John W. Egan, the Future of Criminal Jurisdiction Over the Deployed American Soldier: Four Major Trends in Bilateral U.s. Status of Forces Agreements

• Jurisdiction: United States,Federal
• Publication year: 2006
• Citation: Vol. 20 No. 1

THE FUTURE OF CRIMINAL JURISDICTION OVER THE DEPLOYED AMERICAN SOLDIER:

FOUR MAJOR TRENDS IN BILATERAL U.S. STATUS OF FORCES AGREEMENTS

INTRODUCTION

Prison abuse in Iraq rapidly became global news when the Abu Ghraib photographs surfaced in the spring of 2004.¹In one photograph, a hooded inmate wears nothing but a tattered blue shawl and stands hunched over with his arms outstretched and his fingers affixed to electric wires.²In another, a nineteen-year-old female Army private smiles atop a triangular pile of nude, blindfolded prisoners.³In perhaps the most infamous photograph, the same private holds a leash tied around the neck of a nude male prisoner who is sprawled on the prison floor.⁴

While some degree of criminal conduct by a large population of visiting forces may be inevitable, the Abu Ghraib prison scandal was particularly outrageous. The United States, which has exclusive criminal jurisdiction over its forces in Iraq,⁵is trying its servicemembers in military tribunals for these abuses.⁶However, it is atypical for a large, visiting military force to have exclusive criminal jurisdiction over its members in the long-term.⁷Under most contemporary treaties or agreements on criminal jurisdiction, a nation that hosts a visiting force shares jurisdiction over that force with visiting military authorities. History suggests that the immunity American troops currently enjoy in Iraq may grow more controversial with time.

I. THE EMERGING QUESTION OF CRIMINAL JURISDICTION OVER AMERICAN

SOLDIERS DEPLOYED OVERSEAS

Uncertainty over the status of U.S. forces in Iraq is not the only cause for concern. Washington plans to deploy troops to a number of locations where the United States has historically had little or no military presence.⁸Pentagon officials recently conducted a Global Posture Review, in which they determined that the current U.S. base structure is ill-suited to meet the challenges of "radical Islam [and] Third Word regimes such as North Korea and Iran that are bent on acquiring a nuclear arsenal."⁹Consequently, Washington plans to deploy forces currently stationed near the former Soviet Union to so-called "lily pad" bases that will be small, self-sufficient, and isolated from host communities.¹⁰

For Pentagon officials, Turkey's refusal to allow U.S. soldiers access into Iraq during the 2003 invasion, as well as Saudi Arabia's similar unwillingness to permit attacks from its soil, demonstrate the need for more installations near the Middle East.¹¹Defense officials predict that repositioning will be a "rolling process" developing over the next ten years.¹²Prospective locations include the African nations of Senegal, Uganda, Djibouti and Ethiopia, as well as the Baltic states of Latvia, Lithuania and Estonia.¹³In Central Asia, the United States has already deployed at least 800 troops to Uzbekistan and 1,200

U.S.-led troops to neighboring Kyrgyzstan.¹⁴

When the United States builds large military installations overseas, it generally negotiates a Status of Forces Agreement (SOFA) with the nation receiving American forces.¹⁵SOFAs address a variety of issues related to the deployment and basing of American forces.¹⁶These include the provision of facilities and training areas to U.S. forces, tax and toll exemptions, utilities, driver licensing, entry and exit procedures, contracting, civil claims, and criminal jurisdiction.¹⁷SOFA provisions on criminal jurisdiction are often controversial.¹⁸Under customary international law, countries have jurisdiction over all crimes committed on their territory, committed by citizens and foreign nationals alike.¹⁹Thus by signing a SOFA, host nations voluntarily relinquish a degree of their sovereign authority.

The North Atlantic Treaty Organization (NATO) SOFA²⁰is a model for bilateral U.S. agreements on criminal jurisdiction.²¹The NATO SOFA divides the power to prosecute visiting soldiers among the sending state and the receiving (host) state. By dividing this authority, the NATO SOFA eases a tension arising from each state's inherent interest in criminal jurisdiction.²²In theory, this allocation of criminal jurisdiction permits the sending state to maintain discipline over its force and allows the receiving state to exercise its inherent right to prosecute all individuals, including foreign soldiers, who commit offenses on its territory.²³The NATO SOFA represents the agreement of forty-eight nations on how to best accommodate these competing sovereign interests.²⁴

