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Status of
Forces: Criminal
Jurisdiction over
Military Personnel
Abroad

Joop Voetelink
Status of Forces: Criminal Jurisdiction
over Military Personnel Abroad
Joop Voetelink

Status of Forces:
Criminal Jurisdiction over
Military Personnel Abroad

13
Joop Voetelink
Faculty of Military Science
Netherlands Defence Academy
Breda
The Netherlands

Translated by Marielle Matthee

ISBN 978-94-6265-056-5 ISBN 978-94-6265-057-2 (eBook)

DOI 10.1007/978-94-6265-057-2

Library of Congress Control Number: 2015931533

Published by t.m.c. asser press, The Hague, The Netherlands www.asserpress.nl

Produced and distributed for t.m.c. asser press by Springer-Verlag Berlin Heidelberg

© t.m.c. asser press and the author 2015

No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by
any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written
permission from the Publisher, with the exception of any material supplied specifically for the purpose
of being entered and executed on a computer system, for exclusive use by the purchaser of the work.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication
does not imply, even in the absence of a specific statement, that such names are exempt from the relevant
protective laws and regulations and therefore free for general use.

Printed on acid-free paper

Springer Science+Business Media B.V. Dordrecht is part of Springer Science+Business Media

(www.springer.com)
Contents

1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 An Example: Afghanistan, 2001–2014 . . . . . . . . . . . . . . . . . . . . 2
1.2 Status of Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2.1 Status of Forces vis-à-vis Military Operations
and International Military Cooperation. . . . . . . . . . . . . 3
1.2.2 Criminal Jurisdiction and Immunity . . . . . . . . . . . . . . . 4
1.3 Structure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.3.1 General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.3.2 Part I: Historical Analysis. . . . . . . . . . . . . . . . . . . . . . . . 6
1.3.3 Part II: International Law Perspective . . . . . . . . . . . . . . 7
1.3.4 Part III: Military Operational Law Perspective . . . . . . . 8
1.4 Terminology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.4.1 Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.4.2 Internal Order and Discipline. . . . . . . . . . . . . . . . . . . . . 11
1.4.3 Crisis Management Operations . . . . . . . . . . . . . . . . . . . 11
1.4.4 Jurisdiction and Immunity. . . . . . . . . . . . . . . . . . . . . . . 12
1.4.5 SOFAs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1.4.6 Definition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Part I Historical Analysis

2 The Ground Rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.2 The Exchange v. McFaddon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.3 Coleman v. Tennessee and Dow v. Johnson. . . . . . . . . . . . . . . . . 25
2.4 The Ground Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.5 Nineteenth Century Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

v
vi Contents

2.6 The Scope of Criminal Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . 30

2.7 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

3 Foreign Armed Forces on Allied Territory During Armed Conflict. . . 35

3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.2 World War I Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.2.1 Allied Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.2.2 Central Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3.3 World War II Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.4 Post World War II Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
3.5 Analysing International Practice . . . . . . . . . . . . . . . . . . . . . . . . . 47
3.6 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Annex A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

4 Armed Forces Participating in Crisis Management Operations . . . . 55

4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
4.2 League of Nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
4.3 UN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
4.3.1 Experts on Mission . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
4.3.2 Troops . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
4.4 Other Organisations and Coalitions. . . . . . . . . . . . . . . . . . . . . . . 64
4.4.1 General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
4.4.2 NATO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
4.4.3 EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
4.4.4 Coalitions of States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
4.5 Stationing in and Transit Through Third States. . . . . . . . . . . . . . 76
4.6 Disaster Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
4.7 Analysis of Crisis Management Practice. . . . . . . . . . . . . . . . . . . 79
4.8 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

5 Military Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
5.2 The Cold War. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
5.2.1 The Aftermath of World War II. . . . . . . . . . . . . . . . . . . 87
5.2.2 NATO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
5.2.3 Bilateral Cooperation Outside the Context of NATO. . . 95
5.2.4 Eastern Europe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
5.3 After the Cold War. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
5.3.1 Partnership for Peace, the Extension of NATO and EU. . . 99
5.3.2 The Security Situation After 11 September 2001 . . . . . 102
5.4 Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
5.5 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Contents vii

Part II The International Law Perspective

6 The Sovereign State and the Exercise of Jurisdiction. . . . . . . . . . . . . 115

6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
6.2 The Origin and Development of the Concept of State. . . . . . . . . 116
6.3 The Sovereign State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
6.4 Jurisdiction of a State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
6.4.1 Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
6.4.2 Principles of Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . 120
6.5 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

7 Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
7.2 State Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
7.2.1 General Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
7.2.2 Absolute Doctrine of State Immunity . . . . . . . . . . . . . . 127
7.2.3 Restrictive Doctrine of State Immunity. . . . . . . . . . . . . 128
7.2.4 Codification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
7.3 Immunity of State Officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
7.3.1 Functional and Personal Immunity. . . . . . . . . . . . . . . . 132
7.3.2 State Officials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
7.3.3 International Crimes and Immunity. . . . . . . . . . . . . . . . 141
7.4 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

8 The State, the Armed Forces and the Concept of Immunity. . . . . . . . 149
8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
8.2 The State, the Armed Forces and Jurisdiction. . . . . . . . . . . . . . . 150
8.2.1 Relationship Between the State and Its Armed Force. . . . 151
8.2.2 Criminal Jurisdiction and the Armed Forces. . . . . . . . . 154
8.3 Armed Forces and the Concept of Immunity. . . . . . . . . . . . . . . . 155
8.3.1 Position of the Armed Forces Under the Absolute
and Restrictive Doctrine of State Immunity . . . . . . . . . 156
8.3.2 Armed Forces and the Concept of Functional
Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
8.3.3 Warships. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
8.3.4 Military Aircraft. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
8.4 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

9 International Organisations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
9.2 Definition of International Organisations. . . . . . . . . . . . . . . . . . . 171
viii Contents

9.3 Establishment of International Organisations

and Their Legal Personality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
9.4 UN, NATO and EU. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
9.4.1 UN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
9.4.2 NATO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
9.4.3 EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
9.5 The Status of International Organisations . . . . . . . . . . . . . . . . . . 178
9.5.1 Organisation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
9.5.2 Staff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
9.5.3 National Representatives. . . . . . . . . . . . . . . . . . . . . . . . 181
9.6 Immunities of Armed Forces Seconded to International
Organisations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
9.6.1 The Staff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
9.6.2 International Forces. . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
9.7 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

Part III Military Operational Law

10 Law of Visiting Forces as Part of Military Operational Law. . . . . . . 191

10.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
10.2 Military Law and Military Operational Law . . . . . . . . . . . . . . . . 192
10.2.1 A Description of Military Operational Law. . . . . . . . . . 193
10.2.2 Historical Development of Military Operational Law. . . 194
10.3 Law of Visiting Forces Within the Context of Military
Operational Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
10.3.1 The Legal Basis for the Visiting Forces. . . . . . . . . . . . . 196
10.3.2 The SOFA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
10.4 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

11 Terminology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
11.2 In Performance of Official Duty. . . . . . . . . . . . . . . . . . . . . . . . . . 204
11.2.1 The Scope of ‘on Duty’ . . . . . . . . . . . . . . . . . . . . . . . . . 205
11.2.2 Competence to Determine Application
of the Term ‘on Duty’. . . . . . . . . . . . . . . . . . . . . . . . . . . 207
11.3 Command and Control. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
11.4 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
Contents ix

12 Analysis of the Frameworks for Foreign Presence

from an International Operational Perspective. . . . . . . . . . . . . . . . . . 213
12.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
12.2 The Protective Function of SOFAs. . . . . . . . . . . . . . . . . . . . . . . . 214
12.3 The Different Frameworks for Extraterritorial Presence. . . . . . . 217
12.3.1 Support During Armed Conflict. . . . . . . . . . . . . . . . . . . 219
12.3.2 Crisis Management Operations . . . . . . . . . . . . . . . . . . . 221
12.3.3 International Military Cooperation. . . . . . . . . . . . . . . . . 224
12.4 Misconduct During UN Crisis Management Operations. . . . . . . 225
12.5 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231

13 Specific SOFA Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233

13.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
13.2 Respect for Local Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
13.3 Use of Force. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
13.3.1 SOFA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
13.3.2 Rules of Engagement. . . . . . . . . . . . . . . . . . . . . . . . . . . 238
13.3.3 Right to Self-defence. . . . . . . . . . . . . . . . . . . . . . . . . . . 239
13.4 Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240
13.5 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244

Part IV Synthesis and Conclusion

14 Synthesis and Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249

14.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
14.2 The Theory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250
14.2.1 The Exchange v. McFaddon as Basis. . . . . . . . . . . . . . . 250
14.2.2 Functional Immunity of State Officials . . . . . . . . . . . . . 252
14.2.3 The Instrumental Role of SOFAs. . . . . . . . . . . . . . . . . . 252
14.2.4 Status of Forces in Three Frameworks. . . . . . . . . . . . . . 253
14.3 Proposal for a Status-of-Forces Compendium. . . . . . . . . . . . . . . 258
14.3.1 Future Foreign Presence of Forces. . . . . . . . . . . . . . . . . 258
14.3.2 Reducing the Burden . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
14.3.3 Status-of-Forces Compendium. . . . . . . . . . . . . . . . . . . . 260
14.4 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265

Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
Abbreviations

AAP Allied Administrative Publication

ACT Allied Command Transformation
ADCON Administrative Control
ADMCON Administrative Control
AJIL American Journal of International Law
AMIB Inter-African Mission to Monitor the Bangui Agreements
AMIS African Mission in Sudan
AMISOM African Union Mission to Somalia
ATS Australian Treaty Series
AU African Union
BGBl Bundesgesetzblatt
CAEMC Central African Economic and Monetary Community
CAR Central African Republic
CFSP Common Foreign and Security Policy
CIS Commonwealth of Independent States
CMF Commonwealth Monitoring Force
CPA Coalition Provisional Authority
CSDP Common Security and Defence Policy
CSTO Collective Security Treaty Organization
DRC Democratic Republic of the Congo
EADRU Euro-Atlantic Disaster Response Unit
EAG European Air Group
EAS Executive Agreements Series
EASBRICOM Eastern Africa Standby Brigade Coordination Mechanism
EC European Community
ECCAS Economic Community of Central African States
ECOWAS Economic Community of West African States
ECtHR European Court of Human Rights
EDC European Defense Community
EEAW European Participating Air Forces’ Expeditionary Air Wing
EGF European Gendarmerie Force

xi
xii Abbreviations

EJIL European Journal of International Law

EU European Union
EUF European Union Force
EUFOR European Union Force
EUMM European Union Monitoring Mission
FOMUC Multinational Force Central African Republic
FRG Republic of Germany
FRONTEX European Agency for the Management of Operational
­Cooperation at the External Borders of the Member States
of the European Union
FSIA Foreign Sovereign Immunities Act
FULLCOM Full Command
GDR German Democratic Republic
HQ Headquarters
HQ ACT Headquarters Allied Command Transformation
ICJ International Court of Justice
ICTY International Criminal Tribunal for the former Yugoslavia
IFOR Implementation Force
IGO International Governmental Organisations
ILC International Law Commission
ILDC International Law in Domestic Courts
ILR International Law Reports
INTERFET International Force in East Timor
IPKF Indian Peacekeeping Force
IPMT International Peace Monitoring Team
ISAF International Security Assistance Force
ISF International Stabilization Force
JFC Joint Force Command
JMBl Justizministerialblatt
KAV Kavass Series
KFOR Kosovo Force
LNOJ League of Nations Official Journal
LNTS League of Nations Treaty Series
MAAG Military Assistance Advisory Group
MCDA Military and Civil Defence Assets
MFO Multinational Force and Observers
MICOPAX Mission for the Consolidation of Peace
MIF Multinational Interim Force
MinBl Ministerialblatt
MINURCA UN Mission in the Central African Republic
MINURCAT UN Mission in the Central African Republic and Chad
MINUSMA UN Multidimensional Integrated Stabilization Mission in Mali
MINUSTAH UN Stabilization Mission in Haiti
MNF Multinational Force
MNF-I Multinational Force Iraq
Abbreviations xiii

