**Criminal Jurisdiction Over**

**Environmental Offenses Committed Overseas:**

**How to Maximize and When to Say \"No\"**

MAJOR MARK R. RUPPERT, USAF\*

**I. INTRODUCTION**

United States forces /1/ stationed overseas are a relatively permanent
feature of modem American national security policy. Despite recent
military cutbacks, /2/ the stationing of those forces in another
sovereign\'s territory /3/ will continue to pose legal challenges
regarding their status. One challenge in particular no doubt will be the
continuing viability of U.S. policy to maximize criminal jurisdiction
over U.S. forces who commit environmental offenses while stationed in a
host sovereign\'s territory. This practice, which for the most part
reverses customary international law, is based upon treaties known as
status of forces agreements (SOFAs). These agreements are entered into
between the U.S. and most countries where a substantial presence of U.S.
forces are stationed on a \"permanent\" basis. Perhaps of greater
significance has been the practice that has developed under these
treaties of seeking waiver of host nation criminal jurisdiction in the
great majority of cases, to include a significant number of cases
involving civilians ‑ even when the U.S. has no criminal jurisdiction at
all.

This accommodating relationship among allies breaks down occasionally
when the politics of sovereignty intrudes. A number of factors have
contributed to U.S. Department of Defense (DoD) efforts to revise its
policies on environmental compliance at overseas installations,
including: a diminishing threat of hostilities, emerging sovereignty
attitudes among nations hosting U.S. forces, and recent international
environmental incidents creating increased sensitivity to the
environment. Host nation environmental legislation (including criminal
enforcement) is catching up with ‑ and in some cases overtaking ‑ the
scope and complexity of the U.S. environmental law regime. United States
authorities, however, are not considering the problems associated with
the widening gulf between their pervasive practice of maximizing foreign
jurisdiction waivers and the ever‑increasing tempo and seriousness of
host nation criminal enforcement for environmental noncompliance. This
gap appears alarmingly wide when reviewing the few environmental
criminal cases that have occurred thus far and the U. S. disposition of
those cases after securing (or, more likely, simply assuming)
jurisdiction.

This article seeks to focus on the inherent tension between the DoD
policy to maximize U.S. criminal jurisdiction over its forces stationed
overseas and the growing pressure on host nation allies to respond to
environmental noncompliance. This article also focuses on how this
tension is exacerbated by the actual or perceived lenient treatment of
visiting forces who commit environmental offenses. This article then
suggests improved means by which U.S. authorities may continue to seek
maximum waiver of jurisdiction over environmental offenses committed by
U.S. forces and briefly evaluates the need to persevere with this policy
in the context of U.S. civilians committing these offenses.

**II. FOREIGN CRIMINAL JURISDICTION**

**AND STATUS OF FORCES AGREEMENT**

**A. International Law Foundation**

Customary international law /4/ is generally inadequate to deal with the
question of criminal jurisdiction over visiting forces when both the
host nation and sending

nation /5/ assert jurisdiction over an offender./6/ On the one hand, it
appears clear that, in the absence of a special agreement, nations as
sovereigns may exercise criminal jurisdiction over all persons within
their territory, including foreign military forces. /7/ On the other
hand, the sending State has an equally compelling sovereign interest in
exercising criminal jurisdiction over its military forces in another
sovereign! s territory./8/ Application of this sovereignty interest and
immunity from host nation jurisdiction was perfected in the \"law of the
flag\" theory. /9/ Law of the flag advocates cite The Schooner Exchange
v. McFadden /10/ as authority for their position that sending State
forces are immune from the jurisdiction of a foreign receiving
State./11/ This \"immunity\" was extended in subsequent case to U.S.
forces stationed in (not just passing through) a foreign country. /12/
Careful reading of Chief Justice Marshall\'s opinion in The Schooner
Exchange, however, reveals that any such immunity of sending State
forces from foreign criminal jurisdiction is wholly dependent on the
nature and extent of the host nation\'s consent to be restricted in the
application of its own criminal jurisdiction. /13/ Nonetheless,
customary international law had evolved to the point where license to
enter foreign territory carried with it the right to exercise military
criminal jurisdiction free from the territorial sovereign\' s
interference. /14/

Until the post‑World War II era of negotiated SOFAs that addressed this
conflict between sovereigns, U.S. policy was to rely heavily on the
concept of immunity from host nation criminal jurisdiction created by
the host nation\'s implied consent in expressly consenting to U.S.
forces being stationed there. /15/ The American policy of insisting on
complete immunity from foreign criminal jurisdiction continued in the
early post‑World War II period, /16/ but ultimately gave way to the
negotiation of systems of \"concurrent jurisdiction\" /17/ in SOFAS and
bilateral supplementary agreements. /18/

**B. Status of Forces Agreements and Jurisdictional Allocations**

*1. SOFA Intent*

In the wake of strong disagreement among nations and commentators on the
immunity of a sending State\'s forces from a host nation\'s criminal
jurisdiction, the predominant focus of the NATO SOFA /19/ was the issue
of allocation of criminal jurisdiction and the sharing of this sovereign
prerogative. /20/ The drafters\' solution was to distinguish between
offenses involving the exclusive jurisdiction of either state and the
concurrent jurisdiction of both states. /21/ In the case of concurrent
jurisdiction, the NATO SOFA grants the primary right of jurisdiction to
the receiving State, except for offenses solely against the property,
security, or members of the sending State force, or for offenses arising
out of the performance of official duty. /22/ This approach recognizes
both the territorial sovereignty of the receiving state as well as the
law of the flag principle. /23/

Despite this compromise found in SOFAs, /24/ one must remember that this
allocation of concurrent criminal jurisdiction presupposes the consent
of the receiving State and eliminates virtually any notion of sending
State force immunity. /25/ The few court cases addressing this
allocation necessarily acknowledge that SOFA waivers are narrowly
interpreted to maintain primary host nation jurisdiction (and thus the
integrity of that host nation\'s sovereignty) when a criminal defendant
challenges such jurisdiction. /26/

2\. Jurisdiction Allocation Formula

In order to understand the potential application of U.S. jurisdiction
over environmental offenses committed by its forces in host nations, it
is appropriate to briefly explain the specific allocation of criminal
jurisdiction. Article II of the NATO SOFA Article VII will be used as an
example. Paragraph I of this article sets forth the basic guidelines for
the exercise of concurrent jurisdiction. /27/ The immediate question is
whether the U.S. could exercise concurrent jurisdiction over U.S.
civilian employees /28/ Having established the fundamental concession
that the sending State may exercise some criminal jurisdiction within a
receiving State, the SOFA then defines the contours of exclusive /29/
and concurrent jurisdiction. /30/

Paragraph 3 fills the gap in international law regarding which nation
has priority when concurrent jurisdiction exists. /31/ Of particular
interest in the area of environmental offenses is the \"official duty\"
exception to the host nation\'s primary right to exercise jurisdiction.
This would arise when a member of the force commits an offense under
sending and receiving State laws arising out of the performance of his
duties. /32/ Although not stated in the SOFA itself, according to a
government legal advisor closely involved with the NATO SOFA
negotiations, the criterion for distribution of cases of concurrent
jurisdiction is one of \"predominant interest. \"/33/ Some also have
suggested that the primary right scheme of allocating concurrent
jurisdiction has disregarded doctrine and relied instead on conceptions
of good faith, reasonableness, and efficacy. /34/

Recognition of these interests is codified in the NATO SOFA, article
VII, \'paragraph 3(c), which allows sending and receiving States to
change the primary right to exercise concurrent jurisdiction on an ad
hoc basis. /35/ If a host nation with the primary right to exercise
concurrent jurisdiction receives a request to waive that right, its only
obligation is to give the request \"sympathetic consideration. \"/36/ In
practice, however, many SOFA signatory receiving States, even in recent
years, have acceded to U.S. requests for waivers in a significant number
of cases. /37/ In fact, it has been suggested that our policy of
successfully requesting waivers wherever possible has led to the result
that American forces are in fact \"extraterritorial\" (and de facto
following law of the flag principles), rather than subject to foreign
criminal jurisdiction (with certain exceptions). /38/ The question
remains whether the U.S. would be successful in requesting a waiver to
prosecute a military member in cases involving environmental offenses or
whether, even in official duty cases, if the U.S. could successfully
assert its primary right. /39/ Even less certain is our ability to
request host nation \"waivers\" in civilian cases which, although
occurring /40/ are not entitled to \"sympathetic consideration\" due to
the absence of concurrent military criminal jurisdiction. /41/

**C. U.S. Policy to Maximize Its Sending State Jurisdiction**

1\. Individual Cases

Our policy of maximizing jurisdiction to the greatest extent possible
stems from the Senate Resolution on the NATO SOFA. /42/ The Senate
declaration, adopted on July 15, 1953, did not expressly require the
U.S. to obtain jurisdiction in all cases, but instead required a
compulsory waiver request only when the offender\'s commander believed
\"there is danger that the accused will not be protected because of the
absence or denial of Constitutional rights he would enjoy in the United
States. \"/43/ From this mandate grew our policy to secure jurisdiction
whenever possible in cases where the receiving State had the primary
right of jurisdiction. /44/ Even a few courts have expressed a
preference for trial by court‑martial of military personnel overseas as
opposed to trial in foreign courts. /45/

*2. Blanket Waivers*

Although the negotiation of a waiver on a case‑by‑case basis is the most
common method to maximize jurisdiction, the second prong of American
strategy has been through the negotiation of bilateral agreements. These
agreements typically invert the system of priorities by granting to the
U.S. a general waiver of the receiving State\'s primary right. /46/ One
type of bilateral agreement negotiated with the Netherlands requires a
blanket waiver of its primary right upon request of U.S. authorities
except in cases where the Netherlands determines it is of \"particular
importance. /47/ This general waiver formula was further refined /48/ in
a multilateral agreement with Germany and NATO States having forces
stationed in Germany. /49/

The agreement results in an automatic waiver of Germanys primary right,
but Germany may recall the waiver when \"by reason of special
circumstances in a specific case, major interests of German
administration of justice make imperative the exercise of German
jurisdiction.\" /50/

These waiver mechanisms convert otherwise rigid jurisdictional rules
into flexible guidelines owing the parties to consider whose stake in
prosecution should prevail. /51/ The functioning of the NATO SOFA model
of allocation, despite the vagaries of fluctuating political
environments, has withstood the strain of overseas base practice
remarkably well. /52/ Whether it will remain so in an era of emerging
sovereignty ‑- particularly in the area of environmental offenses
highlighted by international sensitivity to environmental compliance and
cleanup ‑ is questionable.

**D. Emerging Sovereignty and Potential Conflict with SOFA Obligations**

*1. Postwar Historical Developments*

The NATO SOFA and other SOFAs developed in the aftermath of World War II
represented a logical and restrained approach to the delicate problem of
balancing sovereignty between sending and receiving States in an
international system (unlike that from which customary international law
developed) requiring a long‑term presence of significant numbers of
visiting forces in the territory of a receiving State. /53/
Nevertheless, changing world events and the emerging sovereignty of
traditional postwar receiving States have changed the climate, if not
yet the general practice, of adhering to SOFA treaty obligations.
Despite continued cooperation and good relations among allies most of
the time, a problem remains ‑ the compatibility of permanently stationed
\"visiting\" forces with the host nation\'s sovereignty. /54/

Reliance on SOFAS and supplementary agreements and practices thereunder
should no longer be taken for granted. /55/ Particularly for such
cutting edge issues as environmental compliance at overseas
installations and disposition of environmental offenses under U.S. law,
political changes must be taken into account. Attitudes toward U.S.
forces overseas in peacetime have changed, and a \"complex web of
essentially subjective, psychological factors revolving around issues of
sovereignty, national dignity/humiliation\" emerge. /56/ The relevance
of such factors is evident not only in familiar \"trouble spots\" such
as Greece, Panama, and Turkey, but also in countries with which we have
traditionally enjoyed close defense ties such as Germany and South
Korea. /57/ Moreover, the end of the Cold War, to include the
reunification of Germany in 1990, the dissolution of the Warsaw Pact in
1991, and the emergence of new democracies in Eastern Europe, has
provided a catalyst for receiving States in Europe, particularly
Germany, to scrutinize their security arrangements and to review the
diminution of sovereignty in the NATO SOFA and any bilateral agreements.
/58/

United States military authorities who may have become complacent in
relying on the old SOFA practice are well advised to study the Revised
German Supplementary Agreement, /59/ negotiated as the result of the
above changes and emerging German sovereignty. /60/ NATO sending States
were willing to make the concessions adopted in the Revised
Supplementary Agreement in the interest of cooperative relations between
allies and a continued presence in this strategically important region
of the world. /61/ Notable changes in the context of compliance with
German law and environmental requirements include Article 53, /62/
Article 54A, Article 54B, and Article 57. /63/ The point to be drawn
from the Revised Supplementary Agreement is that we should not
underestimate public pressure within a receiving State nor its
willingness to alter the traditionally relaxed SOFA practice regarding
criminal jurisdiction enjoyed by the U.S. /64/

*2. Conflicting Treaty Obligations*

Finally, in the sovereignty context, one must be aware of the
possibility of a receiving State not abiding by its SOFA commitment due
to sovereignty in the form (or guise) of conflicting treaty obligations.
Particularly contentious cases may strike a host nation\'s sensitive
political nerves. The unanticipated sensitivity of the host nation\'s
populace may yield undesirable results which we cannot prevent by simply
relying on past practices under a SOFA. Perhaps the most instructive
examples of this are capital offenses committed by U.S. forces that are
punishable by the death penalty under American military law now
politically unacceptable in many countries. /65/ In one recent case,
despite the applicability of the *inter se* exception which gives the
U.S. the primary right of jurisdiction for a murder offense, /66/ the
Netherlands refused to turn over an American military member who was
facing the possibility of the death penalty. They contended this would
violate their European Convention on Human Rights /67/ treaty obligation
. /68/

It is not too far fetched to imagine a receiving State making a similar
argument in the environmental arena. Although a host nation\' s NATO
SOFA may obligate it to defer primary right of criminal jurisdiction for
an environmental offense in an official duty case, the nation may rely
on perceived treaty obligations especially if political pressure is
brought to bear ‑ to strictly enforce environmental criminal provisions
under national or European Union (EU) /69/ law. The EU has an aggressive
agenda on environmental compliance in the wake of the Single European
/70/ Act\'s incorporation of environmental law power into the Treaty of
Rome.

Authority exists under this structure for EU law to impose obligations
independent of national law. Member states, such as Germany, with
elaborate existing environmental protection regimes, are obligated to
meet these laws. /71/ Such obligations have not yet reached the area of
criminal enforcement (civil enforcement and liability is partially
covered), but an analysis of the zealous EU environmental protection
program reveals the reality of such a scenario.

A recent example of such a potential conflict involved an EC regulation
/72/ on the transboundary movement of hazardous waste. The U.S. argued
that its shipments of hazardous waste qualified for an exemption from
the Basel Convention\'s /73/ (and thus the EC Regulation\'s)
requirements. /74/ There was justifiably some concern over

whether such an approach subjected U.S. civilian employees (particularly
in the

Defense Logistics Agency) to criminal liability /75/ for sending or
receiving

transboundary hazardous wastes without following the EU regulation\'s
procedures.

One may argue that such obligations are not really incompatible with the
NATO

SOFA. /76/ In the end, however, in a system of sending State
jurisdiction built entirely on the consent of the receiving State, the
exercise sovereignty can be cloaked by a legal argument whenever a
nation desires or is forced to take certain action.

