reach an agreement

Status of Forces Agreement

A Status of Forces Agreement (SOFA) is an agreement between a country and a foreign nation stationing military forces in that country.

Agreements

While the United States military has the largest foreign presence and therefore accounts for most SOFAs, the United Kingdom, Australia, Germany, Russia and South Korea and many other nations also station troops abroad and negotiate SOFAs with their host countries. In the past, the Soviet Union had SOFAs with most of its satellite states.

Terms of operation

The SOFA is intended to clarify the terms under which the foreign military is allowed to operate. Typically, purely military issues such as the locations of bases and access to facilities are covered by separate agreements. The SOFA is more concerned with the legal issues associated with military individuals and property. This may include issues like entry and exit into the country, tax liabilities, postal services, or employment terms for host-country nationals, but the most contentious issues are civil and criminal jurisdiction over the bases. For civil matters, SOFAs provide for how civil damages caused by the forces will be determined and paid. Criminal issues vary, but the typical provision in U.S. SOFAs is that U.S. courts will have jurisdiction over crimes committed either by a servicemember against another servicemember or by a servicemember as part of his or her military duty, but the host nation retains jurisdiction over other crimes.

Host nation concerns

In many host nations, especially those with a large foreign presence such as South Korea and Japan, the SOFA can become a major political issue following crimes allegedly committed by servicemembers. This is especially true when the incidents involve crimes, such as robbery, murder, manslaughter or sex crimes, especially when the charge is defined differently in the two nations. For example, in 2002 in South Korea, two girls were accidentally killed by a U.S. military AVLB bridge laying vehicle on the way to the base camp after a training exercise, and the soldiers involved were tried under U.S. criminal jurisdiction. The court martial panel found the act to be an accident and acquitted the service members, citing no criminal intent or negligence. The U.S. military accepted responsibility for the incident and paid civil damages. A U.S. military court-martial acquitted U.S. soldier who drove the vehicle on negligent homicide charges. This resulted in widespread outrage in Korea, demands that the soldiers be retried in a Korean court, the airing of a wide variety of conspiracy theories and a backlash against the local expatriate community.

However, most crimes by servicemembers against local civilians occur off duty, and in accordance with the local SOFA are considered subject to local jurisdiction. Details of the SOFAs can still prompt issues. In Japan, for example, the U.S. SOFA includes the provision that servicemembers are not turned over to the local authorities until they are charged in a court. In a number of cases, local officials have complained that this impedes their ability to question suspects and investigate the crime. American officials allege that the Japanese police use coercive interrogation tactics and are concerned more with attaining a high conviction rate than finding "justice". American authorities also note the difference in police investigation powers, as well as the judiciary. No lawyer can be present in investigation discussions in Japan, though a translator is provided, and no mention made of an equivalent to America's Miranda rights. As of 2008, jury trials do not yet exist in Japan (but are scheduled to startin 2009), so current trials are all bench or multiple judge trials. For these reasons American authorities insist that servicemembers be tried in military tribunals.

Political issues

The political issue of SOFAs is complicated by the fact that many host countries have mixed feelings about foreign bases on their soil, and demands to renegotiate the SOFA are often combined with calls for foreign troops to leave entirely. Issues of different national customs can arise -- while the U.S. and host countries generally agree on what constitutes a crime, many U.S. observers feel that host country justice systems grant a much weaker set of protections to the accused than the U.S. and that the host country's courts can be subject to popular pressure to deliver a guilty verdict; furthermore, that American servicemembers ordered to a foreign posting should not be forced to give up the rights they are afforded under the Bill of Rights. On the other hand, host country observers, having no local counterpart to the Bill of Rights, often feel that this is an irrelevant excuse for demanding special treatment, and resembles the extraterritorial agreements demanded by Western countries during colonialism. One host country where such sentiment is widespread, South Korea, itself has forces in Kyrgyzstan and has negotiated a SOFA that confers total immunity to its servicemembers from prosecution by Kyrgyz authorities for any crime whatsoever, something far in excess of the privileges many South Koreans object to in their nation's SOFA with the U.S.

To many U.S. observers, the fact that most accused criminals eventually end up being tried in a local court and found guilty proves that the system is working; to some host country observers, it reinforces the perception that the SOFA protects the guilty and makes the exceptions more glaring.

Status of Coalition forces in Iraq

American-led Coalition forces participating in the 2003 invasion of Iraq were initially subject to the exclusive jurisdiction of their parent states. Since the handover of sovereign power to an Iraqi administration, Coalition forces in Iraq are nominally subject to Iraqi jurisdiction, and operate without any Status of Forces Agreement. In theory, Iraqi Courts have the right to try Coalition forces for any alleged offenses, though this right has never been exercised.

In an interview January 24, 2008, US Defense Secretary Robert Gates indicated that work on a SOFA had barely been started.

On June 13, 2008, Iraqi Prime Minister Nuri al-Maliki said that negotiations with the United States on a long-term security pact were deadlocked because of concern the deal infringes Iraqi sovereignty. "We have reached an impasse because when we opened these negotiations we did not realize that the US demands would so deeply affect Iraqi sovereignty and this is something we can never accept," he said in Amman, Jordan. "We cannot allow US forces to have the right to jail Iraqis or assume, alone, the responsibility of fighting against terrorism," Maliki told Jordanian newspaper editors, according to a journalist present at the meeting. However, on June 15, 2008, Iraqi Foreign Minister Hoshyar Zebari said that US-Iraqi negotiations for a long-term security pact were not dead and that despite difficulties, a deal would be signed "by the end of July. . . these talks are ongoing. They're not dead," Zebari said of negotiations to decide the future of the US military presence in Iraq after the current UN mandate expires in December 2008.

On July 1, 2008, Zebari said he briefed members of the Iraqi Parliament that US contractors would no longer have immunity from Iraqi prosecution under negotiated terms of the long-term security pact. US State Department officials could not be immediately reached for comment, but Iraqi member of parliament Mahmoud Othman said he attended the meeting and that Iraqi representatives were very pleased with the immunity agreement.

On July 8, 2008, Grand Ayatollah Ali al-Sistani rejected the proposed agreement on the basis that it violates Iraqi sovereignty, following a meeting with Iraq National Security Advisor Mowaffak al-Rubaie. Rubaie, clarifying remarks by Maliki on July 7 that Iraq would accept a memorandum of understanding in lieu of a SOFA, stated "We will not accept any memorandum of understanding if it does not give a specific date for a complete withdrawal of foreign troops. Deputy speaker Khaled al-Attiyah also said on July 8 that the Iraqi parliament would insist on vetting any agreement with the U.S. and would likely veto the agreement if American troops were immune from Iraqi law: "Without doubt, if the two sides reach an agreement, this is between two countries, and according to the Iraqi constitution a national agreement must be agreed by parliament by a majority of two thirds.