A status of forces agreement (SOFA) is an agreement between a host country and a foreign nation stationing military 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.Under international law a status of forces agreement differs from military occupation.
While the United States military has the largest foreign presence and therefore accounts for most SOFAs, the United Kingdom, France, Australia, Germany,Italy, Russia, Spain, and many other nations also station military forces abroad and negotiate SOFAs with their host countries. In the past, the Soviet Union had SOFAs with most of its satellite states. While most of the United States' SOFAs are public, some remain classified.
A 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. A SOFA is more concerned with the legal issues associated with military individuals and property. This may include issues such as 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.
In many host nations, especially those with a large foreign military presence such as South Korea 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, a U.S. military AVLB bridge-laying vehicle on the way to the base camp after a training exercise accidentally killed two girls. Under the SOFA, a United States military court martial tried the soldiers involved. The 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 South Korea, demands that the soldiers be retried in a South Korean court, the airing of a wide variety of conspiracy theories, and a backlash against the local expatriate community.As of 2011, American military authorities are allowing South Korea to charge and prosecute American soldiers in South Korean courts. After three brutal rapes and an arson case in 2011, convictions in South Korean courts occurred. The soldiers are, or will soon be, jailed in South Korean facilities. Soon after the rapes and other instances, the peninsula wide military curfew was reinstated.
Most crimes by servicemembers against local civilians occur off duty,[ citation needed ] 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 and reject article 98 of the Rome Statute of the International Criminal Court.
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 Rights. 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 United States.
A visiting forces agreement is similar to a status of forces agreement except the former covers only forces temporarily in a country, not based there.
Universal jurisdiction allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, country of residence, or any other relation with the prosecuting entity. Crimes prosecuted under universal jurisdiction are considered crimes against all, too serious to tolerate jurisdictional arbitrage.
Extraterritoriality is the state of being exempted from the jurisdiction of local law, usually as the result of diplomatic negotiations.
Extradition is an act where one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to their law enforcement. It is a cooperative law enforcement process between the two jurisdictions and depends on the arrangements made between them. Besides the legal aspects of the process, extradition also involves the physical transfer of custody of the person being extradited to the legal authority of the requesting jurisdiction.
Extraterritorial jurisdiction (ETJ) is the legal ability of a government to exercise authority beyond its normal boundaries.
United States Forces Japan (USFJ) is a subordinate unified command of the United States Indo-Pacific Command (USINDOPACOM). It was activated at Fuchū Air Station in Tokyo, Japan, on 1 July 1957 to replace the Far East Command (FEC). USFJ is commanded by the Commander, US Forces Japan (COMUSJAPAN) who is dual-hatted as commander of the Fifth Air Force. At present, USFJ is headquartered at Yokota Air Base in Tokyo.
The Treaty of Mutual Cooperation and Security between the United States and Japan, also known in Japan as Anpo jōyaku (安保条約) or just Anpo (安保) for short, is a treaty establishing a military alliance between the United States and Japan. The treaty was first signed in 1951 at the San Francisco Presidio after the signing of the Treaty of San Francisco at the San Francisco War Memorial Opera House. Then, the Security Treaty was amended further in January 1960 between the US and Japan in Washington, DC.
Visiting Forces Act is a title often given to laws 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.
The United States is not a State Party to the Rome Statute of the International Criminal Court, which founded the International Criminal Court (ICC) in 2002 as a permanent international criminal court to "bring to justice the perpetrators of the worst crimes known to humankind – war crimes, crimes against humanity, and genocide", when national courts are unable or unwilling to do so.
U.S.–Japan Status of Forces Agreement is an agreement between Japan and the United States signed on 19 January 1960 in Washington, the same day as the revised U.S.-Japan Security Treaty. It is a status of forces agreement (SOFA) as stipulated in article VI of that treaty, which referred to "a separate agreement" governing the "use of [...] facilities and areas [granted to the U.S.] as well as the status of United States armed forces in Japan". It replaced the earlier "U.S.-Japan Administrative Agreement" that governed such issues under the original 1951 security treaty.