**III. SUBSTANTIVE LAW APPLICABLE TO**

**U.S. FORCES OVERSEAS**

**A. Extraterritorial Application of U.S. Law**

*1. General Rules*

At the turn of the century, American jurisprudence generally prohibited
any

extraterritorial application of U.S. law. The U.S. Supreme Court
articulated this

view in *American Banana Co. v. United Fruit Co. /*77/ This rule has
since evolved

into a rebuttable presumption that U.S. laws apply only territorially.
/78/ The most

often cited case for this proposition is *Foley Bros. v. Filardo, /79/*
in which the Supreme Court emphasized \"\[t\]he canon of construction
which teaches that legislation of Congress, unless a contrary intent
appears, is meant to apply only within the territorial jurisdiction of
the United States.\"/80/ A more recent pronouncement came from the Court
in *Equal Employment Opportunity Com\'n v. Arabian American Oil* Co.,
/81/ requiring \"an affirmative intention of the Congress clearly
expressed\" to overcome the presumption. /82/ The Court articulated two
rationales for the strict rule. First, Congress is assumed to legislate
primarily with domestic concerns in mind. The second rationale is that
the presumption is intended to avoid encroachment on foreign sovereignty
and the resulting creation of international discord./83/ With very few
exceptions (such as \"market statutes\" in the fields of antitrust and
securities law), courts are loath to disturb this well‑ensconced canon
of statutory construction. /84/

*2. US Environmental Legislation*

The available commentary on the issue of extraterritorial application of
U.S. environmental statutes unanimously concludes that these laws do not
apply outside U.S. teritory, /85/ with the controversial possible
exception of the National Environmental Policy Act. /86/ A review of the
major environmental statutes reveals that these statutes are generally
designed to cover pollution occurring within the territory of the U.S..
For example, the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) defines the \"environment\" as \"any surface
water, ground water, drinking water supply, land surface or subsurface
strata or ambient air within the United States or under the jurisdiction
of the United States,\" and requires the President to adopt a National
Contingency Plan that addresses releases or threatened releases
\"throughout the United States.\" /87/ The Clean Water Act\'s (CWA)
objective is \"to restore and maintain the chemical, physical, and
biological integrity of the Nation\' s waters\" and defines covered
navigable waters as \"waters of the United States.\" /88/ The Clean Air
Act\'s (CAA) purpose is \"to protect and enhance the quality of the
Nation\'s air resources,\" and sets up an elaborate scheme using air
quality control regions in the U.S /89/

The Resource Conservation and Recovery Act\'s (RCRA) /90/
extraterritorial application to the United Kingdom was litigated and
resolved in *Amlon Metals Inc.* V. *FMC* Corp. /91/ In reviewing
statutory language similar to the above statutes /92/ and the
legislative history, the Supreme Court concluded that the plaintiff had
not met the threshold showing required by *Foley Bros./ARAMCO* to
overcome the presumption against extraterritoriality. /93/ The issue of
another environmental statute\'s extraterritorial application was
litigated in *Defenders of Wildlife, Friends of Animals v. Lujan, /9*4/
but the Supreme Court reversed the lower courts\' finding of
extraterritoriality on standing grounds. /95/

An interesting controversy remains as to the extraterritorial
application of NEPA due to some sweeping language in the statute (e.g.,
\"harmony between man and his environment,\" \"eliminate damage to the
environment and biosphere,\" \"restoring and maintaining environmental
quality to the overall welfare and development of man,\" and
\"recogniz\[ing\] the worldwide and long‑range character of
environmental problems\"). /96/ Unlike other U.S. environmental statutes
(most with criminal provisions), NEPA contains no substantive
requirements and is essentially procedurally. /97/ It only requires
federal agencies to create an environmental impact statement (EIS) for
any major federal project or action \"significantly affecting the
environment. /98/ The issue of whether an EIS was required for a major
federal action abroad was addressed in Executive Order (E.O.) 12,114.
/99/ The order specifically exempts federal agencies from conducting an
EIS‑type procedure for major federal actions significantly affecting the
environment of a *foreign nation,* unless that foreign nation is not
participating with the U.S. or not otherwise involved with the action.
/100/ However, *EDF v. Massey /101/* created something of an exception
to E.O. 12,114. In this case, the D.C. Circuit Court held that NEPA\'s
EIS requirement did apply to National Science Foundation activities in
Antarctica, a place the court characterized as a sovereignIess continent
without foreign policy problems if NEPA applied. /102/ In any event, the
controversy appears to have subsided by virtue of *NEPA Coalition of
Japan v.* Aspin, /103/ a D.C. District Court case which held that NEPA
was inapplicable to U.S. Navy activities in Japan where the court found
Japan was involved in the proposed action. /104/

3\. The Uniform Code of Military Justice

Under standard SOFA provisions outlining concurrent criminal
jurisdiction, sending States have the right to exercise criminal
jurisdiction over those persons subject to the military law of the
sending State. /105/ The Uniform Code of Military Justice (UCMJ) /106/
is a classic application of such military law. Article 5 /107/ specifies
that \"\[t\]his chapter applies in all places,\" as Congress clearly
intended to make it extraterritorial. /108/ Convening a court‑martial in
a foreign country clearly constitutes an exercise of extraterritorial
jurisdiction by the U.S. /109/

At one time the military did not have jurisdiction over offenses
committed off an installation and triable by civilian authorities, if an
offense was not \"service-connected.\" /110/ This limitation has since
been eliminated, and jurisdiction over U.S. military forces is
determined by a \"status test.\" This test allows us to establish
subject matter jurisdiction over an offense committed anywhere,
depending solely on an accused\'s status as a member of the U.S. armed
forces. /111/ The locus of the crime and its connection to the armed
services and its mission makes no difference as to UCMJ jurisdiction,
albeit successful prosecution of military members stationed overseas for
environmental offenses still depends on using a punitive article of the
UCMJ. /112/

What does make a difference, however, is the military status of an
offender. /113 It should come as no surprise that civilians are not
normally subject to the UCMJ. During the first decade following World
War II, however, UCMJ jurisdiction was regularly asserted to prosecute
civilians accompanying U.S. forces abroad /114/ Who committed criminal
offenses. /115/ Thus, when the NATO SOFA was negotiated, the U.S. was in
a jurisdictional position similar to other European civil law countries
that exercised criminal jurisdiction over their nationals wherever they
might be, /116/ although the U.S. derived this authority solely from the
UCMJ. /117/

A series of Supreme Court cases sounded the death knell for our use of
the UCMJ to assert criminal jurisdiction over civilians accompanying
U.S. forces overseas. Beginning with *Reid v. Covert\"\'* and *Kinsella
v. Krueger,* /119/ the Court held that UCMJ, Article 2(a)(11), /120/
could not be constitutionally applied to civilian dependents in capital
cases. Scrambling to recover its basis for jurisdiction, the U. S. took
the narrow view that because *Reid* expressed no opinion on the
constitutionality of courts‑martial for noncapital offenses committed by
civilian employees accompanying U.S. forces, it would continue to
exercise this jurisdiction. /121/ A few years later in the companion
cases of *McElroy v. United States ex rel Guagliardo* and Wilson v.
*Bohlender, /*122/ the Court extended *Reid\'s* holding to any
court‑martial of civilian employees (in peacetime). Consequently,
although U.S. "Jurisdiction,\" as that term may be loosely defined
administratively, /123/ may still exist, inevitably receiving States
enjoy exclusive criminal jurisdiction over any class of civilian
accompanying U.S. forces under a SOFA treaty arrangement. /124/ Member
nations to bilateral and multilateral SOFAs with the U.S. conceptually
understand this limitation on U.S. criminal jurisdiction over civilians.
/125/ Nonetheless, the U.S. policy of maximizing the return of cases
continues unabated, even when fair trial issues are not present. /126/

*4. General US. Criminal Law*

Although the U.S. lacks UCMJ criminal jurisdiction over U.S. civilian
employees, a remote possibility exists for extraterritorial application
of certain federal crimes found in Title 18 of the U.S. Code. Generally,
U.S. criminal jurisdiction is based on territorial principles, and
criminal statutes are not given an extraterritorial effect. /127/
Currently, the U.S. only has extraterritorial jurisdiction within its
special maritime and territorial jurisdiction and even then only for
certain individual offenses clearly extraterritorial in the U.S. Code,
such as treason. /128/ The special maritime and territorial jurisdiction
covers U.S. embassy compounds, U.S. ships on the high seas, and other
limited locations, but not overseas military bases. /129/ Most offenses
committed by civilians accompanying our forces do not fall within this
jurisdiction. /130/

One provision with potential application to U.S. civilian employees
committing environmental offenses overseas is 18 U.S.C. Sec. 1001. /131/
In *United States v.* Walczak, /132/ this provision was held to apply to
a false statement made on a U.S. Customs form outside the U.S., since
the customs procedure and form were within the jurisdiction of the
Department of the Treasury. Depending on the substantive duties of U.S.
civilian employees to make records regarding environmental matters (a
prime example being the disposal of hazardous waste), /133/ such a
statute could conceivably apply. /134/

**B. Environmental Compliance Obligations for U.S. Forces Overseas**

*1. Presidential and Congressional Mandates*

As early as the Carter Administration, there was general concern about
the environmental consequences of federal agency actions overseas. In
1979, President Carter issued Executive Order 12,114, which imposed a
limited form of NEPA compliance on agency actions abroad./135/ It has
been construed as not applying to most of our military forces overseas,
because it requires an EIS‑type environmental review only if foreign
nations are not participating with the U.S. or otherwise not involved in
the action./136/ Prior to its issuance, President Carter had issued
Executive Order 12,088, *Federal Compliance with Pollution Control
Standards,/137/* which requires each executive agency to comply with the
\"applicable pollution control standards\" of Federal environmental
statutes ‑ meaning the same substantive and procedural requirements that
would apply to a private person. /138/ Executive Order 12,088 did
address overseas facilities to the extent it required each agency
responsible for the construction or operation of federal facilities
outside the U.S. to ensure that such construction or operation complied
with the environmental pollution control standards of general
applicability in the host country. /139/ At that time, the Department of
Defense (DoD) also had been operating under a directive requiring our
forces overseas to conform at all times to the environmental quality
standards of the host country, international agreements, and Status of
Forces Agreements. /140/

In the 1980s, environmental groups took their concerns about DoD\'s
overseas environmental compliance to Congress. Congress began to focus
on which standards to apply at overseas bases during the Bush
Administration. /141/ A House Armed Services Committee investigation in
1991 found that U.S. bases overseas followed practices inconsistent with
U.S. and host nation environmental standards. /142/ About the same time,
a General Accounting Office report warned that hazardous waste disposal
practices at overseas military installations could jeopardize
international relationships because U.S. forces overseas had received
little guidance as to what environmental law or policies they should
follow. /143/

In the wake of these findings, Congress directed the Secretary of
Defense to \"develop a policy for determining applicable environmental
requirements for military installations located outside the United
States,\" and \"\[i\]n developing the policy, the Secretary shall ensure
that the policy gives consideration to adequately protecting the health
and safety of military and civilian personnel assigned to such
installations.\" /144/ In response to this Congressional mandate, DoD
issued another directive to create a process to establish and implement
specific environmental standards at overseas installations. /145/
Department of Defense Directive 6050.16 generally implements the
following procedures for environmental executive agents (EAs): /146/ (a)
identify host nation environmental standards (including those
specifically delegated to regional or local governments for
implementation) and the enforcement record of such laws and standards to
determine their applicability to DoD installations; (b) identify and
review applicable environmental standards from base rights agreements
and Status of Forces Agreements; (c) compare host nation law applicable
to U.S. forces with baseline guidance to be developed from U.S.
environmental law requirements; and (d) draft and publish mandatory
standards for environmental compliance incorporating the stricter of
either host nation environmental law or the baseline guidance. /147/
Department of Defense Directive 6050.16 has led to the creation of
baseline and country‑specific environmental compliance standards.

*2. Overseas Environmental Baseline Guidance Document*

*and Final Governing Standards*

In 1992, the DoD adopted the Overseas Environmental Baseline Guidance
Document (OEBGD) /148/ to begin implementing the mandates of the FY91
NDAA and DoD Directive 6050.16. The OEBGD contains specific
environmental compliance criteria based on U.S. environmental laws /149/
to be used by EAs in developing \"final governing standards\" /150/ to
be used by all DoD installations in a particular host nation./151/
Furthermore, the OEBGD provides that, unless inconsistent with
applicable host nation law, base rights, SOFAs, or other international
agreements, the baseline environmental guidance shall be applied by U.S.
forces overseas when host nation environmental standards do not exist or
provide less protection to human health and the natural environment than
the baseline guidance. /152/ The OEBGD and final governing standards
contain standards for the following: air emissions; drinking water;
wastewater, hazardous materials; solid and hazardous waste; medical
waste management; petroleum, oil and lubricants; noise; pesticides;
historic and cultural resources; endangered species and natural
resources; polychlorinated biphenyls; asbestos; radon; environmental
impact assessments; spill prevention and response planning; and
underground storage tanks./153/ The OEBGD and final governing standards
apply to DoD installations overseas, but not to ships, aircraft, and
operational and training deployments off the installation. /154/

The OEBGD\'s strategy for enforcing binding /155/ final governing
standards is to

use the individual service structures. /156/ Temporary waivers or
compliance deviations with any final governing standards are available
if compliance at a particular installation or facility would seriously
impair its operations, adversely affect relations with the host nation,
or require substantial expenditure of funds not available for such
purpose. /157/

The OEBGD originally envisioned final governing standards by late 1993
unless responsible commanders (e.g., the commander of U.S. European
Command for countries in Europe) approved a waiver. /158/ As of the date
of this article, not all final governing standards have been approved.
/159/ When final governing standards are completed and approved,
representing the more protective of either the OEBGD or the enforced
host nation standards, /160/ DoD views them as the \"sole compliance
standards at installations and facilities in foreign countries.\" /161/
Executive Agents are required to revalidate the final governing
standards annually to reflect significant changes in host nation
requirements or the OEBGD /162/

*3. SOFA Obligations*

As a matter of customary international law, activities of a foreign
nation within the territory of a host nation are governed by host nation
law unless there is an agreement otherwise between the nations. /163/
Status of Forces Agreements have constituted such an agreement whereby
the U.S. has agreed only to \"respect,\" but not generally be bound by,
host nation law with respect to our activities overseas. /164/ Most
SOFAs and bilateral supplementary agreements were drafted in an age when
environmental issues were hardly considered (if at all) and thus reflect
an absence of any specific provisions concerning compliance with host
nation environmental law. /165/

Theoretically, compliance issues should be resolved with the approval of
final governing standards which apply host nation environmental laws
that are stricter than our own. Practical, problems associated with this
theory, however, include the difficulty associated with keeping up with
new and rapidly changing host nation environmental laws and regulations,
/166/ the lack of references to host nation laws and Standards in final
governing standards, /167/ delays \*in \'incorporating new host nation
laws into the final governing standards, /168/ and the perception by
host nations that compliance with final governing standards will not
necessarily equal host nation compliance. /169/ Nonetheless, final
governing standards give our overseas forces clear and tangible
compliance standards against which they may be judged, as well as
substantive standards to facilitate our efforts to maximize jurisdiction
over offenses committed by our forces.

*4 The Revised German Supplementary Agreement*

A renegotiated Revised German Supplementary Agreement, /170/ the first
of its kind but not yet ratified by all signatory States, directly
applies German law to the activities of U. S. forces in Germany. /171/
In addition, the specific environmental provisions of the Revised
Supplementary Agreement: (a) require the use of fuels, lubricants, and
additives that are low pollutant in accordance with German environmental
regulations for U. S. aircraft and motor vehicles, if such use is
compatible with the technical requirements of these aircraft and
vehicles; /172/ (b) apply German regulations for the limitation of noise
and exhaust gas emissions from passenger and utility vehicles to the
extent not excessively burdensome; /173/ (c) require the U.S. to observe
German regulations on the transport of hazardous materials; /174/ and
(d) require the U.S. to bear the running costs of necessary measures
within the installation to prevent physical environmental damage. /175/

Whether the Revised Supplementary Agreement goes beyond the requirements
of the final governing standards for Germany remains to be seen. /176/
Moreover, the ability of U.S. forces to use the final governing
standards to shield themselves from the exercise of a host nation\'s
criminal jurisdiction over environmental offenses could depend largely
on the actual or perceived gap, if any, between host nation legal
requirements and the final governing standards themselves. In some
nations with embryonic environmental legislation or enforcement, such a
disconnect may not present a problem. In a nation such as Germany ‑ with
advanced and complex environmental legislation /177/ as well as
environmental criminal provisions /178/ ‑ the U.S. may find it difficult
to rely on the German FGS for standards against which to assert
jurisdiction over its forces, particularly after the ratification of the
Revised Supplementary Agreement squarely requiring application of German
law.

**IV. INTERNATIONAL SENSITIVITY TO ENVIRONMENTAL ISSUES**

**A. Some Recent Events Focusing Attention on the Environment**

The concept of nation‑state responsibility to abate environmental damage
caused in another sovereign\'s territory was codified and publicized in
the 1992 Rio Declaration on the Environment. This effort was a product
of the celebrated United Nations Conference on the Environment and
Development in Rio de Janeiro. It stated in part, \"States have \... the
responsibility to ensure that activities within their jurisdiction and
control do not cause damage to the environment of other States. /179/
The subject of heightened environmental sensitivity overseas should not
be news to anyone. /180/ A 1991 GAO report concluded that such
heightened concern had in turn brought the environmental practices of
U.S. bases under greater scrutiny by host nation opposition political
groups, the media, and the public./181/ In fact, the policy of using the
more restrictive host nation standards, when they exist, seems designed
to avoid jeopardizing our relationship with host nations if U.S. forces
cause a major pollution incident. /182/

**B. Legal Developments**

Together with increased political concern over environmental issues,
particularly in highly industrialized countries where the U.S. has the
majority of its overseas forces stationed, /183/ is an expansion of the
number and scope of environmental laws.

Leading the way has been the EU, which, through the process of
directives and regulations binding on member nations, has surpassed even
rigorous and comprehensive national legal systems, such as those in
Germany and the Netherlands. /184/ European Union law prevails over
member nation law and, unlike the U.S. federal system of environmental
law, generally imposes different and more rigorous environmental
requirements on member nations./185/ One commentator estimates that
between one‑third to one‑half of all legislation necessary to implement
the Single Internal Market of the EU consists of environmental or health
and safety measures, many of which are specific and stringent enough to
minimize member nation discretion in implementation. /186/

A rather unique feature to EU environmental practice, somewhat analogous
to the citizen suit available under U.S. environmental law, has been the
citizen complaint procedure, which acts as a catalyst to move the more
lethargic member nations to implement and enforce EU legislation. /187/
The resolution of complaints made to the EU Commission (its
administrative arm) is usually informal and confidential with the member
nation, /188/ but a 1988 European Court of Justice opinion allowed
individuals to sue in their national courts to protect their rights when
an EU directive had a direct effect on individuals. /189/

Sensitivity to the environment has also driven the expansion of national
environmental legislation (apart from EU influences) in some EU member
nations where U.S. forces are present. Probably the most comprehensive
scheme of environmental regulation exists in Germany. In addition to the
civil media statutes and the Federal Environmental Liability Act which
provide strict liability for air, water, or soil pollution, /190/ the
German Criminal Code establishes criminal liability for certain
activities affecting these media. /191/ The criminal code specifically
imposes punishment for unauthorized contamination of waters, for
adversely affecting the air in violation of a permit or administrative
order or for the unauthorized disposal of waste. /192/ Maximum sentences
include up to five years of imprisonment for intentional violations and
up to two years of imprisonment for negligent violations. /193/ German
prosecutors have become much more active in the past five years in their
use of these provisions, and there is a growing concern among them that
German government agencies have been too lenient in their environmental
dealings with U.S. forces. /194/

Two Asian countries where the U.S. maintains significant forces, Japan
and South Korea, have also experienced a large increase in the scope and
complexity of their environmental laws. Unlike other Asian countries,
Japan addresses environmental concerns through a regulatory system
comparable to the U.S. Passed about the same time as U.S. statutes,
national legislation in the areas of air emissions, wastewater, solid
and hazardous waste, noise, and chemicals has been enacted. /195/ Of
more recent vintage has been the Japan\'s willingness to use its
criminal enforcement provisions for any environmental pollution which
may endanger the fives or health of the public. /196/ Environmental
protection in South Korea became an increasingly public issue in the
late 1980s and 1990s in the wake of its industrial growth, and new
media‑based laws effective in February 1991 have begun to address
environmental concerns on a more sophisticated level. /197/

