Status of Forces Agreement (SOFA): What Is It, and How Has It Been Utilized?
Released: 2012-03-15T00:00:00

Summary:
The deadly attacks on Afghan civilians allegedly by a U.S. servicemember have raised questions regarding the Status of Forces Agreement (SOFA) in place between the United States and Afghanistan that would govern whether Afghan law would apply in this circumstance. SOFAs are multilateral or bilateral agreements that generally establish the framework under which U.S. military personnel operate in a foreign country and how domestic laws of the foreign jurisdiction apply toward U.S. personnel in that country.
Formal requirements concerning form, content, length, or title of a SOFA do not exist. A SOFA may be written for a specific purpose or activity, or it may anticipate a longer-term relationship and provide for maximum flexibility and applicability. It is generally a stand-alone document concluded as an executive agreement. A SOFA may include many provisions, but the most common issue addressed is which country may exercise criminal jurisdiction over U.S. personnel. Other provisions that may be found in a SOFA include, but are not limited to, the wearing of uniforms, taxes and fees, carrying of weapons, use of radio frequencies, licenses, and customs regulations.
SOFAs are often included, along with other types of military agreements, as part of a comprehensive security arrangement with a particular country. A SOFA itself does not constitute a security arrangement; rather, it establishes the rights and privileges of U.S. personnel present in a country in support of the larger security arrangement. SOFAs may be entered based on authority found in previous treaties and congressional actions or as sole executive agreements. The United States is currently party to more than 100 agreements that may be considered SOFAs. A list of current agreements included at the end of this report is categorized in tables according to the underlying source of authority, if any, for each of the SOFAs.
In the case of Afghanistan, the SOFA, in force since 2003, provides that U.S. Department of Defense military and civilian personnel are to be accorded status equivalent to that of U.S. Embassy administrative and technical staff under the Vienna Convention on Diplomatic Relations of 1961. Accordingly, U.S. personnel are immune from criminal prosecution by Afghan authorities and are immune from civil and administrative jurisdiction except with respect to acts performed outside the course of their duties. The Government of Afghanistan has further explicitly authorized the U.S. government to exercise criminal jurisdiction over U.S. personnel. Thus, under the existing SOFA, the United States would have jurisdiction over the prosecution of the servicemember who allegedly attacked the Afghan civilians.

subsections: section_title: Introduction
paragraphs: The United States has been party to multilateral and bilateral agreements addressing the status of U.S. Armed Forces while present in a foreign country. These agreements, commonly referred to as Status of Forces Agreements (SOFAs), generally establish the framework under which U.S. military personnel operate in a foreign country. SOFAs provide for rights and privileges of covered individuals while in a foreign jurisdiction and address how the domestic laws of the foreign jurisdiction apply to U.S. personnel. SOFAs may include many provisions, but the most common issue addressed is which country may exercise criminal jurisdiction over U.S. personnel. The United States has agreements where it maintains exclusive jurisdiction over its personnel, but more often the agreement calls for shared jurisdiction with the receiving country.
A SOFA is not a mutual defense agreement or a security agreement, and generally does not authorize specific exercises, activities, or missions. SOFAs are peacetime documents and therefore do not address the rules of war, the Laws of Armed Conflict, or the Laws of the Sea. The existence of a SOFA does not affect or diminish the parties' inherent right of self-defense under the law of war. In the event of armed conflict between parties to a SOFA, the terms of the agreement would no longer be applicable.
The United States is currently party to more than 100 agreements that may be considered SOFAs. While a SOFA as a stand-alone document may not exist with a particular country, that does not necessarily mean that the status of U.S. personnel in that country has not been addressed. Terms commonly found in SOFAs may be contained in other agreements with a partner country and a separate SOFA not utilized. As contracts, SOFAs may be subject to amendment or cancellation.
section_title: Multilateral vs. Bilateral SOFAs
paragraphs: With the exception of the multilateral SOFA among the United States and North Atlantic Treaty Organization (NATO) countries, a SOFA is specific to an individual country and is in the form of an executive agreement. The Department of State and the Department of Defense, working together, identify the need for a SOFA with a particular country and negotiate the terms of the agreement. The NATO SOFA is the only SOFA that was concluded as part of a treaty. The Senate approved ratification of the NATO SOFA on March 19, 1970, subject to reservations. The resolution included a statement
that nothing in the Agreement diminishes, abridges, or alters the right of the United States to safeguard its own security by excluding or removing persons whose presence in the United States is deemed prejudicial to its safety or security, and that no person whose presence in the United States is deemed prejudicial to its safety or security shall be permitted to enter or remain in the United States.
The Senate reservations to the NATO SOFA include four conditions: (1) the criminal jurisdiction provisions contained in Article VII of the agreement do not constitute a precedent for future agreements; (2) when a servicemember is to be tried by authorities in a receiving state, the commanding officer of the U.S. Armed Forces in that state shall review the laws of the receiving state with reference to the procedural safeguards of the U.S. Constitution; (3) if the commanding officer believes there is danger that the servicemember will not be protected because of the absence or denial of constitutional rights the accused would receive in the United States, the commanding officer shall request that the receiving state waive its jurisdiction; and, (4) a representative of the United States be appointed to attend the trial of any servicemember being tried by the receiving state and act to protect the constitutional rights of the servicemember.
