Status of Forces Agreement
Encyclopedia
A status of forces agreement (SOFA) is an agreement
between a host country and a foreign nation stationing forces in that country. SOFAs are often included, along with other types of military agreements, as part of a comprehensive security arrangement. A SOFA does not constitute a security arrangement; it establishes the rights and privileges of foreign personnel present in a host country in support of the larger security arrangement.
, France
, Australia
, Germany
, Italy
, Russia
, South Korea
, and many other nations also station troops abroad and negotiate SOFAs with their host countries. In the past, the Soviet Union
had SOFAs with most of its satellite state
s. While most of the United States' SOFAs are public, some remain classified
.
and Japan
, the SOFA can become a major political issue following crimes allegedly committed by servicemembers. This is especially true when the incidents involve crimes such as robbery
, murder
, manslaughter
or sex crimes
, especially when the charge is defined differently in the two nations. For example, in 2002 in South Korea
, two girls were accidentally killed by a U.S. military AVLB
bridge laying vehicle on the way to the base camp after a training exercise, and the soldiers involved were tried under U.S. criminal jurisdiction. The U.S. military court martial panel found the act to be an accident and acquitted the service members of negligent homicide, citing no criminal intent or negligence
. The U.S. military accepted responsibility for the incident and paid civil damages. This resulted in widespread outrage in Korea, demands that the soldiers be retried in a Korean court, the airing of a wide variety of conspiracy theories and a backlash against the local expatriate community.
A similar incident occurred in December 4, 2004 when 31-year-old U.S. Marine Staff Sergeant Christopher Van Goethem serving as a Marine Security Guard at the U.S. embassy in Bucharest, while driving his Ford Expedition, collided with a taxi carrying Romanian singer Teo Peter
. Van Goethem was drunk and did not obey a traffic signal to stop, which resulted in the collision and the artist's death. The Marine was later cleared by a court martial of both manslaughter and adultery on technical grounds, an expected resolution that caused ample protests. Attempting to minimize the public outcry, in 2005 the U.S. Embassy announced the establishment of a memorial commemorating the life and work of Teo Peter.
However, most crimes by servicemembers against local civilians occur off duty, and in accordance with the particular SOFA are considered subject to local jurisdiction. Details of the SOFAs can still prompt issues. In Japan, for example, the SOFA includes the provision that service members are not turned over to the local authorities until they are charged in a court. In a number of cases, local officials have complained that this impedes their ability to question suspects and investigate the crime. American officials allege that the Japanese police use coercive interrogation tactics and are concerned more with attaining a high conviction rate than finding "justice". American authorities also note the difference in police investigation powers, as well as the judiciary. No lawyer can be present in investigation discussions in Japan, though a translator is provided, and no mention made of an equivalent to America's Miranda rights. Another issue is the lack of jury trials in Japan, previous to 2009 all trials were decided by a judge or panel of judges. Currently, Japan uses a lay judge
system in some criminal trials. For these reasons American authorities insist that service members be tried in military tribunals.
. On the other hand, host country observers, having no local counterpart to the Bill of Rights, often feel that this is an irrelevant excuse for demanding special treatment, and resembles the extraterritorial
agreements demanded by Western countries during colonialism. One host country where such sentiment is widespread, South Korea, itself has forces in Kyrgyzstan
and has negotiated a SOFA that confers total immunity to its servicemembers from prosecution by Kyrgyz authorities for any crime whatsoever, something far in excess of the privileges many South Koreans object to in their nation's SOFA with the U.S.
To many U.S. observers, the fact that most accused criminals eventually end up being tried in a local court and found guilty proves that the system is working; to some host country observers, it reinforces the perception that the SOFA protects the guilty and makes the exceptions more glaring.
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
between a host country and a foreign nation stationing forces in that country. SOFAs are often included, along with other types of military agreements, as part of a comprehensive security arrangement. A SOFA does not constitute a security arrangement; it establishes the rights and privileges of foreign personnel present in a host country in support of the larger security arrangement.
Agreements
While the United States military has the largest foreign presence and therefore accounts for most SOFAs, the United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
, Russia
Russia
Russia or , officially known as both Russia and the Russian Federation , is a country in northern Eurasia. It is a federal semi-presidential republic, comprising 83 federal subjects...
, South Korea
South Korea
The Republic of Korea , , is a sovereign state in East Asia, located on the southern portion of the Korean Peninsula. It is neighbored by the People's Republic of China to the west, Japan to the east, North Korea to the north, and the East China Sea and Republic of China to the south...
, and many other nations also station troops abroad and negotiate SOFAs with their host countries. In the past, the Soviet Union
Soviet Union
The Soviet Union , officially the Union of Soviet Socialist Republics , was a constitutionally socialist state that existed in Eurasia between 1922 and 1991....
had SOFAs with most of its satellite state
Satellite state
A satellite state is a political term that refers to a country that is formally independent, but under heavy political and economic influence or control by another country...
s. While most of the United States' SOFAs are public, some remain classified
Classified information
Classified information is sensitive information to which access is restricted by law or regulation to particular groups of persons. A formal security clearance is required to handle classified documents or access classified data. The clearance process requires a satisfactory background investigation...
