cmnlly 8mmed to Aa Force lo~tifufeof Technolog) as an LL iil candidate in lnfernarlonal law at Xatlonal Law Center, the George Wwhmgton Univenlfy h'whmgran D C Formerly asrgned 85 Srafi Judge Advocate, 7241sl Air Base Group lzrnir Turkeg. 1886.1988. Asl~ranf Staff Judge Advocate. Headquanen Eighth Aa Farce, Barksdale AFB, Laui slana 1884-1986, Area Defense Counsel A l Force Legal Services Center, iVunamlfh Am. Michigan. 1983 1884. Chief. Adverse Actlong 341if Combat Support Gmup, WuR-smith AFB Michigan 1881-1883. and w Maintenance Control Officer 17th Defense System8 Evaluation Squadron hlalmifrom AFB. Montana, 1875-1878 B A , Unlrenl-t) of Maryland 1872. J D Kmvenify of Montana 1881 Member af the ban of the State of Montana and the United Stater Court of Military Appeals

   penalty. U S milirary accuseds stationed in Europe could soon utilize an avenue through European courts for compelling the European host nation' to reiuie to relinquishjunsdicrion to the United States In patentla1 capital cases

   This article demanstrares that the European challenge to the U.S mihtary death penalt) E real It examines recent cases mvolvmg the death penalty in the civilian extradition arena and m the context of ongoing cases molvmg military personnel stationed in Europe. showmg how European regional and national human rights standards concerning the deaih penaltb ultimately ma? apply to U S soldiers stationed m Europe The article focuses on the S.YI0 Status of Farces Agreement (SOFA],J rhe treat: framework that regulates the Station-ing of U.S farces in Europe and that proiides in article VIIJ an arrangement concerning the exercise of cnmmal jurisdiction The ar tick explains how that meaty scheme 15 Increasmgly constrained by changes m European attitudes. a5 revealed in Europeanjudicial decisions and political actions. that may result in a diminished C S capaci~ t) IO impose the death sentence

   $Ye discuss se\eral examples that illustrate the challenge to the 51 S military death penalty These include instances 7% here the Federal Republic of Germany either asaened or threatened to assert Junsdictmn over U S military penonnel in potential death penalty cases er-press15 because of ns opposition to thar sanctmn: and a murder case from The Netherlands in which a Dutch court not only hlacked the US from exercising Its treaty prerogative to try a 51 S. military member but also in contravention of tieat) abligationi refused to permit U S authorities to retain custody of the mdn-idual pending tnal Finally, discussion of an important recent case from the European Court of Human Rights demonstrates the 7 ulnerabilit) of L s.

   treat) arrangements in the criminal lam- iield to regional European human rights obligarions that are pwcmred Io conflict with those

   19901 DEATH PENALTY iN EUROPE

   arrangements That case 1s particularly interesting because It apphed regional human rights obligations to constrain Great Britain from extraditing to the U.S., in accordance with an extradition treaty, a defendant who might become subject to the "death row phenomenon

   These cues suggest that ahen the death penalty 1s at sue. emerg- mg international human rights trends are likely to be ilyected more frequently into our mast basic tool of military discipline, the military justice system. and will continue to affect the ability of the U.S. military to abide by its policy to maximize jurisdiction over its mem~ bers for offenses committed oremeas The mihtarg legal communlty needs to understand the mechanism by which international or domestic tribunals. by applying the criteria of international conventions to which the U.S. may not even be party. can effectively pre~ ven~the US. from exercising jurisdiction over military personnel By focusing attention on the death penalty problem, this article endewon to prompt U.S military authorities to plan carefully considered responses to actual conflicts with host nations over apphcanon of the death penalty it could BSSISC United States military attorneys who are stationed in Europe to better understand host nation and American concerns and to de\ise tactics TO avoid conflict over the death penalty question with local host nation officials. Fin&ly, demonstrating to the European host nations that the subject 1sof sufficient concern to United States lawyers as to warrant this kindof examination may benefit allied relationships and facilitate m resolving the question

   Until recently, Umted States mfitary unposition of the death penalty in Europe was not especially contravenial. Europeans generally appeared unconcerned about the prospects of Amenean military personnel receiving the death penalty so long as it was not carried out on European soil No senow effort was made to deprive U.S. milltary officials of the exercise of criminaljunsdiction in capital cases involving American rnliitary personnel In fact, the consensus among U S mdltary members and policymakers favored a situation where the United States retained jurisdiction to the greatest extent allowable by the treaty jurisdictional scheme. A number of factors contributed to this consenws Nationalistic feelings caused some U S Critics to maintain that relinquishing U S jurisdiction somehow 1"- dSocrz?~g

   CUP 161 Eur Cf H R (ser I)

   (1088)

   lSee inJm text accompanying note 30

   Lazareff Status of Ylhrar) Forcer I nder Current International Lax 213 (19711

   fringed United States sovereignty. to permit foreign courts to try L- Smilltar) memben when those personnel were in that state to contribute to its defense seemed the ultimate mgmtitude ' Further, U s

   misconceptions about foreign law led others to believe that an accused-especially an American accused-is presumed guilty and has the burden of proving his mnocence. Moreover, some Americans believed that many judges particularly in France and Italy. were Communists consequently, fair trials for American military personnel in those hostile courts were considered unlikelyB The lack inEuropean jurisdictions of clear, American-styled bills of rights was a rallying cry for many L'S poiqmakers against trial of American military personnel by European judicial systems that were perceiv-ed to be inferiorg

   Yet. from The individual military member's perspeetiie, these American arguments favoring application of a kind of bill of rights. whether derived from L S constitutional principles or from article

   1990] DEATH PENALTY IN EUROPE

   VI1 guarantees:O may not be valid in view of recent developments concerning the death penalty. In those cases, a military member who faces the prospect of trial by a US. military court for a capital of-fense may consider trial by European host nation courts preferable. As European courts and policymakers became more vocal against the death penalty, one reasonably could expect host nation authorities and counsel for accused military members to explore possible methods for ensuring that the capital offender 1s not subjected to the jurisdiction of an American military court

   11. THE SOFA FRAMEWORK

   1. THE JURISDICTIONAL SCHEME

      A primary concern among Europeans and U.S authorities should be the extent to which the jurisdictional scheme established by the NATO Status of Farces Agreement allows host nation assertions of jurisdiction based upon opposition to the death penalty. A brief examination of the K.4m SOFA Junsdlctionai arrangement, fallowed by a discussion of some particular cases, will address this concern.

      The issue of criminal jurisdiction over members of forces stationed in the host nation ("sending states' forces") generally LS regarded as the key focus of the NATO SOFA?' Article VI1 of the treaty resolves issues of Jurisdiction caused by the traditional conflict between the concepts of the immunity of a risiting foreigm sovereign under the "law of the flag doctrine" and terntorial sovereignty of the host state?%

      It estabhshes a nght and precedence of member states to ex-ercise criminal jurisdiction over the allied farces stationed in their territory Article VI1 accomplishes thsfirst by distinguishing between exclusive jurisdiction offenses and concurrent junsdictmn offenses.

      h1ILITARY LAW REVIER- [V"i 129

      Eirluv~~~ul-isdictionoffenses are those crimes that are...