MONUC Mission de l’Organisation des Nations Unies en République

­Démocratique du Congo
MOPEP Military Observer Mission Ecuador-Peru
MOU Memorandum of Understanding
MStGB Militärstrafgesetzbuch
MTA Military Technical Agreement
NA5CRO Non-Article 5 Crisis Response Operations
NATO North Atlantic Treaty Organization
NC3A NATO Consultation, Command and Control Agency
NGO Non-governmental Organisation
NTM-I NATO Training Mission Iraq
OAS Organization of American States
OAU Organisation of African Unity
OCHA Office for the Coordination of Humanitarian Affairs
OECS Organization of Eastern Caribbean States
OEF Operation Enduring Freedom
OJ Official Journal of the European Union
OLA Office of Legal Affairs
ONUC UN Mission in the Congo
OPCOM Operational Command
OPCON Operational Control
OSCE Organisation for Security and Cooperation in Europe
PCA Permanent Court of Arbitration
PCIJ Permanent Court of International Justice
PfP Partnership for Peace
PITSE Pacific Islands Treaty Series
PSC Peace and Security Council
RAMSI Regional Assistance Mission to Solomon Islands
ROE Rules of Engagement
RSS Regional Security System
SADC Southern African Development Community
SBA Sovereign Base Areas
SCO Shanghai Cooperation Organisation
SFOR Stabilization Force
SHAPE Supreme Headquarters Allied Powers in Europe
Shirbrig Stand-By Forces High Readiness Brigade
SIA State Immunity Act
SOFA Status of Forces Agreement
SOMA Status of Mission Agreement
SPPKF South Pacific Peacekeeping Force
SSD Security Sector Development
SSR Security Sector Reform
SU Soviet Union
TACOM Tactical Command
TACON Tactical Control
xiv Abbreviations

TEU Treaty on European Union

TIAS Treaties and other International Acts Series
TMG Truce Monitoring Group for Bougainville
TOA Transfer of Authority
TTP Tactics, Techniques and Procedures
UAE United Arab Emirates
UK United Kingdom
UKTS United Kingdom Treaty Series
UNAMSIL UN Assistance Mission in Sierra Leone
UNCLOS UN Convention on the Law of the Sea
UNDOF UN Disengagement Observer Force
UNEF UN Emergency Force
UNIFIL UN Interim Force in Lebanon
UNIIMOG United Nations Iran–Iraq Military Observer Group
UNITAF United Task Force
UNMEE UN Mission in Ethiopia and Eritrea
UNMIL UN Mission in Liberia
UNMIS UN Mission in the Sudan
UNMIT UN Integrated Mission in Timor-Leste
UNOSOM UN Operation in Somalia
UNPROFOR UN Protection Force
UNSC United Nations Security Council
UNSCOB UN Special Committee on the Balkans
UNTAET UN Transitional Administration in East Timor
UNTAG UN Transition Assistance Group
UNTS UN Treaty Series
UNTSO UN Truce Supervision Organization
US United States
Chapter 1
Introduction

Abstract The legal status of armed forces stationed abroad is an important issue
to all States and international organisations involved. Today the status of forces
is often set out in Status of Forces Agreements (SOFAs) defining the rights and
obligations of the deployed forces. Key in these agreements is immunity of
military personnel from criminal jurisdiction of host State courts, as follows from
the doctrine of immunity of States. Moreover, international military operational
practice shows that the exercise of criminal jurisdiction over deployed military
personnel is even more important to States deploying their troops.

Contents
1.1 An Example: Afghanistan, 2001–2014................................................................................ 2
1.2 Status of Forces.................................................................................................................... 3
1.2.1 Status of Forces vis-à-vis Military Operations
  and International Military Cooperation...................................................................... 3
1.2.2 Criminal Jurisdiction and Immunity........................................................................... 4
1.3 Structure............................................................................................................................... 5
1.3.1 General........................................................................................................................ 5
1.3.2 Part I: Historical Analysis........................................................................................... 6
1.3.3 Part II: International Law Perspective........................................................................ 7
1.3.4 Part III: Military Operational Law Perspective........................................................... 8
1.4 Terminology......................................................................................................................... 9
1.4.1 Consent....................................................................................................................... 9
1.4.2 Internal Order and Discipline..................................................................................... 11
1.4.3 Crisis Management Operations................................................................................... 11
1.4.4 Jurisdiction and Immunity.......................................................................................... 12
1.4.5 SOFAs......................................................................................................................... 16
1.4.6 Definition.................................................................................................................... 17
References................................................................................................................................... 17

© t.m.c. asser press and the author 2015 1

J. Voetelink, Status of Forces: Criminal Jurisdiction over Military Personnel Abroad,
DOI 10.1007/978-94-6265-057-2_1
2 1 Introduction

1.1 An Example: Afghanistan, 2001–2014

The 2001 attacks on the Twin Towers in New York and the Pentagon in Washington
D.C. gave rise to Operation Enduring Freedom (OEF) within the framework of the
global War on Terror of the United States (US) against terrorism.1 The first military
operations against Al-Qaeda and the Taliban regime in Afghanistan started on 7
October 2001. Within a short period of time an international coalition of states
under US command and with support of local armed militias united in the North
Alliance gained control over a large part of the country.
On 5 December 2001 the Bonn-Agreement was signed establishing the Interim
Administration for Afghanistan,2 which formally ended the regime of the Taliban.
In Annex I to the Bonn-Agreement, the United Nations Security Council (UNSC)
was requested to consider sending an international security force. The UNSC
followed up on this request by authorising the establishment of the International
Security Assistance Force (ISAF) for Afghanistan.3
Although operating simultaneously in the same geographic area, OEF and ISAF
have different legal bases, which entails differences in their tasks. Also, the
legal status of the forces participating in OEF and ISAF differs. After the Interim
Administration had come into being and had formally taken over authority in
Afghanistan, the US and the new Afghan government concluded an international
agreement on the status of the US armed forces.4 Some States, such as Canada and
the United Kingdom, followed this procedure,5 while other States that had
deployed armed forces to Afghanistan in support of OEF in any period of time
refrained from doing so. In view of the particular circumstances under which their
forces operated the latter group of States probably considered the law of armed
conflict to be sufficient to cover the status of their forces.
The status of members of ISAF is covered by the Military Technical Agreement
(MTA), concluded by the ISAF Commander and the Interim Administration on 4
January 2002.6 In Annex A of the MTA, Arrangements regarding the status of the

1 As from 2009 the term ‘War on Terror’ is officially not in use any more, as the preferred term is

now the more neutral wording ‘overseas contingency operations’; Wilson and Kamen 2009.
2 Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of

Permanent Government Institutions; Bonn, 5 December 2001. www.un.org/news/dh/latest/afghan/

afghan-agree.htm. Accessed November 2014.
3 UN Doc S/RES/1386 (2001) of 20 December 2001, establishing ISAF.
4 Agreement regarding the status of United States 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 activi-
ties; 26 September and 12 December 2002 and 28 May 2003; 28 May 2003 (6192 KAV i).
5 These agreements have not been published.
6 Military Technical Agreement between the International Security Assistance Force (ISAF) and

the Interim Administration of Afghanistan; 4 January 2002. www.operations.mod.uk/isafmta.pdf.

Accessed 13 November 2014.
1.1 An Example: Afghanistan, 2001–2014 3

International Security Assistance Force, both parties agreed that ISAF personnel
remained subject to the exclusive criminal jurisdiction of the sending States.7
Several States support both OEF and ISAF directly or indirectly by granting
foreign forces basing rights and overflight and landing rights. Agreements on the
status of military units were also concluded with these States.8 For reasons of
national security many of these agreements are classified as secret and, conse-
quently, have not been published.

1.2 Status of Forces

1.2.1 Status of Forces vis-à-vis Military Operations

and International Military Cooperation

The agreements mentioned above, related to the operations in and around

Afghanistan, are indicative of the importance that States and international organi-
sations attach to the legal position, or status, of military personnel stationed on the
territory of other States.9 For States deploying armed forces abroad (sending
States), as well as States receiving those forces on their territory (host States), sta-
tus of forces is a continuous point of attention.10 Sending States often cooperate in
multinational forces under the authority of international organisations, such as the
United Nations (UN) or NATO, or are part of a coalition of States.11 For the most
part they operate in one State, while using facilities in other States to make the
operations possible. In the framework of this book, those third countries giving,
for instance, logistic and operational support, are also regarded as host States.

7 When NATO assumed leadership of ISAF operations in August 2003, it concluded a supple-
mentary agreement with Afghanistan on the status of NATO forces; Exchange of letters between
NATO and Afghanistan regarding the status of NATO and its personnel when present on the ter-
ritory of Afghanistan in the execution of ISAF; 5 September 2004 and 22 November 2004 (this
classified agreement has not been published).
8 An example is the basing in Qatar of Dutch military personnel and an aircraft in support of the

operations in Afghanistan, for which the Netherlands and Qatar concluded a special agreement
on the status of the Dutch forces: Status of forces Agreement for military personnel and equip-
ment for the forces between the Kingdom of the Netherlands and the State of Qatar; Doha, 11
March 2002 (Vol. 2204 UNTS 2004, No. 39128).
9 The Dutch government, for instance, has repeatedly underlined the importance of SOFAs,

which are one of the key topics of the memorandum on legal aspects of deployment of armed
forces; Dutch Parliamentary Papers I 2003/04, 29 200 X, C, pp. 3–4 and Dutch Parliamentary
Papers I 2005/2006, 30 300 X, A, p. 5.
10 In the literature and international practice, terms like ‘receiving States’, ‘host Nations’ or

‘receiving Member States’ are also used.

11 The term ‘coalition’ denotes an ad hoc arrangement of two or more States conducting com-

bined military action, sometimes described as coalition of the willing; see Cathcart 2010, p. 236.
4 1 Introduction

The interest of States in status of forces issues is not limited to situations of

armed conflict or crisis-management operations. Also within the framework of
peacetime international military cooperation, the status of forces is part of legal
considerations. Defining that status is of increasing importance in a period of time
when worldwide contacts are growing continuously and international relations
have become more intense and complex over the past decades. This development
also applies to the military, as States have committed themselves to cooperating in
military matters based on a wide range of defence and security agreements, and
support arrangements. As a consequence, visiting forces agreements have been
concluded facilitating the entry and stay of significant numbers of military person-
nel, sometimes accompanied by their families, on the territory of other States for
an extended period of time.

1.2.2 Criminal Jurisdiction and Immunity

The importance of the status of forces stems from the special position of the
armed forces as an inherent part of sovereign States even when deployed abroad.
This means that military personnel are not present in another State in a personal
capacity, but in their capacity as servicemen acting under the military command
and political authority of the sending States’ authorities. Often, they are allowed
to wear their national uniform and to carry arms. Consequently, their position is
quite different from, for instance, international businessmen or tourists. Therefore,
military personnel enjoy immunity in host States; moreover, sending States need
to exercise jurisdiction over them (see for an explanation of the concepts of
immunity and jurisdiction Sect. 1.4.4). Immunity and jurisdiction are key issues
for the States involved and are generally laid down in so-called Status of Forces
Agreements (SOFAs) that define the rights and obligations of the sending States’
armed forces while present on the territory of host States.
The focal point of SOFAs is the exercise of criminal jurisdiction over visiting
foreign forces.12 In other words, SOFAs answer the question which State has juris-
diction to actually prosecute a serviceman of the sending State who has committed
a criminal offence in the host State. Generally, sending States prefer to be able to
exercise criminal jurisdiction over their forces deployed abroad at all times.
However, years of international practice made it clear that in specific situations
host States have their own interests in exercising criminal jurisdiction over visiting

12 Moreover, criminal jurisdiction is often a controversial topic in SOFA negotiations, leading

to lengthy discussions and often claiming most of the attention; e.g., Rouse and Baldwin 1957;
Snee 1961, pp. 3 and 29; Conderman 2013, para 15; Liivoja 2011, p. 132. Furthermore, in cases
where parties do not reach agreement on the exercise of criminal jurisdiction, this could lead to
cancellation of planned foreign deployment of armed forces; Munoz-Mosquera 2011, pp. 2–3.
1.2 Status of Forces 5

forces13 based on legal considerations, also taking into account the circumstances
under which the foreign forces are present in their countries and their relationship
with the sending States. Notwithstanding the focus on criminal jurisdiction, con-
temporary SOFAs cover a wide range of other topics as well. What issues are dealt
with exactly and the level of detail depend on the situation at hand.

