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The Scope of Jurisdiction Provisions in Status of Forces Agreements Related to Crisis Management Operations

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The Scope of Jurisdiction Provisions in Status of Forces Agreements Related to Crisis Management Operations

Rechten:

Samenvatting

In March 2012, an atrocity was committed in two villages in the
Kandahar Province of Afghanistan. One night, an American soldier
entered three houses and killed sixteen people, including women and
children. In response to this violent outburst of one of its soldiers, the
United States (US) authorities started a criminal investigation into the
actions of Army Staff Sergeant Robert Bales.1 Unfortunately, history
has given us many examples of soldiers who behave in an unacceptable
way towards the local population where they are conducting military
operations.
In situations of patently obvious criminal offences, the national
prosecution authorities will generally initiate a criminal investigation.
Even if there is no domestic or international law2 obligation to initiate
an investigation, the failure to respond promptly and transparently to
such behaviour could have a tremendous impact on ongoing operations.
Similar considerations may apply for ordinary traffic accidents or
for combat actions that involve civilian casualties, even where there
may be no reasonable suspicion of an offence. Many countries will
promptly investigate such incidents also because it is appropriate from
a humanitarian point of view3 and/or because of obligations under
domestic law or policy.4
It is common practice that States and alliances, such as the North Atlantic
Treaty Organization (NATO), conclude agreements concerning the
status of their forces that participate in crisis management operations.
These Status of Forces Agreements (SOFAs) prescribe the exclusive
right for the troop sending States to bring their soldiers to justice in
their home country for offences committed on the territory of the
receiving State.
Do these agreements, however, authorize visiting military law
enforcement officers to use investigative powers, and if so, to what
extent? To our knowledge, these questions have not (yet) been a matter
of legal dispute in regard to ongoing military operations. Furthermore,
we observe no particular interest on this subject among scholars. So
far, their attention seems to be focused only on the jurisdiction to
adjudicate. As everyday practice in crisis management operations
shows that criminal investigations with regard to incidents involving
civilian casualties are not a rare phenomenon, we consider it worthwhile
exploring this specific area in the field of military operational law.
This article aims at providing an insight in the legal basis for exercising
the jurisdiction to enforce during crisis management operations and
we hope it can serve as a stepping stone for further debate and policy
making. We will first elaborate on some issues related to the concept
of jurisdiction. In the second part of this article we will examine
SOFAs concerning crisis management operations. Our focus will be
on jurisdiction, and the particular arrangements regarding enforcement
jurisdiction. Next, we will elaborate on these arrangements in more
detail. This article will be concluded with a few remarks.

Toon meer
OrganisatieNederlandse Defensie Academie
InstituutFaculteit Militaire Wetenschappen
LectoraatKrijgswetenschappen
Gepubliceerd inThe military law and law of war review Séminaire de Droit Pénal Militaire, Bruxelles, Vol. 51, Uitgave: 2, Pagina's: 335-360
Jaar2012
TypeArtikel
TaalEngels

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