**V. ENVIRONMENTAL CRIMINAL ENFORCEMENT:**

**MILITARY MEMBERS**

**A. Official Duty Status**

Status of Forces Agreements grant the primary right of exercising
concurrent criminal jurisdiction to the U.S. as a sending State for
\"offenses arising out of any act or omission done in the performance of
official duty. \"/198/ The application of this provision raises two
questions: (1) Who makes the determination of whether an offense fits
within this definition? and (2) What is meant by the phrase \"in the
performance of official duty\"? /199/ The NATO SOFA is silent on these
issues, /200/ and the application of this common provision in SOFAs has
not been without controversy. /201/ As to who decides whether an offense
arises out of the performance of official duty, the U.S. has adhered to
the position that only the sending State may make this determination.
/202/ Some agreements make it clear that the U.S. occupies this
controlling position. /203/ In other countries where the agreement is
not explicit

on this issue (e.g., the United Kingdom, Italy, and Turkey) the. courts
have generally accepted the U. S. military authority\'s determination.
/204/

What constitutes an offense arising in the performance of official duty
has also been debated. The concept is not usually defined in SOFA's
/205/ and consistent with our policy of maximizing jurisdiction, U.S.
authorities have adhered to the position that any act or omission
occurring incidental to the performance of official duty is covered.
/206/ In politically sensitive cases, host nations have sometimes
disputed this

assertion as overreaching. /207/ An approach generally advocated among
military practitioners has been whether the act or omission constituting
the offense is reasonably related to the duty to be performed and done
in an effort to perform the duty (versus completely foreign and
unrelated to the duty). /208/ The U.S. has also specifically disfavored
any analysis of specific intent crimes as being ineligible for official
duty classification (although used in the past by host nations on
occasion), since such an analysis ignores the broader SOFA terminology;
i.e., \"offenses arising out of any act or omission done in the
performance of official duty. " /209/

In the context of environmental offenses, one may readily conclude that
U.S. forces fall under the official duty umbrella of U.S. primary
jurisdiction for offenses involving negligence. Of less certainty are
cases involving intentional (or knowing or reckless) conduct. In both
negligent and intentional cases, offenses have been committed incident
to the performance of a duty. However, the political and environmental
sensitivities could galvanize a host nation ‑ especially in the absence
of an agreement giving the U.S. authority to resolve official duty
questions ‑ to make its own determination of official duty status. /210/

Finally, an entire category of environmental offenses exists unrelated
to the performance of any duty. For example, a soldier who changes his
own automobile oil and dumps the waste oil down a sewer drain should not
be eligible for an official duty classification. To do so would be
tantamount to equating official duty jurisdiction with mere presence or
status ‑ clearly an illogical and unintended result. /211/ Nevertheless,
it is clear U.S. authorities would seek a waiver of host nation
jurisdiction in this type of case and issue an official duty
certificate. The real risk ‑ beyond short term embarrassment if asked by
the host nation to explain how such an incident is classified as
official duty ‑ could well be the erosion of the official duty
certification in a more egregious case on its facts but much closer to a
defensible application of SOFA (e.g., such as a *willful* or reckless
emission of a pollutant by a military member whose job is related to the
control or authorized discharge of such an emission).

This entire discussion on the U.S. primary right to jurisdiction in
official duty cases presupposes that we have a basis in the first place
under military law to prosecute military members for environmental
offenses. Indiscriminate requests for waivers are often made to maximize
jurisdiction without considering what basis the U.S. military would use
to prosecute. /212/ There is a fundamental legal difference between
requesting a waiver when the U.S. does, in fact, have a basis for
concurrent criminal jurisdiction, and requesting a \"waiver\" where it
does not. The latter is, in effect, simply a request not to prosecute at
all and is not entitled to SOFA \"sympathetic consideration. *\" /213/*
While such a policy undoubtedly makes sense from the standpoint of
consistency in military discipline and morale, authorities implementing
this policy may easily lose sight of the need to back up U.S. waiver
requests with a proper basis for U.S. criminal prosecution (especially
in 214 cases of official duty where jurisdiction is blithely assumed).
The ability of the UCMJ to address environmental offenses fortunately
has been largely untested and unquestioned by host nation authorities,
but it desperately needs studied reinforcement to serve as the basis for
U.S. military concurrent jurisdiction over environmental offenses.
Without an application that will withstand appeal in military courts and
the U.S. Supreme Court, the U.S. simply has no concurrent jurisdiction,
whether environmental crimes are committed in the performance of
official duty or not.

**B. Bases of UCMJ Jurisdiction: Theory**

*1. Dereliction of Duty*

Article 92, clause 3, of the UCMJ /215/ provides for criminal liability
for dereliction of duty. The elements of the offense include: (a) that a
person had certain duties; (b) that the person knew or reasonably should
have known of the duties; and (c)

that the person was willfully or through neglect or culpable
inefficiency derelict in the performance of those duties. /216/ A duty
may be imposed by treaty, statute,

regulation, lawful order, standard operating procedure, or custom of the
service. /217/

Actual knowledge of a duty need not be shown if the person reasonably
should have known of his duties, which may be demonstrated by, for
example, regulations and training. /218/

The potential application of this punitive provision to derelictions by
military members for environmental matters seems obvious. As noted,
however, in part III.B.1 of this article, before the OEBGD and final
governing standards, specificity was lacking and justifiably criticized.
Vague and broad pronouncements by the President in E.O. 12,088 could not
serve as the basis for a specific, articulable duty for purposes of
Article 92(3). In addition, the SOFA treaty obligation requiring sending
State forces to \"respect\" host nation law is much too vague absent a
military regulation implementing some specific provision of the SOFA to
constitute the basis of a dereliction of duty prosecution under Article
92 ./219/

The OEBGD and the first attempts by the U.S. at minimum substantive
compliance standards based on U.S. law would have been a promising
source of the duty necessary to prosecute environmental offenses under
Article 92(3), but for the following language: \"This document does not
create any rights or obligations enforceable against the U.S., DoD, or
any of its services or agencies, nor *does it create any standard of
care or practice for individuals, /*220/ Such language seems curiously
at odds with the DoD\'s OEBGD policy \"to be on the forefront of
environmental compliance and protection, \"/221/ but underscores one of
the themes of this Article that harmonizing the new compliance scheme
with enforcement, particularly under SOFA allocations of jurisdiction,
was simply not considered. /222/

Compounding this problem in the OEBGD is the incorporation of
boilerplate exculpatory language into some of the final governing
standards (FGS). /223/ For example, the Korea FGS draft, /224/ the final
Japan FGS, /225/ and the final Italy FGS /226/ incorporate the OEBGD
language on individual responsibility verbatim. One wonders whether this
language, which may preclude the use of Article 92(3) for dereliction of
duty on the basis of OEBGD or certain FGS noncompliance, was intentional
or an oversight. Its apparently nonbinding nature evidently led the U.S.
Navy Comptroller to take the position that OEBGD and FGS standards are
not \"legal requirements\" for purposes of funding overseas
environmental compliance. /227/

Can the standards be nonbinding legal requirements for purposes of
federal funding, but still be binding on federal servants for purposes
of criminal prosecution?

The FGSs could constitute the requisite source of duty for an Article
92(3) dereliction prosecution /228/ if they were without this
exculpatory language /229/ Since they pick up direct language from the
OEBGD requiring military departments, and particularly installation
commanders, to \"comply with the FGS.\" Further, the FGSs for the United
Kingdom and Turkey actually contain positive language referencing
individual responsibility for environmental duties. /230/ The author of
this FGS language specifically intended to make violations of the FGSs
for these countries punishable under Article 92(3) as a dereliction of
duty. /231/ If DoD is as serious as it claims to be in its
pronouncements about being at the forefront of environmental compliance
at its overseas bases, then it should ensure its EAs who are responsible
for drafting final governing standards use language assisting, not
crippling, the military prosecution of environmental offenses violating
these standards.

Besides the elements of duty and a violation thereof, no discussion of
Article 92(3) dereliction would be complete without mentioning the
element of knowledge of those duties. Training is often an essential
method of proving a defendant\'s actual or imputed knowledge of his
duties. All of the FGSs have language requiring installation commanders
to \"develop and conduct training/education programs to instruct all
personnel in the environmental aspect of their jobs and the requirements
of the final governing standards." /232/ The DoD has a unique turnover
problem regarding training of its military members, who generally stay
three to five years at an overseas installation. The significance of
this training difficulty becomes apparent when looking at DoD
environmental compliance failures, most of which are related to \"people
processes\" and attention to detail in areas such as the handling and
disposal of hazardous waste. /233/ Criminal prosecution as a compliance
incentive may

be one of the only ways DoD may overcome an institutional problem of
leadership

and training in an effort to encourage a transient force to \"do the
fight thins.\" /234/

In addition to training, required reports constitute another source
probative of a defendant\'s knowledge of his duties. Reports .concerning
FGS compliance are currently required by one of the military
departments. /235/ The UK and Turkey FGSs require individual members or
DoD employees to \"report to superior authority any condition, event or
practice that is not in conformity with the final governing standards.
/236/Such an approach further solidifies the viability of an Article
92(3) dereliction prosecution for not complying with an underlying
substantive duty or not reporting the failure by another member of the
U.S. forces to comply with that FGS duty. /237/

*2 Failure to Obey a Lawful General Order or Regulation*

Article 92, clause 1, of the UCMJ /238/ covers the offense of failure to
obey a certain class of orders or regulations. The elements of this
offense include: (a) that there was in effect a certain lawful general
order or regulation; (b) that. the defendant had a duty to obey it; and
(c) that the defendant violated or failed to obey the order or
regulation. /239/ Unlike the other offenses found under this article,
/240/ Article 92(1) requires no proof of a defendant\'s knowledge of a
regulation. /241/ Because of this \"strict liability\" feature, few
military regulations fall into this category, and such regulations are
strictly construed. /242/ Regulations meeting Article 92(l) must be
\"punitive\" (i.e., cannot simply specify general guidelines), /243/
must evince their punitive nature in a self‑evident manner in the
regulation, /244/ and must be issued by a general officer in command of
a unit (or General Court Martial Convening Authority or higher authority
such as the President, Secretary Defense, or Secretary of a military
department). /249/

At least one FGS mentions the use of a punitive regulation. The Japan
FGS specifically leaves open this possibility by providing: \"These
standards are not issued as a punitive directive. Installation and
activity commanders are authorized, however, to issue punitive orders to
implement these standards. \" /246/ To date, no punitive general
regulations have been issued addressing violations of any FGS. /247/
Nonetheless, at least one military environmental law practitioner in
Europe has recommended that the hazardous waste portions of the European
countries! FGSs be made punitive for Air Force members by the Commander,
U.S. Air Forces in Europe. /248/ Such a measure appears particularly
warranted in countries such as Italy, where the FGS EA has hindered U.S.
military authorities from asserting UCMJ jurisdiction on the basis of
the FGS alone. /249/ A punitive regulation making conduct which violates
the FGS criminal does not ran afoul of concerns that the U.S. should not
issue punitive regulations punishable under Article 92(l) solely for the
purpose of preventing foreign criminal jurisdiction. /250/

*3. Service Discrediting Conduct and Damage to Real Property*

The General Article of the UCMJ is found at Article 134, clause 2. /251/
It

punishes conduct of a nature to bring discredit upon the armed forces by
either

injuring the reputation or tending to lower the reputation of the armed
services in public esteem. /252/ Pursuant to this provision, acts in
violation of foreign law may be

punished if proof beyond a reasonable doubt exists that such an act is
of a nature to

bring discredit on the aimed forces. /253/ Commentators have noted the
potentially

wide swath cut by this provision giving the U.S. jurisdiction over any
case which violates a receiving State\'s law. /254/ The military case
law interpreting the scope of

this provision has held that violations of foreign law *per se* are not
punishable under

Article 134(2). /255/ Use of this theory of criminal liability hardly
appears in the military justice reporters, probably due to the fact that
specific punitive articles, when covering an act or omission, are easier
to prove.

In any event, the most attractive use of Article 134(2) may well be for
environmental offenses committed off an overseas installation where an
FGS will not apply. /256/ The commission of the offense within the host
nation community

itself, possibly depending on how egregious the offense is viewed by the
local community, should give tile U.S. a basis to prosecute. /257/
Ironically, the more political pressure brought by a host nation to
prosecute under its laws, the stronger our argument for exercising
jurisdiction under Article 134, especially in an official duty case.

*3. Waste, Spoilage, or Destruction of Property*

Finally, Article 109 of the UCMJ /258/ may afford the U.S. a basis for
military jurisdiction. Article 109 provides for criminal liability for
willfully or recklessly wasting or spoiling or otherwise willfully and
wrongfully destroying or damaging any property other than military
property of the U.S.. The property referred to includes any real
property not owned by the U.S.; wasting or spoiling refers to acts of
voluntary destruction or permanent damage such as cutting down trees;
and damaging refers to any damage and must be done intentionally and
contrary to law, regulation, lawful order, or custom. /259/ Of
particular application to environmental offenses committed on or off an
installation is the provision regarding damage to real property (the
host nation owns the installation, and real property off the
installation is owned by a host nation or subordinate government or
private person).

The *scienter* requirement is high, but like Article 134(2), the more
notorious the case (here due to a U.S. military member\'s conduct), the
better chance the U.S. has of asserting criminal jurisdiction under
Article 109.

**C. Bases of UCMJ Jurisdiction: Practice**

Very few cases have involved environmental crimes committed by U.S.
forces under the UCMJ. All of the few cases where records or
recollections of these events exist have occurred in Europe. None of
these incidents resulted in a court-martial, and in that respect, the
record of U.S. forces overseas approximates the U.S. military\'s record
within the U.S. /260/

In 1989, two cases arose where host nation authorities indicated they
wished to prosecute installation commanders for undisputed environmental
violations occurring on those installations. The first case, occurring
at Sembach Air Base, Germany, involved two violations of German
environmental laws determined through a German inspection of the base.
One violation involved an automobile junkyard with vehicles leaking oil
and antifreeze into the ground. The inspector informed the U.S. employee
accompanying him that the junkyard was illegal, but the employee
apparently never passed this word through the chain of command, and the
installation commander allowed the junkyard to operate. /261/ The second
violation involved a fire training pit area with no leachate protection,
and German officials requested U.S. authorities at the base to install a
ground protection system complying with German law. /262/ In both
instances, no apparent efforts were taken by U.S. authorities to remedy
either problem despite subsequent German requests. The German prosecutor
opened a criminal investigation as a means of forcing compliance, but
not with the objective of a criminal proceeding against the commander
who had already transferred back to the U.S. /263/ The case was released
back to the U.S. (the Germans assuming on their own that the case
involved official duty), and no disciplinary action was taken against
any U.S. personnel. /264/

The second case, occurring at Aviano Air Base, Italy, involved a spin on
the

261 installation of about 1200 gallons of aviation fuel during a fuel
transfer. Italian authorities expressed interest in prosecuting the
commander and requested information as to the names of anyone
responsible for the spill. /266/ United States authorities denied the
Italians\' request for information, stating the U.S. had the primary
right of jurisdiction and that Italian attempts to investigate or punish
individual Air Force members for dereliction of duty were \"beyond the
scope of Italian jurisdiction.\" /267/ Nearly six years later, the
Italian Ministry of Grace and Justice requested what action had been
taken against any U.S. forces for the fuel spill. /268/ In a response
typifying the problem with the U.S, policy of maximizing its criminal
jurisdiction and then not taking any action on a case, the U.S. Sending
State Office responded that the Air Force had taken no disciplinary
action against the installation commander or anyone else, since they,
\"bore no criminal liability for the fuel spill.\" /269/ The U.S.
avoided having to state the basis for asserting primary concurrent
jurisdiction or answer why no action was taken against anyone for a
substantial spill in these two 1989 cases. Nonetheless, U.S. military
authorities working SOFA waivers or overseas environmental compliance
would do well to remember that these cases occurred against the backdrop
of a still divided Germany, a Warsaw Pact, and a Soviet threat.

Two cases in Germany involving oil dumped into storm (trains resulted in
Article 15, UCMJ, nonjudicial punishment. /270/ One incident at Hahn Air
Base was charged under Article 92(2) for a violation of a military
housing regulation. The other incident, off Rhein‑Main Air Base, was
charged as a violation of Article 109, damage to real property. /271/

The latter of these two cases involved an Air Force officer stationed at
Ramstein Air Base, Germany. In 1992, this officer was in charge of a
vehicle convoy during a training deployment on the German autobahn and
ordered the fuel in a poorly

running vehicle to be drained into a sewer drain. /272/ His conduct was
aggravated by the fact his subordinates had informed him that this was
against German law, and was furhter aggravated by his order to surround
the vehicle with other military vehicles to obstruct the public\'s view.
/273/ The disposition of the case is a classic study in the problems
experienced in applying the UCMJ to environmental offenses overseas. No
regulations existed proscribing this conduct that would allow for a
prosecution under Article 92(1) or (2). /274/ As to Article 92(3), the
German FGS /275/ would have established a duty not to drain fuel into a
sewer, but it was not yet effective, and the base Staff Judge Advocate
(SJA) concluded that the OEBGD standards had not been given the training
and command emphasis to establish the officer\'s knowledge of those
standards. /276/ Articles 134(2) and 109 were considered, but there was
insufficient command interest in proceeding with Article 15 nonjudicial
punishment and in fully determining whether the conduct violated German
environmental law. /277/ The German authorities did inquire about the
disposition of the case (an administrative written counseling) only
after an American subordinate of the offender informed the Germans of
the incident. /278/

The FGSs and regulations ‑ and the training conducted pursuant to them
will add considerably to our ability to exercise criminal jurisdiction
over forces committing environmental offenses (at least on an
installation). A recommended starting point to make the UCMJ a useful
tool of this policy would consist of the removal of exculpatory language
from the OEBGD and all FGSs, enactment of punitive general regulations
concerning the most frequently violated FGS standards (possibly matching
the standards in which host nation authorities are most interested), and
the actual implementation of the comprehensive training regimen called
for in FGSs. Finally, U.S. military commanders must use the UCMJ in
appropriate cases to handle environmental offenses if the U.S. wishes to
defend and preserve its policy of maximizing criminal jurisdiction in
this sensitive area.

