*EPF210 01/04/00
Backgrounder: Status of Forces Agreements
(Discusses legal controls over U.S. troops abroad) (940)

In every foreign country where substantial numbers of American troops are stationed for any appreciable length of time the United States will have a Status of Forces Agreement (SOFA) with the host country.

SOFAs define areas of legal responsibility held by a host country over U.S. military personnel stationed within its borders.

Worldwide, the United States has SOFAs with some 53 countries to help protect the rights of about 246,504 U.S. military personnel, 48,000 American civilians working for the Department of Defense (DoD), and approximately 180,770 dependents. ("Dependents" refers to family members stationed overseas with military personnel or American civilians employed by the military.)

The SOFA is usually an integral part of the overall military bases agreement that allows U.S. military forces to operate within the host country. Each SOFA is negotiated separately with the host country (although the United States has a multilateral SOFA with NATO members). Generally speaking, SOFAs have no standard points of differences; some, however, may deal with particular circumstances unique to particular country.

Negotiating a SOFA begins with the assumption that the presence of U.S. military forces is in the interests of the host government as well as the U.S. government.

The starting proposition is that the host country exercises complete authority over all of its territory and over anyone who is in that territory, subject to any agreements that make exceptions to that authority.

Although each SOFA is unique, all SOFAs normally deal with issues necessary for day-to-day business, such as entry and exit of forces, entry and exit of personal belongings (i.e. automobiles), labor, claims and contractors, and susceptibility to income and sales taxes. In situations where U.S. forces will be present for a lengthy period, SOFAs may also deal with ancillary activities such as postal offices, and recreation and banking facilities.

More importantly, SOFAs deal with civil and criminal jurisdiction. They are a vital means by which the Department of Defense carries out its policy directive "to protect, to the maximum extent possible, the rights of United States personnel who may be subject to criminal trial by foreign courts and imprisonment in foreign prisons."

Most SOFAs recognize the right of the host government to "primary jurisdiction," which is to say the host country exercises jurisdiction for all cases in which U.S. military personnel violate the host country's laws. There are two exceptions, however, which generally apply only in criminal cases involving U.S. forces personnel: When the offense is committed by Americans against Americans ("inter se" cases), and when the offense is committed by Americans in carrying out official duty. In these situations, the United States has primary jurisdiction over the accused American.

In 1998, 5,092 cases were processed by host country governments under SOFA -- these included minor offenses involving the operation of motor vehicles, such as reckless driving. And as of June 1, 1999, there were 41 military personnel serving sentences in foreign prisons.

U.S. military commanders are responsible for seeing that individuals under their authority who run afoul with host-county laws receive fair trials from the host country under all circumstances. DoD directives list 14 "fair trial" safeguards or guarantees that are considered applicable to U.S. state court criminal proceedings by virtue of the 14th Amendment of the Constitution of the United States. These safeguards include the right of the accused person to be tried without unreasonable delay, to be tried by an impartial court, and to be protected from the use of a confession obtained by torture, threats, or violence.

Under American law, the burden of proof is on the government in all criminal trials. While U.S. military commanders must consider U.S. trial rights, they are directed by DoD not to consider a trial by the host country unfair merely because it is not identical with trials held in the United States. Nonetheless, if the U.S. commanding officer believes an American under his authority is not being protected under the host country's legal system because of the absence or denial of constitutional rights the accused would enjoy in the United States, he will request that the host country waive its SOFA rights. If the host country authorities refuse, the U.S. commander will inform the Department of State to press the request through diplomatic channels. U.S. military commanders may seek waivers from the host country for reasons other than the absence of trial protection, and in most countries waivers are routinely granted.

Differences in culture and differences in legal approach can cause problems. Some of the crimes that the local government may consider to be very egregious, the United States may not and vice a versa. The U.S. government, however, is very much concerned that justice be done, that the accused be punished appropriately, and that the case be settled within a reasonable period of time. In some countries, it is not unusual for a case to take five years for completion. In contrast, the U.S. military strives to process a case within 90 days.

The United States recognizes that as threat perception diminishes around the world, so too does general tolerance for the presence of foreign troops. In addition, there is a growing misperception by almost every country that the SOFA in that country favors the United States, particularly vis-a-vis SOFAs in other countries. The truth is that although SOFAs may vary, they are even-handed in the treatment of the sovereignty of the host country.

(Cleared for distribution by the Office of International Information Programs, U.S. Department of State, January 3, 2000)

NNNN