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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 law 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 view and/or because of obligations under domestic law or policy. 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.

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OrganisatieNederlandse Defensie Academie
OpleidingFaculteit Militaire Wetenschappen
InstituutKrijgswetenschappen
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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