.
Terms of operation
The SOFA is intended to clarify the terms under which the foreign military is allowed to operate. Typically, purely military operational issues such as the locations of bases and access to facilities are covered by separate agreements. The SOFA is more concerned with the legal issues associated with military individuals and property. This may include issues like entry and exit into the country, tax liabilities, postal services, or employment terms for host-country nationals, but the most contentious issues are civil and criminal jurisdiction over bases and personnel. For civil matters, SOFAs provide for how civil damages caused by the forces will be determined and paid. Criminal issues vary, but the typical provision in U.S. SOFAs is that U.S. courts will have jurisdiction over crimes committed either by a servicemember against another servicemember or by a servicemember as part of his or her military duty, but the host nation retains jurisdiction over other crimes.Host nation concerns
In many host nations, especially those with a large foreign presence such as South KoreaSouth Korea
The Republic of Korea , , is a sovereign state in East Asia, located on the southern portion of the Korean Peninsula. It is neighbored by the People's Republic of China to the west, Japan to the east, North Korea to the north, and the East China Sea and Republic of China to the south...
and Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
, the SOFA can become a major political issue following crimes allegedly committed by servicemembers. This is especially true when the incidents involve crimes such as robbery
Robbery
Robbery is the crime of taking or attempting to take something of value by force or threat of force or by putting the victim in fear. At common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear....
, murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
, manslaughter
Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
or sex crimes
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
, especially when the charge is defined differently in the two nations. For example, in 2002 in South Korea
South Korea
The Republic of Korea , , is a sovereign state in East Asia, located on the southern portion of the Korean Peninsula. It is neighbored by the People's Republic of China to the west, Japan to the east, North Korea to the north, and the East China Sea and Republic of China to the south...
, two girls were accidentally killed by a U.S. military AVLB
Armoured vehicle-launched bridge
An armoured vehicle-launched bridge is a combat support vehicle, sometimes regarded as a subtype of combat engineering vehicle, designed to assist militaries in rapidly deploying tanks and other armoured fighting vehicles across rivers. The AVLB is usually a tracked vehicle converted from a tank...
bridge laying vehicle on the way to the base camp after a training exercise, and the soldiers involved were tried under U.S. criminal jurisdiction. The U.S. military court martial panel found the act to be an accident and acquitted the service members of negligent homicide, citing no criminal intent or negligence
Criminal negligence
In the criminal law, criminal negligence is one of the three general classes of mens rea element required to constitute a conventional as opposed to strict liability offense. It is defined as an act that is:-Concept:...
. The U.S. military accepted responsibility for the incident and paid civil damages. This resulted in widespread outrage in Korea, demands that the soldiers be retried in a Korean court, the airing of a wide variety of conspiracy theories and a backlash against the local expatriate community.
A similar incident occurred in December 4, 2004 when 31-year-old U.S. Marine Staff Sergeant Christopher Van Goethem serving as a Marine Security Guard at the U.S. embassy in Bucharest, while driving his Ford Expedition, collided with a taxi carrying Romanian singer Teo Peter
Teo Peter
Teofil Peter was a Romanian rock musician and bass player for Compact.Peter was born in Cluj-Napoca, in Transylvania, in 1954. He was considered by some to be the Bruce Springsteen of Romania. Compact was formed in Cluj-Napoca in 1977...
. Van Goethem was drunk and did not obey a traffic signal to stop, which resulted in the collision and the artist's death. The Marine was later cleared by a court martial of both manslaughter and adultery on technical grounds, an expected resolution that caused ample protests. Attempting to minimize the public outcry, in 2005 the U.S. Embassy announced the establishment of a memorial commemorating the life and work of Teo Peter.
However, most crimes by servicemembers against local civilians occur off duty, and in accordance with the particular SOFA are considered subject to local jurisdiction. Details of the SOFAs can still prompt issues. In Japan, for example, the SOFA includes the provision that service members are not turned over to the local authorities until they are charged in a court. In a number of cases, local officials have complained that this impedes their ability to question suspects and investigate the crime. American officials allege that the Japanese police use coercive interrogation tactics and are concerned more with attaining a high conviction rate than finding "justice". American authorities also note the difference in police investigation powers, as well as the judiciary. No lawyer can be present in investigation discussions in Japan, though a translator is provided, and no mention made of an equivalent to America's Miranda rights. Another issue is the lack of jury trials in Japan, previous to 2009 all trials were decided by a judge or panel of judges. Currently, Japan uses a lay judge
Juries in Japan
Lay judges in Japan were first introduced to in 1923, led by Prime Minister Kato Tomosaburo. Although the system generated relatively high acquittal rates, it was rarely used, in part because it required defendants to give up their rights to appeal of the factual determinations made. The system...
system in some criminal trials. For these reasons American authorities insist that service members be tried in military tribunals.
