An International Human Rights Approach to Violations of NATO SOFA Minimum Fair Trial Standards

• Author: By Captain Benjamin P Dran
• Pages: 05

1. INTRODUCTION

   45 a consequence of the crim,naljiiriadictian prov~onaand safeguards pro\ided m Article VI1 of the KATO Statu of Forcer Agree-ment' and the agreements which bupplement the SOFA in the various KAT0 nations, explicit fair trial standard5 are guaranteed LO

   American senice members atatiuned in Europ? if they are tried under the foreign law of courts in SAT0 member stam The% safeguards stand as a model of minimum procedural fairiiei in intrrna~ tional law by affording through a multildteral treaty irrtain funda mental rights to an indiiidual accused The enforceahlilt? of thoae guarantees, howerer, still suffers from a lack of defminon in practice and the absence of any means within the treat> by which the ~n~dimdual bemice member could compel the United Statesgovernment to enforce those rights The purpow of lhi, artiilc IS to examine the standards articulated m Articlr \ 11 and their current interpretation and application by military trial obsenerb. and to consider their meaning in light of specific human rights itandards enforceable gen-erally and in Europe. Finall), various alternallreb wll be iomidered which provide directly to the Individual a aubitanrial judicial remedy which mwes a standard of procedural fairiieii independent of but equiialent to that of the KATO SOFA nghr

   lAgreemenr Between the Parfler to the Worth Aflantlc Treat) Regardmy the Sfatus

   of their Forcer June IS 1851 [L0&3l 7 C S T lis2 TI X S h'r, 2bi5 [hereinafter cited ai UATO SUFAl

   11. THE NATO SOFA FAIR TRIAL GUARANTEES A. ARTICLE VII AND THE SENATE RESOLUTION SAFEGUARDS

   Article VI1 of the NATO SOFA governs the right and precedence of member nations to exercise criminal jurisdiction over visiting friendly forces. The Article represents the model for nearly all status of forces agreements between the United States and nations around the world receiving American service personnel.* It resolves thejurisdictianai problem caused by the traditional conflict between the concepts of terntorialsovereignty and the immunity of a visiting foreign savereign under the 'law of the flag doctrine Article VI1 provides a system of concurrent jurisdiction which allocates prionties of jurisdictional competence between the sending and receiving states over criminal offenses committed in the territory of the host nation

   Article VI1 has also become the most controversial article In the NATO SOFA because It has produced a jurisdictional overlap between the very different traditions of the common law and civil code legal systems represented among the NATO members.' The sending state has exclusive jurisdiction over those few offenses whlch are not offenses under host nation iaw.6 As a practical matter, the ex-clusive jurisdiction of the United States within the territory of the

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   SAT0 SOFA before a mbcommzttee af the Senate Amed Senlees COmmlftee ale an annual reauremenf mrSUant to Senate raflficalian of the treaty and reflect the

   ICCFIL tng state 1s ]muted to those offenses which are purely military in nature under the Uniform Code of Militai? Justice (UCkW and rhoie perwns to whom the UCII1.I may be applied ' The host nation has exclu9l~

   Jurladlctlon over offenses under Its law commitred by memherc (of the force ,ti iiiilian component, and all dependents nith respect to acts nor punishable by the laws of the sending state.8In the areas of concurrent jurisdiction, the receiving state has the option fithe, to exerc~se the primarb right to probecute or to wake the right hy ailo\\mg the sending state to assume Jurisdiction mer rhe rase "

   Integral to th15 recognition of the host nation's primary right to ex-ercise vriininal jurisdiction under rlrticle VI], a list of specific fair trial guarantee5 is set forth in paragraph 9, this pronsmn IS applicable to all criminal trials in the m ~ r t s of the VAT0These minimum procedural standards entitle a service member to a prompt and ip~edytrial. advanc? knowledge of the specific charges. confrontarion and compulsory production of wp~inesses, counsel of one's choice or Free counseI. B competent interpreter. and the pres-e n c ~ of a represpntative of one's own government

   In an effort to mirigate the effects of recognizing foreign jurisdiction mer ita viiitmg forces.ll the United Stares Senate adopted a resolution on duly 15, I063 which articulated certain reservations of the Senate in giring its advice and consent to the NATO SOF.4 as a Formal treat? .j It was "the sense of the Senate" that further pro-