VI\. ENVIRONMENTAL ENFORCEMENT:

**CIVILIAN EMPLOYEES**

**A. Exercise of U.S. \"Jurisdiction\" over the Civilian Component
/279/**

As discussed previously, the U.S. Supreme Court has ruled it
unconstitutional to exercise UCMJ jurisdiction over civilians
accompanying U.S. forces overseas. The effect of these rulings is to
deprive the U.S. of the concurrent jurisdiction it once had under SOFA
provisions allocating jurisdiction. /280/ The basis for this conclusion
comes from SOFA language which specifies and allocates jurisdiction by
military authorities over persons subject to the military law of a
sending State. /281/ As a result of the Supreme Court\'s rulings, the
SOFA provisions regarding waivers and the primary right to exercise
jurisdiction in official duty cases become equally inapplicable. /282/

In practice, however, we have continued the policy of maximizing U.S.

\'Jurisdiction\" over civilians committing offenses overseas. /283/ This
has led to

confusion regarding the basis for doing so /284/ and the options for
handling these

cases. /285/ The practical, if not legal, efficacy of this policy has
depended upon our

ability to administer a credible program of administrative discipline
for violations of

host nation law. /286/ So far, we have not been asked about the failure
to take criminal action against U.S. civilians committing crimes in host
nations, due in large part to a recognition by host nation authorities
that the U.S. possesses no other way to

handle these cases. /287/ Since the Supreme Court removed this ability,
however,

there has been an interesting shift in attitude among U.S. authorities
responsible for

handling civilian misconduct. In 1957, overseas commanders believed that

\"discipline would be disrupted, morale impaired and ability to perform
the assigned mission reduced\" if UCMJ jurisdiction over civilians was
denied. /288/ Since that time, we have found ourselves defending the
adequacy of decidedly weak administrative actions /289/ to preclude
exercise of host nation jurisdiction. /290/

In the context of environmental offenses, the FGS system should go a
long way toward providing a basis to discipline civilian employees.
/291/ There are few reported cases concerning environmental violations
by civilians accompanying U.S. forces, although information exists
concerning several situations arising in Germany. For example, German
prosecutors cited two U.S. Army civilians for groundwater contamination
from a race track and auto junkyard, but \"jurisdiction\" was
transferred to U.S. authorities at their request, and the case was
disposed of administratively. /292/ In another case in the late 1980s,
two U.S. Army local national civilians were charged by German
prosecutors for negligent discharge of oil into a stream after U.S.
authorities had determined no procedures were violated. One employee
eventually paid a \"sum of atonement\" before criminal charges were
dropped. /293/ Recognizing the jeopardy of host nation criminal
prosecution in hazardous waste disposal, recent policies by some of the
military services in Europe prohibit civilian employees from signing
hazardous waste manifests and require U.S. military personnel to do so.
/294/

Environmental violations are uniquely subject to host nation
sensitivities. Political reaction may be strong if a country honors a
U.S. request for a \"waiver\" not to prosecute a U.S. civilian employee
who is responsible for a significant environmental incident, especially
if a similarly situated citizen of that nation would have been subject
to severe criminal enforcement. Concerns may be heightened when these
countries learn of prosecutions involving DoD federal employees for
environmental violations in the U.S., which often result in significant
fines, lengthy probation, and sometimes imprisonment. /295/

**B. Proposed Legislation for Extraterritorial Criminal Jurisdiction**

The need to fill the jurisdictional void for civilians accompanying U.S.
forces overseas has been recognized for quite some time. In its 1979
report, the GAO concluded that extraterritorial jurisdiction was
required to remedy the problem./296/ The GAO identified two problems
with the current jurisdictional vacuum, including: (1) civilians could
be subject to foreign judicial systems that may not offer all the
guarantees that criminal defendants in the U.S. enjoy, and (2) civilian
offenders would escape judicial sanction for their crimes if host
nations chose not to exercise criminal jurisdiction. /297/ The GAO
further opined that our inability to dispose of such misconduct outside
of administrative sanctions could cause serious discipline and morale
problems in overseas communities. /298/ The report further noted that
our policy of maximizing jurisdiction (which the GAO viewed as
inadequate since it was limited to administrative sanctions) tended to
aggravate the situation. /299/

Legislation first proposed in 1967 and periodically reintroduced in some
form has purported to address the jurisdictional problem concerning the
civilian component./300/ It has never been passed into law. A more
recent proposal, The Jurisdiction, Apprehension, and Detention Act of
1995, /301/ would have added a chapter 50 to Title 10 of the U.S. Code.
This proposal provided that any person serving with, employed by, or
accompanying U.S. forces outside the U.S. who engages in conduct that
would constitute a criminal offense if the conduct were engaged in
within the special maritime and territorial jurisdiction /302/ of the
U.S., Shan be guilty of a like offense. /303/ The bill also would have
authorized U.S. authorities to apprehend an individual for removal to
the U.S. for judicial proceedings, or deliver the offender to foreign
country authorities for trial, if requested and authorized by treaty.
/304/

The Federal Criminal Law Improvements Act of *1995* /306/ adding chapter
212 to Title 10 of the U.S. Code, provides for the same extraterritorial
criminal liability, but only for criminal offenses punishable by
imprisonment of more than one year if the conduct were engaged in within
the special maritime and territorial jurisdiction of the U.S. /306/ This
proposal also provides for the same apprehension, removal, and /307/

delivery procedures. Although these bills, if passed, could have solved
the U.S. forces\' jurisdictional problem with respect to the civilian
component committing some criminal offenses, /308/ they do nothing to
solve the jurisdictional void for environmental offenses. The statutes
defining the scope of certain offenses committed within the special
maritime and territorial jurisdiction of the U.S. are primarily limited
to violent crimes such as murder, assault, and robbery. /309/ None of
the crimes providing for the special maritime and territorial
jurisdiction of the U.S. conceivably includes conduct constituting an
environmental offense. Thus, as to environmental crimes committed by
civilians accompanying U.S. forces overseas, the jurisdictional void
/310/ will continue unless more specific legislation is introduced.
There is scant reason for optimism given the length of time the overall
problem has lasted.

**C. A Need to Reevaluate the Policy of Maximizing Jurisdiction**

As noted earlier, the genesis of our policy to maximize criminal
jurisdiction at the time of the NATO SOFA\'s ratification was the U.S.
Senate\'s concerns about the quality of a criminal defendant\'s rights
under the host nation\'s criminal justice system. The Senate Resolution
only required requests for waiver if \"there is danger that the accused
will not be protected because of the absence or denial of constitutional
rights he would enjoy in the United States." /311/ Even the U.S.
military\'s written policy implementing this Congressional will /312/
reads Consistently with the Senate Resolution despite its overbroad
application. The real irony of this policy vis‑a‑vis civilians is that
U.S. military jurisdiction over civilians was found unconstitutional
more than twenty‑five years ago because of concerns that the UCMJ did
not afford adequate constitutional safeguards. /313/

Numerous safeguards to protect the rights of U.S. forces overseas who
are prosecuted by host nations are in place and constitute a significant
duty for military commanders and legal advisors. /314/ Such safeguards
include: the use of a waiver request through diplomatic channels if a
substantial possibility exists that an accused will not receive a fair
trial; the provision for U.S. trial observers at host nation
proceedings; the provision of legal advisors for an accused; the payment
of counsel fees and expenses in most cases and the payment of bail in
all cases; and provisions for care and treatment of personnel confined
in a host nation penal institution. /315/

As envisioned by SOFAs, a military member committing an environmental
offense overseas at least presents the possibility, of U.S. jurisdiction
under the UCMJ, although considerable work and analysis need to be done
to credibly assert this jurisdiction. Unlike military members, civilians
accompanying U.S. forces have no chance of being prosecuted under the
UCMJ (and currently have almost no chance of being prosecuted under U.S.
extraterritorial criminal statutes which would not mesh with SOFA
obligations even if such statutes existed). Department of Defense and
U.S. military authorities would therefore be well advised to reconsider
the current policy and encourage the exercise of host nation
jurisdiction over serious environmental criminal offenses by U.S.
civilians if they are satisfied that the accused will receive a fair
trial in the host country.

Compelling justification exists for such a change in policy. First, the
U.S. historically has little legal basis to seek to dispose of an
offense itself unless an accused will not receive a fair trial by the
host nation. Second, the U.S. is simply not adequately equipped with
jurisdiction to handle serious cases (the suggestion to reevaluate the
policy herein does not advocate wholesale turnover of civilian cases to
host nation authorities), and a more reasoned policy avoids being asked
embarrassing questions about the basis of U.S. jurisdiction and why
serious cases merit only administrative sanctions. There are no good
answers to such questions, particularly in a politically charged case
involving environmental noncompliance. Finally, \"allowing\" host nation
prosecutions of more serious cases \"levels the playing field\" between
U.S. civilians overseas and their U.S. civilian employee and host nation
citizen counterparts who are subject to meaningful sanctions for
environmental crimes. This, in turn, should promote compliance because
of a stronger deterrent effect.

**VII. CONCLUSION**

The exercise of criminal jurisdiction over U.S. forces abroad has
evolved considerably, particularly since the negotiation of SOFAs with
host nations. Despite the attempt to balance the exercise of sovereignty
equitably, the general policy and practice of the U.S. has nonetheless
been to maximize waivers (or releases) of foreign criminal jurisdiction
when host nations have primary concurrent or exclusive jurisdiction.
Although this policy probably goes beyond the Congressional mandate of
when to maximize U.S. jurisdiction, the policy has operated largely
without host nation perception of infringement on sovereignty ‑ so far.
This policy has been defended on the additional ground that it is needed
to ensure consistent military discipline among U.S. forces, and this
justification makes sense as long as the U.S. has the capability and
will to discipline its own forces.

Complacency has resulted from the maximization policy, to the point
where many U.S. commanders do not appreciate the infringement on
sovereignty that a waiver or release request represents. In some host
nations such as Germany, U.S. authorities have, for all practical
purposes, reverted to the law of the flag. This practice conflicts with
SOFA provisions against a background of emerging sovereignty among many
host nations. The case of a reunited Germany and a renegotiated
Supplementary Agreement presents a compelling general example of
politics that are no longer solicitous of a protective U.S. presence.
Other nations hosting substantial numbers of U.S. forces are likewise
more aware of the general intrusion on their sovereignty in an era of
perceived diminishing external threats to their security.

Moreover, host nations are less likely to be more generous to U.S.
interests than a SOFA requires when a conflict exists with another
treaty obligation or a nations sense of values. A recent example
involved a conflict between the U.S. military authorities' right to
adjudge a death penalty and Dutch perceptions of its human rights
obligation.\' /316/ The case illustrated a relatively small sovereign\'s
ability to disregard a SOFA obligation (the U.S. primary right to
exercise jurisdiction). /317/

With SOFA criminal jurisdiction as background, in the last decade
environmental compliance has caught the world\'s attention.
Environmental incidents occurring worldwide have spurred the growth of
international environmental legislation and enforcement efforts targeted
at noncompliance, to include criminal prosecution.

Coincidentally, many industrialized nations which are in the forefront
of criminal prosecution also have some of the largest concentrations of
U.S. forces overseas.

Our activities at overseas installations have not escaped the growing
international focus on the environment, and U.S. authorities have
struggled for years over what specific environmental laws and standards
to apply. After episodes of noncompliance with U.S. and host nation law
was criticized at home and abroad, DoD has crafted a policy applying the
stricter substantive environmental law standards at overseas
installations.\' This policy has taken shape in the form of
country‑specific final governing standards which are now in effect
(except in Germany and Korea due in part to last minute funding
skirmishes within DoD).

Unfortunately, most FGSs and the DoD guidance on which they are based
disclaim setting any standards for individual responsibility. Perhaps
unintentional, such exculpatory language could cripple U.S. efforts to
enforce the FGS standards against its own forces. The significance of
this handicap becomes apparent when our failure to enforce environmental
compliance occurs in host nations which are becoming more pressured,
willing, or anxious to prosecute environmental offenses themselves as an
act of sovereignty. For U.S. authorities to maintain their ability to
maximize criminal jurisdiction over environmental offenses, and indeed
to maintain their ability to exercise criminal jurisdiction over forces
committing environmental offenses arising out of the performance of
official duty, U.S. authorities must have the necessary legal tools at
their disposal to handle the challenge.

Final governing standards provide the basic foundation for U. S.
military authorities to exercise criminal jurisdiction under the UCMJ,
but more work and attention to detail are needed to plug the gaps in
military law vis‑a‑vis the handling of environmental offenses. A handful
of past cases demonstrates the inability to dispose of many
environmental offenses through the UCMJ. The greater concern, however,
because it is more difficult to remedy, is U.S. military authorities\'
apparent lack of will to enforce environmental compliance, even when
UCMJ action is proper. Both the lack of UCMJ tools and the lack of will
to use them are at odds with the U.S. policy of maximizing its criminal
jurisdiction. The unappreciated danger becomes the significant erosion
of U.S. authorities\' ability to handle their own cases when
environmental offenses are involved. International sensitivity and
citizen pressure on host nations will present a formidable challenge to
continued U.S. jurisdiction over these uniquely contentious cases ‑ the
U.S. will lose by default when the challenge comes in the absence of a
criminal apparatus to deal with these offenses.

Environmental offenses committed by a distinct segment of U.S. forces,
U.S. civilian employees, present a different problem. Not possessing
criminal jurisdiction over these civilian employees and armed only with
administrative sanctions, U.S. military authorities have continued,
under the umbrella of maximizing waivers, to seek host nation release of
these cases. The U.S. Congress has failed for years to enact any
legislation which would apply extraterritorially to crimes committed by
civilians accompanying U.S. forces overseas. Legislation proposed in
both Houses of Congress does not reach environmental offenses. For the
sake of U.S. credibility, equal treatment of civilian offenders, and
realistic deterrence of environmental noncompliance, U.S. authorities
should reevaluate their broad policy of seeking releases in so many
cases. Although a potential \"slippery slope\" in doing so, the U.S.
would put itself in the position of intelligently screening appropriate
cases for host nation prosecution (if host nation minimum procedural
guarantees are met) when it serves U.S. as well as host nation
interests.

Department of Defense efforts to develop concrete standards in the FGSs
are a significant step forward. Their usefulness becomes diluted,
however, by not linking FGS standards with enforcement mechanisms. A
lack of enforcement mechanisms also dilutes legitimate U.S. interests in
disciplining its own forces, particularly military members. Compounding
these problems will be the inevitable questioning and occasional
confrontation by host nation authorities as to the U.S. basis to
prosecute its forces for environmental offenses and an intense interest
in what action is, in fact, taken against an offender ‑ the U. S. should
prepare now to answer these questions. Military discipline and
environmental compliance are not inconsistent goals, but it is high time
for the DoD and its components to match the rhetoric\"\' about
environmental compliance overseas with action. At the same time, the
U.S. will help preserve the SOFAs as a cornerstone of modem American
strategic policy, while working to resolve critical environmental issues
among signatories.

\*/ Major Ruppert (B.A., University of Cincinnati; J.D., Ohio State
University; LL.M, George Washington University) is Chief, Environmental
Law, Headquarters United States Space Command, Peterson Air Force Base,
Colorado. He is a member of the Colorado and Michigan State Bars.

1\. Throughout this article, the term \"forces\" describes active duty
members of the United States military services and civilian employees of
these services.

2\. For example, as the number of active duty personnel in the
Department of Defense (DoD) declined from 2,138,213 in 1988 to 1,610,490
in 1994, the total number of active duty military personnel assigned
overseas disproportionately declined from 458,446 in 1988 to 251,122 in
1994. See DoD Selected Manpower Statistics for Fiscal Year 1994, tbl.
2‑16 (Sept. 30, 1994).

3\. The following countries make military installations available to the
United States where U.S. forces maintain a significant presence:
Germany, Japan, Korea, the United Kingdom, and Italy See DoD Worldwide
Manpower Distribution by Geographical Area, tbl. 309 (Sept. 30, 1994).
United States forces also maintain a sizable presence in Greece,
Iceland, the Netherlands, Portugal (Azores), Spain, Turkey Australia,
Bermuda, Canada, Cuba, Diego Garcia, Greenland, and Panama. Id The
number of overseas installations that continue to be used by U,S. forces
is shrinking due to overseas base \"closures\" (turning installations
back over to host nations) driven by the study mandated in Sec. 206(b)
of the Defense Authorization Amendments and Base Closure and Realignment
Act Pub. L. No. 100‑526, 102 Stat 2623 (1988). As overseas installations
are turned over to host nations, however, remaining overseas
installations used by U.S. forces are subject to a heavy influx of
temporarily assigned forces in the wake of a decreased \"permanent\"
presence and a steady increase since 1990 in overseas deployments for
exercises and real world combat operations. See Robert S. Dudney, Size
Down, Work Up, A. F. MAG., Jan. 1995, at 12.

4\. Customary international law is defined as \"a general practice
accepted as law.\" J. BRIERLY, THE LAW OF NATIONS 60 (6th ed. 1963).

5\. The meaning of \"sending,\" \"host,\" and \"receiving\" nations or
States is illustrated by the following example. When the United States
deploys forces to be stationed in the territory of Germany, the United
States is the sending State and Germany is the receiving or host State.

6\. S. LAZAREFF, STATUS OF MILITARY FORCES UNDER CURRENT INTERNATIONAL
LAW 9 (1971).

The classic controversy arises primarily over winch nation has the right
to first exercise jurisdiction over the offending member of the visiting
force.

7\. G. HACKWORTH, DIGEST OF INTERNATIONAL LAW 84 (194 1). *See also* The
Case of the S.S. Lotus, P.C.I.J., Ser. A, No. 10 (1927). This general
rule does not apply during armed conflict in enemy or occupied territory
when sending State forces are immune from local criminal jurisdiction.
LAZAREFF, supra note 6, at 13.

8\. The dilemma. in resolving these competing sovereign interests has
been repeatedly discussed by commentators. *See, e.g., Criminal
Jurisdiction Over American Armed Forces Abroad,* 70 HARV. L. REV. 1043,
1046 n.22 (1957).

9\. The basis for such jurisdiction is that a member of the sending
State forces is a representative of the sovereign, and as suck is
accountable only under the \"law of the flag\" of the sending State.
Stanger, *Criminal Jurisdiction Over Visiting Armed Forces,* 52 U. S.
NAVAL WAR C. INT\'L STUDIES 8(1965).