The NATO SOFA is a multilateral agreement that has applicability among all the member countries of NATO. As of June 2007, 26 countries, including the United States, have either ratified the agreement or acceded to it by their accession into NATO. Additionally, another 24 countries are subject to the NATO SOFA through their participation in the NATO Partnership for Peace (PfP) program. The program consists of bilateral cooperation between individual countries and NATO in order to increase stability, diminish threats to peace, and build strengthened security relationships. The individual countries that participate in the PfP agree to adhere to the terms of the NATO SOFA. Through the NATO SOFA and the NATO PfP, the United States has a common SOFA with approximately 58 countries. Then-Secretary Rice and Secretary Gates stated that the United States has agreements in more than 115 countries around the world. The NATO SOFA and NATO PfP SOFA account for roughly half of the SOFAs to which the United States is party.
Department of Defense Directive 5525.1 provides policy and information specific to SOFAs. The Department of Defense policy is "to protect, to the maximum extent possible, the rights of U.S. personnel who may be subject to criminal trial by foreign courts and imprisonment in foreign prisons." The directive addresses the Senate reservations to the NATO SOFA by stating even though the reservations accompanying its ratification only apply to NATO member countries where it is applicable, comparable reservations shall be applied to future SOFAs. Specifically, the policy states that "the same procedures for safeguarding the interests of U.S. personnel subject to foreign jurisdiction" be applied when practicable in overseas areas where U.S. forces are stationed.
section_title: Provisions of Status of Forces Agreements
paragraphs: There are no formal requirements governing the content, detail, and length of a SOFA. A SOFA may address, but is not limited to, criminal and civil jurisdiction, the wearing of uniforms, taxes and fees, carrying of weapons, use of radio frequencies, license requirements, and customs regulations. The United States has concluded SOFAs as short as one page and in excess of 200 pages. For example, the United States and Bangladesh exchanged notes providing for the status of U.S. Armed Forces in advance of a joint exercise in 1998. The agreement is specific to one activity/exercise, consists of five clauses, and is contained in one page. The United States and Botswana exchanged notes providing for the status of forces "who may be temporarily present in Botswana in conjunction with exercises, training, humanitarian assistance, or other activities which may be agreed upon by our two governments." The agreement is similar in its scope to the agreement with Bangladesh and is contained in one page. In contrast, in documents exceeding 200 pages, the United States and Germany entered into a supplemental agreement to the NATO SOFA, as well as additional agreements and exchange of notes related to specific issues.
subsections: section_title: Civil/Criminal Jurisdiction
paragraphs: The issue most commonly addressed in a SOFA is the legal protection from prosecution that will be afforded U.S. personnel while present in a foreign country. The agreement establishes which party to the agreement is able to assert criminal and/or civil jurisdiction. In other words, the agreement establishes how the domestic civil and criminal laws are applied to U.S. personnel while serving in a foreign country. The United States has entered agreements where it maintains exclusive jurisdiction, but the more common agreement results in shared jurisdiction between the United States and the signatory country. Exclusive jurisdiction is when the United States retains the right to exercise all criminal and disciplinary jurisdiction for violations of the laws of the foreign nation while the individual is present in that country. Shared jurisdiction occurs when each party to the agreement retains exclusive jurisdiction over certain offenses, but also allows the United States to request that the host country waive jurisdiction in favor of the United States exercising criminal and disciplinary jurisdiction. The right to exert jurisdiction over U.S. personnel is not solely limited to when an individual is located on a military installation. It may cover individuals off the installation as well. The right to exert jurisdiction can result in complete immunity from the laws of the receiving country while the individual is present in that country.
subsections: section_title: Example of Exclusive Jurisdiction
paragraphs: The United States entered into an agreement regarding military exchanges and visits with the Government of Mongolia. As part of the agreement, Article X addresses criminal jurisdiction of U.S. personnel located in Mongolia. The language of the agreement provides, "United States military authorities shall have the right to exercise within Mongolia all criminal and disciplinary jurisdiction over United States [p]ersonnel conferred on them by the military laws of the United States. Any criminal offenses against the laws of Mongolia committed by a member of the U.S. forces shall be referred to appropriate United States authorities for investigation and disposition." The agreement allows the Government of Mongolia to request the United States to waive its jurisdiction in cases of alleged criminal behavior unrelated to official duty. There is no requirement for the United States to waive jurisdiction, only to give "sympathetic consideration" of any such request.
section_title: Example of Shared Jurisdiction
paragraphs: The NATO SOFA, applicable to all member countries, is an example of shared jurisdiction. Article VII provides the jurisdictional framework. The SOFA allows for a country not entitled to primary jurisdiction to request the country with primary jurisdiction waive its right to jurisdiction. There is no requirement for the country to waive jurisdiction, only that it gives "sympathetic consideration" of the request. Under the shared jurisdiction framework, each of the respective countries is provided exclusive jurisdiction in specific circumstances, generally when an offense is only punishable by one of the country's laws. In that case, the country whose law has been offended has exclusive jurisdiction over the offender. When the offense violates the laws of both countries, concurrent jurisdiction is present and additional qualifications are used to determine which country will be allowed to assert jurisdiction over the offender.