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   The Senate Resolution added three important safeguards designed to provide an extra measure of procedural protectmn for th? accused First. the commander of American forces in the receiving state musr. prmr to trial. examine the laws of that nation with specific reference to the due process standards of [he Cnited Stater Constitution .4 funher reservation %ate-

   thi, omm man ding officer ihrll r*qii~,t chanrwl. I-'

   eqoned th? appruntrnent. nith the adiiir and comcnt of thp iemor A n w r ~ a n milltar) wpreimtatiw 111 rhi. host nation of a trial ohwrver to rrprewnt [lie Lnirrii Slat?, dt the trial The trial ohwr\er murr attend the trial and report to IIIP re,pansiblr Ameriian military riirnmander in til? ~eirii-ing itate "an? failure III compl)" iiith the SOFmandpr. in turn shall rrqurrt the 1)~partnpropriae artwn " Thi, lpririrdurr implie.

   responsible senior military commander also musr determine that the trial in queFtion was unfair before taking remedial action.1o

   Implementation of the Senate Reiolution resulted in the promulgation of Deparrment of Defense Directire .5525.1" which sets forth atandards and procedures thar are reproduced nearl) rerhatim m a tri~\er\ice regulation Although the Senate Resolution applies only to the NATO SOFA, the same procedures for iafeguarding the inersonnel will he applied in ali o~erheas

   It 1s the Senate Resolution which assigns oierall responsibility for implementation of the procedural safeguards to a single commander

   in each country 20 The designated commander must insure The preparation and continuing retiew of a ''cwntq law rrudy" of the iubstantne and procedural laws applicabk within that country "Con-rtant efforts" are to be made to establish an effective liaison with host nation authorities at all lei& tu maxiniizp the mtent of criminal jurisdiction exercised by the United State5 within the limits of Article VI1 and other applicable agreements Thp commander also mwt attempt 10 secure cuitody of the accused in all cases pending completion of the foreign judicial proceedings, except when unusual i,rC"m'ita"('es eXLSt 22

   Whenexer a requert for vaiver of foreign jurisdiction has heen denied a trial absener IS selected 11 The militari trial observer reriei primarily a reporting function. according to DOD Directive

   llhrr to examine the host nation 5 IPK) ~n light of the Con-helher a p o I m ~ l denial of nghtr mas exist m a particular

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   %Pi 1 and the combined service regulation implementing the Senate Resolution The obaener may gire onl) limited assistance to the defendant by ad\ising defeme counsel of the accused's rights undpi the appropriate internationai agreements and by obtaining mitneseb or evidence under the control of the United States govPinnient 'He w11 not be considered as a member of the delense ream nor will he attempt to interject himself into the trial proceedings If, hoaeier. any \iaiations of trial safeguards are observed during thp trial. he will notify the designated commanding officer um mediately through appropriate channels."zb

   In an) case in ahich it appear9 probable that the accused ~ 1 1 1 not

   obtain a fair trial, the local major unit commander, normally the imrnpdiatp general officer in command over the accused. must laraard to the designated higher commander a report of the facts of the case, the bash for concluding that the trial will not be fair, and a specifir recommendation for action to be 1aken.l' This designated commander makes the critical decision whether a 'substantial pos~ iibiliry" exists that the trial ~~-111not be fair, "under all rhe crcum-5tances of the case,' disregarding any procedural differences characteristic of that foreign country and without regard to any weighing of the expected e\idence j S Only then will the designated commander request as~istance through diplomatic channels

   2. EXECUTIVE DISCRETION TO ENFORCE THE GUARANTEES

      The Senate Resolution's reference to a request for "appropriate action" through diplomatic channels has been interpreted to be the JXCIULIV~remedy under the SAT0 SOFA. The leading case on this ibsue Holmes 1 establishes that enforcement of the individual rights created under Article VI1 1s entirely a matter of the executive branch's control of foreign affairs, it 18, therefore, beyond judicial powers of review. Although no more successful than earlier case? alleging vioiarians of due process rights of s~rvice mfmbers inforeign courta."'Hoimes c Larrd was the lirit case to include a claim

      based directly on the rialatian of mdnidual rights conferred h) a status of forcer agieemmt, rather than upon a violation of rights secured by the United States Constitution.

      In Holmes, two American soldiers stationed in th? Federai Republic of Germany in 1970 were charged by the German government with attempted rape and related charges after a revocation of a general waiier of jurisdiction Both were convicted and sentenced to three years' imprisonment by the German district court (Land yericht) on which final judgment was declared by the Federai Court of Justice (Bundesyerichtshqfl, the highest court m cml and criminal matters). While the appeal was pending. the soldiers broke restnctmn while in American custody and returned to the United States where they surrendered themselves to Amencan authorities. They filed suit to enjoin the...