1.3 Structure

1.3.1 General

In the course of time, criminal jurisdiction over armed forces stationed in other
States has been the subject of many studies. In the literature about military opera-
tional law researchers have often put much emphasis on particular SOFA issues,
like, of course, criminal jurisdiction, but also on matters like claims-procedures
and tax issues, or have focused on analysing specific agreements, like the NAVO-
SOFA.14 The position of SOFAs in the broader context of international law has not
yet received much attention, however, neither has the relationship between SOFAs
and military operational practice.
Conversely, international law has not revealed much interest in criminal juris-
diction over deployed armed forces,15 mostly briefly referring to the current inter-
national practice to deal with the matter by international agreements based on
international law. Although within specific fields of international law, such as
international criminal law,16 the position of visiting forces on occasion receives
more attention, in general it seems to be a somewhat neglected or, perhaps, forgot-
ten issue in international law.17
Neither of these two approaches does justice to the issue. As relations between the
legal arguments and other relevant factors remain obscure, a patchy picture emerges that
does not really cover the full scope of the criminal jurisdiction issue and cannot explain

13 The final evaluation of the Dutch contribution to Operation Enduring Freedom (Dutch

Parliamentary Papers II 2003/04, 27 925, nr. 135) is a good example. It mentions that during
the negotiations on the status of Dutch armed forces especially States from the Gulf region held
on to their sovereignty, resulting in SOFAs that limited criminal jurisdiction of Dutch authorities
over their forces deployed to these states, p. 33.
14 Agreement between the parties to the North Atlantic Treaty regarding the status of their

forces; London, 19 June 1951 (Vol. 199 UNTS 1954, No. 2678); see Chap. 5, Sect. 5.2.2 of this
book.
15 E.g., the Dutch advisory report to the government on immunity of foreign State officials

ignores the issue completely; Advisory Committee on Issues of Public International Law 2001.
16 E.g., see van Sliedregt et al. 2008, paras 2.12.4, 6.1.4 and 7.1.5.
17 E.g., Brownlie, in Principles of Public International Law, discusses status of forces in a brief

section, Brownlie 2008, pp. 372–375 and Fox defines in a concise manner the special position of
foreign visiting forces, Fox 2008, pp. 717–724. However, often the position of the forces is not
taken into consideration; e.g., Horbach and Lefeber 2007.
6 1 Introduction

current practice nor does it offer any guidance for future developments. This book
brings together the international law and military operational law perspectives contrib-
uting to the theory on which criminal jurisdiction over armed forces stationed abroad
builds and, in the final chapter, will propose to develop a Status-of-Forces Compendium
as a practical tool for drafting and using SOFAs.
Since the beginning of the nineteenth century the armed forces can be consid-
ered an instrument and organ of the State.18 At the same time, the position of the
armed forces in their extraterritorial execution of sovereign tasks also started to
find a place in case law and the literature. Therefore, this book takes the beginning
of the nineteenth century as point of departure.
As extraterritorial operations are intertwined with the vital interests and secu-
rity of the States involved, information can be classified and, therefore, is not
always in the public domain.19 Moreover, some agreements on the status of forces
have been concluded as arrangements that are not considered as treaties under
international law and, subsequently, do not have to be published.20 In addition,
many agreements on the status of forces are indeed freely accessible, but the par-
ties involved are less open about the drafting process.21 Consequently, the back-
ground of some agreements sometimes remains obscure.
Part I of this book provides a historical overview of the development of the send-
ing States’ exercise of criminal jurisdiction, taking three frameworks for stationing
forces abroad as point of departure: the consensual stationing of allied forces on co-
belligerent territory during armed conflict, participation in crisis management opera-
tions, and participation in international military cooperation. Part II concentrates on
SOFAs from the perspective of international law, establishing the relation between
the State and its armed forces and analysing State immunity and immunities of State
officials. Furthermore, it briefly touches upon the functions of international organisa-
tions. Part III, finally, elaborates on criminal jurisdiction as part of the law of visiting
forces, from the perspective of military operational law. After detailing some specific
military terms, this Part analyses criminal jurisdiction from the legal bases that are
related to the three frameworks for stationing forces abroad as described in Part I.

1.3.2 Part I: Historical Analysis

The Afghanistan example illustrates that States take different approaches when it
comes to the status of their forces stationed abroad. Interest in the subject has a
long history and came to a climax in 1812, when the American Supreme Court

18 This development varies from State to State.

19 E.g., the US are party to more than 100 SOFAs, at least ten of which are classified due to
security reasons; Mason 2011.
20 E.g., Aust 2007, p. 43. These documents do not have to be registered with the UN in accord-

ance with Article 102 UN Charter.

21 Engdahl 2007, p. 152.
1.3 Structure 7

touched upon the matter for the first time in the The Schooner Exchange v.
McFaddon-case,22 considering that when a State approves the transit of foreign
military forces, it has implicitly waived its jurisdiction over these forces.
In the following period, a modest number of court cases building on The
Schooner Exchange v. McFaddon-case were published and, also, experts in the
field of international law started to address the status of forces issue. Since the
beginning of the twentieth century it has become part of specific international
agreements.23 Between both World Wars, the League of Nations adopted a resolu-
tion on the status of forces participating in the organisation’s international force,
as the first of its kind.24 Since World War II, the issue developed rapidly and the
content and form of the agreements changed during that post-war period.
At first sight, it might be hard to detect a clear line in the development of
SOFAs over the past two centuries. Many researchers concentrate on the period
as a whole or focus on certain elements of the development often as part of a
broader discussion. As a result, several aspects relating to the status of forces, such
as the interests of the States involved, remain largely unexplored. This book is
based on the belief that analysing criminal jurisdiction over visiting foreign forces
within a specific framework will give insight in the background of the develop-
ment of SOFAs and will help explaining current practice. In this regard, aspects of
international law and military operational law are of particular interest and will be
discussed in the following two sections.

1.3.3 Part II: International Law Perspective

The literature and case law frequently refer to existing practices and customs with
respect to the status of forces suggesting that the law relating to visiting foreign
forces is a specific part of international law: the law of visiting forces.25 However,
this does not mean that the status of military forces is a self-contained regime. It
cannot be separated from some of the basic tenets of international law, such as the
jurisdiction of States and State immunity. In 1648, the Peace of Westphalia for-
mally introduced the principle of sovereignty of States as the modern foundation
of the political order between States. To defend their sovereignty, States disposed
of armed forces to protect their vital interests. Since the nineteenth century, the

22 U.S. Supreme Court 24 February 1812, The Schooner Exchange v McFaddon 11 U.S. 116

(1812). supreme.justia.com/us/11/116/case.html. Accessed November 2014.

23 The first agreements were concluded at the beginning of the First World War; e.g. Agreement

between Belgium and France relative for the better prosecution of acts prejudicial to the armed
forces; Brussels, 14 August 1914 (The Consolidated Treaty Series, edited and annotated by Clive
Parry, Vol. 220, 1914–1915, p. 274).
24 Resolution of the Council of 11 December 1934, League of Nations Official Journal,

December 1934, pp. 1762–1763.

25 Fleck 2003, p. 12.
8 1 Introduction

existence and actions of armed forces became inextricably linked to the State,26
explaining the States’ interest in exercising jurisdiction over their armed forces.
The possibility to exercise criminal jurisdiction over armed forces stationed on
foreign territory implies the servicemen’s immunity from the criminal jurisdiction of
local courts. Immunity can be based on customary law and international agreements
and is closely connected to the sovereign position of the State. Therefore, any analy-
sis of the status of visiting forces requires an understanding of the position of the
State and its organs in their relations with other States under international law.
In those relations, sovereign States are equal and independent from other States
and have the exclusive power to execute the functions of the State within their ter-
ritory27: to prescribe and enforce the rules and administer justice. From this princi-
ple of sovereignty the status of armed forces on foreign territory has been derived.
Viewed from an international law perspective, warships and their crews even have
a special position for which specific rules and practices have developed that today
are partly laid down in treaties and general arrangements.
The sovereignty of States has been a key concept in the development of interna-
tional law. Initially, international law regulated the co-existence of States and delim-
ited their competences. As States started to cooperate to jointly address cross-border
problems they delegated part of their powers to institutions they had established
together and which, as international organisations, acquired a place of their own
under international law. Important international organisations, in particular the UN,
play their own unique role in the development with respect to status of forces.

1.3.4 Part III: Military Operational Law Perspective

SOFAs are one of the main topics of military operational law, which itself is a sub
discipline of military law. The latter is a hybrid discipline of law, which is difficult
to define, and is sometimes described as: “all parts of law related to military per-
sonnel and the military”.28 In contrast to military law, which has a really broad
scope, addressing the relation between law and military personnel, military opera-
tional law concentrates on the actual deployment of armed forces in military oper-
ations and can be described as:
the various bodies of national and international law which are applicable to and regulate
the planning and conduct of military operations.29

Military operational law has its origin in the aftermath of the Vietnam War. In
response to serious crimes committed by US servicemen during the conflict, the US

26 Ducheine 2008, p. 12.

27 PCA 4 April 1928, The Island of Palmas case (or Miangas), United States v the Netherlands,
Award of the Tribunal, p. 8. www.pca-cpa.org. Accessed November 2014.
28 Gill 2006, p. 184.
29 Gill and Fleck 2010, p. 3.
1.3 Structure 9

armed forces improved education and training in the law of armed conflict.30 More
important with respect to operational law, legal review of the operational plans was
introduced, which integrated law in the preparation and the execution of military
operations. This interrelation became known as military operational law.
From a military operational law perspective, SOFAs are to be considered in
the larger context of the law of visiting forces. Within this context, SOFAs do
not stand alone, but build on the legal bases for the foreign stationing of forces.
From those bases follow the operational objectives of the forces’ foreign presence
which, to a large extent, determine the status of the forces, in particular, the exer-
cise of criminal jurisdiction over the forces.
Today, SOFAs not only deal with criminal jurisdiction, but can cover a wide
range of subjects, such as immunities from civil jurisdiction, procedures for enter-
ing the host States, freedom of movement in the host States and the right to carry
arms. The contents of SOFAs affect the commander’s ability to execute his mis-
sion. For instance, in practice during the deployment of sizeable military units,
damage, for example, because of traffic accidents is unfortunately unavoidable.
SOFAs that allow for a flexible and expedient process to solve these matters con-
tribute to the local population’s acceptance of the visiting forces.31 Furthermore,
during crisis management operations, that today also aim to restore the rule of law
in the aftermath of an armed conflict, this type of process helps to restore confi-
dence in the local legal order.32 A SOFA tailor-made for a specific mission con-
tributes to the successful accomplishment of the mission.

1.4 Terminology

1.4.1 Consent

This book deals with the consensual stationing of armed forces abroad only.
Therefore, situations where host States have refrained from giving their consent to
the foreign military’s presence have not been taken into consideration. Armed con-
flict, especially the hostile occupation of a State,33 is clearly a situation in which

30 Id., pp. 26 et seq.

31 E.g., Borch 2001, pp. 25 and 73.
32 ECHR 31 May 2007, Behrami v France and Saramati v France and others, Application no.

71412/01, para 48.

