It is the policy of the United States that U.S. Defense personnel should not be sent to foreign countries unless sufficient status safeguards are assured. Status of Forces Agreements (SOFAs) are the means by which this policy is given effect.
They define the legal status of U.S. Department of Defense personnel, activities, and property in the territory of another nation and set forth rights and responsibilities between the United States and the host government. Under international law a status of forces agreement differs from military occupation.
The Department of State has overall responsibility for leading the U.S.
government’s negotiation of SOFAs and shares responsibility for their
implementation with Department of Defense , which serves as executive agent for implementation and negotiation of supplemental agreements.
The United States has some form of SOFA agreement with more than 100 nations,about half under the NATO or the Partnership for Peace SOFAs, which apply,respectively, to all NATO allies and most Partnership for Peace partners.
In addition, there are comprehensive agreements with long standing U.S. allies and partners like Australia, Israel, Japan, and Korea, and a variety of less comprehensive agreements with other nations. There are, however, still countries with which the United States has significant military relationships but no SOFA.
SOFAs serve a number of important interests, key among them being
protection of U.S. military personnel from being subject to unfair criminal or civil justice systems.
This is important not only to protect the rights of U.S. service members and to vindicate the United States’ interest in exercising disciplinary jurisdiction over U.S. uniformed personnel, but also because U.S. willingness to deploy forces overseas – and public support for such deployments – could suffer significant setbacks if U.S. personnel were at risk of being tried in an inherently unfair system, or at any rate, in one that departs fundamentally from U.S. concepts of basic procedural fairness.
SOFAs also can reduce the financial and administrative burdens that arise if U.S. military operations are subject to host nation civil liability and to tax, customs, licensing, immigration, and other fiscal and regulatory requirements. They can also facilitate mission accomplishment by
establishing clear rights with respect to such matters as wearing uniforms, carrying arms, providing installation security, operation of communications, damage claims procedures, and access to electromagnetic spectrum.
Over time, the U.S. approach to SOFAs has evolved in response to changes in host country conditions and U.S. operational requirements and in the purposes for which U.S. military personnel are in foreign countries.
The first stage of SOFA development emerged soon after World War II as U.S. overseas military presence evolved from wartime combat and occupation – for which international law, in general, provided for exclusive U.S. jurisdiction – to a historically unprecedented long term peacetime stationing of U.S. forces in fully sovereign nations that welcomed them as part of a bilateral or multilateral alliance or mutual security relationship.
NATO MEMBER STATES
In this period, the United States – for the first time – began to establish significant long-term military presence on foreign territory that
could not plausibly be regarded as either for on-going combat operations or as an exercise of occupation powers.
Instead, U.S. forces were to be deployed on a more or less, long term basis as part of alliances, both bilateral and multilateral, and with the consent and invitation of the host nations.
Moreover, while the forces were, in general, ready for combat if necessary, the assumption was that these would be long term, peacetime deployments, not ongoing military operations. Typically, these deployments involved large permanent installations, and extensive routine interaction with the local communities and host country authorities.
The NATO SOFA – and the more or less contemporaneous bilateral agreements with major allied countries like Japan, the Republic of Korea, and Australia – are derived from this post-WWII transition in the nature of U.S. overseas deployment.
A second sort of U.S. military presence in connection with which status issues arise and developed over time, but became increasingly important after the end of the Cold War, as the U.S. military undertook extensive programs of “engagement” with foreign nations – usually either in the Third World or recently freed from Soviet domination – with which the United States did not have a security commitment, much less a formal alliance.
As part of these programs, the U.S. military sends personnel to foreign countries to conduct exercises, training, equipment familiarization, humanitarian assistance, and in general build goodwill
and contacts with foreign military establishments.
COUNTRIES WITH PROMISED INVITATION TO NATO
Typically, the number of U.S.military personnel present in a country, and the duration of their stay are limited, though often the overall engagement relationship is a continuing one.
A third sort of U.S. military presence relevant to SOFA issues also emerged in the early 1990s, as the United States began to grapple with the problems of postconflict transitions, peacekeeping, and humanitarian relief in difficult security situations, sometimes with explicit UN Security Council (UNSC) authority, sometimes without.
CURRENT AND PAST NATO MISSIONS
These situations were envisioned as something more than “engagement,” but less than all-out combat operations. However, some involved very significant combat, and virtually all involved a potentially non-benign environment, with at least endemic low-level conflict, a non-Western culturalcontext, and complex relationships with the host government.
NUCLEAR WEAPON AROUND THE WORLD
After 9/11, the wars in Iraq and Afghanistan, and extensive counter-terrorist
operations in a number of countries produced yet a fourth context– continuing U.S. military presence that mixed intense combat with training local forces and broader “nation building”– all in states with at least nominally fully sovereign governments.
The emergence of these new sorts of U.S. military presence has brought with it a need for status protection, but the issues most relevant and the kinds of status problems likely to emerge are different.
At the same time as U.S. purposes for deployments and the nature of those
deployments have changed, foreign perspectives on status agreements and issues have as well.
Foreign countries, including both traditional U.S. allies and other
hosts for other types of military presence, have become increasing sensitive to Official and popular attitudes often make it politically unpalatable for host governments to concede sovereignty (for example, by providing immunity to criminal jurisdiction or exemptions to taxes or tariffs or licensing requirements), especially in the context of agreements that are very broad in scope, extremely complex, and not reciprocal.
Moreover, the nations where U.S. forces are present for these new
purposes are, in an increasing number of cases, politically,economically and culturally, much more different from the United States than the nations where earlier ‘peacetime’ deployments had been undertaken.
RUSSIA TESTING NATO’S REACTION TIME AROUND THE WORLD (EVENTS BETWEEN 2013 AND 2015)
source: The Aviatonist
All these factors complicate negotiation of SOFAs with those countries where there are no agreements in place.
While there have been some successful negotiations of SOFAs in recent years, in other cases, negotiations have either stalemated, or taken so long that useful engagement and other activities have been cancelled or deferred – or undertaken without status protections.
RISK OF UNINTENDED WAR WITH RUSSIA