section_title: Status Determinations
paragraphs: While the NATO SOFA provides extensive language establishing jurisdiction, the United States has entered numerous SOFAs that appear to have a very basic rule for determining jurisdiction. Some agreements contain a single sentence stating that U.S. personnel are to be afforded a status equivalent to that accorded to the administrative and technical staff of the U.S. Embassy in that country. The Vienna Convention on Diplomatic Relations of April 18, 1961 establishes classes of personnel, each with varying levels of legal protections. Administrative and technical staff receive, among other legal protections, "immunity from the criminal jurisdiction of the receiving State." Therefore, a SOFA which treats U.S. personnel as administrative and technical staff confers immunity from criminal jurisdiction while in the receiving country.
section_title: Authority to Fight
paragraphs: SOFAs do not generally authorize specific military operations or missions by U.S. forces. While SOFAs do not generally provide authority to fight, the inherent right of self-defense is not affected or diminished. U.S. personnel always have a right to defend themselves, if threatened or attacked, and a SOFA does not take away that right. Language is often found within the SOFA that defines the scope of applicability of the agreement. For example, the SOFA with Belize expressly applies to U.S. personnel "who may be temporarily in Belize in connection with military exercises and training, counter-drug related activities, United States security assistance programs, or other agreed purposes." The United States had previously entered into two different agreements with Belize related to military training and the provision of defense articles. The SOFA itself does not authorize specific operations, exercises, or activities, but provides provisions addressing the legal status and protections of U.S. personnel while in Belize. Under the terms of the agreement, U.S. personnel are provided legal protections as if they were administrative and technical staff of the U.S. Embassy.
section_title: Other Provisions Such as Uniforms, Taxes, and Customs
paragraphs: While understandings regarding the assertion of legal jurisdiction are generally a universal component of a SOFA, more detailed administrative and operational matters may be included as well. A SOFA may address, for example, the wearing of uniforms by armed forces while away from military installations, taxes and fees, carrying of weapons by U.S. personnel, use of radio frequencies, driving license requirements, and customs regulations. A SOFA provides the legal framework for day-to-day operations of U.S. personnel while a foreign country. Most SOFAs are bilateral agreements; therefore they may be tailored to the specific needs of the personnel operating in that country.
section_title: Security Arrangements and SOFAs
paragraphs: In support of U.S. foreign policy, the United States has concluded agreements with foreign nations related to security commitments and assurances. These agreements may be concluded in various forms including as a collective defense agreement (obligating parties to the agreement to assist in the defense of any party to the agreement in the event of an attack upon it), an agreement containing a consultation requirement (a party to the agreement pledges to take some action in the event the other country's security is threatened), an agreement granting the legal right to military intervention (granting one party the right, but not the duty, to militarily intervene within the territory of another party to defend it against internal or external threats), or other non-binding arrangements (unilateral pledge or policy statement). SOFAs are often included, along with other types of military agreements (i.e., basing, access, and pre-positioning), as part of a comprehensive security arrangement. A SOFA may be based on the authority found in previous treaties, congressional action, or sole executive agreements comprising the security arrangement.
section_title: Bilateral SOFAs: Historical Practice
paragraphs: The following sections provide a historical perspective on the inclusion of a SOFA as part of comprehensive bilateral security arrangements by the United States with Afghanistan, Germany, Japan, South Korea, and the Philippines. The arrangements may include a stand-alone SOFA or other agreements including protections commonly associated with a SOFA.
subsections: section_title: Afghanistan
paragraphs: Following the terrorist attacks of September 11, 2001, the United States initiated Operation Enduring Freedom to combat Al Qaeda and prevent the Taliban regime in Afghanistan from providing them with safe harbor. Shortly thereafter, the Taliban regime was ousted by U.S. and allied forces, and the United States thereafter concluded a number of security agreements with the new Afghan government. In 2002, the United States and Afghanistan, by an exchange of notes, entered into an agreement regarding economic grants under the Foreign Assistance Act of 1961, as amended. Additionally, the agreement allows for the furnishing of defense articles, defense services, and related training, pursuant to the United States International Military and Education Training Program (IMET), from the U.S. government to the Afghanistan Interim Administration (AIA).