33 In a situation of occupation, parts of the territory of a State fall de facto under the authority

of the hostile army (Article 42 Regulations Respecting the Laws and Customs of war on Land,
Annex to the Hague Convention IV Respecting the Laws and Customs of War on Land; The
Hague, 18 October 1907; see also ICJ 19 December 2005, Case concerning Armed Activities
on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J.
Reports 2005, p. 168, paras 173–178). This rule also applies if the occupation did not meet
armed resistance (Common Article 2 to the Geneva Conventions of 1949) and to the extent that
no valid agreement had been concluded with the occupied State (Roberts 2009, para 4).
10 1 Introduction

consent is lacking. In that particular situation, the status of forces follows from the
law of armed conflict. Consequently, local courts in occupied territory do not have
criminal jurisdiction over the occupying hostile armed forces,34 which remain sub-
ject to the exclusive criminal jurisdiction of the authorities of the sending State. To
this end, the occupying powers can establish military tribunals on the basis of
Article 66 of the Fourth Geneva Convention.35
There are other situations in which military personnel is deployed abroad with-
out host State consent. In principle, operations in the context of Chapter VII of the
Charter of the United Nations36 do not require host States’ approval, but the UN
will attempt to obtain their consent.37 In peacetime host States will have jurisdic-
tion over illegal military activities conducted on their territory by foreign State
officials present without their consent.38 An example is the 1985 attack on the
Greenpeace vessel ‘Rainbow Warrior’. Agents of the French intelligence service
sank the ‘Rainbow Warrior’ when it was berthed in the port town of Auckland,
New Zealand, killing a Dutch photographer. Two French servicemen involved in
the action, and operating without the consent of the government of New Zealand,
were arrested and convicted by the local court.39

34 This aspect is not explicitly mentioned in treaties such as the Hague IV Convention relating

to the Laws and Customs of War on Land and the Geneva Conventions. However, this situation is
in accordance with the actual balance of power; Schneider 1964, p. 1. In general, see: JAGS Text
No. 11 1944, p. 238; von Glahn 1957, p. 340; Dinstein 2009, p. 136. According to Robin, this
results from Article 43 of the Hague IV Convention relating to the Laws and Customs of War on
Land; Robin 1913, p. 141.
35 Pictet 1958, p. 340. In 1947, on the question whether Dutch courts had jurisdiction over

hostile forces, the court in the Ahlbrecht case considered that an army occupying foreign terri-
tory brings its own criminal codes, courts martial and criminal proceeding; Special Council of
Cassation, 17 February 1947, Ahlbrecht, NJ 1947, 87. In the case In re Verhulsdonck the Belgian
judge concluded that Belgian criminal law was not applicable to the German occupation forces
during the Second World War; Court of Cassation 12 February 1951, In re Verhulsdonck, ILR
18, p. 532. Prisoners of war are an exception. They are subject to the law of the State that has
imprisoned them (e.g., Article 82 Third Convention relative to the Treatment of Prisoners of War;
Geneva, 12 August 1949). Another exception are the war crime trials after the armed conflict has
ended; see Liivoja 2011, p. 146. In these cases, the homes States of the prosecuted officials had
never invoked immunity; see UN Doc A/CN.4/631 (2010), ILC Second report on immunity of
State officials from foreign criminal jurisdiction, 10 June 2010, para 69.
36 Charter of the United Nations; San Francisco, 26 June 1945 (S. 1945, F 253).
37 United Nations Peacekeeping Operations. Principles and guidelines, New York: United

Nations, 18 January 2008, p. 31. In case of so called ‘enforcement operation’ consent may be
lacking and the law of armed conflict will apply.
38 See UN Doc A/CN.4/631 (2010), ILC Second report on immunity of State officials from for-

eign criminal jurisdiction, 10 June 2010, para 85.

39 For more details on this topic, see Ruling by the Secretary-General of the United Nations,

6 July 1986, Case concerning the differences between New Zealand and France arising from
the Rainbow Warrior affair, United Nations Reports of International Arbitral Awards, Vol. XIX,
pp. 199–221.
1.4 Terminology 11

1.4.2 Internal Order and Discipline

The armed forces are a hierarchal organisation, in which the command structure is
clearly defined. With a view to the sometimes exceptional circumstances under
which the servicemen must operate, military criminal, disciplinary and administra-
tive law emphasise the military command relationships, authorising the com-
mander to issue orders and service regulations, which all servicemen under his
command are obliged to follow.40 The commander can enforce his orders and reg-
ulations, if necessary, by taking disciplinary or administrative action.
Military criminal, disciplinary and administrative law are an inherent part of an
effective force and must, therefore, continue to apply when the forces are deployed
abroad.41 This cannot be regarded as a serious obstacle by the host State as long as
the rules concern the internal order of the visiting forces and do not affect host
State public order. In general, it is accepted that sending States have the exclusive
authority over the internal order of their forces. However, legal systems of states
vary and the question of whether the public order of the host State is concerned
will have to be answered on a case-to-case basis. Unless indicated otherwise, this
book does not address internal disciplinary and administrative law.

1.4.3 Crisis Management Operations

The terminology related to military operations does not have a legal basis and is
quite ambiguous. The UN include in the description of peace operations several
related and partly overlapping activities, such as conflict prevention, peacemaking,
peace enforcement, peacekeeping and post-conflict peacebuilding.42 Peacekeeping
operations are an important tool for the UN with a highly diverse character, vary-
ing from traditional observation missions to the modern multi-dimensional peace-
keeping operations that include military, police and civilian elements.43
NATO distinguishes between collective self-defence operations on the basis of
Article 5 of the NATO-Treaty,44 on the one hand, and operations that are not based
on this article (the Non-Article 5 Crisis Response Operations, NA5CRO), on the
other. This term has a rather broad scope and includes a wide variety of military

40 Ducheine 2010, pp. 145–154.

41 In this context, reference has been made to the concept of organic jurisdiction, Sari 2008, pp.
77 et seq; Liivoja 2011, p. 239, in which the specific relation between the State and its organs is
solely subject to national law; Seyersted 2008, p. 84.
42 United Nations Peacekeeping Operations. Principles and Guidelines, New York: United

Nations, 18 January 2008, pp. 18–19 and Fig. 1.

43 Ibid, p. 22.
44 North Atlantic Treaty; Washington, 4 April 1949 (Vol. 34 UNTS 1949, No. 541).
12 1 Introduction

activities, such as peacekeeping activities, humanitarian assistance and evacuation

of non-combatants. Since 2003, the EU has undertaken military operations and
civilian missions in the context of the Common Security and Defence Policy
(CSDP).45 The organisation uses the term crisis management to include all activi-
ties undertaken in this context.46 This book follows the latter terminology using
crisis management operation as a generic term for any military operation taking
place with host State consent.

1.4.4 Jurisdiction and Immunity

Although distinct concepts, jurisdiction and immunity are closely related47 and are
central in the discussion on the status of forces. When addressing the status of State
officials abroad international law generally focuses on the concept of immunity,
while from the military operational law perspective jurisdiction is equally, if not
more, important. Therefore, in anticipation of a more detailed analysis in Part II,
Chaps. 6 and 7, it is useful to briefly discuss both concepts.
Jurisdiction refers to the powers of sovereign States to prescribe, adjudicate and
enforce their national laws.48 In principle, jurisdiction and the State’s exercise
thereof is territorial by nature (see Fig. 1.1).
On the basis of generally accepted principles of jurisdiction under international
law, a State can extend its law to apply to persons or activities outside its own
territory. In this way, the State extends its legislative jurisdiction beyond its bor-
ders. As a consequence, that State can prosecute acts committed by its nationals
abroad, or which have an effect on its territory or legal order within certain gener-
ally accepted parameters. In that case, State A can prosecute a suspect when he is
within its territory or when a court of State A renders a decision in absentia.
State A can lay down by law the authority of its courts to sit outside its own
territory. However, this authority does not imply that those courts have the right to
actually operate in State B and can, for example, conduct a criminal investigation.
The extraterritorial exercise of the powers to adjudicate and enforce requires either
the consent of the States involved, or a legal basis under international law.

45 Before the Treaty of Lisbon came into effect, CSDP was called the European Security and

Defence Policy; Treaty of Lisbon amending the Treaty on European Union and the Treaty estab-
lishing the European Community; Lisbon, 13 December 2007 (OJ 2007, C 306).
46 Naert 2010, p. 204, footnote 1025.
47 The concepts of jurisdiction and immunity are inextricably linked: “If there is no jurisdic-

tion en principe, then the question of an immunity from a jurisdiction which would otherwise
exist simply does not arise”; ICJ 14 February 2002, Arrest warrant of 11 April 2000 (Democratic
Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 3, separate opinion of
Judges Higgins, Kooijmans and Buergenthal para 3. As a result, immunity is the exception to
jurisdiction and can only be invoked if there is jurisdiction. (ibid, para 70).
48 Restatement of the Law (1987) pp. 230 et seq.
1.4 Terminology 13

Fig. 1.1  State jurisdiction Jurisdiction

of a State:

Legislative

Adjudicative

Enforcement

Fig. 1.2  State jurisdiction;

State A’s national abroad State A: State B:

Legislative
Legislative

Adjudicative Adjudicative

Enforcement Enforcement

In case a national of State A visits State B, he falls under the legislative, adjudi-
cative, and enforcement jurisdiction of the latter State notwithstanding any possi-
ble extraterritorial legislative jurisdiction of his home State. If State A made use of
its power to exercise extraterritorial legislative jurisdiction, this would result in the
possibility that a particular act could constitute an offence under the laws of both
States A and B, implying a degree of concurrent jurisdiction (see Fig. 1.2). No
specific rules of precedence apply in situations like these and normally the State
that is in the best position to act, for example the State, where the offence was
committed and the perpetrator apprehended, will initiate criminal proceedings.
State B has, inter alia, adjudicative and enforcement jurisdiction over the visit-
ing national from State A, except when that person is a foreign State official, like a
diplomat or serviceman, present on State B’s territory with its consent (see
Fig. 1.3), who enjoys immunity from the adjudicative and enforcement jurisdiction
of State B.49 Officials enjoying immunity remain, however, subject to the legisla-
tive jurisdiction of both State B and State A, if the latter has extended its legisla-
tive jurisdiction beyond its borders. In cases of State officials this will virtually
always be the case.

49 Staff members of international organisations can also enjoy immunity (see Chap. 9).
14 1 Introduction

Fig. 1.3  Immunity from

adjudicative and enforcement State A: State B:
jurisdiction

Legislative
Legislative

Adjudicative Adjudicative

Enforcement Enforcement

If a State official commits an offence abroad he will almost always be subject

to the legislative jurisdiction of both States A and B. State B, however, cannot
exercise enforcement and adjudicative jurisdiction vis-à-vis the official acts of the
official because of immunity. In such a case it would fall to State A to do so once
the official is back home.
Immunity is attached regardless whether or not State A decides to exercise its
adjudicative jurisdiction over the official upon his return to State A or in absentia.
In other words, immunity does not have the primary aim to enable State A to exer-
cise its adjudicative and enforcement jurisdiction extraterritorially vis-à-vis its offi-
cial abroad. However, its aim is to prevent State B from exercising those powers
over the foreign official.
With regard to visiting forces present on another State’s territory the situation is
different. Many SOFAs put more emphasis on the sending States’ possibility to
exercise their criminal jurisdiction than on immunities granted by host States. For
instance, several SOFAs state that members of the armed forces deployed abroad
are subject to the exclusive jurisdiction of their respective sending States,50
thereby expressing the parties’ understanding that State A, as sending State, to the
exclusion of State B, as host State, may exercise its adjudicative and enforcement
jurisdiction over the servicemen. State B, therefore, refrains from exercising its
adjudicative and enforcement jurisdiction over the servicemen, who thus enjoys
immunity in State B (see Fig. 1.4).
In this context, jurisdiction and immunity are closely interlinked as the report
resulting from the experiences of the United Nations Emergency Force (UNEF) in
Egypt shows (see Sect. 4.3.2). In the report, the Secretary-General of the UN
stated that the members of the force “should be immune from the criminal juris-
diction of the host State” and that the SOFA “accordingly provided that members
of the Force should be under the exclusive jurisdiction of their respective national.

50 A well-known example is para 47 (b) Model Status-of-Forces Agreement for Peace-Keeping

Operations, Report of the Secretary-General, UN Doc A/45/594 of 9 October 1990.

1.4 Terminology 15

Fig. 1.4  Exclusive
jurisdiction in relation to State A: State B:
immunity

Legislative
Legislative

Adjudicative Adjudicative

Enforcement
Enforcement

States with regard to any criminal offences committed by them in Egypt”.51 In

2004 the Office of Legal Affairs stated that forces participating in UN operations:
are … subject to the exclusive criminal jurisdiction of their respective national authorities,
and so enjoy absolute and complete immunity from legal criminal process in States host-
ing peacekeeping operations.52

In the literature the relation between jurisdiction and immunity vis-à-vis military
forces is not subject to debate and often the exclusive criminal jurisdiction of the
sending States over their armed forces is almost naturally equated with the crimi-
nal immunity of these forces.53
In my opinion, emphasising the sending States’ jurisdiction rather than the
immunity granted by host States highlights the special relation between sending
States, on the one hand, and their armed forces in the execution of their mission
abroad, on the other. The military force functioning as an organised entity under
single military command is a necessity for mission accomplishment. This means
that sending States must be able to exert their authority and command over the
forces without host State interference, which requires the forces’ immunity from
the jurisdiction of the host States and, above all, that sending States can exercise
their jurisdiction over servicemen who have violated sending State and host State
law. In other words, the military function requires that forces deployed abroad
remain to a certain extent subject to the jurisdiction of the sending States and that
the host States partly refrain from the exercise of these powers.

