Jurisdictional Wrangling: US Military Troops Overseas and the Death Penalty

The current deployments of military forces to Iraq and Afghanistan have caught the attention of the American public, but many Americans forget that large numbers of their fellow citizens are also stationed elsewhere around the world, serving in uniform. These servicemembers had been stationed overseas before Operation IRAQI FREEDOM began, and they will remain there long after that conflict has ended. These men and women face special circumstances: they are US citizens, subject to the laws of the United States and the US military. But at the same time, they are living in another country and are also subject to the laws and jurisdiction of their host country. For the most part, negotiated legal agreements decide which country will prosecute them in the event of criminal misconduct, and prosecutions are handled routinely in most cases. But if a servicemember is accused of a crime which could be punished by the death penalty in the United States, the host country often becomes concerned. This is especially true in Europe, where a number of treaties ban the imposition of the death penalty in all circumstances. In these cases, European countries try to assert their own jurisdiction over the accused so as to prevent a possible death sentence for him or her, even when such action conflicts with a bilateral treaty signed with the US. Such situations force European countries to choose between conflicting international treaty obligations: one which abolishes the death penalty and another which directs them to hand over criminal defendants to the US military. This Development discusses the issues that arise from such conflicting treaty obligations in the case of US servicemembers stationed abroad and proposes solutions consistent with international law and the current status of diplomatic relations between the US and European states. I. STATUS OF FORCES AGREEMENTS Prior to World War II, the permanent overseas deployment of US military troops was rare. But the dawning of the Cold War and America's containment doctrine led to permanent stationing of large numbers of US scrvicemembers in foreign countries. This basing policy continued after the end of the Cold War, and as of June 2003, the US had approximately 365,000 military personnel stationed overseas.1 The US has attempted to clarify the legal status of these forward-deployed troops through the use of Status of Forces Agreements ("SOFAs").2 SOFAs are legally binding international agreements that address a variety of issues, ranging from criminal and civil jurisdiction to taxes and driving licenses. Early international law held that a friendly state which was invited to send its troops into another state's territory maintained jurisdiction over its own forces. Today, customary international law takes the opposite view and holds that jurisdiction lies with the state where the crime occurs.3 When a foreign national enters the borders of another state, he subjects himself to the laws of the host state. SOFAs constitute a treaty exception to this customary view. In the absence of a SOFA, therefore, a state would have exclusive jurisdiction over foreign troops stationed within its borders.4 Perhaps the most important such agreement is the NATO SOFA, which is both multilateral and reciprocal.5 By contrast, virtually all of the bilateral SOFAs to which the US is a party are non-reciprocal, meaning that they apply to US troops in the "receiving" (host) country but not to that state's troops when they are stationed in the US.6 The NATO SOFA serves as the draft for many bilateral SOFAs today.7 Article VII of the NATO SOFA addresses criminal jurisdiction, and most SOFAs currently in effect mirror its provisions. There are two categories of jurisdiction in SOFA criminal cases: exclusive and concurrent. The US retains exclusive criminal jurisdiction over offenses which are criminalized under US laws but not in the receiving state.8 For example, desertion is a crime under the Uniform Code of Military Justice ("UCMJ") but is not criminalized in many receiving countries. …