American officials in Iraq were eager to negotiate a SOFA²⁵after sovereignty was transferred to the Interim Government by the Coalition Provisional Authority.²⁶However, negotiations were postponed after concerns surfaced about the validity of any agreement signed by appointed members of the Interim Government.²⁷Grand Ayatollah Ali Sistani, Iraq's top Shi'a cleric, publicly stated that only a directly elected Iraqi government can negotiate treaties.²⁸Consequently, the SOFA negotiations were rescheduled for sometime after Iraq elects its government and ratifies²⁹its constitution.³⁰

A comprehensive study of foreign criminal jurisdiction is particularly appropriate as the United States contemplates a significant realignment of its military resources. This Comment examines the revision and negotiation history of U.S. criminal jurisdiction agreements and arrangements with a number of non-NATO host countries since the end of World War II. It identifies four major trends that will shape the future of criminal jurisdiction over the deployed American soldier.

Part II of this Comment provides important background on the common law history of foreign criminal jurisdiction as well as the structure and substance of the NATO SOFA. Part III identifies four trends in bilateral U.S. agreements on criminal jurisdiction since 1945. Section III.A observes that the United States generally does not deploy large numbers of peacetime troops overseas without first negotiating a SOFA. Section III.B observes that host nations threatened by imminent armed attack are more willing to yield to U.S. criminal jurisdiction. Section III.C examines the amendment and renegotiation of U.S. SOFAs with the Philippines, the Republic of Korea (ROK), and Japan. Based on these findings, Section III.C argues that criminal jurisdiction agreements covering large numbers of U.S. troops stationed in peacetime are increasingly taking the form of the NATO model. Section III.D, however, observes that highly publicized crimes may draw challenges to the basic and essential tenets of NATO criminal jurisdiction. In Part IV, this Comment examines the implications of these trends for future U.S. base agreements.

II. THE NATO STATUS OF FORCES AGREEMENT: A PARADIGM

A. The Historical Development of Foreign Criminal Jurisdiction

Judicial decisions and international agreements before 1945 extended sovereign immunity to visiting military forces under what became known as "the law of the flag."³¹Under this doctrine, a military force "operating on foreign soil is in no way subject to the territorial sovereign and exercises an exclusive right of jurisdiction over its members."³²After World War II, the law of the flag gave way to a broader conception of host jurisdiction.³³The NATO SOFA, signed in 1951, establishes a division of criminal jurisdiction that permits host authorities to prosecute visiting soldiers for certain offenses.³⁴

The U.S. Supreme Court's decision in The Schooner Exchange v. McFaddon was one of the earliest commentaries on foreign criminal jurisdiction.³⁵In The Schooner Exchange, the plaintiff sued to recover a commercial vessel (the "Exchange") that was confiscated by the French during the Napoleonic war, converted into a warship, and renamed the "Balaou."³⁶

The original American owners initiated the lawsuit after the ship had to put in to Philadelphia for repairs.³⁷The Court recognized exclusive and absolute U.S. jurisdiction over its territory, though it held for the French on sovereign immunity grounds.³⁸Chief Justice John Marshall observed that the ship was "under the immediate and direct command of the sovereign" and was "employed . . . in national objects."³⁹He reasoned that military forces should be immunized because they are the representatives of a sovereign nation and because, as a practical matter, commanders must have sole authority to discipline their ranks.⁴⁰

The decision in The Schooner Exchange also recognized the principle of territorial sovereignty. In dictum, Chief Justice Marshall observed that a foreign commercial vessel should not be immunized, since it would be "inconvenient and dangerous to society, and would subject the laws to continual infraction" if foreigners "did not owe . . . local allegiance."⁴¹To maintain law and order, nations must be able to enforce criminal law within their territories, over both citizens and foreigners.⁴²Chief Justice Marshall's distinction between commercial and public acts suggests that if the Exchange was a foreign commercial vessel as opposed to a warship under the command of the French government, immunity would not have applied.⁴³

As a general rule, foreign military forces had exclusive jurisdiction over their members in the 150 intervening years between The Schooner Exchange and World War II.⁴⁴However, after World War II, nations slated to host foreign military forces increasingly asserted their sovereign rights.⁴⁵A growing sense of national sovereignty and pride undoubtedly contributed to shared jurisdiction in the NATO SOFA.⁴⁶Nonetheless, this factor was not necessarily predominant considering the unique circumstances that gave rise to the NATO alliance.

After the Iron Curtain descended in 1945, sizable contingents of American troops were stationed around the periphery of the Soviet Union.⁴⁷Peter Rowe describes the Cold War as an "unusual situation" in which "large numbers of the members of a visiting force . . . [were] present in the territory of another state during peacetime and with the consent...