The Foreign Assistance Act of 1961 is "an act to promote the foreign policy, security, and general welfare of the United States by assisting peoples of the world in their efforts toward economic development and internal and external security, and for other purposes." Part I of the act, addressing international development, established policy "to make assistance available, upon request, under this part in scope and on a basis of long-range continuity essential to the creation of an environment in which the energies of the peoples of the world can be devoted to constructive purposes, free of pressure and erosion by the adversaries of freedom." Part II of the act, addressing international peace and security, authorizes "measures in the common defense against internal and external aggression, including the furnishing of military assistance, upon request, to friendly countries and international organizations." The act authorizes the President "to furnish military assistance on such terms and conditions as he may determine, to any friendly country or international organization, the assisting of which the President finds will strengthen the security of the United States and promote world peace and which is otherwise eligible to receive such assistance." The authorization to provide defense articles and services, noncombatant personnel, and the transfer of funds is codified at 22 U.S.C. Section 2311. While this authorization permits the President to provide military assistance, it limits it to "assigning or detailing members of the Armed Forces of the United States and other personnel of the Department of Defense to perform duties of a noncombatant nature ."
An agreement exists regarding the status of military and civilian personnel of the U.S. Department of Defense present in Afghanistan in connection with cooperative efforts in response to terrorism, humanitarian and civic assistance, military training and exercises, and other activities. Such personnel are to be accorded "a status equivalent to that accorded to the administrative and technical staff" of the U.S. Embassy under the Vienna Convention on Diplomatic Relations of 1961. Accordingly, U.S. personnel are immune from criminal prosecution by Afghan authorities, and are immune from civil and administrative jurisdiction except with respect to acts performed outside the course of their duties. In the agreement, the Islamic Transitional Government of Afghanistan (ITGA) explicitly authorized the U.S. government to exercise criminal jurisdiction over U.S. personnel, and the Government of Afghanistan is not permitted to surrender U.S. personnel to the custody of another State, international tribunal, or any other entity without consent of the U.S. government. Although the agreement was signed by the ITGA, the subsequently elected government of the Islamic Republic of Afghanistan assumed responsibility for ITGA's legal obligations and the agreement remains in force. The agreement does not appear to provide immunity for contract personnel.
The agreement with Afghanistan does not expressly authorize the United States to carry out military operations within Afghanistan, but it recognizes that such operations are "ongoing." Congress authorized the use of military force there (and elsewhere) by joint resolution in 2001, for targeting "those nations, organizations, or persons [who] planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." The U.N. Security Council implicitly recognized that the use of force was appropriate in response to the September 11, 2001, terrorist attacks, and subsequently authorized the deployment of an International Security Assistance Force (ISAF) to Afghanistan. Subsequent U.N. Security Council resolutions provide a continuing mandate for ISAF, calling upon it to "work in close consultation with" Operation Enduring Freedom (OEF—the U.S.-led coalition conducting military operations in Afghanistan) in carrying out the mandate. While there is no explicit U.N. mandate authorizing the OEF, Security Council resolutions appear to provide ample recognition of the legitimacy of its operations, most recently by calling upon the Afghan government, "with the assistance of the international community, including the International Security Assistance Force and Operation Enduring Freedom coalition, in accordance with their respective designated responsibilities as they evolve, to continue to address the threat to the security and stability of Afghanistan posed by the Taliban, Al-Qaida, other extremist groups and criminal activities."
In 2004, the United States and Afghanistan entered an acquisition and cross-servicing agreement, with annexes. An acquisition and cross-servicing agreement (ACSA) is an agreement providing logistic support, supplies, and services to foreign militaries on a cash-reimbursement, replacement-in-kind, or exchange of equal value basis. After consultation with the Secretary of State, the Secretary of Defense is authorized to enter into an ACSA with a government of a NATO country, a subsidiary body of NATO, or the United Nations Organization or any regional international organization of which the United States is a member. Additionally, the Secretary of Defense may enter into an ACSA with a country not included in the above categories, if, after consultation with the Secretary of State, a determination is made that it is in the best interests of the national security of the United States. If the country is not a member of NATO, the Secretary of Defense must submit notice, at least 30 days prior to designation, to the Committee on Armed Services and the Committee on Foreign Relations of the Senate and the Committee on Armed Services and the Committee on Foreign Affairs of the House of Representatives.
On May 23, 2005, President Hamid Karzai and President Bush issued a "joint declaration" outlining a prospective future agreement between the two countries. It envisions a role for U.S. military troops in Afghanistan to "help organize, train, equip, and sustain Afghan security forces" until Afghanistan has developed its own capacity, and to "consult with respect to taking appropriate measures in the event that Afghanistan perceives that its territorial integrity, independence, or security is threatened or at risk." The declaration does not mention the status of U.S. forces in Afghanistan, but if an agreement is concluded pursuant to the declaration, it can be expected a status of forces agreement would be included. In August 2008, shortly after U.S. airstrikes apparently resulted in civilian casualties, President Karzai called for a review of the presence of all foreign forces in Afghanistan and the conclusion of formal SOFAs with the respective countries. However, to date, it appears unclear whether the parties have entered into formal negotiations that might lead to an updated SOFA.
On December 16, 2010, the Obama Administration, as part of its Afghanistan-Pakistan annual review, stated that it, as part of the NATO coalition, remains committed to a long-term partnership with Afghanistan. As such, the Administration maintained that U.S. forces would commence a transfer of security responsibility to the Afghan government in 2011 and conclude the transfer in 2014. It remains unclear if the United States intends to enter into strategic and security agreements, like those utilized in Iraq, during the announced period of transition. 