51 See UN Doc A/3943 (1958), Summary study of the experiences derived from the establish-

ment and operation of the Force, Report of the Secretary General, 9 October 1958, para 136.
52 Office of Legal Affairs, ‘Letter to the Acting Chair of the Special Committee on Peacekeeping

Operations, United Nations, regarding immunities of civilian police and military personnel’, 14
April 2004, United Nations Juridical Yearbook 2004, New-York: United Nations, Office of Legal
Affairs 2004, p. 325.
53 See for example Siekman 1988, p. 170; Bothe and Dörschel 2003, p. 505; Liivoja 2011,

p. 250.
16 1 Introduction

If State B refrains from exercising its adjudicative and enforcement jurisdiction

over the serviceman from State A, State A in turn could waive the immunity the ser-
viceman enjoys. This means that State B could initiate criminal proceedings instead.
However, if the forces are subject to the exclusive criminal jurisdiction of the send-
ing States, it rarely happens that these States waive their forces’ immunity.54

1.4.5 SOFAs

International practice shows that there is a preference for setting out status of
forces arrangements in international agreements, which mostly take the form of
treaties in accordance with the Vienna Convention on the Law of Treaties.55
However, other instruments are also used. For instance, in 2003 during the occupa-
tion of Iraq by US and British forces, the Coalition Provisional Authority of Iraq
unilaterally adopted an order that regulated the conditions for the presence of for-
eign forces.56 With the consent of the Iraqi authorities this order continued to be in
force long after the period of occupation had ended. Furthermore, States some-
times lay down the status of forces in other instruments than legally binding inter-
national agreements that are often referred to as Memoranda of Understanding
(MOU).57 In addition, in several cases the UN Security Council (provisionally)
dealt with the status of forces by resolution.58 This book will refer to all these
instruments with the generic term SOFA. Besides, rules on the status of forces are
also partly of a customary nature, as will be discussed below.

54 Forces participating in the Multinational Force and Observers (MFO) in the Sinai were sub-
ject to the sending States’ exclusive criminal jurisdiction on the basis of para 11(a) Appendix
of the Annex to the Protocol relating to the establishment and maintenance of a Multinational
Force and Observers (with annex); Washington, 3 August 1981 (Vol. 1335 UNTS 1983 No.
22403). In supplementary agreements with Israel MFO member States waived the immunity of
MFO-members on leave in Israel with respect to certain crimes; e.g., Exchange of notes consti-
tuting an agreement relating to privileges and immunities for United States military members and
civilian observers of the Multinational Force and Observers on leave in Israel; Jerusalem, 28
September 1982, and Tel Aviv, 1 October 1982 (Vol. 1871 UNTS 1995, No. 31960). For an oppo-
site opinion, see Engdahl 2007, p. 183.
55 Vienna Convention on the Law of Treaties; Vienna, 23 May 1969 (Vol. 1155 UNTS 1980, No.

18232).
56 CPA Order 17 (rev.): Coalition Provisional Authority Order Number 17 (revised): Status of

the Coalition Provisional Authority, MNF-Iraq, Certain missions and Personnel in Iraq; 27 June
2004. http://www.iraqcoalition.org/regulations/20040627_CPAORD_17_Status_of_Coalition__
Rev__with_Annex_A.pdf. Accessed November 2014.
57 In contrast to treaties MOUs are not subject to international law and, as a result, they are not

legally binding; see Aust 2007, pp. 20–21.

58 See for example, the United Nations Mission in the Central African Republic (MINURCA),

UN Doc S/RES/1158 van 27 March 1998, para 19. This practice is frequently adopted, see, e.g.
UNMEE (UN Doc S/RES/1320 (2000), para 6); MINUSTAH (UN Doc S/RES/1542 (2004), para
11); MINURCAT (UN Doc S/RES/1778 (2007), para 4).
1.4 Terminology 17

SOFAs are to be distinguished from agreements that lay down the legal basis
for the visits of foreign forces. In Part III of this book these latter agreements will
be referred to as visiting forces agreements.

1.4.6 Definition

In the literature SOFAs are discussed in rather general terms avoiding the need to
define them.59 For the purpose of this book I propose the following definition:
A SOFA is an arrangement, no matter in what form, delineating the legal status of service-
men from a sending State who stay with the consent of the host State on its territory, and
that at least includes rules on the exercise of criminal jurisdiction over the sending State’s
servicemen.

The definition includes some specific elements. First, host States have to consent
to the presence of the foreign military forces. Consent does not necessarily have
to be part of the SOFA itself, but can precede it, for example, in a visiting forces
agreement. Second, key to SOFAs is the provision on the exercise of criminal
jurisdiction over the servicemen deployed abroad. Third, SOFAs normally do not
deal with military personnel exclusively, but address the status of other categories
as well, for example civilian personnel employed by the armed forces, and fam-
ily members or civilian contractors working for the armed forces. As this book
focuses on the military, other categories are left out of the proposed definition.
Finally, the form of the SOFA is of less importance and the arrangement could
be laid down in a treaty, MOU, or other international, multilateral or unilateral,
instrument.

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Advisory Committee on Issues of Public International Law (2001) Advisory report on immunity
of foreign State officials. Advisory Report no. 20, The Hague. cms.webbeat.net/ContentSuite/
upload/cav/doc/cavv-report-nr-20-immunity_foreign_officials.pdf. Accessed Nov 2014
Aust A (2007) Modern treaty law and practice. Cambridge University Press, Cambridge
Borch FL (2001) Judge advocates in combat: army lawyers in military operations from Vietnam
to Haiti. Office of the Judge Advocate General and Center of Military History United States
Army, Washington
Bothe M, Dörschel T (2003) The UN peacekeeping experience. In: Fleck D (ed) The handbook
of the law of visiting forces. Oxford University Press, Oxford, pp 487–506
Brownlie I (2008) Principles of public international law. Oxford University Press, Oxford

59 Other documents most often do not include a definition of a SOFA either. For example,

NATO keeps an extensive overview of the terminology used within the organisation (Allied
Administrative Publication, AAP-06, 2013, NATO Glossary of Terms and Definitions). However,
this document does not include a definition of a SOFA.
18 1 Introduction

Cathcart B (2010) Command and control in military operations. In: Gill TD, Fleck D (eds) The
handbook of international law of military operations. Oxford University Press, New York, pp
235–244
Conderman PJ (2013) Status of armed forces on foreign territory agreements (SOFA). In: Max
Planck encyclopedia of public international law. www.mpepil.com. Accessed Nov 2014
Dinstein Y (2009) The international law of belligerent occupation. Cambridge University Press,
Cambridge
Ducheine PAL (2008) Krijgsmacht, geweldgebruik & terrorismebestrijding. Een onderzoek naar
juridische aspecten van de rol van strijdkrachten bij de bestrijding van terrorisme. Wolf Legal
Publishers, Nijmegen
Ducheine PAL (2010) De status van aanwijzingen van buitenlandse commandanten bij de
beoordeling van functioneel militair geweldgebruik, Een reactie op de bijdrage van mr. A.F.
Vink over de Tactical Directive. Militair Rechtelijk Tijdschrift 103:86–91
Engdahl O (2007) Protection of personnel in peace operations: the role of the safety convention
against the background of general international law. Martinus Nijhoff Publishers, Leiden
Fleck D (2003) (ed) The handbook of the law of visiting forces. Oxford University Press, Oxford
Fox H (2008) The law of state immunity. Oxford University Press, Oxford
Gill TD (2006) Voordracht ter gelegenheid van de oprichting van de Gezamenlijke Militaire
Juridische Dienst. Militair Rechtelijk Tijdschrift 99:184–189
Gill TD, Fleck D (2010) The handbook of international law of military operations. Oxford
University Press, New York
Horbach N, Lefeber R (2007) Staatsaansprakelijkheid. In: Horbach N, Lefeber R, Ribbelink O
(eds) Handboek internationaal recht. T.M.C. Asser Press, The Hague, pp 309–345
JAGS Text No. 11 (1944) Law of belligerent occupation. Judge Advocate General’s School, Ann
Arbor
Liivoja R (2011) An axiom of military law: Applicability of national criminal law to military per-
sonnel and associated civilians abroad. Centre of Excellence in Global Governance Research,
Helsinki
Munoz-Mosquera A (2011) Host nation support arrangements: the NAC-approved military-to-
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Naert F (2010) International law aspects of the EU’s security and defence policy with a particular
focus on the law of armed conflict and human rights. Intersentia, Antwerpen-Oxford-Leuven
Pictet JS (1958) Commentary IV Geneva convention relative to the protection of civilian persons
in times of war. ICRC, Genève ICRC
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international law. www.mpepil.com. Accessed Nov 2014
Robin R (1913) Des occupations militaires en dehors des occupations de guerre. Division
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 Part I
Historical Analysis

In the past two centuries the scope of criminal jurisdiction over military forces
stationed on the territory of other States with their consent has not always been
defined in a uniform way. For this reason the first part of this book has a histori-
cal bias and concentrates on the development of criminal jurisdiction over visiting
forces in the past few centuries and the particular circumstances explaining this
development. Part I also briefly deals with aspects of an international and mili-
tary operational nature. Based on the Historical Analysis provided in Part I, these
aspects will be further analysed in Parts II and III.
Part I describes the development of the arrangements and practice relating to
the status of forces in two ways, one of which is chronological by nature and starts
at the beginning of the nineteenth century. Towards the end of the nineteenth cen-
tury the chronological method modifies into a thematic method dealing with spe-
cific frameworks relating to the various circumstances in which the visiting forces
find themselves: stationed on co-belligerent territory during an armed conflict,
participating in crisis management operations and partaking in international mil-
itary cooperation activities abroad. The thematic method also takes into account
the circumstances under which the forces are based abroad, the interests of the
States involved, and their mutual relations. The three frameworks will be further
discussed in the following chapters; they will also be the basis for analysis from a
military operational law perspective in Part III.
Chapter 2 aims to define the ground rule relating to criminal jurisdiction over
visiting forces in the extraterritorial execution of their tasks through a histori-
cal analysis. Findings in this chapter are in the first place based on the literature
and case law. However, as States have concluded formal SOFAs ever since World
War I, these agreements will play an increasingly important role in the following
22 Part I 

chapters. Furthermore, these chapters examine to what extent State practice cor-
responds with the ground rule and identifies the limits of the ground rule. Chapter
3 focuses on the status of allied forces stationed on co-belligerent territory during
armed conflict. Chapter 4 addresses the status of the armed forces participating in
crisis management operations. Part I ends with Chap. 5 on the status of forces in
the context of international military cooperation.
Chapter 2
The Ground Rule

Abstract In 1812 the US Supreme court addressed the status of armed forces pass-
ing through the territory of a foreign friendly State and concluded that consent of
that State implied its waiver of all jurisdiction over the visiting forces. Based on this
court case and subsequent case law a general ground rule on the exercise of jurisdic-
tion can be framed: A host State refrains from exercising criminal ­jurisdiction over
armed forces of a sending State, in case it has given consent to their entry and pres-
ence on its territory, thus allowing the sending State to exercise criminal jurisdiction
over its forces abroad. Case law and the literature limit the scope of the ground rule
somewhat, indicating that it applies to visiting forces as an organised military unit
and while the members of the forces are present at the designated military bases and
installations or are on duty outside the bases and installations.