*10. 11* U.S. (7 Cranch) 116 (1812).

11\. S. LAZAREFF, supra note 6, at 15. The often cited dicta by Chief
Justice Marshall states, \"The grant of a free passage \[through a
foreign nation\], therefore, implies a waiver of all jurisdiction over
the troops, during their passage, and permits the foreign general to use
that discipline, and to inflict those punishments which his army may
require.\" 11 U.S. (7 Cranch) at 139.

12\. Dow v. Johnson, 100 U.S. 158, 165 (1879); Coleman v. Tennessee, 97
U.S. 509, 516 (1878).

13\. Chief justice Marshall Wrote:

The jurisdiction of the nation within its own territory is necessarily
exclusive and absolute. It is susceptible of no limitation not imposed
by itself \[A\]ll exceptions, therefore, to the full and complete power
of a nation within its own territories, must be traced up to the consent
of the nation itself \... This consent may be either express or implied.

11 U.S. (7 Cranch) at 136.

14\. Steven I Lepper, *A Primer on Foreign Criminal Jurisdiction,* 37
A.F. L. REV. 169, 171 (1994).

15\. S. LAZAREFF, *supra* note 6, at 21‑28. *See, e.g.,* Agreement
Between the United States of America and the United Kingdom of Great
Britain and Northern Ireland Respecting Criminal Jurisdiction Over
Criminal Offenses Committed by Armed Forces, July 27, 1942, 57 STAT.
1193, E.A.S. No. 355. *See also* Department of Defense Response to
Inquiry from the Government of Australia, reprinted in 58 AM. J.
INT\'LL. 994 (1964).

*16. See, e.g., Hearings on H.J. Res. 309 and Similar Measures Before
the House Committee on Foreign Affairs,* 84th Cong., 1st Sess. (1954),
at 349. The 1951 MANUAL FOR COURTS‑MARTIAL asserted that criminal
jurisdiction over American forces \"remains\" in the United States under
international law. *Criminal Jurisdiction Over American Armed Forces
Abroad, supra* note 8, at 1049 n.42.

17\. Concurrent jurisdiction, as that term is expressed in customary
international law and SOFA provisions, refers to jurisdiction over a
member of the visiting force who commits an offense that is a violation
of the laws of both the sending and receiving States.

18\. Several developments facilitated this change. Forces were to be
\"permanently\" stationed overseas, not temporarily. The U.S. State
Department adopted a restrictive theory of sovereign immunity such that
sovereign or public acts, but not private acts, would be given sovereign
immunity. 26 DEP\'T ST. BULL. 984‑985 (1952) (the Tate Letter). During
the North Atlantic Treaty Organization (NATO) SOFA Congressional
hearings, the Departments of State and Justice took the position that
there existed no implied immunity from the criminal jurisdiction of
local courts under international law. *Hearing before the Committee on
Foreign Relations on the Status of North Atlantic Treaty Organization,
Armed Forces, and Military Headquarters,* 83d Cong., 1st Sess. (1953) at
29 \[hereinafter Foreign Relations Committee Hearings\]. DEPARTMENT OF
JUSTICE MEMORANDUM ON INTERNATIONAL LAW AND THE STATUS OF FORCES
AGREEMENT, *reprinted in Supplementary Hearings before the Senate Comm.
on Foreign Relations on Status of Forces of the North Atlantic Treaty,*
83d Cong., 1st Sess. (1953), at 38‑56.

19\. Agreement between the Parties to the North Atlantic Treaty
regarding the Status of Their Forces, June 19,1951, 4 U.S.T. 1792,199
U.N.T.S. 67 \[hereinafter NATO SOFA\].

20\. Mark D. Welton, *The NATO Stationing Agreements in the Federal
Republic of Germany: Old Law and* New *Politics,* 122 MIL. L. REV. 77,
95 (1988). Permanently stationing U.S. forces overseas in peacetime
under a general rule of international law subjecting them fully to host
nation jurisdiction is not acceptable for political reasons. The need to
exercise consistent military discipline over the force is another
important concern. *See* Richard J. Erickson, *Status of Forces
Agreements: A Sharing of Sovereign Prerogative,* 37 A.F. L. REV. 137,140
(1994).

21\. NATO SOFA, Supra note 19, art. VII, paras. 1‑3.

22\. Id. at para. 3.

23\. Welton, supra note 20.

24\. The NATO SOFA was the blueprint for subsequent agreements, which
generally follow its jurisdictional allocation scheme. *See, e.g.,*
Agreement Under Article VI of the Treaty of Mutual Cooperation and
Security Between the United States of America and Japan, Regarding
Facilities and Areas and the Status of United States Armed Forces in
Japan with Agreed Minutes, Jan. 19, 1960, 11 U.S.T. 1652, 373 U.N.T.S.
248 \[hereinafter Japan SOFA\], Article XVII; Agreement Under Article IV
of the Mutual Defense Treaty Between the United States of America and
the Republic of Korea, Regarding Facilities and Areas and the Status of
United States Armed Forces in the Republic of Korea with Agreed Minutes,
Agreed Understandings, Exchange of Letters and Other Implementing
Agreements, Jul. 9, 1966, 17 U.S.T. 1677, 674 U.N.T.S. 163 \[hereinafter
Korea SOFA\], Article XXII.

25\. GEORGE STAMBUK, AMERICAN MILITARY FORCES ABROAD 52 (1963). *See
also* G.I.A.D. DRAPER, CIVILIANS AND THE NATO STATUS OF FORCES AGREEMENT
12‑13 (1966).

26\. E.g., Smallwood v. Clifford, 286 F. Supp. 97, 100‑02 (D.D.C. 1968),
*judgment vacated as* moot, No. 22,053 (D.C. Cir. May 14, 1969). *See
also* United States v. Murphy, 18 M.J. 220 (C.M.A. 1984).

27\. Paragraph I reads as follows:

1\. Subject to the provisions of this Article,

\(a\) the military authorities of the sending State shall have the right
to exercise within the receiving State all criminal and disciplinary
jurisdiction conferred on them by the law of the sending State over all
persons subject to the military law of that State;

\(b\) the authorities of the receiving State shall have jurisdiction
over the members of a **force or** civil component and their dependents
with respect to offenses committed within the Territory of the receiving
State and punishable by the law of that State. NATO SOFA, supra note 19,
at 1798.

28\. As a general rule, the U.S. as a sending State under a SOFA
jurisdictional allocation scheme may exercise criminal jurisdiction only
over its military members. *See infra* part III.A.3.

29\. Paragraph 2 of art. VII provides in part:

\(a\) The military authorities of the sending State shall have the right
to exercise exclusive jurisdiction over persons subject to the military
law of that State with respect to offenses \... punishable by its law
but not by the law of the receiving State.

\(b\) The authorities of the receiving State shall have the right to
exercise exclusive jurisdiction over members of a force or civilian
component and their dependents with respect to offenses \... punishable
by its law but not by the law of the sending State. NATO SOFA, supra
note 19. Given the international growth in environmental sensitivity and
burgeoning legislation *(see infra* parts III.B.3. and IV), it is
difficult to conceive of many cases where the U.S. would have exclusive
jurisdiction over forces committing environmental offenses.

30\. Paragraph 3 of art. VII allocates primary concurrent jurisdiction
as follows:

\(a\) The military authorities of the sending State shall have the
primary right to exercise jurisdiction over a member of a force or a
civilian component in relation to

\(i\) offenses solely against the property or security of that State, or
offenses solely against the person or property of another member of the
force or civilian component of that State or of a dependent;

\(ii\) offenses arising out of any act or omission done in the
performance of official duty.

\(b\) In the case of any other offense the authorities of the receiving
State shall have the primary right to exercise jurisdiction.

\(c\) If the State having the primary right decides not to exercise
jurisdiction, it shall notify the authorities of the other State as soon
as practicable. The authorities of the State having the primary right
shall give sympathetic consideration to a request from the authorities
of the other state for a waiver of its right in cases where that other
State considers such waiver to be of particular importance.

Id.

31\. S. LAZAREFF, *supra* note 6, at 160.

32\. This exception\'s application over the years and in the newer
context of environmental violations is fraught with uncertainty. *See
infra* part V.A. The other exception, known as the *inter* se exception,
is not addressed herein since its application would likely be rare in
the instance of most environmental violations affecting the host nations
property (the installation itself used by U.S. forces) or host nation
personnel. *See* JOSEPH M. SNEE & KENNETH A. PYE, STATUS OF FORCES
AGREEMENT: CRIMINAL JURISDICTION 55 (1957).

*33. See* JOHN WOODLIFFE, THE PEACETIME USE OF FOREIGN MILITARY
INSTALLATIONS UNDER MODERN INTERNATIONAL LAW 178 (1992). *See also S.*
LAZAREFF, supra note 6, at 170.

*34. See, e.g.,* G. DRAPER, supra note 25, at 14. This has been a
prevailing practice between the U.S. and several SOFA signatories.

35\. Lepper, supra note 14, at 176.

*36. See also* Japan SOFA, supra note 24, art. XVII, para. 3(c); Korea
SOFA, supra note 24, art. NMI, para. 3(c).

*37.* For example, during the period from Dec. 1, 1993 to Nov. 30, 1994,
the total number of U.S. military members subject to primary foreign
jurisdiction was 5840, and a waiver was obtained by the United States in
4492 cases (or 89%). The bulk of these numbers occurred in Germany
(3890), where the waiver rate was 99.9%. The waiver rate in other
countries was Korea ‑ 97%, Italy 50.3%, Japan ‑ 34.9%, and United
Kingdom ‑ 30.7%. Release to the United States of civilians subject to
exclusive foreign jurisdiction was 22.5% worldwide, with the majority of
cases occurring in Germany (1153 of 1646). DoD Report, Statistics on the
Exercise of Criminal Jurisdiction by Foreign Tribunals over United
States Personnel (1 Dec. 1993 ‑ 30 Nov. 1994) (prepared by the
Department of the Army, Office of the Judge Advocate General, as DoD\'s
Executive Agent).

38\. G. STAMBUCK, supra note 25, at 110‑11. United States military
authorities have advanced several explanations for American success in
securing waivers, including: growing confidence of host nation
prosecutors and courts in the U.S. military justice system; better
sending State‑receiving State communications in these matters; the
perception that U.S. military authorities deal more firmly with
offenders than local courts; and the natural desire of receiving states
to conserve judicial and law enforcement resources. United States Army,
Europe & 7th Army, International Affairs Division, Recall Rate, Ten‑Year
Analysis: 1977‑1986 (1986), *cited in* Davis, *Waiver and Recall of
Primary Concurrent Jurisdiction in Germany,* THE ARMY LAW., May 1988, at
30.

*39. See infra* part II.D. for a discussion of contentious death penalty
cases which change the rules and practice of primary concurrent
jurisdiction. *See infra* part V.A. for a discussion of environmental
offenses styled as official duty cases.

40\. Despite the lack of U.S. military criminal jurisdiction over
civilian employees, we have the authority to request host nation release
of civilian cases where administrative sanctions provide a suitable
corrective action. Army Reg. 27‑50/ SECNAVINST 5820.4G/Air Force Reg.
110‑12 (Jan. 14, 1990), Status of Forces Policies, Procedures, and
Information, para. 1‑7(b) (on file with U.S. Army, Navy, and Air Force
Offices of The Judge Advocate General) \[hereinafter SOFA Tri‑Service
Regulation\]. *See* discussion infra part VI.A.

41\. J. SNEE & K. PYE, supra note 32, at 30‑3 1.

42\. Senate Res., Ratification With Reservations, NATO SOFA, supra note
19, at 1828.

43\. Id.

44\. The DoD implemented the Senate\'s mandate in DoD Directive 5525. 1,
Status of Forces Policies and Information (Jan. 20, 1966). Its standards
and procedures are reproduced in the SOFA Tri‑Service Regulation, supra
note 40. The regulation provides that \"\[c\]onstant efforts will be
made to establish relationships and methods of operation with host
country authorities that will maximize U.S. jurisdiction to the extent
permitted by applicable agreements.\" Id. at para 1‑7(a).

The Judge Advocate General of the Air Force cites another major reason
behind this policy as the need to maintain morale and discipline in the
armed forces. Letter from The Judge Advocate General to Staff Judge
Advocates (Sep. 12, 1974), cited *in* Air Force Pamphlet 110‑3, Civil
Law, para. 19‑17b, n. 92 (Dec. 11, 1987) \[hereinafter AFP 110‑3\] (on
file with the International and Operations Law Division, Office of the
Judge Advocate General, U.S. Air Force). This policy to maximize
jurisdiction has generally been adopted by Military Country
Representatives. *See, e.g,* U.S. Sending State Office for Italy
Instruction 5820.1B, Operating Procedures in Italy Under Article VII,
NATO Status of Forces Agreement (Feb. 23, 1994) (on file with the U.S.
Sending State Office, Rome, Italy), providing that waivers of primary
and exclusive Italian jurisdiction shall be requested \"when the
commander believes the case has particular importance in maintaining
proper standards of discipline.\" Id. at para. 15.

45\. Williams v. Froehlke, 490 F.2d 998, 1004 (2d Cir. 1974) (\"it was
undoubtedly thought \[by Congress\] a boon to the accused to permit his
trial in a court‑martial rather than in a foreign court where a soldier
might be subject to varying degrees of xenophobia\"); Gallagher v.
United States, 423 F.2d 1371, 1374, 191 Ct. Cl. 546 (1970), *cert.
denied,* 400 U.S. 849 (1970) (judge took judicial notice that many
servicemen are stationed in overseas areas, \"some of which have a
reputation for harsh laws and savagely operated penal institutions\").

46 J. WOODLIFFE, supra note 33, at 182‑83. See also S. LAZAREFF, supra
note 6, at 194‑95.

47 Agreement With Annex between the United States of America and the
Netherlands regarding Stationing of United States Armed Forces in the
Netherlands, Aug. 13, 1954, 6 U.S.T. 103, 251 U.N.T.S. 91. The Agreement
recognizes \"the primary responsibility of the United States authorities
to maintain good order and discipline where persons subject to United
States military law are concerned.\" Id. at 106.

48\. J. WOODLIFFE, supre note 33, at 183.

49\. Agreement to Supplement the Agreement between the Parties to the
North Atlantic Treaty regarding the Status of their Forces with Respect
to stationed in the Federal Republic of Germany, with Protocol of
Signature, Aug. 3, 1959, 14 U.S.T. 531, 481 U.N.T.S. 262 \[hereinafter
German Supplementary Agreement\].

50\. The Germans have 21 days to exercise a recall after sending State
notification of particular cases falling under the waiver provision. Id
at an. 19, paras. 2 and 3.

51\. Lepper, supra note 14, at 177.

52\. J. WOODLIFFE, supra note 33, at 190. See also G. DRAPER, supra note
25, at 2.

53\. Welton, supra note 20, at 114.

54\. Welton Cites the example of Frances Withdrawal from the Military
Structure of the NATO alliance in the 1960s as an illustration of
sovereigntys contemporary political overtones. Id. at 88‑89

55\. While the basic **SOFA** framework remains Constant the particular
rights and responsibilities within those agreements take on
characteristics shaped by political changes occurring within the States
that are parties to these agreements and by the greater international
climate. These internal and non‑security driven external factors gain
more influence on evolving notions of sovereignty when the host nation
perceives receding external security threats. *See* John E. Parkerson,
Jr., *Book Review: The Peacetime Use of Foreign Military Installations
Under Modern International Law,* 141 Mil. L. REV. 232, 234‑35 (1993).

56\. R. HARKAVY, GREAT POWER COMPETITION FOR OVERSEAS BASES: THE
GEOPOLITICS OF ACCESS DIPLOMACY 9 (1982).

57\. J. WOODLIFFE, supra note 33, at 324‑25. Protests concerning sending
State force activities is often directed at the host nation military
authorities who strive to work with U.S. forces under the SOFA but are
sometimes lumped together as \"militaries\" that are \"self‑regulating,
arrogant speaking a different language, having a different culture, and
making up their own rules.\" *See, e.g.,* John M. Broder, U.S. *Military
Leaves Toxic* Trail *Overseas, L.A.* TIMES 18, 1990, at *Al* (quoting a
member of the Green Party in the legislature of the German state of
Rheinland‑Pfalz).

58\. Id. at 325‑26. Even before these events leading to the perception
of a reduced threat and reduced need for U.S. forces stationed there,
Germany in the 1980s became more aware of visiting NATO forces\'
environmental, economic, and social impacts. *See, e.g.,* Apel, *The SPD
Remains Firmly Committed to* NATO, 35 AUSSENPOLITIK 140, 144 (1984)
(\"we have to ask ourselves whether our country is today \... not
already bearing an unduly heavy burden\").

59\. The Agreement to Amend the Agreement of 3 August 1959, as Amended
by the Agreements of 21 October 1971 and 18 May 1981, to Supplement the
Agreement between the Parties to the North Atlantic Treaty regarding the
Status of their Forces with respect to Foreign Forces Stationed in the
Federal Republic of Germany \[hereinafter Revised Supplementary
Agreement\] was signed in Bonn, Germany, on Mar. 18, 1993, by
representatives of the German Government and the six NATO sending
States, including the United States. These amendments will not become
effective until ratified by each signatory according to its
constitutional requirements. The substance of these amendments as they
pertain to U.S. forces! environmental compliance in Germany is discussed
*infra* part III.B.4.

60\. Any doubt about Germany\'s full Sovereignty Was finally dispelled
legally in the 1990 Treaty on the Final Settlement with respect to
Germany, September 12, 1990, 29 I.L.M. 1186 (1990). Specifically, art.
7(2) provides, \"The united Germany shall have accordingly full
sovereignty over its internal and external affairs.\" Id.

61 Parkerson, *supra* note 55, at 237.

62\. Article 53, para. 1, of the Revised Supplementary Agreement *supra*
note 59, provides that German law shall apply to the use of
installations by sending State forces except as provided in the Revised
Supplementary Agreement or other international agreements. In contrast,
art. 53, para. 1, of the German Supplementary Agreement *supra* note 49,
provides that sending State forces may apply their own regulations in
the fields of public safety and order where such regulations prescribe
standards equal to or higher than those prescribed by German law. The
new art. 53, when it applies, seems to render moot the old controversy
of the relationship between art. 53 and art. II of the NATO SOFA, which
require a sending State\'s force to \"respect\" the law of the receiving
State. Cf Welton, *supra* note 20, at 103‑05. *See infra* part III.B.3.