The states parties to the Rome Statute of the International Criminal Court are those sovereign states that have ratified, or have otherwise become party to, the Rome Statute of the International Criminal Court. The Rome Statute is the treaty that established the International Criminal Court, an international court that has jurisdiction over certain international crimes, including genocide, crimes against humanity, and war crimes that are committed by nationals of states parties or within the territory of states parties. States parties are legally obligated to co-operate with the Court when it requires, such as in arresting and transferring indicted persons or providing access to evidence and witnesses. States parties are entitled to participate and vote in proceedings of the Assembly of States Parties, which is the Court's governing body. Such proceedings include the election of such officials as judges and the Prosecutor, the approval of the Court's budget, and the adoption of amendments to the Rome Statute.
A crime of aggression is a specific type of crime where a person plans, initiates, or executes an act of aggression using state military force that violates the Charter of the United Nations. The act is judged as a violation based on its character, gravity, and scale.
Bulgarian–American Joint Military Facilities were established by a Defence Cooperation Agreement signed by the United States and Bulgaria in April 2006. Under the agreement, U.S. forces will train at these bases, which remain under Bulgarian command and under the Bulgarian flag.
A visiting forces agreement (VFA) is an agreement between a country and a foreign nation having military forces visiting in that country. Visiting forces agreements are similar in intent to status of forces agreements (SOFAs). A VFA typically covers forces visiting temporarily, while a SOFA typically covers forces based in the host nation as well as visiting forces.
On November 2, 2002, U.S. Marine Corps Major Michael Brown attempted an indecent assault on a Filipina bartender in Okinawa, Japan. The bartender accused Brown of attempting to rape her and of throwing her cell phone into a nearby river; Brown denied the rape charges. The victim later recanted and attempted to withdraw the accusation, though prosecutors presented evidence that she had received a cash payment just before doing so.
The Yangju highway incident, also known as the Yangju training accident or Highway 56 Accident, occurred on June 13, 2002, in Yangju, Gyeonggi-do, South Korea. A United States Army armored vehicle-launched bridge, returning to base in Uijeongbu on a public road after training maneuvers in the countryside, struck and killed two 14-year-old South Korean schoolgirls, Shin Hyo-sun and Shim Mi-seon.
The U.S.–Iraq Status of Forces Agreement was a status of forces agreement (SOFA) between Iraq and the United States, signed by President George W. Bush in 2008. It established that U.S. combat forces would withdraw from Iraqi cities by June 30, 2009, and all U.S. combat forces will be completely out of Iraq by December 31, 2011. The pact required criminal charges for holding prisoners over 24 hours, and required a warrant for searches of homes and buildings that were not related to combat. U.S. contractors working for U.S. forces would have been subject to Iraqi criminal law, while contractors working for the State Department and other U.S. agencies would retain their immunity. If U.S. forces committed still undecided "major premeditated felonies" while off-duty and off-base, they would have been subjected to an undecided procedures laid out by a joint U.S.-Iraq committee if the U.S. certified the forces were off-duty.
The British Supreme Court for China was a court established in the Shanghai International Settlement to try cases against British subjects in China, Japan and Korea under the principles of extraterritoriality.
Kinsella v. Krueger, 351 U.S. 470 (1956), was a landmark United States Supreme Court case in which the Court ruled that the Constitution supersedes international treaties ratified by the United States Senate. According to the decision, the Court recognized the supremacy of the Constitution over a treaty, although the case itself was with regard to an executive agreement, not a "treaty" in the U.S. legal sense, and the agreement itself has never been ruled unconstitutional.
Wilson v. Girard, 354 U.S. 524 (1957), was a United States Supreme Court case in which the Court refused to stop the executive branch from handing United States Army soldier William S. Girard over to Japanese authorities for trial. Girard was accused of killing a Japanese woman while assigned to the US Army in Japan.
United Nations Command–Rear is a rump military command headquartered in Japan, and a subordinate element of United Nations Command. UN Command–Rear was established in 1957 as a result of the relocation of UN Command from Japan to South Korea following the Korean War. It is nominally in control of the rear elements of what the United States and South Korea contend are United Nations military forces in northeast Asia.