Contents
2.1 Introduction.......................................................................................................................... 23
2.2 The Exchange v. McFaddon................................................................................................. 24
2.3 Coleman v. Tennessee and Dow v. Johnson......................................................................... 25
2.4 The Ground Rule.................................................................................................................. 27
2.5 Nineteenth Century Practice................................................................................................ 28
2.6 The Scope of Criminal Jurisdiction..................................................................................... 30
2.7 Conclusion........................................................................................................................... 32
References................................................................................................................................... 33

2.1 Introduction

Throughout the centuries States have deployed their armed forces abroad in
order to protect or further their national interests, which could generally be
defined in terms of the law of armed conflict as international armed conflicts and
­occupation. In the past, armed forces largely consisted of soldiers recruited by
private entrepreneurs that later in history were partly replaced by regiments hired
from other States. During the first part of the nineteenth century, the introduction

© t.m.c. asser press and the author 2015 23

J. Voetelink, Status of Forces: Criminal Jurisdiction over Military Personnel Abroad,
DOI 10.1007/978-94-6265-057-2_2
24 2 The Ground Rule

of, inter alia, mandatory military service put an end to this practice in Continental
Europe and the armed forces developed into an instrument of the sovereign State
in its relations with other States. In the same period the legal status of armed forces
stationed in other States started to find a place in both case law and the literature.
This chapter examines in what ways ideas on criminal jurisdiction over military
forces based abroad took shape during the nineteenth century and have further
evolved since then. It starts with a discussion of the first court case in which the
status of visiting forces was addressed: The Exchange v. McFaddon-case
(Sect. 2.2).1 Considerations of the decision are confirmed by later American court
decisions (Sect. 2.3). In this chapter, these decisions serve as a reference for the
formulation of the ground rule on criminal jurisdiction over armed forces of
­sending States on foreign territory (Sect. 2.4). This rule appears to be absolute in
nature. However, case law and the literature will clarify that the status of armed
forces can be interpreted in a more balanced way (Sect. 2.5). In this approach the
application of the ground rule is subject to specific conditions that affect the scope
of the exercise of criminal jurisdiction (Sect. 2.6).

2.2 The Exchange v. McFaddon

In 1812, a case concerning a vessel called The Exchange was brought before the
US Supreme Court. The vessel, property of two American citizens, was seized on
the high seas in 1810 on orders of the French Emperor Napoleon who had com-
missioned it under the name of Balaou as a French naval vessel. During a ­voyage
to the Caribbean The Exchange sustained damage forcing its crew to dock at
the port of Philadelphia for repairs. When the US owners, including McFaddon,
learned about this, they had the vessel put under embargo on 24 August 1811
and claimed its restitution to them. In 1812, the case was brought before the US
Supreme Court, which rejected the claim.
The key question of the case was whether an American citizen could claim
ownership of another State’s warship that was within the US territorial waters.
Although this was a civil court case, the considerations of Chief Justice Marshall
had broader implications. He noted that the jurisdiction of a State within its own
territory is exclusive and absolute. Any external restrictions upon it would result
in an abatement of sovereignty. Therefore, all exceptions to the jurisdiction must
be traced to the express or implied consent of the State itself, which had already
become customary practice between equal States.
According to Marshall, this full and absolute territorial jurisdiction did not
­confer any extraterritorial power. A sovereign can enter foreign territory only
under the express license, or in the confidence that the immunities belonging to his

1 U.S. Supreme Court 24 February 1812, The Schooner Exchange v. McFaddon 11 U.S. 116
(1812). supreme.justia.com/us/11/116/case.html. Accessed November 2014.
2.2 The Exchange v. McFaddon 25

independent sovereign position implicitly extend to him. In State practice, this led
to situations in which a State was supposed to have partly refrained from its full
territorial jurisdiction.
One of the situations to which Marshall refers was the presence of foreign
armed forces. When the sovereign explicitly allowed foreign forces free passage
through his territory, his action implied a waiver of all jurisdiction over the forces
and the recognition that they were subject to the criminal jurisdiction of their
commander:
The grant of a free passage 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 the government of his army may require.

Marshall reasoned that if the host State were to exercise its jurisdiction over the
foreign armed forces:
…the purpose for which the free passage was granted would be defeated and a portion of
the military force of a foreign independent nation would be diverted from those national
objects and duties to which it was applicable, and would be withdrawn from the control of
the sovereign whose power and whose safety might greatly depend on retaining the exclu-
sive command and disposition of this force.

In this consideration, Marshall emphasises that by allowing the passage of foreign

forces, the host State acknowledges the purpose for which the foreign forces are
present on its territory. He also confirms the nexus of a State and its armed forces,
even in case the forces are deployed abroad for the protection of the State’s interests.
Host State consent to the free passage of foreign armed forces was considered
by Marshall to be a key element. If forces of one State entered the territory of
another State without its consent, the latter could consider this act as hostile and
the ‘visiting’ armed forces would by no means be entitled to any privileges.
Admitting warships into its ports was less dangerous and problematic for
a State than granting a foreign army free passage through its territory. If a State
had not closed its ports for warships, they were considered to be open to the
public ships of other States. Marshall reasoned that warships were part of the
military force of a State under direct command of the sovereign, who commis-
sioned the vessels for national tasks. If other States prevented warships from
executing their tasks, it would prejudice the State’s dignity. On these grounds,
Marshall c­ onsidered that visiting warships were implicitly exempted from foreign
­jurisdiction. In applying the above-mentioned principles to the Balaou, Marshall
concluded that at the time the ship docked at the port of Philadelphia, it was
exempted from the jurisdiction of the US, as it was classified as a French warship.

2.3 Coleman v. Tennessee and Dow v. Johnson

The US Supreme Court built on The Exchange v. McFaddon in two later cases
relating to the American Civil War. Although this book does not address the status
of armed forces under the law of armed conflict, both judgments contain relevant
26 2 The Ground Rule

considerations that refer back to The Exchange v. McFaddon. In both cases, the
judge decided in general terms on the jurisdiction of a host State over foreign
military forces. Consequently, the validity of the decisions extends to situations
beyond those of armed conflicts.
The case of Coleman v. Tennessee2 concerned an American soldier who mur-
dered a woman in Tennessee. A court martial had sentenced the soldier to death
for this offence, but for reasons unknown, the sentence had not been carried out.
After the war had come to an end, a local court in the state of Tennessee convicted
the soldier once more for the same offence. The Supreme Court considered that at
the time of the offence, the Southern Confederate States were regarded as hostile
territory. This also applied to the part of Tennessee where the murder had taken
place and which was occupied by the US Army. On the basis of the rules of war,
courts-martial of the US had the exclusive jurisdiction to prosecute their own ser-
vicemen for crimes committed. Consequently, members of the armed forces were
only accountable to their own government and were not subject to the jurisdiction
of local laws and courts.
In his considerations the judge referred to the Supreme Court’s decision in
The Exchange v. McFaddon. He noted that it was generally accepted that an army
­having the approval to enter, or be stationed on, the territory of a friendly State
would be exempted from the State’s civil and criminal jurisdiction. Consequently,
if this were the case, it would be evident that an army having invaded an enemy
State would not fall under the State’s jurisdiction.
One year later, the case Dow v. Johnson was brought before the Supreme
Court.3 In 1863, Bradish Johnson had taken his case against US Army General
Neil Dow before the court of New Orleans. Johnson claimed that on General
Dow’s orders US forces had confiscated sugar from his plantation and plundered
the Johnson residence. The Supreme Court had to decide whether a local court in
an enemy State had civil jurisdiction over an officer of the US Army. The judge
referred to the above mentioned consideration in the Coleman v. Tennessee case
and its reference to Exchange v. McFaddon, concluding that servicemen in times
of war were only accountable to their own government and were not subject to the
criminal jurisdiction of local laws and courts. The judge concluded that the same
reasoning would apply here with respect to civil jurisdiction.4

2 U.S. Supreme Court October 1878, Coleman v. Tennessee, 97 U.S. 509 (1878).
supreme.justia.com/us/97/509/case.html. Accessed November 2014.
3 U.S. Supreme Court October 1879, Dow v. Johnson, 100 U.S. 158 (1879). supreme.justia.com/

us/100/158/case.html. Accessed November 2014.

4 Ibid.
2.4 The Ground Rule 27

2.4 The Ground Rule

Case law, as in Coleman v. Tennessee and Dow v. Johnson,5 confirms what had
already been decided in The Exchange v. McFaddon on the jurisdiction over armed
forces abroad and even widens the scope of that case from the free passage of
forces to the stationing of forces. The judge noted that this practice was “well-­
settled”. So, in his opinion it was a generally accepted practice that host State
­consent to the entry and presence of foreign armed forces implied its waiver of
jurisdiction over the sending States’ forces.
It is hard to establish to what extent this practice reflects international cus-
tomary law. In The Exchange v. McFaddon the judge interpreted the facts on the
basis of general principles and indicated that he was not led by precedents or by
lex scripta. The fundamental nature of his interpretation, based on the absolute
­jurisdiction of a State, indicates that he was led by what he presumed to be the
law. The judge thus referred to a rule that applied to armies present on the territory
of friendly States and not just to practice or custom. Likewise, the judge classified
the right of warships to visit a port as a principle of public law. Furthermore, it
has to be taken into account that the considerations in The Exchange v. McFaddon
were accepted by other judges as a matter of course for more than a century.
On the basis of the considerations outlined above, it can be concluded that,
according to the US Supreme Court, the waiver of criminal jurisdiction over
­visiting armed forces was based on a general rule of law. In summary, this rule,
which will be referred to as the ground rule in this, reads:
A host State refrains from exercising criminal jurisdiction over visiting armed forces of
a sending State, in case it has given its consent to their entry into and presence on its
territory, thus allowing the sending State to exercise criminal jurisdiction over its forces
abroad.

The ground rule consists of three elements. First, the host State must have given
its consent to the entry and presence of the foreign armed forces. This is o­ bviously
not the case in a situation of armed conflict or enemy occupation, which is there-
fore beyond the scope of the ground rule. Sometimes a State’s decision on the
entry and stationing of foreign armed forces on its territory has not been made in
complete freedom, but under some pressure. The continued presence of ­occupying
forces on the basis of a Peace Agreement is an example of such a situation. As
these situations formally fulfil the requirement of a given consent, they will be
considered in the context of the ground rule.
Second, the ground rule includes a waiver from the host State: it refrains
from exercising its criminal jurisdiction over the armed forces of a sending State
from the moment the forces have received consent to be present on its territory.
In practice, the waiver implies immunity of the visiting forces from the criminal

5 See also a later decision from the beginning of the twentieth century: U.S. Supreme Court
6 January 1902, Tucker v. Alexandroff, 183 U.S. 424 (1902). supreme.justia.com/us/183/424/
case.html. Accessed November 2014. Other decisions are mentioned in: Re 1956, p. 369.
28 2 The Ground Rule

jurisdiction of the host State. This immunity is not necessarily absolute, and may
depend upon the context within which the forces operate on foreign territory (see
Chaps. 3, 4 and 5).
Finally, in military practice it is not sufficient that servicemen committing
crimes are not subject to the criminal jurisdiction of the host State. In order to
operate efficiently, sending States must be able to freely exert their authority and
power, including the exercise of criminal jurisdiction, over its deployed armed
forces. The third component of the ground rule is closely related to the waiver and
can be considered the flipside of the same coin. It concerns the power of sending
States to exercise their criminal jurisdiction over their forces abroad. As the next
chapters show, many SOFAs emphasise this component in particular and hardly
address the armed forces’ immunity.
Jurisdiction over own armed forces abroad is sometimes referred to as the law of
the flag.6 This terminology follows from Napoleon Bonaparte’s statement that the
French army is never abroad, because it always operates under the national flag: “Il
faut regarder le drapeau comme le domicile. Partout où est le drapeau, là est la
France”.7 The flag symbolises the State represented by its forces. In this approach
the armed forces can be considered as an extension of the State with which the State
and its forces are inextricably linked. Formerly, this was discussed as part of the
concept of extraterritoriality.8 This concept was based on the notion that State
­
­officials working abroad, such as diplomats, were assumed to be still within the
­territory of the sending State. As they were assumed to be on home territory, they
would logically not fall under the jurisdiction of the host State. In this way, they
would enjoy the same rights and privileges as if they were in their home State.

2.5 Nineteenth Century Practice

In the beginning of the nineteenth century passage of armed forces through the
­territory of friendly States (as Marshall had in mind in The Exchange v. McFaddon)
occurred frequently. Many treaties mainly focused on the political and operational
aspects of the passage,9 while the exercise of jurisdiction over the armed forces was

6 Lazareff 1971, p. 11. ‘Ubi signa et jurisdictio’ in Court of Cassation 24 July 2008, Lozano v.

Italy, Case No 31171/2008; ILDC 1085 (IT 2008), para 3. German: ‘Recht der Fahne’, Scheider
1964, p. 2.
7 Fenet 1827, pp. 46–48, addition p. 32; Thibaudeau 1827, pp. 427–428.
8 The word extra-territoriality is also used; these concepts have, however, lost their significance;

see Liivoja 2011, p. 105.

