STATUS OF FORCES AGREEMENTS

LEARNING OBJECTIVES: State the purpose of status of forces agreements. Describe the application of status of forces agreements and the jurisdictional arrangements. Explain fairness of jurisdiction and the importance of status of forces agreements.

The development of collective defense in peacetime requires that forces of various countries form an integrated force for their common defense. This development requires that these forces be stationed in the territory of another treaty country. It also requires that they be free to move from one country to another to comply with the demands of strategy. It is essential, therefore, to have uniform arrangements and procedures governing the status of such forces and their relationship to the civilian authorities in countries other than their own.

The purpose of status of forces agreements is to define the status of the forces of one country when stationed in the territory of another. Status of forces agreements, accordingly, undertake to regulate this relationship in two ways:

1. Guaranteeing the armed forces adequate legal protection without, at the same time, infringing on the authority of the military command

2. Recognizing fully the peacetime rights and responsibilities of the civilian authorities in the host countries

APPLICATION OF STATUS OF FORCES AGREEMENTS

The status of forces agreements apply to personnel belonging to the land, sea, and air armed services, as well as to civilian personnel accompanying a force. Article II of the NATO Status of Forces Agreement, for example, sets forth the basic principle to be observed by any force in a country other than its own:

It is the duty of a force and its civilian component and the members thereof as well as their dependents to respect the law of the receiving State, and to abstain from any activity inconsistent with the spirit of the present Agreement, and in particular, from any political activity in the receiving State. It is also the duty of the sending State to take necessary measures to that end.

JURISDICTIONAL ARRANGEMENTS

The jurisdictional arrangements of the status of forces agreements are important in terms of fairness of trial. When we object to trial of United States personnel in foreign courts, we do so for a particular reason: We feel that a member of our forces, tried in a foreign court under a different legal system and in a language he or she does not understand, may not receive a fair trial.

FAIRNESS OF JURISDICTION

In considering the question of fairness, two basic points must be observed. First, the effect of a status of forces agreement is not to grant jurisdiction to foreign courts over American defendants when those courts would not otherwise have jurisdiction in the case. On the contrary, the agreement gives the United States the primary right to exercise concurrent jurisdiction in some cases. In other cases of concurrent jurisdiction, the agreement expressly provides mechanics for, and thereby encourages, foreign courts to waiver jurisdiction over offenses that would otherwise be triable before them. If it were not for the status of forces agreements, many more service members would be tried by foreign courts. And though we may not always agree with foreign criminal procedures, our service members are afforded much more protection than they would otherwise receive if the status of forces agreements did not exist.

Secondly, since there is a yielding of jurisdiction to our military courts by the other parties to the status of forces agreements, we cannot expect that the American defendants who are tried by foreign courts to be tried under our own country's criminal procedure. Further, we cannot expect to obtain agreements that grant substantial concessions for criminal jurisdiction by a foreign country to also guarantee procedural safeguards in its courts beyond those available to its own citizens.

Military commanders of overseas commands have reported that the jurisdictional arrangements in the countries under their responsibility have worked well in practice. They have also reported that these arrangements have had no adverse effect upon the military mission of the Armed Forces or the morale and discipline of its members.

IMPORTANCE OF STATUS OF FORCES AGREEMENTS

From the foregoing discussion of the status of forces agreements, each MA assigned to duty overseas

should realize the need to develop a working knowledge of its provisions. You must remember at all times that you are a guest in a foreign country and are subject to that country's laws and procedures. Remember also that whatever privileges you possess, as compared with the ordinary visitor or tourist in that country, you possess only by the special consent of the host country. Only by giving thought to your mission as a member of the military forces of the United States will you understand why the host country extends certain privileges to you. In most countries, those privileges permit you to do the following:

l Use your United States driver's permit as authorization to drive

l Take household goods and personal belongings, including your car, into the country without paying any customs duty or taxes

l Enter and leave the country on military orders alone, without a passport or visa

l Spend money freely in the foreign country without paying foreign taxes on property and salary

Lastly, remember that as a guest in a foreign country, you are subject to that country's criminal laws and procedures. If you break any of these laws, you may find yourself on trial before a foreign court. Only by the consent of the host country can you be tried by the courts of your own service for offenses committed on foreign soil. Trial by the courts of your own service is not a matter of absolute right, but a privilege embodied in status of forces agreements.

Military Requirements for Senior and Master CPO, NAVEDTRA 12048, illustrates the general form and scope of the many agreements of the NATO status of forces agreements.

APPREHENSION AND RESTRAINT

LEARNING OBJECTIVES: Explain the UCMJ articles that apply to apprehension and restraint. Define apprehension. Describe apprehension as it relates to approach, evaluation, and taking into custody.

Because Masters-at-Arms make a large percentage of all apprehensions in the Navy, you should clearly understand the legal meanings of the word apprehension and other terms such as arrest, custody, confinement, and restraint. The authority of Navy law enforcement personnel to enforce military law, orders, and regulations is derived from Title 10, U.S. Code 807, and Manual for Courts-Martial (MCM), Rule 302.