On February 10, 2011, Representative Lynn Woolsey introduced H.R. 651 , the United States-Afghanistan Status of Forces Agreement (SOFA) Act of 2011. The bill requires, 90 days after enactment, the President to "seek to negotiate and enter into a bilateral status of forces agreement" with Afghanistan. Additionally, if enacted, the bill requires that the concluded agreement must explicitly state that the presence of U.S. forces in Afghanistan is temporary, permanent basing is prohibited, and all troops must withdraw from the country within one year of the agreement.
section_title: Germany
paragraphs: In 1951, prior to Germany becoming a member of NATO, the United States and Germany entered into an agreement related to the assurances required under the Mutual Security Act of 1951. Germany subsequently joined NATO in 1955 and, in the same year, concluded an agreement related to mutual defense assistance, obligating the United States to provide "such equipment, materials, services, or other assistance as may be agreed" to Germany.
Four years after Germany joined NATO, the countries entered into an agreement implementing the NATO SOFA of 1953. The agreement provided additional supplemental agreements, beyond those contained in the NATO SOFA, specific to the relationship between the United States and Germany. The implementation and supplemental agreements to the NATO SOFA are in excess of 200 pages and cover the minutiae of day-to-day operations of U.S. forces and personnel in Germany.
section_title: Japan
paragraphs: Prior to the current security arrangements between the United States and Japan, the countries, in 1952, concluded a security treaty and an accompanying administrative agreement. The administrative agreement covered, among other maters, the jurisdiction of the United States over offenses committed in Japan by members of the U.S. forces, and provided that the United States could waive jurisdiction in favor of Japan. One provision established that the United States retained jurisdiction over offenses committed by a servicemember arising out of any act or omission done in the performance of official duty.
In 1957, a member of the U.S. Army was indicted in the death of a Japanese civilian while participating in a small unit exercise at Camp Weir range area in Japan. The United States claimed that the act was committed in the performance of official duty, but Japan insisted that it was outside the scope of official duty and therefore Japan had primary jurisdiction to try the member. After negotiations, the United States acquiesced and agreed to turn the member over to Japanese authorities. In an attempt to avoid trial in the Japanese Courts, the member sought a writ of habeas corpus in the United States District Court for the District of Columbia. The writ was denied, but the member was granted an injunction against delivery to Japanese authorities to stand trial. The United States appealed the injunction to the U.S. Supreme Court.
In Wilson v. Girard, the Supreme Court first addressed the jurisdictional provisions contained in the administrative agreement. The Court determined that by recommending ratification of the security treaty and subsequently the NATO SOFA, the Senate had approved the administrative agreement and protocol (embodying the NATO provisions) governing jurisdiction to try criminal offenses. The Court held that "a sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its border, unless it expressly or impliedly consents to surrender its jurisdiction" and that Japan's "cession to the United States of jurisdiction to try American military personnel for conduct constituting an offense against the laws of both countries was conditioned" by provisions contained in the protocol calling for "sympathetic consideration to a request from the other State for a waiver of its right in cases where that other State considers such waiver to be of particular importance." The Court concluded that the issue was then whether the Constitution or legislation subsequent to treaty prohibited carrying out of the jurisdictional provisions. The Court found none and stated that "in the absence of such encroachments, the wisdom of the arrangement is exclusively for the determination of the Executive and Legislative Branches."
The Treaty of Mutual Cooperation and Security Between the United States of America and Japan was concluded in 1960 and subsequently amended on December 26, 1990. Under Article VI of the Treaty, the United States is granted "the use by its land, air and naval forces of facilities and areas in Japan" in order to contribute "to the security of Japan and maintenance of international peace and security in the Far East[.]" Article VI provides further that the use of facilities and the status of U.S. Armed Forces will be governed under a separate agreement, much like the previous security treaty concluded in 1952.
A SOFA, as called for under Article VI of the Treaty, was concluded as a separate agreement pursuant to and concurrently with the Treaty in 1960. The SOFA addresses the use of facilities by the U.S. Armed Forces, as well as the status of U.S. forces in Japan. The agreement has been modified at least four times since the original agreement.
section_title: South Korea
paragraphs: In 1954 the United States and the Republic of Korea entered into a mutual defense treaty. As part of the treaty the countries agree to attempt to settle international disputes peacefully, consult whenever the political independence or security of either party is threatened by external armed attack, and that either party would act to meet the common danger in accordance with their respective constitutional processes. Article IV of the treaty grants the United States "the right to dispose.... land, air and sea forces in and about the territory" of South Korea. Pursuant to the treaty, specifically Article IV, the countries entered into a SOFA with agreed minutes and an exchange of notes in 1966; it was subsequently amended January 18, 2001.