9 E.g., the military agreement relating to the free passage of Dutch forces to the fortress of

Maastricht, concluded by Belgium and the Netherlands on the occasion of the independence of
Belgium: Convention entre les Pays-Bas et la Belgique, conclue a Zonhoven, relativement aux com-
munications militaires de la forteresse de Maastricht; z.p. 18 November 1833 (Recueil des Traités
et conventions conclus par le Royaume des Pay-Bas, E.G. Lagemans, The Hague 1859, No 136).
2.5 Nineteenth Century Practice 29

rarely part of the agreements.10 Sometimes an agreement would mention the disci-
plinary powers of the commander to maintain the order and d­ iscipline of his armed
forces during the free passage: “ils [the commanders] veilleront en général au
maintien d’une discipline rigoureuse et du bon ordre”.11 Because of these often
detailed agreements the burden to the host States of the p­ assage of the foreign
forces was considerably minimised. So, although they would lose jurisdiction over
the foreign forces due to the application of the ground rule, the situation could not
be perceived as seriously affecting host State sovereignty.
The consensual presence of significant numbers of foreign forces on host State
territory was not a frequent event.12 For instance, Moore only mentions a handful
of situations in which foreign forces had been allowed to enter or to stay on the
territory of the US during a period of more than a 100 years.13 Moreover, the
armed forces would mainly consist of small units that would stay for a short
period of time at previously determined locations, which also applied to visiting
warships. The temporary presence of the crews would generally be restricted to
the ports. As a result, the application of the ground rule to these situations was
clearly restricted in time and place and to a limited number of people and as such
it would not seriously affect the host State’s legal order.
A completely different matter was territorial rights. States concluded treaties
for the military use of areas and facilities in other States from the end of the
­nineteenth century onwards. An example is the establishment of logistic bases to
supply warships, such as the 1903 Agreement between the US and Cuba relating
to Guantanamo Bay.14 In contrast to the agreements mentioned above, these
­particular treaties contain provisions that grant rights to the visiting State over
­certain territories that are almost comparable to sovereign rights. For instance,
Article III of the agreement between Cuba and the US states that the US “…shall
exercise complete jurisdiction and control over and within said areas…”. As such

10 E.g., one of the exceptions is Article VI Agreement Providing for the Reciprocal Crossing
of the International Boundary Line by the Troops of their Respective Governments, in Pursuit
of Savage Hostile Indians, under the Conditions hereafter Stated; Washington, 29 July 1882 (9
Bevans 847 1968).
11 Article VI Convention between Austria and Saxony respecting the passage of troops; Vienna,

8 April 1813 (The Consolidated Treaty Series, edited and annotated by Clive Parry, Vol. 62,
1812–1818, pp. 213 et seq.).
12 In the nineteenth century conquest and colonisation were the primary reasons for stationing

forces abroad; see Harkavy 2007, pp. 72 and 73.

13 Moore’s description covers the period 1790–1906; Moore 1906, Sect. 213.
14 Agreement between the United States and Cuba for the lease of lands for coaling and naval

stations; 23 February 1903 (avalon.law.yale.edu/20th_century/dip_cuba002.asp). The agreement

is further developed: Lease to the United States by the Government of Cuba of certain areas of
land and water for naval or coaling stations in Guantanamo and Bahia Honda; Havana, 2 July
1903. (avalon.law.yale.edu/20th_century/dip_cuba003.asp). In 1912 Cuba and the US agreed that
the use of Bahia Honda would end in exchange for the extension of the area around Guantanamo
Bay. This Agreement was never ratified, but overall, it was implemented. Strauss 2009,
pp. 53–59.
30 2 The Ground Rule

provisions made explicit arrangements on criminal jurisdiction over foreign

­military personnel redundant, the ground rule does not apply here.
This approach can be regarded as indicative of the subordinate position of the
host State. In the literature this form of foreign presence was sometimes referred
to as occupation, which reflected the unequal relationship between the host State
and the sending State.15 This approach became obsolete after World War II and,
over time, most of the arrangements establishing territorial rights were amended or
came to an end. Nevertheless, there are still military forces based in areas where
sending States enjoy territorial rights.16

2.6 The Scope of Criminal Jurisdiction

Nineteenth century practice seems to have been that the exercise of criminal juris-
diction over foreign armed forces was in the hands of the sending States as a mat-
ter of course. Furthermore, the exercise of that jurisdiction appears to be absolute
in nature in the sense that the sending States’ forces would be in all circumstances
exempted from the criminal jurisdiction of the host States’ courts. A sequence of
agreements between Mexico and the US that mutually granted both States the
right to pursue rebellious Indians on each other’s territory illustrates this point.
The agreements mention that crimes committed by the pursuing forces would be
punished by the sending State.17
The nineteenth century’s literature and case law of courts other than the US
Supreme Court give a more balanced view. Various court cases make clear that
host States did not fully waive their criminal jurisdiction over sailors while ashore
in foreign ports. An example is the Affaire Der-case of 1868.18 Machel Der, sailor
on a British warship, got involved in a scuffle in Saigon, at that time part of the
French colony Indo-China, in which he attacked a local police officer. The French
Cour de Cassation decided that, as the crime had not taken place on board a
­warship but ashore, the principle of territoriality would prevail and the host State
could exercise its jurisdiction.19 This view is reflected in Article 18 of the
Règlement sur le régime légal des navires et de leurs équipages dans les ports
étrangers of 1898 of the ‘Institut de Droit International’:

15 This inequity is regularly associated with imperialism and colonialism, emphasizing the une-
qual position of the relevant states; see Stambuk 1963, p. 155.
16 E.g., the American use of Guantanamo Bay in Cuba and the British use of the Sovereign

Base Areas in Cyprus; Article 1 Treaty Concerning the Establishment of the Republic of Cyprus;
Nicosia, 16 August 1960 (Vol. 382 UNTS 1960, No. 5476).
17 E.g., Article VI Agreement Providing for the Reciprocal Crossing of the International

Boundary Line by the Troops of their Respective Governments, in Pursuit of Savage Hostile
Indians, under the Conditions hereafter Stated; Washington, 29 July 1882 (9 Bevans 847 1968).
18 Barton 1950, p. 80.
19 Schneider 1964, p. 80.
2.6 The Scope of Criminal Jurisdiction 31

Si des gens du bord se trouvant à terre commettent des infractions aux lois du pays, ils
peuvent être arrêtés par les agents de l’autorité territoriale et déférés à la justice locale. 20

Nineteenth-century authors, although using the considerations in The Exchange v.

McFaddon as a starting point, did not consider the ground rule to be absolute in
character either. For instance, Lawrence indicates that armed forces “…are exempt
in a greater or less degree from local jurisdiction”, without further clarifying this
statement, by the way.21 Hall restricted the immunity only to those servicemen
that were under the direct command of the commander of the unit:
…it is believed that the commanders, not only of forces in transit, through a friendly
country with which no convention exists, but also of forces stationed there, assert exclu-
sive jurisdiction in principle in respect of offences committed by persons under their
command.22

Moore added that this case concerned organised armed forces that were exercising
their right of free passage and not “…individuals merely possessing a military
character”.23 What Moore, in my view, wanted to make clear was that an
­individual soldier may formally be under military command, but the commander
may in reality not be able to exercise his power over the soldier in case the latter is
located in another State.24 Practically the commander may not be able to prosecute
and punish him, in which case only the host State can exercise its jurisdiction over
the soldier.
Oppenheim thought that the possibilities for sending States to assert
­jurisdiction were even more restricted and emphasised the position of the armed
forces as organs of the sending States when in foreign territory.25 In his opinion,
the sending States could only exercise jurisdiction in case a crime had been com-
mitted at the location where the forces were based. Examples he used show that he
interpreted location narrowly. He described crimes committed in the garrison of a
fort and referring in particular to places where the commander had direct control
over his forces.26 According to Oppenheim, immunity applied outside the military
camp only if the soldier was on duty.

20 Règlement sur le régime légal des navires et de leurs équipages dans les ports étrang-

ers; The Hague, 23 August 1898. In Article 20 of the 1928 Resolution of the ‘Institut de Droit
International’, this aspect reappears.
21 Lawrence 1885, p. 47. See Sari 2008, p. 115.
22 Hall 1895, p. 206.
23 J.B. Moore 1906, p. 560.
24 E.g., Hyde 1922, pp. 432 and 434.
25 Oppenheim 1905, p. 483.
26 The same approach can be found in the draft regulation adopted in Latin America in 1912.

Article 96 of this predecessor of the Bustamante code (see next chapter) regulated immunity for
“crimes committed within the precincts of the camp”; mentioned in: Barton 1954, p. 344.
32 2 The Ground Rule

The previous sections show that case law and the literature give a more
b­ alanced view of the scope of the ground rule indicating that the rule applies
to military personnel who are stationed on the territory of the host State as an
­organised military unit. The rule applies to members of the visiting armed forces
on duty or while at a military camp. When a member of the forces is not on duty
and outside the camp, for example in case of leave, and he commits a crime, the
host State can exercise its jurisdiction.

2.7 Conclusion

This chapter has analysed the development of ideas on criminal jurisdiction over
armed forces abroad during the nineteenth century. The starting point was The
Exchange v. McFaddon-case of 1812, which is doubtlessly the most cited and
­discussed court decision on jurisdiction over armed forces stationed abroad. This
decision has helped to define a general ground rule on the exercise of jurisdiction:
A host State refrains from exercising criminal jurisdiction over armed forces of a
sending State, in case it has given consent to their entry and presence on its territory,
thus allowing the sending State to exercise criminal jurisdiction over its forces abroad.
The consent of the host State is a pre-condition for the ground rule to apply.
Armed forces of the sending State enjoy immunity from the host State’s ­criminal
jurisdiction allowing the sending State to exercise its jurisdiction instead. In the
nineteenth century the nature and scope of the extraterritorial deployment of
armed forces with the consent of the host State was still rather limited in time and
place. This meant that the application of the ground rule did not seriously affect
the national legal order of the host State.
In my opinion it is an established rule that the consent of the host State for the
entry and presence of foreign armed forces entails the waiver of its ­jurisdiction.
State practice, case law and the literature all confirm this rule. However, the
waiver of the host State does not always imply full immunity of the forces. The
only ­situation in which host States fully refrain from exercising their jurisdiction
is when the sending State is granted territorial rights over an area in another State.
This implies that the scope of the ground rule must be further refined. The ground
rule does not seem to apply when the link between the visiting military force and
its actions as an organ of the Sending State becomes less strong. The literature
suggests that the scope of the ground rule is delineated by armed forces abroad
as an official organ of the sending State. Host States only waive their j­urisdiction
over members of visiting armed forces belonging to a military unit and under
the direct command of their commander. This is the case when, for example, the
forces are located at a military camp or are on duty outside that camp.
The next chapters analyse the application of the ground rule to visiting
armed forces in the following situations: when allied forces are stationed on
­co-belligerent territory during an armed conflict, when forces participate in cri-
sis management operations and when they are abroad partaking in international
­military cooperation activities.
References 33