63\. See discussion *infra* part III.B.4.

*64. See e*.g, Welton, *supra* note 20, at 115. In analyzing the
disconnect between emerging German sovereignty and the NATO SOFA/German
Supplementary Agreement the Welton concludes, \"\[t\]here is virtually
no possibility that these agreements will be amended or abrogated in the
foreseeable future, so they will most likely continue to regulate the
activities of the sending states\' forces.

65\. John E. Parkerson, Jr. & Carolyn S. Stoehr, *The U.S Military Death
Penalty* in *Europe: Threats from Recent European Human Rights
Developments,* 129 MIL. L. REV. 41, 51 (1990).

66\. See NATO SOFA, art. VII, para. 3(a)(I), supra note 30.

67\. European Convention for the protection of Human Rights and
Fundamental Freedoms, November 4, 1950, 213 U.N.T. S. 221.

68\. Short v. Kingdom of The Netherlands, Nos. 13,949, 13,950,
*excerpted and translated in* 29 I.L.M. 1388 (1990) (The Dutch High
court ruled that The Netherlands! obligation under the Convention must
prevail over the conflicting allocation of SOFA jurisdiction). A more
detailed summary of the *Short* case is found in John E. Parkerson &
Steven J. Lepper, *Short v. Kingdom of the Netherlands, International*
Decisions, 85 A.J.LL. 698 (1991). Short was later returned to U.S.
authority after a delicate balancing of sovereignty by U.S. military
authorities who conducted an investigation to refer the case to trial as
noncapital, and the Dutch authorities then receiving previously
requested assurance that the death penalty would not be unposed. See,
e.g, J. WOODLIFFE, supra note 33, at 189.

69\. The EU was formerly called the European Community. It was first
established as the European Economic Community by the Treaty
Establishing the European Economic Community, Mar. 25, 1957, 298
U.N.T.S. 11. The Maastricht Treaty builds upon this treaty with more
sophisticated efforts toward economic and monetary unification. Treaty
on European Union, 1992 O.J. (C 224/1).

70\. The Single European Act incorporated Title VII, the environmental
title, into the Treaty of Rome with arts. 130r through 130t. O.J. L
169/1 (June 29, 1987) (adopted 1985, effective July 1, 1987).

71\. For an excellent discussion of EU environmental law, *see* Turner
T. Smith & Roszell D. Hunter, The European Community Environmental Legal
System, 22 ENVTL L. REP. 10106 (Feb. 1992). This area is briefly
discussed infra at part IV.

72\. Council Regulation 259/93 on the Supervision and Control of
Shipments of Waste within, into and out of the European Community, 1993
O.J. (L 30). This binding European Union regulation implements the
provisions of the Basel Convention on Transboundary Movements of
Hazardous Wastes and their Disposal, Mar. 22, 1989, 28 I.L.M. 649 (1989)
\[hereinafter Basel Convention\].

73\. Id.

74\. The United States apparently took the position that the NATO SOFA
was equivalent to a multilateral agreement under art. 11 of the Basel
Convention, thus exempting U.S. forces\' shipments from the requirements
of the EC Regulation, although art. 11 recognized such agreements only
if not derogating from the sound management of hazardous waste as
required by the Basel Convention and no less environmentally sound than
the Convention. *See* Letter from Col. Joseph O. Pflanz, Jr., Commander,
Defense Reutilization and Marketing Region‑Europe (Jul. 11, 1994) (on
file with that office).

75\. Paragraphs 4 and 5 of art. 4 of the Basel Convention, supra note
72, provide that illegal traffic in hazardous waste is criminal and that
parties to the convention shall take action to enforce the convention,
including punishment of conduct contravening the convention.

76 Cf. Parkerson & Lepper, supra note 68, at 701 (asserting that in the
Short case the Dutch obligations under the Human Rights Convention and
the NATO SOFA were not truly incompatible).

77\. 213 U.S. 347, 356 (1909) (rejecting extraterritoriality as \"an
interference with the authority of another sovereign, contrary to the
comity of nations\").

78\. Blackmer v. United States, 284 U.S. 421, 437 (1932) (the question
is whether a contrary intent appears in the statute to rebut the
territorial is only a presumption).

79\. 336 U.S. 281 (1949).

80\. Id. at 285.

81\. 499 U.S. 244 (1991). Taken together, these cases comprise what has
become known as the *Foley Bros./ARAMCO* presumption.

*82. Id.* at 248. *See also* Smith v. United States, 113 S. Ct. 1178
(1993).

*83. Id,* at 248. *See also Foley Bros.,* 336 U.S. at 285‑87.

*84. See* Jonathan Turley, *\"\"en in Rome\": Multinational Misconduct
and the Presumption Against Extraterritoriality,* 84 N.W. UL. REV 598
(1990).

*85. See, e.g.,* Jennifer A. Purvis, *The Long Arm of the Law?
Extraterritorial Application of U.S Environmental Legislation in Outer
Space, GEO* INT\'L ENVTL. L. REV. 455, 464‑65 (1994); Turley, supra note
84 at 608,627‑34; Richard A. Wegman & Harold G. Bailey, *The Challenge
of Cleaning Up Military Wastes \"en U.S Bases are Closed,* 21 ECOLOGY L.
Q. 865, 924‑25 (1994).

*86.* National Environmental Policy Act of 1969, 42 U.S.C. Sec. 4332
(1994) \[hereinafter NEPA\].

87\. Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S. C. Secs. 9601(8) and 9605(a)(8)(A) (1994)
\[hereinafter CERCLA\].

88\. Federal Water Pollution Control Act, 33 U.S.C. Secs. 1251(a) and
1362(7) (1994) \[hereinafter CWA\].

89\. Clean Air Act 42 U.S.C. Secs. 7401(b) and 7407 (1994) \[hereinafter
CAA\].

90\. Resource Conservation and Recovery AM Secs. 6901 to 6992k (1994)
\[hereinafter RCRA\].

91\. 775 F. Supp. 668 (S.D.N.Y. 1991). The plaintiff had arranged for
waste residues generated by the defendant to be shipped to the United
Kingdom for recovery, but upon discovery that the shipment contained
hazardous waste, the plaintiff attempted to bring an action under
RCRA\'s citizen suit provisions alleging \"imminent and substantial
endangerment\" to workers in the United Kingdom.

92\. RCRA was passed to address the problem of waste disposal as \"a
matter national in scope\"; and Congress found that \"alternatives to
existing methods of land disposal must be developed since many of the
cities in the United States will be running out of suitable solid
disposal sites\" Id. at 675‑76.

93\. Id. The Court further noted that the defendants polciy arguments
that extraterritorial application of RCRA could create awkward foreign
relations difficulties, though not determinative, were persuasive. Id.
at 676, n. 11.

94\. 911 F.2d 117 (8th Cir. 1990). The Eighth Circuit upheld a district
courts decision which found that Congress had intended the Endangered
Species Act requirements for interagency consultation to apply to
federal activities without regard to the location of the activities. The
Endangered Species Act of 1973, 16 U. S.C. Sec. 1536 (1994)
\[hereinafter ESA\].

95\. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992). In a
concurring opinion, Justice Stevens disagreed with the majority's
determination on standing, but concurred in the result since he believed
that Congress did not express a clear enough desire for the ESA to apply
outside the United States. Id. at 2147. *See also* David A. Mayfield,
*The Endangered Species Act and its Applicability to Deployment of U.S.
Forces Overseas* (Dec. 1994) (on file at The Judge Advocate General\'s
School, United States Army, Charlottesville, Va.).

96\. 42 U.S.C. Secs. 4321, 4331(A), and 4332(2)(F).

97\. Stryker\'s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223
(1980).

98\. 42 U.S.C. Sec. 4332(2)(C)

99\. Exec. Order No. 12,114,44 Fed. Reg. 1957, (1979) \[hereinafter E.O.
12,114\].

100\. Id. at para. 2‑3 (b).

101\. 986 F.2d 528 (D.C. Cir. 1993).

102\. Id. at 534‑35.

103\. 837 F. Supp. 466 (D.D.C. 1993).

104\. Id. at 467‑68. Of particular relevance to the subject of this
article is the Court\'s reliance on the Japan SOFA, supra note 24,
governing the activities of U.S. forces and the concomitant foreign
policy and sovereignty concerns in attempting to apply U.S. law
extraterritorially under these circumstances.

*105. See e.g.,* NATO SOFA, art. VII, para. 1 (a), supra note 27.

106\. Uniform Code of Military Justice, 10 U.S.C. Secs. 801‑946 (1994)
\[hereinafter UCMJ\]. The UCMJ is also found in the MANUAL FOR
COURTS‑MARTIAL, app. 2 (1995) \[hereinafter MCM\].

107\. 10 U.S.C. Sec. 805; MCM, supra note 106, art. 2, at A2‑1 to A2‑2.

108\. United States v. Keaton, 41 C.M.R. 64, 66 (C.M.A. 1969) *citing*
United States v. Bowman, 260 U.S. 94 (1922) (the U.S. Constitution does
not prevent the exercise of extraterritorial criminal jurisdiction). The
constitutional authority for Congress\'s extraterritorial application of
the UCMJ is U.S. CONST. art. I, Sec. 8, cl. 14, granting Congress the
power to \"make Rules for the Government and Regulation of the land and
naval Forces.\" *See* United States v. Schafer, 32 C.M.R. 83 (C.M.A.
1962).

109\. United. States v. Bennett, 12 M.J. 463 (C.M.A. 1982)

110\. O\'Calahan v. Parker, 395 U.S. 258 (1969).

111\. United States v. Solorio, 483 U.S. 435 (1987).

112\. MCM, *supra* note 106, part IV, Punitive Articles. The use of the
UCMJ for environmental prosecutions is discussed *infra* at Part V.

113\. 10 U.S.C. Sec. 802; MCM, *supra* note 106, part II, Rule for
Courts‑Martial 202(a). *See also* United States v. Loving, 34 M.J. 956,
967 (C.M.A. 1992) (the test for jurisdiction is one of status under
UCMJ, art. 2, not location, given the clear extraterritorial application
of the UCMJ).

114\. Article 2(a) 11 of the UCMJ provides for jurisdiction, subject to
any treaty or accepted rule of international law, over persons serving
with, employed by, or accompanying the armed forces outside the United
States or its territories. 10 U.S.C. Sec. 802(a)(10). A discussion of
jurisdiction over civilians during time of war is beyond the scope of
this article. *See generally* Susan S. Gibson, *Lack of Extraterritorial
Jurisdiction Over Civilians: A New Look at an Old Problem,* 148 MIL. L.
REV. 114 (1995).

115\. *See* G. DRAPER, *supra* note 25, at 51‑52. *See also AFP 110‑3,
supra* note 44, at para. 19‑13(a).

*116. See* Georges R. DeLaume, *Jurisdiction Over Crimes Committed
4broad.‑ French and American Law,* 21 GEO. WASH. L. REV. 179 (1952).

*117. UCMJ, supra* note 106.

118\. 354 U.S. 1 (1957).

119\. 361 U.S. 234 (1960).

120\. UCMJ, *supra* note 106.

121\. G. DRAPER, *supra* note 25 at 133.

122\. 361 U.S. 281 (1960).

123\. *See infra* part VI.

124\. Such a conclusion flows from the language of most SOFAs that
sending State jurisdiction emanates from its jurisdiction over persons
under military law. *See, e.g.,* NATO SOFA, art. VII, para. 2(a),
*supra* note 29. Interestingly, this result and the predicament of U.S.
force authorities trying to maximize jurisdiction in the absence of
concurrent jurisdiction runs contrary to the Senate\'s ratification of
the NATO SOFA. It is also clear that the Senate, in consenting to
ratification, believed that very few cases would be subject to exclusive
foreign jurisdiction, and assurances were given that most violations
would be punishable under the UCMJ. *See* Foreign Relations Committee
Hearings, supra note 18, cited *in I* SNEE & K.PYE, *supra* note 32, at
33.

125\. *See, e.g.,* Agreed Minutes to Korean SOFA, *supra* note 24, art.
XXII, para. I (a).

126\. The problem with respect to environmental offenses committed by
civilian employees of U.S. forces overseas is further examined *infra*
in part VI.

127\. United States V. Flores, 289 U.S. 137, 155‑57 (1933).

128\. General Accounting Office, Some Criminal Offenses Committed
Overseas by DoD Civilians Are Not Being Prosecuted: Legislation is
Needed 5 (1979) \[hereinafter GAO Report on Civilians\].

129\. 18 U.S.C. Sec. 7 (1994). *See also* Gregory A. McClelland, *The
Problem of Jurisdiction Over* Civilians *Accompanying the Forces
Overseas ‑ Still With Us,* 117 MIL. L. REV. 153,174 (1987).

130\. Id. Some courts have applied federal criminal law overseas even
when Congress is silent on extraterritorial application. For example, in
United States v. Layton, 855 F.2d 1388, 1395 (9th Cir. 1988), *cert.
denied,* 489 U.S. 1046 (1989), the Ninth Circuit held that 18 U.S.C.
Sec. 351, which prohibits the killing of a member of Congress, applied
extraterritorially to conduct in Guyana. It is beyond the scope of this
article to review all crimes in Title 18 with potential extraterritorial
application. Moreover, a review of Title 18 readily reveals that very
few provisions could apply to the environmental crimes discussed *supra*
pan III.A.2.

131\. The Statute provides:

Whoever, in any matter within the jurisdiction of any department or
agency of the United States knowingly and willfully falsifies, conceals
or covers‑up by any trick, scheme or device a material fact or makes any
false, fictitious or fraudulent statements or representations, or makes
or uses any false writing or document knowing the same could contain any
false, fictitious or fraudulent statement or entry, shall be fined not
more than \$ 10,000 or imprisoned not more than five years, or both.

18 U.S.C. Sec. 1001 (1994).

132\. 783 F.2d 852 (9th Cir. 1986).

133\. Substantive environmental obligations on U.S. forces overseas now
exist in the form of country‑specific final governing standards. *See
infra* part III.B.2.

134\. Should this provision apply, Congress has legislated venue to
adjudicate extraterritorial offenses in the federal district court in
the district where the offender is apprehended or first brought. 18
U.S.C. Sec. 3238 (1994). The application of any provision of U.S.
federal criminal law besides the UCMJ does not, however, address issues
of arrest, extradition, or conformity with SOFA procedures. *See infra*
part VI.B.

135\. E.O. *12,114, supra* note *99.*

136\. Id. Even U.S. military officials have noted the overbreadth of
E.O. 1*2,114* with respect to precluding the development of an EIS
process when it would otherwise make sense. Specifically,
\"participation\" by another nation is undefined, and therefore almost
any official involvement by host nation officials could block
preparation of an EIS. *See* General Accounting *Office, Improved
Procedures Needed for Environmental* Assessments *of U. S. Actions
Abroad 10 (1994).*

137\. Exec. order *No. 12,088, 43* Fed. Reg. *47,707 (1978)*
\[hereinafter E.O. *12,088\].*

138\. Id. at Secs. *1‑102,1‑*

*103.*

139\. Id.

140\. DoD Directive *5100.50, Protection and Enhancement of
Environmental Quality (1973)* (on

file with the Air Force Legal Services Agency, Environmental Law and
Litigation Division, Rosslyn, Virginia).

141\. Wegman & Bailey, *supra* note *85,* at *935.*

142\. House *Armed Services Hearings,* 101st Cong., 1st Sess. *10
(1991)* (statement of Rep. Ray).

143\. General Accounting Office, *Hazardous Waste: Management Problems
Continue at Overseas Military Bases 45 (1991)* \[hereinafter GAO Report
on Overseas Bases\]. This GAO Report examined ten bases in Germany,
Italy, the United Kingdom, Japan, Korea, and the Philippines and found
that the operations at these bases had violated both U.S. and host
nation environmental laws. Id. at *28, 46‑47.*

144\. National Defense Authorization Act for Fiscal Year 1991, Pub. L.
No. 101‑510, Sec. 342(b)(1), 104 Star. 1485, 1537 (1990) \[hereinafter
FY91 NDAA\]. Considerable commentary exists about Congress and DoD being
more concerned about environmental compliance at overseas bases than
with cleanup of bases (particularly those to be closed). Section
342(b)(2) of the FY91 NDAA required DoD to establish a cleanup policy.
The House version of the National Defense Authorization Act for Fiscal
Year 1993, Pub. L. No. 102‑484, Sec. 1301(e)(2)(A), 106 Star. 2315, 2545
(1992) called for the cost of environmental restoration at overseas
military bases to be borne by the host nation. The Senate responded with
an amendment for an \"equitable division\" of the restoration costs with
the host country. H.R. CONF REP. No. 966, 102d Cong., 2d Sess. 683,
*reprinted in* 1992 U.S.C.C.A.N. 1770, 1774. The DoD compliance policy
is well underway (discussed *infra* in part III.B.2), but no restoration
policy has yet been approved. A high level working group in, the
Pentagon is attempting to finalize a draft \"Environmental Remediation
Policy for DoD Activities Overseas.\" Interview with Lt. Col. David
Rathgeber, Director, Environmental Law Branch, Air Force Environmental
Law and Litigation Division, in Rosslyn, Va. (July 3, 1995)
\[hereinafter Rathgeber Interview\].

145\. DoD Directive 6050.16, *DoD Policy for Establishing and
Implementing Environmental Standards at Overseas Military Installations*
(199 1) (on file with the Office of the Deputy Assistant Secretary of
Defense (Environment)) \[hereinafter DoDD 6050.16\]. The directive
codified DoD\'s representation to Congress that it was prepared to apply
tough environmental standards to overseas facilities with ongoing
operations. *See DoD Envtl Programs Hearings Before the Readiness
Subcomm., the Envtl. Restoration Panel, and the Dep\'t of Energy Defense
Nuclear Facilities Panel of the House Comm. on Armed Servs.,* 102d
Cong., 1st Sess. 142 (199 1) (testimony of Thomas E. Baca, Deputy
Assistant Secretary of Defense (Environment)).

