How to Handle Offending Troops Overseas: The U.S. Military’s Legal Strategy During the Cold War

• DOI: http://doi.org/10.1177/0095327X211061423
• Published date: 01 April 2023
• Date: 01 April 2023
• Subject Matter: Articles

https://doi.org/10.1177/0095327X211061423

Armed Forces & Society

2023, Vol. 49(2) 489 –506

© The Author(s) 2022

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DOI: 10.1177/0095327X211061423

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1134644AFSXXX10.1177/0095327X211061423Armed Forces & SocietyEfrat

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How to Handle Offending

Troops Overseas: The U.S.

Military’s Legal Strategy

During the Cold War

Asif Efrat

1



Abstract

The peacetime deployment of U.S. forces in foreign countries goes against traditional

notions of sovereignty. How did such deployment become legitimate following World

War II? This article examines the legal strategy that the U.S. military employed to make

American troop presence more palatable to foreign publics and to critics at home:

granting certain legal authority over offending troops to host countries, while seeking

to shield troops from trials in host-country courts. The military also used local, in-

formal ties with hosts to guarantee fair legal treatment for troops and worked to

convince skeptics that U.S. troops faced no legal threat. The mitigating of legal tensions

helped the military create conducive political conditions for its presence abroad and

likely contributed to the durability of U.S. deployments. The Cold-War practice

contrasts sharply with the contemporary desire of the United States to maintain

complete jurisdiction over its troops.

Keywords

Europe, law, political science, international relations

Introduction

The American military presence worldwide def‌ines the global security environment

since World War II. By stationing hundreds of thousands of troops in Western Europe,

1

Reichman University, Herzliya, Israel

Corresponding Author:

Asif Efrat, Government, Reichman University, Israel. 8 HaUniversita st., Herzliya 4610101, Israel.

Email: asif@idc.ac.il

490 Armed Forces & Society 49(2)

East Asia, and other regions, the United States has sought to deter aggression, reinforce

alliances, and facilitate smooth resource f‌lows. More surprising perhaps is the will-

ingness of host countries to allow U.S. troops to deploy in their midst, since foreign

military presence entails a signif‌icant sacrif‌ice of local sovereignty: The U.S. military

may use its power to wield authority over the host or to take action inconsistent with the

host’s policies. Furthermore, large concentrations of foreign troops might also create

negative by-products for adjacent communities, including noise and environmental

pollution and degradation, damage to roads and f‌ields during maneuvers, crime and

prostitution (Calder, 2007;Kawana & Takahashi, 2021). These negativeeffects have

occasionally fueled domestic mobilization and civil-society opposition against U.S.

bases (Kawato, 2015;Yeo, 2011). Yet, host-country governments have allowed the

United States to establish military bases on their territory and remain there for

decades, with at least some level of domestic consent (Allen et al., 2020). How did the

long-term, peacetime hosting of U.S. troops become a viable policy for host

countries?

Scholars of international relations have rarely tackled this fundamental question

directly (Schmidt, 2020), but possible answers come to mind. The most obvious one is

security: U.S. forces protected hosts against external threats and allowed them to reduce

their own defense efforts (Martinez Machain & Morgan, 2013). Furthermore, through

economic assistance, and the prestige that comes from an association with the United

States, U.S. deployments helped host governments consolidate their domestic support

and foster political stability (Braithwaite & Kucik, 2018;Cooley, 2008). This study

shines a light on an overlooked legal aspect of U.S. troop deployments that facilitated

their acceptance by hosts: the sharing of criminal jurisdiction over troops between the

U.S. military and local authorities. Indeed, while a military force would be expected to

seek immunity from local jurisdiction, the U.S. military granted hosts certain authority

to try offending troops since the early days of the Cold War. Such authority, the military

believed, was necessary for the establishment of security cooperation. At the same time,

the military sought to ensure that troops got fair treatment from foreign courts or,

preferably, received a waiver from those courts’jurisdiction. To achieve such pro-

tection for troops, the military established local, informal ties with hosts’legal

authorities and sought to resolve controversies cooperatively rather than through

pressure. Furthermore, the U.S. military worked to mitigate tensions at home. The

notion of U.S. troops’being prosecuted and punished by foreign courts faced

criticism within the United States. To assuage critics’concerns, the military strived to

demonstrate that the legal arrangements with hosts were working well to the benef‌it of

American forces.

This article lays out the military’s four-pronged legal strategy: granting certain legal

authority over troops to host countries; shielding troops from local criminal respon-

sibility or guaranteeing adequate legal treatment by hosts; using informal ties with hosts

in pursuit of the latter goal; and reassuring skeptics at home. Existing literature typically

focuses on one of those elements: the military’s attempt to protect troops from local trial

and punishment (Gao, 2009;Koo, 2011). The following analysis demonstrates that the

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