In 1968, two years after the SOFA was signed between the countries, a member of the U.S. Army asserted in Smallwood v. Clifford that U.S. authorities did not have legitimate authority, under the jurisdictional provisions contained in the agreement, to release him to the Republic of Korea for trial by a Korean court on charges of murder and arson. The servicemember asserted that the agreement was not approved in a "constitutionally acceptable manner." He maintained that U.S. domestic law requires international agreements pertaining to foreign jurisdiction over U.S. forces stationed abroad be approved "either expressly or impliedly by the [U.S.] Senate." The court found that the SOFA resulted in a diminished role for the Republic of Korea in enforcing its own laws and that the United States did not waive jurisdiction over offenses committed within its own territory. Therefore, ratification by the Senate was "clearly unnecessary" because Senate approval would "have no effect on a grant of jurisdiction by the Republic of Korea, [of] which the United States could not rightfully claim."
Additionally, the servicemember asserted that the Constitution and the Uniform Code of Military Justice (UCMJ) provide the sole methods for trying servicemen abroad and that they can not be changed by an executive agreement. The court held that the premise is true only when there has not been a violation of the laws of the foreign jurisdiction. When a violation of the foreign jurisdiction's criminal laws occurs, the primary jurisdiction lies with that nation and the provisions of the UCMJ only apply if the foreign nation expressly or impliedly waived its jurisdiction. In support of its decision the court cited the principle, stated in Wilson , that the primary right of jurisdiction belongs to the nation in whose territory the servicemember commits the crime.
section_title: Philippines
paragraphs: In 1947 the United States and the Republic of the Philippines entered into an agreement on military assistance. The agreement was for a term of five years, starting July 4, 1946, and provided that the United States would furnish military assistance to the Philippines for the training and development of armed forces. The agreement further created an advisory group to provide advice and assistance to the Philippines as had been authorized by the U.S. Congress. The agreement was extended, and amended, for an additional five years in 1953.
A mutual defense treaty was entered into by the United States and the Philippines in 1951. The treaty publicly declares "their sense of unity and their common determination to defend themselves against external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific Area[.]" The Treaty does not address or provide for a SOFA.
In 1993, the countries entered into a SOFA. The agreement was subsequently extended on September 19, 1994; April 28, 1995; and November 29, December 1, and December 8, 1995. The countries entered into an agreement regarding the treatment of U.S. Armed Forces visiting the Philippines in 1998. This agreement was amended on April 11 and 12, 2006. The distinction between this agreement and the SOFA originally entered into in 1993 is that this agreement applies to U.S. Armed Forces visiting, not stationed in the Philippines. The countries also entered into an agreement regarding the treatment of Republic of Philippines personnel visiting the United States (counterpart agreement).
The counterpart agreement contains provisions addressing criminal jurisdiction over Philippine personnel while in the United States. The agreement was concluded as an executive agreement and not ratified by the U.S. Senate. Arguably, following the logic of the U.S. District Court for the District of Columbia in Clifford , because the agreement arguably diminishes the impact of U.S. jurisdiction, it would need to be ratified by the Senate in order to be constitutionally valid. But, the counterpart agreement can be distinguished from the SOFA with the Republic of Korea, and SOFAs with other foreign jurisdictions, in that the United States is not fully waiving jurisdiction over offenses committed within U.S. territory. Rather, the agreement states that U.S. authorities will, at the request of the Government of the Philippines, request that the appropriate authorities waive jurisdiction in favor of Philippine authorities. However, the U.S. Department of State and Department of Defense retain the ability to determine that U.S. interests require that the United States exercise federal or state jurisdiction over the Philippine personnel.
section_title: Iraq109
paragraphs: Between March 2003 and August 2010, the United States engaged in military operations in Iraq, first to remove the Saddam Hussein regime from power, and then to combat remnants of the former regime and other threats to the stability of Iraq and its post-Saddam government. In late 2007, the United States and Iraq signed a Declaration of Principles for a Long-Term Relationship of Cooperation and Friendship Between the Republic of Iraq and the United States of America. The strategic arrangement contemplated in the Declaration was intended to ultimately replace the United Nations mandate under which the United States and allied forces are responsible for contributing to the security of Iraq, which terminated on December 31, 2008. The Declaration was rooted in an August 26, 2007, communiqué, signed by five top political leaders in Iraq, which called for a long-term relationship with the United States. Pursuant to the Declaration, the parties pledged to "begin as soon as possible, with the aim to achieve, before July 31, 2008, agreements between the two governments with respect to the political, cultural, economic, and security spheres." Among other things, the Declaration proclaimed the parties' intention to negotiate a security agreement:
To support the Iraqi government in training, equipping, and arming the Iraqi Security Forces so they can provide security and stability to all Iraqis; support the Iraqi government in contributing to the international fight against terrorism by confronting terrorists such as Al-Qaeda, its affiliates, other terrorist groups, as well as all other outlaw groups, such as criminal remnants of the former regime; and to provide security assurances to the Iraqi Government to deter any external aggression and to ensure the integrity of Iraq's territory.