146\. Environmental executive agents (EAs) have been appointed by the
Secretary of Defense for each foreign country where the United States
maintains a substantial presence of forces. Such EAs are normally a
military department for countries in Europe (e.g., the U.S. Army for
Germany, the U.S. Navy for Italy, and the U.S. Air Force for the United
Kingdom); in Asia, the EAs are usually subordinate unified commands
(e.g., U.S. Forces Japan for Japan and U.S. Forces Korea for **South
Korea).**

147\. DoDD 6050.16, supra note 145, at paras. C. 1. and C.2.

148\. DEPARTMENT OF DEFENSE ENVTL. OVERSEAS TASK FORCE OVERSEAS
ENVIRONMENTAL BASELINE GUIDANCE DOCUMENT (1992) \[hereinafter OEBGD\].

149\. Consideration included statutory provisions and regulations for
RCRA, supra note 90; CWA, supra note 88; CAA, supra note 89; and ESA,
supra note 94. OEBGD, supra note 148, at 1‑4.

150\. These are defined as \"\[c\]ountry‑specific substantive
provisions, typically technical limitations on effluent discharges,
etc., or a specific management practice, with which installations must
comply.\" OEBGD, supra note 148, at 1‑2.

151\. Id. at 1.

152\. Id.

153\. Id. at chts. 2‑19.

154\. Id. at 1‑1.

155\. According to the OEBDG, \"Military Departments and Defense
Agencies will ensure compliance with the final governing standards
established by the Executive Agent \[and\] DoD Installation commanders
will comply with the final governing standards.\" Id. at 1‑6. This
directive has been Rather implemented by unified command regulations
mandating compliance. *See, e.g,* EUCOM Directive 80‑1, *Environmental
Matters,* paras. 7b and 8b (1994) (on file with the U.S. European
Command, Office of the Leo Advisor, Stuttgart, Germany). The final
governing standards should not employ discretionary judgments but
technically achievable concrete requirements. EUCOM Environmental
Executive. Agent Steering Committee Report, *OEBGD Questions and
Answers* (undated) (on file with the U.S. European Command, Office of
the Legal Advisor, Stuttgart, Germany) \[hereinafter EUCOM Report\].

156\. OEBGD, supra note 148, at 1‑3, 1‑5.

157\. Id. at 1‑8 to 1‑9. Executive agents are to approve such waivers,
unless the military department requesting the waiver is also the EA, in
which case the waiver must be referred to the next higher command
echelon. The EA may not waive treaty obligations. Id

158\. Id. at 1‑5 to 1‑6.

159\. Final governing Standards in final draft exist for Korea and
Germany but have not yet been approved. The German Final Governing
Standards \[hereinafter German FGS\] have not been approved by the EA
(U.S. Army) because an issue exists as to how to fund and pay for the
compliance mandated by the FGS, particularly at Army installations.
Although other final governing standards, such as those for Italy
\[hereinafter Italy FGS\], have been approved by the EA (U.S. Navy for
Italy), the Navy Comptroller has taken the position that FGS
requirements are not \"legal requirements\" for purposes of funding
environmental compliance. Telephone interviews with Cmdr. Michael
McGregor, U.S. European Command, Office of the Legal Advisor, Stuttgart,
Germany (July 5, 1995), and Lt. Col. Richard Phelps, U.S. Air Forces in
Europe, Office of the Staff Judge Advocate, Ramstein Air Base, Germany
(July 6, 1995) \[hereinafter Phelps Interview\].

160\. 0EBGD policy requires final governing Standards to include
substantive criteria Without referring to the source of the U.S. or
enforced host nation standard. The challenge in drafting many final
governing standards was in determining the host government \'s
enforcement record on a myriad of host nation environmental laws.
Telephone Interview with Lt. Col. Dean Rodgers, Staff Judge Advocate,
Air Force Center for Environmental Excellence, Brooks Air Force Base,
Texas (July 6, 1995) \[hereinafter Rodgers Interview\]. For example, The
U.S. position was that if the host nation did not enforce standards on
its own installations or exempted its military by law from those
standards, then such standards were not enforceable against U.S. forces.
EUCOM Report, supra note 155. *See also* Jody Meier Reitzes, *The
Inconsistent Implementation of the Environmental Laws of the European
Community,* 22 ENVTL. L. REP. 10523, 10524‑25 (1992) (enforcement among
EU Member nations varies considerably).

*161. See, e.g.,* Air Force Instruction 32‑7006, *Environmental Program
in Foreign Countries,* para. 3.3. (CD‑ROM Version, Mar. 1995) (on file
at the Air Force Environmental Law and Litigation Division, Rosslyn,
Virginia) \[hereinafter AFI 32‑7006\].

162\. OEBGD, *supra* note 148, at 1‑5. The OEBGD is not likely to be
updated until one year after the last final governing standards are
approved (Germany or Korea), and when published, will likely require
changes to every country\'s final governing standards., *See* Richard A.
Phelps, *Environmental Law at USAFE Installations 3* (1994) (distributed
at the Command Staff Judge Advocate Conference and on file with the U.S.
AN Forces in Europe Office of the Staff Judge Advocate).

163\. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW §§ 401‑03, 115
cmt d(1986).

164\. Article II of the NATO SOFA, *supra* note 19, provides: \"\[i\]t
is the duty of a force and its civilian component . . . to respect the
law of the receiving State, and to abstain from any activity
inconsistent with the spirit of the present Agreement\" *See also* Japan
SOFA, *supra* note 24, art. XVI, and Korea SOFA, *supra* note 24, art.
VII. The word \"respect\" is vague and problematic in that it implies
less than fall immunity from host nation law yet is not equivalent to
obey. Compliance in specific contexts with host nation law on a
particular subject has often been the subject of controversy and debate.
*See* Welton, *supra* note 20, at 95‑96, 107.

165\. AIR FORCE JUDGE ADVOCATE GENERAL SCHOOL, INTERNATIONAL AND
OPERATIONS LAW DESKBOOK VI‑6 (1995) (on file with the Office of The
Judge Advocate General, Air Force International and Operations Law
Division, Washington D.C.) \[hereinafter JAG INTERNATIONAL LAW
DESKBOOK\].

166\. In Germany, for example, the existing volume and diversity of
regulations, coupled with the fragmentation of German environmental laws
in general, provide major obstacles to German implementation and
enforcement leading to the creation of a commission by the German
Federal Minister of the Environment to consolidate and restate German
environmental law. *See* Hans D. Jarass & Joseph DiMento, *Through
Comparative Lawyers\' Goggles A Primer on German Environmental Law,* 6
GEO. INT\'L, ENVTL L. REV. 47,69‑70 (1994).

167\. See discussion supra note 160.

168\. See discussion supra note 162.

169\. Host nation administrative procedures for environmental compliance
are not required to be adopted in final governing standards. *See* EUCOM
Report, *supra* note 155. Thus, a \"notice of violation\" or \"report of
findings\" from host nation regulatory authorities is not generally
considered enforceable. *See, eg., AFI* 32‑7006 *supra* note 161, at
para. 6.3.5.

170\. Revixed Supplementary Agreement *supra* note 59.

171\. Article 53 of the Revised Supplementary Agreement adds the
following: German law shall apply to the use of such accommodation
\[i.e., installations of exclusive

U.S. use\] except as provided in the present Agreement and other
international agreements \... and other internal matters which have no
foreseeable effect on the rights

of third parties or on adjoining communities or the general public.

Id. Some U. S. officials do not believe this provision will cause a big
impact on current compliance because current environmental obligations
prescribed by German law apply under the current German Supplementary
Agreement *supra* note 49, art. 53, either as more protective public
safety standards or as encompassed in more protective U.S. public safety
standards. *See, eg.,* Richard A. Phelps, *Impact of the 1993
Supplementary Agreement to the NATO SOFA on Environmental Requirements
Applicable to USAFE Installations in the Federal Republic of Germany*
(1994), *reprinted in* JAG INTERNATIONAL LAW DESKBOOK, *supra* note 165,
at VI‑31 \[hereinafter, Phelps, Supplementary Agreement Impact\].

172\. Revised Supplementary Agreement, *supra* note 59, art. 54B.

173\. Id.

174\. Id. at art. 57.

175\. Id. at an. 63.

176\. The U.S. Army intends to incorporate the specific requirements
into the Germany FGS. *See* Phelps, Supplementary Agreement Impact,
*supra* note 171.

177\. See infra Part IV.

178\. Although Criminal provisions per Se do not exist in the final
governing Standards, It Would be essential for the United States to have
criminal provisions (and disciplinary provisions for civilian employees
accompanying the forces) at its disposal in an effort to maximize U.S.
jurisdiction over its forces committing environmental offenses. This
assumes the United States would be successful in asserting its final
governing standards as the \"sole compliance standard\" for its forces.

179\. United Nations Convention on Biological Diversity, Jan. 5, 1992,
31 I.L.M. 818, 824.

180\. In Europe, for example, public awareness of environmental issues
has developed as a result of the nuclear accident at Chernobyl, oil
spills in the North Seas and the Mediterranean, chemical spills in the
Rhine and other rivers, the acid ram problem in Central and Eastern
Europe, the greenhouse effect, and the depletion of the ozone layer. As
public awareness has fostered greater political debate, often initiated
by the Green Party, politics and legislation have followed. See, e.g.,
Mark Maremont, And Now, the Greening *of* Europe, Bus. WK., May 8, 1989,
at 98D; David Marsh, Pollution Control: Lessons *of* the Rhine, FIN
TIMES, Mar. 6, 1987, at 17; Tyler Marshall, Public Spurs Cleanup: West
Europe Has Its Fill *of Toxic* Waste, L.A. TIMES, Feb. 28, 1989 at Al.
William D. Montalbano, Focus on Environment Green Wave Surging Over West
Europe, L.A. TIMES, May 11, 1989, at Al. In South Korea, public
accusations of corporate dumping in a liver and a not protesting the
construction of a waste dump were unusually new occurrences in 1990.

See David P. Hackett, Environmental Regulation in South Korea, INT\'L
ENVTL, L. SPECIAL RPT. 382,384 (1992).

181\. GAO Report on Overseas Bases, supra note 143, at 45, 48.

182\. Id. Legal officials at the U.S. European Command, U.S. Army
Europe, U.S. Air Forces in Europe, and the Defense Logistics
Agency‑Europe all predicted such a reaction to GAO investigators due to
continually growing environmental sensitivities.

183\. Of the 251, 122 active duty military stationed in foreign
countries, there are 87,955 in Germany, 45,398 in Japan, 36,796 in
Korea, 13,781 in the United Kingdom, and 12,743 in Italy. DoD Military
Manpower Statistics, tbl. 13 (Sept. 30, 1994). Of the 101,091 DoD
civilian employees in foreign countries, there are 43,003 in Germany,
22,756 in Japan, 13,180 in Korea, 4,880 in Italy, and 2,301 in the
United Kingdom. Of the 220,153 dependents overseas, roughly the same
proportions apply in these countries. DoD Worldwide Manpower
Distribution by Geographical Area, *supra* note 1.

184\. Smith & Hunter, *supra* note 71, at 10117, 10135. *See* the Single
European Am supra note 70, giving the EC substantial new authority in
the field of environmental regulation. *See also* Gabrielle H.
Williamson, *Environmental Enforcement and Compliance in the European
Community,* INT\'L ENVTL. L. SPECIAL REP. 34, 3840 (1992).

185\. Id. It is anticipated, for example, that new EU environmental
legislation May soon impact U.S. forces\' activities at European bases
in areas such as movement of hazardous materials. *See, e.g.,* Wolfgang
H. Motz, *European Union and US Military Activities* (1994), *reprinted
in* AIR FORCE JAG INTERNATIONAL LAW DESKBOOK, *supra* note 165, at 1‑3
9, 1‑40.

186\. Williamson, *supra* note 184, at 45.

*187. See* Frederick M. Abbott *Regional Integration and the
Environment: The Evolution of Legal Regimes,* 68 CHI.‑KENT L. REV.
173,187 (1992).

*188. Id. See also* SUSAN ROSE‑ACKERMAN, CONTROLLING ENVIRONMENTAL
POLICY 110‑11 *(1995).*

189\. Smith & Hunter, supra note *71,* at 10 111; ROSE‑ACKERMAN, supra
note 188. The United States and its EU member nation allies would be
well advised to monitor this development closely for its potential
impact on SOFA obligations concerning environmental compliance.

190\. Unwelthaftungsgestz \[UGB\]. *See* Jarass & DiMento, supra note
*167,* at *65.*

191\. Strafgesetzbuch \[StGB\]. For an analysis of these substantive
provisions as they apply to US. forces in Germany, *see* Maxwell G.
Selz, *German Environmental Law A Primer,* ARMY LAW. *(May 1992).*

192\. Id. Secs. *324‑26.*

193\. Id

194\. Telephone interview with Wolfgang H. Motz, Command Host Nation Leo
Advisor, US. Air Forces in Europe (June *29, 1995)* \[hereinafter Motz
interview\]. An example cited by Mr. Motz of the increasing sensitivity
of the German government relates to compliance with discharge
(particularly wastewater) permits obtained for US. forces by the German
Ministry of Defense (a practice specifically required in the, Revised
Supplementary Agreement supra note *59,* art. *53A).* Given **this**
arrangement Germans themselves are concerned about becoming targets of
German prosecution for permit noncompliance by US. forces.

195\. David P. Hackett, *Environmental Regulation in Japan,* INT\'L
ENVTL. L. SPECIAL RPT. *329 (1992).*

196\. Id. at 333.

197\. Hackett, supra note 180, at 382.

198\. See supra part II.B.2. See, e.g., NATO SOFA, supra note 19, art.
VII, para. 3(a)(ii); Japan SOFA, supra note 24, art. XVII, para.
3(a)(ii); and Korea SOFA, supra note 24, aft. XXII, para. 3(a)(ii).

199\. J. SNEE & K. PYE, supra note 32, at 46.

200\. The SOFA negotiators themselves disagreed on the meaning Of this
language, although commentators assert they did agree that what
constitutes official duty is a matter for determination by the sending
State. See, e.g., S. LAZAREFF, supra note 6, at 175; J. WOODLIFFE, supra
note 33, at 179.

201\. Will H. Carroll, Official Duty Cases Under Status of Forces
Agreements: Modest Guidelines Toward a *Definition,* 12 A.F. L. REV. 284
(1970).

202\. See, e.g., AFP 110‑3, supra note 44, para. 19‑19d. The mechanism
for communicating this determination to a host nation is an \"official
duty certificate\" signed by a the commander or staff judge advocate of
the offender\'s unit. Id.

203\. See, e.g., German Supplementary Agreement supra note 49, art. 18
(stating this determination \"shall be made in accordance with the law
of the sending State\"); Agreed Minutes to aft XVII, Japan SOFA, supra
note 24 (stating this determination made on a certificate by a commander
\"shall, in any judicial proceedings, be sufficient evidence of the fact
unless the contrary is proved\"); Agreed Minutes to Korea SOFA, supra
note 24, art. XXII (stating this determination on a certificate by
competent military authorities \"shall be sufficient evidence of the
fact for the purpose of determining primary jurisdiction\").

204\. J. SNEE & K. PYE, supra note 32, at 50‑54; Stanger, supra note 9,
at 235‑38.

205\. An exception exists in the Korea SOFA, supra note 24, Agreed
Minutes to art. XXII, where the term official duty \"is meant to apply
only to acts which are required to be done as functions of those duties
which the individuals are performing.

206\. J. SNEE & K. PYE, supra note 32, at 49.

207\. Perhaps the most famous example occurred with a guard in Japan who
accidentally killed a Japanese woman with an empty shell from a grenade
launcher. The commander issued an official duty certificate, but Japan
resisted U.S. jurisdiction on the grounds that the guard had not acted
within the purview of his duties. After a Japanese outcry, the United
States waived whatever jurisdiction it had, creating an outcry in the
U.S. Congress. The case resulted in a Japanese prosecution and denial of
a writ of habeas corpus. See Wilson v. Girard, 354 U.S. 524 (1957).

208\. Foreign Criminal Jurisdiction Historical Perspective, JAG
INTERNATIONAL LAW DESKBOOK, supra note 165, at F-4; Carroll, supra note
20 1, at 287-88; AFP 110-3, supra note 44, para. 19-19j.

209\. See J. SNEE & K. PYE, supra note 32, at 48; Carroll, supra note
201, at 285-86.

210\. See discussion supra note 207.

211\. See G. STAMBUK, supra note 25, at 73.

212\. Virtually no policy or guidance exists for how Commanders and
their Staff judge advocates are to charge and prosecute cases under the
UCMJ for environmental offenses in the U.S. or overseas. There exists no
policy letter from any of The Judge Advocates General of the three
services concerning the charging of environmental crimes overseas.
Telephone Interview with Loren Perlstein Deputy Chief Air Force Military
Justice Division, Bolling Air Force Base Washington D.C. (Jul. 13,
1995). Moreover, some U.S. authorities are increasingly apprehensive
about host nations asking (or being forced by political circumstances to
ask) the United States for its statutory basis for concurrent criminal
jurisdiction over its forces in environmental cases, fearing the answer
could be embarrassing. Motz Interview, supra note 194.

213\. J. SNEE & K. PYE, supra note 32, at 3 1. *See* supra part I.B.2.
and note 36.

214\. *See, e.g.,* German Supplementary Agreement supra note 49, art.
17, para. 1, providing that a German court or authority dealing with a
case may request a certificate stating whether or not the act is
punishable by the law of the sending State; U.S. Sending Office for
Italy Instruction 5820. 1B, *Operating Procedures in Italy under Article
VII, NATO Status of Forces Agreement* (on file with the US. Sending
State Office, Rome, Italy), providing at para. 14c(2) that requests for
waiver of jurisdiction must not imply the United States can exercise
criminal jurisdiction if it cannot.

215\. 10 U.S. C. Sec. 892, cl. 3.

216\. MCM, supra note 106, pt. IV, Para. 16b.(3).,

217\. Id. Para. 16c.(3).

218\. Id.