Political issues
The political issue of SOFAs is complicated by the fact that many host countries have mixed feelings about foreign bases on their soil, and demands to renegotiate the SOFA are often combined with calls for foreign troops to leave entirely. Issues of different national customs can arise – while the U.S. and host countries generally agree on what constitutes a crime, many U.S. observers feel that host country justice systems grant a much weaker set of protections to the accused than the U.S. and that the host country's courts can be subject to popular pressure to deliver a guilty verdict; furthermore, that American servicemembers ordered to a foreign posting should not be forced to give up the rights they are afforded under the Bill of RightsUnited States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
. On the other hand, host country observers, having no local counterpart to the Bill of Rights, often feel that this is an irrelevant excuse for demanding special treatment, and resembles the extraterritorial
Extraterritoriality
Extraterritoriality is the state of being exempt from the jurisdiction of local law, usually as the result of diplomatic negotiations. Extraterritoriality can also be applied to physical places, such as military bases of foreign countries, or offices of the United Nations...
agreements demanded by Western countries during colonialism. One host country where such sentiment is widespread, South Korea, itself has forces in Kyrgyzstan
Kyrgyzstan
Kyrgyzstan , officially the Kyrgyz Republic is one of the world's six independent Turkic states . Located in Central Asia, landlocked and mountainous, Kyrgyzstan is bordered by Kazakhstan to the north, Uzbekistan to the west, Tajikistan to the southwest and China to the east...
and has negotiated a SOFA that confers total immunity to its servicemembers from prosecution by Kyrgyz authorities for any crime whatsoever, something far in excess of the privileges many South Koreans object to in their nation's SOFA with the U.S.
To many U.S. observers, the fact that most accused criminals eventually end up being tried in a local court and found guilty proves that the system is working; to some host country observers, it reinforces the perception that the SOFA protects the guilty and makes the exceptions more glaring.
See also
- U.S.-Iraq Status of Forces AgreementU.S.-Iraq Status of Forces AgreementThe U.S.–Iraq Status of Forces Agreement is a status of forces agreement between Iraq and the United States. It establishes that U.S...
- U.S.–Japan Status of Forces Agreement
- U.S.–South Korea Status of Forces AgreementU.S.–South Korea Status of Forces AgreementU.S.–South Korea Status of Forces Agreement is an agreement between South Korea and the U.S. approved and enacted in 1967 and revised in 1991 and 2001...
- Visiting Forces ActVisiting Forces ActA Visiting Forces Act is a law governing the status of military personnel while they are visiting within areas under the jurisdiction of another country and/or while forces of one country are attached to or serving with forces of another country, and may also apply to some foreign nonmilitary...
- Visiting Forces AgreementVisiting Forces AgreementThe RP–US Visiting Forces Agreement is a bilateral agreement between the Philippines and the United States consisting of two separate agreement documents...
- ExtraterritorialityExtraterritorialityExtraterritoriality is the state of being exempt from the jurisdiction of local law, usually as the result of diplomatic negotiations. Extraterritoriality can also be applied to physical places, such as military bases of foreign countries, or offices of the United Nations...
External links
- John Pike, "Status of Forces Agreement". GlobalSecurity.org, 2005.
- A. Sari "The European Union Status of Forces Agreement (EU SOFA)", Journal of Conflict and Security Law, Vol. 13, pp. 353-391, 2008.
- "Backgrounder: Status of Forces Agreement; A summary of U.S. foreign policy issues". United States Embassy, April 1996.
- "Status of Forces Agreement:Concluded Pursuant to Section 323 of The Compact Of Free Association; Free Association between the United States and the Federated States of Micronesia and the Republic of the Marshall Islands". Joint Committee on Compact Economic Negotiations.
- "Status of Forces Agreements between Timor-Leste and Australia, New Zealand and Portugal" signed prior to the deployment of Operation AstuteOperation AstuteOperation Astute is an Australian-led military deployment to East Timor to quell unrest and return stability in the 2006 East Timor crisis. It is currently headed by Brigadier Bill Sowry, and commenced on 25 May 2006 under the command of Brigadier Michael Slater...
in East TimorEast TimorThe Democratic Republic of Timor-Leste, commonly known as East Timor , is a state in Southeast Asia. It comprises the eastern half of the island of Timor, the nearby islands of Atauro and Jaco, and Oecusse, an exclave on the northwestern side of the island, within Indonesian West Timor...
in May 2006. This reference also includes SOFAs signed in 2002 between East TimorEast TimorThe Democratic Republic of Timor-Leste, commonly known as East Timor , is a state in Southeast Asia. It comprises the eastern half of the island of Timor, the nearby islands of Atauro and Jaco, and Oecusse, an exclave on the northwestern side of the island, within Indonesian West Timor...
and the United NationsUnited NationsThe United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
and between East Timor and the United StatesUnited StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
. - US-ROK Status of Forces Agreement
- US-Japan Status of forces Agreement, 19 January, 1960
- NATO Status of Forces Agreement, 19 June 1951
- White House: Iraq Status of Forces Agreement