This announcement became a source of congressional interest, in part because of statements by Bush Administration officials that such an agreement would not be submitted to the legislative branch for approval, despite potentially obliging the United States to provide "security assurances" to Iraq. In the 110 th Congress, multiple hearings were held which addressed the proposed security agreement. In late 2007, Congress passed the Emergency Supplemental Appropriations Act for Defense, 2008, which contained a provision limiting the funds it made available from being used by U.S. authorities to enter into an agreement with Iraq that subjected members of the U.S. Armed Forces to the criminal jurisdiction of Iraq. In October 2008, Congress passed the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, which requires a report from the President to the House Foreign Affairs and Armed Services Committees, and the Senate Foreign Relations and Armed Services Committees, on any completed U.S.-Iraq agreement addressing specified subjects, including security assurances or commitments by the United States, basing rights, and the status of U.S. forces in Iraq. Several legislative proposals were introduced which would have required any such agreement to either be submitted to the Senate for its advice and consent as a treaty or authorized by a statutory enactment.
On November 17, 2008, after months of negotiations, U.S. Ambassador to Iraq Ryan Crocker and Iraq Foreign Minister Hoshyar Zebari signed two documents: (1) the Strategic Framework Agreement for a Relationship of Friendship and Cooperation between the United States and the Republic of Iraq (Strategic Framework Agreement), and (2) the Agreement Between the United States of America and Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq (Security Agreement). In some ways, the concluded agreements differ from the long-term security arrangement originally contemplated by the Declaration of Principles. Perhaps most significantly, the concluded agreements require the withdrawal of U.S. forces from Iraq by December 31, 2011.
The concluded agreements cover different issues and are intended by the parties to have different legal significance. The Strategic Framework Agreement is a nonlegal, political agreement under which the parties pledge to work cooperatively in a number of fields, including on diplomatic, security, economic, cultural, and law enforcement matters. In the area of security, the Agreement provides that the United States and Iraq shall "continue to foster close cooperation concerning defense and security arrangements," which are to be undertaken pursuant to the terms of the Security Agreement. The Strategic Framework Agreement also states that "the temporary presence of U.S. forces in Iraq is at the request and invitation of the sovereign government of Iraq," and that the United States may not "use Iraqi land, sea, or air as a launching or transit point for attacks against other countries[,] nor seek or request permanent bases or a permanent military presence in Iraq."
The Security Agreement is a legally binding agreement that terminates within three years, unless terminated at an earlier date by either Party. The Security Agreement contains provisions addressing a variety of military matters. As previously mentioned, it establishes a deadline for the withdrawal of all U.S. forces from Iraq by December 31, 2011. The Agreement also contains numerous provisions resembling those regularly contained in SOFAs concluded by the United States. Specifically, the Agreement contains provisions concerning the parties' right to assert civil and criminal jurisdiction over U.S. forces, as well as provisions which establish rules and procedures applicable to U.S. forces relating to the carrying of weapons, the wearing of uniforms, entry and exit into Iraq, taxes, customs, and claims.
The Security Agreement contains other rules and requirements which have traditionally not been found in SOFAs concluded by the United States, including provisions addressing combat operations by U.S. forces. Operations by U.S. forces pursuant to the Agreement must be approved by the Iraqi government and coordinated with Iraqi authorities through a Joint Military Operations Coordination Committee. U.S. forces are also permitted to arrest or detain persons in the course of operations under the Agreement. More broadly, the Security Agreement provides for "strategic deliberations" between the parties in the event of external or internal threat or aggression against Iraq, and provides that, as mutually agreed by the parties, the United States "shall take appropriate measures, including diplomatic, economic, or military measures" to deter the threat.
The Security and Strategic Framework Agreements entered into force on January 1, 2009, following an exchange of diplomatic notes between the United States and Iraq. Although the agreements required approval on multiple levels by the Iraqi government, the Bush Administration did not submit the agreements to the Senate for its advice and consent as a treaty or request statutory authorization for the agreements by Congress.
There has been some controversy regarding whether these agreements could properly be entered on behalf of the United States by the Executive without the participation of Congress. Security agreements authorizing the United States to take military action in defense of another country have typically been ratified as treaties. It could be argued that the Security Agreement, which contemplates the United States engaging in military operations in Iraq and potentially defending the Iraqi government from external or internal security threats, requires congressional authorization for it to be legally binding under U.S. law. On the other hand, because Congress has authorized the President to engage in military operations in Iraq, both pursuant to the 2002 Authorization to Use Military Force Against Iraq and subsequent appropriations measures, it has impliedly authorized the President to enter short-term agreements with Iraq which facilitate these operations.
As of August 31, 2010, the United States withdrew the last major combat unit, the U.S. Army's 4 th Stryker Brigade Combat Team, 2 nd Infantry Division, allowing Iraq to officially take over combat operations within the country. The post-combat phase of operations, Operation New Dawn, included the presence of approximately 50,000 U.S. troops conducting stability operations, focusing on advising, assisting, and training Iraqi Security Forces in how to handle their own security. As of December 18, 2011, the United States completed the withdrawal of U.S. forces, transitioning responsibility for security within Iraq to the Iraqi government.