219\. See JAG INTERNATIONAL LAW DESKBOOK, supra note 165, at VI‑ 14.
There are no reported cases in the military justice reporters discussing
a treaty obligation alone as the basis for an Article 92 prosecution.
Cf. UCMJ prosecutions under Article 92 for violating customs regulations
promulgated to implement SOFA customs provisions. *See, e*.g., United
States v. Kok 27 M.J. 710 (A.C.M.R. 1988).

220\. OEBGD, supra note 148, at 1‑3 (emphasis added).

221\. Id.

222\. A possible exception could be the Environmental Subcommittee
established pursuant to the Korea SOFA, supra note 24, art. XXVI, to
study issues and make recommendations to the U.S. Republic of Korea SOFA
Joint Committee concerning environmental matters, specifically
referenced in the Korea FGS Draft, infra note 224, para. 1‑10a. Such a
mechanism at least provides the vehicle for meshing FGS violations with
allocations of criminal jurisdiction.

223\. This author has been Unable in the Course of numerous interviews
With DOD officials to ascertain the purpose of this exculpatory language
in the OEBGD.

224\. Korea FGS Draft, Para 1‑4c (on file with U.S. Forces Korea,
Assistant Chief of Staff, Engineer) (drafted by an Army‑Navy‑Air Force
interservice committee).

225\. Japan FGS, para 1‑5 (Jan. 1995) (on Me with U.S. Forces Japan,
Office of the Civil Engineer) (drafted by an Army‑Navy‑Air Force
interservice committee).

226\. Italy FGS, para. MD (Apr.27,1994) (on file with U.S. European
Command, Office of the Legg Advisor) (drafted by the U. S. Navy as EA).

227\. See supra note 159.

228\. See, e.g., JAG INTERNATIONAL LAW DESKBOOK, supra note 165, at

Vl‑14.

229\. The German FGS Draft, supra note 159, does not contain this
disabling language. Phelps Interview, supra note 159.

230\. The United Kingdom FGS, para. 1‑3E (Jan. 1, 1994) \[hereinafter UK
FGS\] and the Turkey FGS, para. 1‑3E (Mar. 1, 1994) \[hereinafter Turkey
FGS\] (on file with the U.S. Air Forces in Europe, Office of the Staff
Judge Advocate) (drafted by the U.S. Air Force as EA) provide:

Individual members or employees of the Department of Defense will:

1\. Take action to ensure their conduct, and that of their subordinates
and dependents,

results in no discharge, deposit or release of substances, or other
effects that cause harm

to the environment or the natural and cultural resources of \[the host
country\] unless it is

in conformance with these final governing standards.

231\. Rogers Interview, supra note 160. Lt. Col. Rodgers also seems to
have succeeded in including environmental violations not related to
performance of duty, such as the case of a soldier dumping used oil down
a sewer dram.

232\. See. e.g., UK FGS, supra note 230, para. 1‑3D.2.

233\. Laurent R. Hourcle, Lecture at Federal Facilities Environmental
Law Issues Course, National Law Center, George Washington University
(Mar. 30, 1995). Accord Rathgeber Interview, supra note 144, discussing
the most common reasons for Notices of Violation from the U.S.
Environmental Protection Agency for DoD bases in the United States.

234\. Id. See also Margaret K. Minster, Federal Facilities and the
Deterrence Failure of Environmental Laws. The Case for Criminal
Prosecution fo Federal Employees, 18 HARV. ENVTL. L. REV. 137 (1994).

235\. AFI 32‑7006, supra note 161, ch. 6.

236\. UK FGS and Turkey FGS, supra note 230, para. 1‑3E.2.

237\. Another potential UCMJ Punitive article lending itself to false
reporting is art. 107, UCMJ, for making false official statements.

238\. 10 U. S.C. Sec. 892, cl. 1 \[hereinafter art. 92(l)\].

239\. MCM, supra note 106, *Para.* 16b.(l).

240\. Clause 2 of Article 92 likewise punishes the violation of
\"other\" regulations if the defendant had knowledge of the regulation.
While nonpunitive regulations incorporating portions of an FGS could be
issued, Articles 92(l) and 92(3) are better suited as vehicles to ensure
U.S. concurrent jurisdiction over environmental offenses.

241\. MCM, supra note 106, Para. l6c.(l)(c).

242\. See United States v. Sweitzer, 33 C.M.R. 251 (C.M.A. 1963).

243\. MCM, supra note 106, Para. 16c.(l)(e).

244\. See United States V. Nardell, 45 C.M.R. 101 (C.M.A. 1972).

245\. MCM supra note 106, para. 16c.(1)(a).

246\. Japan FGS, supra note 225, para. 1‑9.3.

247\. Rathgeber Interview, supra note 144.

248\. Phelps Interview, supra note 159. Lt. Col. Phelps believes that
the entire regulation should not be made punitive yet but that a prudent
start would be the area of most problems in the U.S. and overseas ‑ the
handling of hazardous waste. Id

249\. Perhaps the Simplest Way to make Standards punitive is to
specifically provide that violations of certain requirements are
punishable under Article 92 of the UCMJ. A country‑wide regulation would
be preferable to a patchwork of installation‑by‑installation
regulations.

250\. See J. SNEE & K. PYE, supra note 32, at 31. An example of such a
concern would be the issuance of punitive military regulations for minor
traffic infractions committed off an installation when the U.S. interest
in exercising jurisdiction is relatively slight.

251\. 10 U.S.C. Sec. 934, *cl. 2.*

252\. MCM supra note *106,* Para. *60c.(3).*

253\. Id.

254\. *See J.* SNEE & K. PYE, supra note *3 2,* at *25; 1 WOODLIFFE,*
supra note *33,* at 177.

255\. *See, e.g.,* United States v. Hughes, *7* C.M.R‑*803, 811*
(A.F.B.R. *1953)* (violations of British vehicle registration laws
without an allegation of circumstances showing injury to the reputation
of the armed forces by these minor misdemeanors was not a violation of
art. *134);* United States v. Singleton, *15* M.J. *579, 581‑582*
(A.C.M.R. *1983)* (although every breach of an allied country\'s law is
not an offense under art. *134,* violation of German law on the
importation of illegal drugs does cause the services to suffer a loss of
esteem and is an art. *134* offense).

256\. The OEBGD \"applies to DoD installations\" overseas and also
specifically excludes the application of its provisions to \"operational
and training deployments off‑base.\" OEBGD, supra note *148,* at 1‑1.
Following this lead, every FGS applies only to DoD installations in that
particular country and also excludes any off‑base deployments. Such
deployments are to be governed by an environmental annex to the
deployment plan which could, of course, include provisions enabling the
application of Article *92,* but such deployment plans are not drafted
under the compliance umbrella of the FGS.

257\. An excellent example of such a case that occurred in Germany is
discussed infra in part V.C., notes *272, 277* and accompanying text.

258\. 10 U.S.C. Sec. 909*.*

259\. MCM, supra note 106, Paras. 33c.(I) and (2).

260\. There has been one known court‑martial relating to environmental
offenses in the United States. In United States v. Woodward, an
unreported case, the defendant was convicted of falsifying documents
regarding the disposition of hazardous waste and improperly disposing of
such waste into a dumpster (receiving a sentence of 75 days of
confinement forfeiture of \$500 pay per month for two months, and a
reduction of two enlisted grades). *See* Orval Nangle, *Marine Corps
Officer and Employee Liability for Environmental Noncompliance,* 3 FED.
FACILITIES ENVTL. 1433, 442 (1992‑93).

261\. Motz Interview, supra note 194.

262\. Id. *See also* GAO Report on Overseas Bases, supra note 143, at
47.

263\. Motz Interview, supra note 194. The criminal investigation was
dropped when U.S. officials responded to the German request to comply.

264\. Id Mr Motz opined that the case might have been different if the
Germany FGS had

existed, and noted that this case is a classic example of the host
government not asking for the basis

of concurrent jurisdiction (he dunks none really existed then) and why
the United States did

nothing to the commander or anyone else after its efforts to seek
jurisdiction of the case.

Fortunately, the Germans in that case were satisfied with eventual
compliance.

265\. GAO Report on Overseas Bases, supra note 143, at 47. Letter from
Maj. R. Philip Deavel, Staff Judge Advocate, to Aviano Air Base
Commander (Oct. 5, 1992) (on file with the U.S. Sending State Office
Rome Italy).

266\. Id; Motz Interview, supra note 194.

267\. Letter from Aviano US. Commander to Aviano Italian Commander (Oct.
7, 1992) (on file with the U.S. Sending State Office, Rome, Italy). No
record exists in this pre‑OEBGD/FGS case of the basis for assuming the
United States possessed concurrent jurisdiction for dereliction of duty
if a culpable person would have been found.

268\. Telephone Interview with Maj. William Gampel, Deputy Officer in
Charge, U.S. Sending State Office, Rome, Italy (Jun. 27, 1995)
\[hereinafter Gampel Interview\]. According to Maj. Gainpel, such a
request by the Italian government is very rare, particularly when the
request was made almost six years after the incident.

269\. Letter from Maj. S. Lane Throssell, U.S. Sending State Office, to
Ministry of Grace and Justice (Apr. 26, 1995) (on file with U.S. Sending
State Office, Rome, Italy).

270\. 10 U.S.C. Sec. 815. This procedure provides a commander authority
to nonjudicially punish members in her command for violations of the
punitive articles of the UCMJ. The offender has the right to request a
trial by court‑martial to consider the charges.

271\. Telephone Interview With James Marlow, 17th Air Force, Chief of
International Law, Sembach Air Base, Germany (July 10, 1995).

*272. See Air* Force Office of Special Investigations (AFOSI) Report
9454lD26‑S750142 (on file at AFOSI Investigative Operations Center,
Environmental Crimes Division, Boiling Air Force Base, Washington D.C.)
\[hereinafter AFOSI Environmental Crimes Division\].

273\. Id.

274\. Telephone Interview With Maj. William Groves, Deputy Staff judge
Advocate, Ramstein Air Base, Germany (July 6, 1995) \[hereinafter Groves
Interview\].

275\. A proper and thorough investigation of environmental violations is
a key component to prosecution. Unfortunately, the few reported overseas
environmental cases investigated by AFOSI in the UK since the beginning
of 1994 apparently failed to consider the impact of the UK FGS, supra
note 230, on investigations for art. 92(3) violations (cases on file at
AFOSI Environmental Crimes Division).

276\. A similar conclusion was reached in a pre‑trial investigative
hearing conducted pursuant to Article 32, UCMJ, at Tyndall AFB, Fla., in
1992. The investigating officer recommended that the case not be
disposed of by court‑martial partly because of the lack of any
meaningful training or education program, as well as the lack of command
emphasis on hazardous waste disposal requirements. Report on file with
Investigating Officer, Lt. Col. P. Micheal Cunningham, Staff Judge
Advocate, Dover AFB, Del..

277\. Groves Interview, supra note 274. This case would have been a
suitable set of facts for the use of art. 134(2) (if any German law had
been violated )or for the use of art. 109 (if the draining was wrongful
under German law).

278\. The Aberdeen case is perhaps the most famous prosecution of a
federal employee for environmental violations. United States v. Dee, 912
F.2d 741 (4th Cir. 1990), cert. denied, 499 U.S. 919 (1991). In that
case, an employee informed the installation environmental coordinator of
the violations that ultimately formed the basis for the indictment and
when the violations continued, this whistleblower went to the Baltimore
Sun and Maryland State Police. See generally James P. Calve,
Environmental Crimes. Upping the Ante for Noncompliance with
Environmental Laws, 133 MIL. L. REV. 279, 325 (1991). United States
forces overseas are clearly not exempt from this source of disclosure,
thereby creating additional pressure on U.S. authorities to exercise
criminal jurisdiction themselves.

279\. An analysis of Civilian dependents and host nation civilian
employees working for U.S. forces is beyond the scope of this article.
Civilian dependents are covered by SOFA provisions and fall within the
U.S. policy of maximizing its jurisdiction. Local national employees are
not covered by SOFAs and remain fully subject to host nation laws.

280\. See, e.g., G. DRAPER, supra note 25, at 140; J. SNEE & K. PYE,
supra note 32, at 41; J. WOODLIFFE, supra note 33, at 176; Lepper, supra
note 14, at 180.

281\. See, e.g., NATO SOFA, art. VII, paras. 1(a) and 2(a), supra notes
27 and 29.

282\. See eg., G. DRAPER, *supra* note 25, at 53. See also AFP 110‑3,
*supra* note 44, para. 19‑19i (\"There being no concurrent jurisdiction,
there is no longer a basis in the SOFA provisions for the issuance of a
duty certificate for a civilian employee.\").

283\. Gampel Interview, supra note 268; Motz Interview, *supra* note
194. The SOFA Tri‑Service Regulation, *supra* note 40, provides: \"In
all cases in which the local commanders determine that suitable
corrective action can be taken under existing administrative
regulations, they may request the local foreign authorities to refrain
from exercising their jurisdiction.\" Asa practical matter, this charter
has meant virtually any caw. See discussion *supra* note 40.

284\. Occasionally, Commanders and their legal advisors Will attempt to
assert the Position that the language \"criminal and disciplinary
jurisdiction\" in SOFAS (see, e.g., NATO SOFA, art. VII, para. *I (a),
supra* note 27) implies actual concurrent jurisdiction. Rodgers
Interview, *supra* note 160.

Even cominentators occasionally confuse the issue by speaking of U.S.
requests for \"waivers in civilian cases, where the receiving state has
the Primary right\" Parkerson & Stoehr, *supra,* note 65, at 48, n.32.
In fact, they are simply requests to the receiving state to refrain from
the exercise of its exclusive right by not prosecuting at all. See J.
SNEE & K. PYE, *supra* note 32, at 3 1, and discussion *supra* note 213.

285\. Technically Speaking, Under the SOFAS, the only options are the
relinquishment by the receiving State of its exclusive jurisdiction to
prosecute. Regardless of whether US. forces Like administrative action
or not the exercise of such action may as a practical matter influence
the host nation\'s decision. G. DRAPER, *supra* note 25, at 26.

286\. See Lepper, s*upra* note 14, at 180.

287\. Motz Interview, *supra* note 194.

288\. Government Trial Brief 79, McElroy v. United States, 361 U.S. 281
(1960). See also G. DRAPER, *supra* note 25, at 28.

289\. The disciplining of U.S. civilian employees is governed by the
Civil Service Reform Act of 1978, Pub. L. No. 95‑454, 92 Stat. 1111
(1978), codified as amended in scattered sections of 5, 10, 15, 28, 31,
39 & 42 U.S.C. (1994). This Act creates two types of disciplinary
actions for a federal agency to take against federal employees: Chapter
43 actions for unacceptable performance (5 U.S.C. Secs. 4301‑15) and ch.
75 actions for misconduct to promote the efficiency of the service (5
U.S.C. Secs. 7501‑14).

290\. Motz Interview, *supra* note 194.

291\. As discussed in the context of the UCMJ, FGSs should be changed to
remove exculpatory language for individual responsibility or
supplemented by regulations. Moreover, supervisors of civil employees
with environmental duties would be well advised to incorporate any FGS
standards into those employees\' performance plans (creating the basis
for their appraisal and any performance‑based administrative actions).

292\. GAO Report on Overseas Bases, supra note 143, at 46.

293\. Motz Interview, supra note 194.

294\. Phelps Interview, supra note 159.

295\. Nangle, supra note 260, at 442‑43. Cf Statement of Breckenridge L.
Willcox, United States Attorney, Baltimore, Maryland: \"Federal
employees are not above the law.\" *ARMY TIMES,* Mar. 6, 1989, at 10.

296\. GAO Report on Civilians, supra note 128, at 2.

*297. Id.* at 6‑8.

298\. Id. at 11‑12.

299\. Id. at 6.

300\. S. 2007, 90th Cong., 1st Sess. (1967) (creating extraterritorial
jurisdiction over civilians accompanying the forces overseas and
subjecting them to some of the substantive provisions of the UCMJ); S.
1, 94th Cong., 1st Sess. (1975) (subjecting U.S. citizens overseas to
the general jurisdiction of the United States if the crime fell within
one of nine categories of major offenses such as treason or espionage);
H.R. 255, 99th Cong., 1st Sess. (1985) (expanding special maritime and
territoral jurisdiction to cover U.S. citizens accompanying U.S. forces
outside the *U.S.). See* also S. 1630, 97th Cong., 2d Sess. (198 1) and
RR 4531, 103d Cong., 2d Sess. (1994).

*301. S.* 74, 104th Cong., 1st Sess. (1995). H.R. 808, 104th Cong., 1st
Sess. (1995) provides for the identical provisions as S. 74.

302\. 18 U.S.C. Sec. 7 defines such jurisdiction.

*303. S.* 74 and H.R. 808, supra note 301, Sec. 992(a).

304\. Id. Sec. 993(a).

*305. S.* 3, 104th Cong., 1st Sess. (1995).

306\. Id. Sec. 3261(a).

307\. Id. Sec. 3262(a).

308\. Such legislation is Still subject to implementation difficulties,
Such as Coordinating the arrest and return of U.S. civilians with the
host country, and the attempted extraterritorial reach being at odds
with the provisions of SOFAs on allocation of jurisdiction to sending
States only under military law. *See* McClelland, supra note 129, at
199‑200.

309\. 18 U.S.C. Secs. 1111, 213, 2111 (1994).

310\. False reporting of environmental activities and compliance by U.S.
civilian employees could subject them to criminal liability under 18
U.S.C. Sec. 1001, as noted supra in part III.A.4. FGSs, containing
specific recordkeeping requirements could well provide the basis for
such liability *See, e.g.,* Italy FGS, ch. 6.

311\. Senate Resolution, supra, note 42.

312\. SOFA Tri‑Service Regulation, supra note 40.

313\. G. DRAPER, supra note 25, at 120.

*314. See, e.g.,* SOFA Tri‑Service Regulation, supra note 40.

315\. Id. at chs. 1, 2, and 3.

316\. See *supra* note 68 and accompanying text.

317\. Id.

318\. \"Former Secretary of Defense Richard Cheney has said, \"This
Administration wants the United States to be the world leader in
addressing environmental problems and I want the Department of Defense
to be the Federal leader in agency environmental compliance and
protection.\" OEBGD, supra note 148, Introduction at 1‑1.