section_title: Survey of Current Status of Forces Agreements
paragraphs: The charts below provide a list of current agreements according to the underlying source of authority, if any, for each of the SOFAs. Within each category the agreements are arranged alphabetically by partner country. The categories are defined as follows:
subsections: section_title: North Atlantic Treaty Organization: Status of Forces Agreement
paragraphs: The NATO SOFA is a multilateral agreement that has applicability among all the member countries of NATO. As of June 2007, 26 countries, including the United States, have either ratified the agreement or acceded to it by their accession into NATO. The NATO SOFA is the only SOFA that was concluded as part of a treaty.
section_title: North Atlantic Treaty Organization: Partnership for Peace - Status of Forces Agreement
paragraphs: There are currently 24 countries, non-members of NATO, subject to the NATO SOFA through their participation in the NATO Partnership for Peace (PfP) program. The program consists of bilateral cooperation between individual countries and NATO in order to increase stability, diminish threats to peace, and build strengthened security relationships. The individual countries that participate in PfP agree to adhere to the terms of the NATO SOFA.
section_title: Treaty as Underlying Source of Authority for Status of Forces Agreement
paragraphs: The United States has concluded SOFAs where the underlying authority for the agreement is a treaty ratified by the U.S. Senate. The United States entered into a SOFA with Japan in 1960 under the authority contained in Article VI of the Treaty of Mutual Cooperation and Security previously concluded between the countries. Additionally, the United States entered into a SOFA with Korea in 1967 under the authority in Article V of the Mutual Defense Treaty previously concluded between the two countries.
The United States entered into SOFAs with Australia and the Philippines after concluding treaties with the respective countries. In the case of Australia, the U.S. Senate advised ratification of the ANZUS Pact in 1952. In 1963, nine years after ratification of the Pact, Australia and the United States entered into an agreement concerning the status of U.S. forces in Australia. The United States entered into a SOFA with the Philippines in 1993 after concluding a mutual defense treaty with the country in 1952. The agreements with Australia and the Philippines can be distinguished from the agreements with Japan and Korea in that they cite general obligations under the previously concluded treaty, while the agreements with Japan and Korea cite to a specific authority (i.e., Article VI and Article V, respectively) contained in the underlying treaty.
The United States is a party to the Inter-American Treaty of Reciprocal Assistance (Rio Treaty), for which the U.S. Senate advised ratification December 8, 1947. The United States then entered into military assistance agreements with Guatemala, Haiti, and Honduras. The agreements cite obligations created under the Rio Treaty and address status of U.S. personnel in each of the countries. The United States expanded on the status protections contained in the military assistance agreements by later concluding SOFAs with each of the countries. In all three, the military assistance agreements were cited as the basis of the new agreement.
section_title: Congressional Action as Underlying Source of Authority for Status of Forces Agreement
paragraphs: As previously discussed, Congress approved compacts changing the status of the Marshall Islands, Micronesia, and Palau from former territories and possessions to that of being Freely Associated States (FAS). The language of the compacts calls for a SOFA to be concluded between the respective parties. The Marshall Islands and Micronesia entered into SOFAs with the United States in 2004. Palau entered into a SOFA with United States in 1986.
section_title: Base Lease Agreement Containing Status of Forces Agreement Terms
paragraphs: In 1941, the United States entered into an agreement with the United Kingdom regarding the lease of naval and air bases in Newfoundland, Bermuda, Jamaica, St. Lucia, Antigua, Trinidad, and British Guiana. The agreement not only described the physical location being leased, but provided for status of U.S. personnel present in the leased location. The lease agreement, while not a stand-alone SOFA, served the purpose of a SOFA in the specified locations. The United States and the United Kingdom concluded additional lease agreements in the 1950s, 1960s, and 1970s that contained status protection provisions in the leased locations.
section_title: Status of Forces Agreement in Support of Specified Activity/Exercises
paragraphs: The United States has entered into SOFAs with countries in support of specific activities or exercises. Generally, these agreements are entered in order to support a joint military exercise or a humanitarian initiative. The SOFA will contain language limiting the scope of the agreement to the specific activity, but sometimes language is present expanding the agreement to cover other activities as agreed upon by the two countries. The agreements are not based upon a treaty or congressional action; rather, they are sole executive agreements.
For example, the African Crisis Response Initiative (ACRI) was a bilateral training program introduced by the Clinton Administration in 1997. The United States entered into SOFAs with many African countries specifically addressing the ACRI. Each of the SOFAs contained language limiting the agreements to U.S. personnel temporarily in the country in connection with ACRI activities or other activities as agreed upon by the countries. While the agreement may have been entered as a result of the ACRI, language allowing for other activities, as agreed between the two countries, allows for the SOFA remain in force even though the ACRI does not currently exist.
section_title: Status of Forces Agreement Not in Support of Specified Activity/Exercise and Not Based on Underlying Treaty/Congressional Action
paragraphs: The last group of SOFAs discussed are agreements entered as sole executive agreements without a specified activity or exercise. These agreements contain broad language of applicability. Some of the agreements apply to U.S. personnel "present" in a country, others apply to U.S. personnel "temporarily present" in a country. In addition to time limitations, most of the agreements contain language which attempts to frame the scope of activities. The activities described may be as broad as "official duties" or specific to a particular class of activities (i.e., humanitarian, exercises, and/or training).