References

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27:186–235
Barton GP (1954) Foreign armed forces: qualified jurisdictional immunity. Br Yearb Int Law
31:341–370
Fenet PA (1827) Recuil complet des travaux préparatoires du Code Civil. Tome huitième, Paris
Hall WE (1895) A Treatise on international law. Stevens & Sons, Oxford
Harkavy RE (2007) Strategic basing and the great powers, 1200–2000. Routledge, Oxon
Hyde CC (1922) International law. Chiefly as interpreted and applied by the United States, vol I.
Little, Brown, and company, Boston
Lawrence TJ (1885) A handbook of public international law. Deighton, Bell and Co., Cambridge
Lazareff S (1971) Status of military forces under current international law. Sijthoff, Leiden
Liivoja R (2011) An axiom of military law. Applicability of national criminal law to military per-
sonnel and associated civilians abroad. Centre of Excellence in Global Governance Research,
Helsinki
Moore JB (1906) A digest of international law as embodied in diplomatic discussions, treaties
and other international agreements, international awards, the decision of municipal courts,
and the writings of jurists, vol II. Washington
Oppenheim L (1905) International law, a treatise, vol I, peace. Longmans, Green and Co, London
Re ED (1956) The NATO status of forces agreement and international law. Northwest Univ Law
Rev 53(8):349–394
Sari A (2008) The jurisdictional immunities of visiting forces under public international law. A
case study of the European security and defence policy. Not published; on file with author
Schneider G (1964) Die Exterritorialität der Truppen in strafrechtlicher Hinsicht, unter beson-
derer Berücksichtigung der das deutsche Territorium betreffenden Truppenverträge. Albert-
Ludwig Universität, Saarbrücken
Stambuk G (1963) American military forces abroad: their impact on the western state system.
Ohio State University Press, Columbus
Strauß J (1957) Strafrechtliche Probleme bei der Stationierung von Truppen auf fremdem
Hoheitsgebiet Albert-Ludwigs-Universität
Strauss MJ (2009) The Leasing of Guantanamo Bay. Praeger Security International, Westport
Thibaudeau AC (1827) Mémoires sur le consulat. 1799 à 1804. Ponthieu et Cie, Paris
Other documents randomly have
different content
the verse; and, secondly, that we are informed by
the young man who conducts the Geographical
Department of the Morning Chronicle, that both the
towns are in Africa, or Asia (he is not quite certain
which), and, what is more to the purpose, that both
are peopled by Moors. Tunis, therefore, may stand.
[Marshal Bernadotté, the French Prince of Monté
Corvo, died as Charles John XIV., King of Sweden, 8th
March, 1844, in his eighty-first year. He married, in
1798, Eugenia-Bernardina-Désirée de Clary, daughter of
a Marseilles merchant, and sister of Madame Joseph
Buonaparte (Queen of Spain). “She, who was not a
common-place person,” says Madame de Rémusat, in
her valuable Memoirs, “had before her marriage
been very much in love with Napoleon, and appears
to have always preserved the memory of that
feeling! It has been supposed that her hardly
extinguished passion caused her obstinate refusal to
leave France.” She survived her husband many years,
and died in Paris, in the Rue d’Anjou Saint Honoré.
Her husband was succeeded on the throne of
Sweden by their son, Oscar I., who married Joséphine,
daughter of Eugène Beauharnais, Duc de Leuchtenberg,
and granddaughter of the Empress Josephine.
Bernadotté owed his elevation to the throne to the
misgovernment of Gustavus IV., who had brought the
nation to the verge of ruin, and who was deposed in
1809, when his uncle, the Duke of Sudermania,
became king as Charles XIII.; and the next year,
Bernadotté was elected Crown Prince, and successor
to the throne.
In 1813, he rendered great assistance to the Allies,
for, as Crown Prince, he joined the confederacy
against France with 30,000 men; and, after defeating
Marshal Ney, with great loss, on the 6th September,
he, on the 18th October, with the co-operation of
Blücher, again defeated him at the decisive Battle of
Leipsic; and, on the 19th, the Emperor Alexander,
the King of Prussia, and the Crown Prince, entered
the great square of Leipsic, amidst the acclamations
of the inhabitants. He was a decided democrat, and
hated by Napoleon, but was the only sovereign of
the revolutionary branch who was permitted to retain
his dominions after the great reaction in 1814. The
choice made of this great soldier of fortune excited
the surprise of all Europe at the time, but the
wisdom of it was soon demonstrated by his prudent
conduct. He had distinguished himself from all
Napoleon’s other marshals by his clemency in victory.
For half a century before his accession, Sweden had
not known the peace and prosperity in which he left
the country on his death.
In T. Raikes’s Diary will be found some interesting
anecdotes of Bernadotté’s gratitude for services
rendered him while a young subaltern. But one is of
a more startling nature, as it records his narrow
escape from the death intended for him by the
widow of the late king, who had purposely prepared
a poisoned cup of coffee for him, which she herself
presented to him at her own table. Having been
suddenly warned, he succeeded in forcing it upon
her. She resolutely accepted her fate, and died
during the night.—Ed.]
 No. XXVIII.

May 21, 1798.

We have received the following letter, with the
poem that accompanies it, from a gentleman whose
political opinions have hitherto differed from our
own; but who appears to feel, as every man who
loves his country must, that there can be but one
sentiment entertained by Englishmen at the present
moment.
Were we at liberty, we should be happy to do
justice to the author, and credit to ourselves, by
mentioning his name.
 TO THE EDITOR OF THE “ANTI-JACOBIN”.

Sir,—However men may have differed on the

political or constitutional questions which have of late
been brought into discussion—whatever opinions
they may have held on the system or conduct of
administration—there can surely be now but one
sentiment as to the instant necessity of firm and
strenuous union for the preservation of our very
existence as a people; and if degrees of obligation
could be admitted, where the utmost is required
from all, it should seem that in this cause the
opposers of administration stand doubly pledged; for
with what face of consistency can men pretend to
stickle for points of constitutional liberty at home,
who will not be found amongst the foremost at their
posts to defend their country from the yoke of
foreign slavery?
That there should be any set of men so infatuated
as not to be convinced that the object of the enemy
must be the utter destruction of these countries,
after making the largest allowance for the effects of
prejudice and passion, it is not easy to conceive.
Such, however, we are told, there are. They believe,
then, that after a long series of outrage, insult, and
injury, in the height of their animosity and
presumption, these moderate, mild, disinterested
conquerors will invade us in arms, out of pure love
and kindness, merely for our good, only to make us
wiser, and better, and happier, and more prosperous
than before!
Future events lie hid in the volume of Fate, but the
intentions of men may be known by almost infallible
indications. Passion and interest, the two mighty
motives of human action, determine the Government
of France to attempt the abolition of the British
Empire! and if, abandoned by God and our right arm,
we should flinch in the conflict, that destruction will
be operative to the full of their gigantic and
monstrous imaginations!—Harbours filled up with the
ruins of their towns and arsenals, the Thames
rendered a vast morass, by burying the Imperial City
in her bosom—but I will not proceed in the horrible
picture.
Are we then, it may be asked, to wage eternal
war?—No; a glorious resistance leads to an
honourable peace. The French people have been
long weary of the war; their spirit has been forced by
a system which must end in the failure of the
engagement to give them the plunder of this country.
They will awake from their dream, and raise a cry for
peace, which their government will not dare to resist.
The monarchs of Europe must now begin clearly to
perceive that their fate hangs on the destiny of
England; they will unite to compel a satisfactory
peace on a broad foundation; and peace, when war
has been tried to the utmost, will probably be
permanent. A few years of wise economy and
redoubled industry will place us again on the rising
scale; and if the pressure of the times may have
rendered it necessary sometimes to have cast a
temporary veil over the statue of Liberty, she may
again safely be shown in an unimpaired lustre.
Of the following verses I have nothing to say: if it
should be decided that the greatness of the object
cannot bear out the mediocrity of the execution, I
will not appeal from the decision.
ODE TO MY COUNTRY.
MDCCXCVIII.
 S. 1.

Britons! hands and hearts prepare:

The angry tempest threatens nigh,
Deep-toned thunders roll in air,
Lightnings thwart the livid sky;
Throned upon the wingéd storm,
Fell Desolation rears her ghastly form,
Waves her black signal to her Hell-born brood,
And lures them thus with promised blood:

A. 1.

“Drive, my sons, the storm amain!

Lo, the hated, envied land,
Where Piety and Order reign,
And Freedom dares maintain her stand.
Have ye not sworn, by night and hell,
These from the earth for ever to expel?
Rush on, resistless, to your destined prey,
Death and rapine point the way.”

E. 1.

Britons! stand firm! with stout and dauntless heart

Meet unappall’d the threatening boaster’s rage;
Yours is the great, the unconquerable part,
For your loved hearths and altars to engage,
And sacred Liberty, more dear than life—
Yours be the triumph in the glorious strife.
Shall theft and murder braver deeds excite
Than honest scorn of shame and heavenly love of right?

S. 2.

Turn the bright historic page!

Still in glory’s tented field,
 Albion’s arms, for many an age,
Have taught proud Gallia’s bands to yield.
Are not WE the sons of those
Whose steel-clad sires pursued the insulting foes,
E’en to the centre of their wide domain,
And bowed them to a Briton’s reign?[259]

A. 2.

Kings, in modest triumph led,

Graced the sable Victor’s arms:[260]
His conquering lance, the battle’s dread;—
His courtesy the conquered charms.
The lion-heart soft pity knows,
To raise with soothing cares his prostrate foes;
The vanquished head true valour ne’er oppress’d,
Nor shunn’d to succour the distress’d.

E. 2.

Spirit of great Elizabeth! inspire

High thoughts, high deeds, worthy our ancient fame;
Breathe through our ardent ranks the patriot fire,
Kindled at Freedom’s ever-hallowed flame;
Baffled and scorned, the Iberian tyrant found,
Though half a world his iron sceptre bound,
The gallant Amazon could sweep away,
Armed with her people’s love, the “Invincible” array.[261]

S. 3.

The Bold Usurper[262] firmly held

The sword by splendid treasons gained;
And Gallia’s fiery genius quelled,
And Spain’s presumptuous claims restrained:
When lust of sway, by flattery fed,[263]
To venturous deeds the youthful monarch led,
In the full flow of victory’s swelling tide
Britain checked his power and pride.

A. 3.

To the great Batavian’s name[264]

Ceaseless hymns of triumph raise!
Scourge of tyrants, let his fame
Live in songs of grateful praise.
Thy turrets, Blenheim,[265] glittering to the sun,
Tell of bright fields from warlike Gallia won;
Tell how the mighty monarch mourned in vain
His impious wish the world to chain.

E. 3.

And ye famed heroes, late retired to heaven,

Whose setting glories still the skies illume,
Bend from the blissful seats to virtue given—
Avert your long-defended country’s doom.
Earth from her utmost bounds shall wondering tell
How victory’s meed ye gained, or conquering fell;
Britain’s dread thunders bore from pole to pole,
Wherever man is found, or refluent oceans roll.

S. 4.

Names embalmed in honour’s shrine,

Sacred to immortal praise,
Patterns of glory, born to shine
In breathing arts or pictured lays:
See Wolfe, by yielding numbers pressed,
Expiring smile, and sink on victory’s breast!
See Minden’s plains and Biscay’s billowy bay
Deeds of deathless fame display.

A. 4.
 O! tread with awe the sacred gloom,
Patriot Virtue’s last retreat;
Where Glory, on the trophied tomb,
Joys their merit to repeat;
There Chatham lies, whose master-hand
Guided through seven bright years the mighty band,
That round his urn, where grateful Memory weeps,
Each in his hallowed marble sleeps.

E. 4.

Her brand accursed when civil discord hurled,[266]

Britain alone the united world withstood,
Rodney his fortune-favoured sails unfurled,
And led three nation’s chiefs to Thames’s flood.
Firm on his rock the Veteran Hero[267] stands;
Beneath his feet unheeded thunders roar;
Smiling in scorn, he sees the glittering bands
Fly with repulse and shame old Calpe’s hopeless shore.

S. 5.

Heirs or partners of their toils,

Matchless heroes still we own;
Crowned with honourable spoils
From the leagued nations won.
On their high prows they proudly stand,
The godlike guardians of their native land;
Lords of the mighty deep triumphant ride,
Wealth and victory at their side.

A. 5.

Loyal, bold, and generous bands,

Strenuous in their country’s cause,
Guard their cultivated lands,
Their altars liberties and laws
 Their altars, liberties, and laws.
On his firm, deep-founded throne,
Great Brunswick sits—a name to fear unknown,
With brow erect commands the glorious strife,
Unawed, and prodigal of life.

E. 5.

Sons of fair Freedom’s long-descended line,

To Gallia’s yoke shall Britons bend the neck?—
No; in her cause though fate and hell combine
To bury all in universal wreck,
Of this fair Isle to make one dreary waste,
Her greatness in her ruins only traced,—
Arts, commerce, arms, sunk in one common grave—
The man who dares to die will never live a slave.
 No. XXIX.

May 28, 1798.

In a former number, we were enabled, by the
communication of a classical correspondent, to
compliment Citizen Muskein with an Address to his
Gun-boats, imitated from a favourite Ode of Horace.
Another (or perhaps the same) hand has obligingly
furnished us with a composition, which we have no
doubt will be equally acceptable to the citizen to
whom it is addressed.
 ODE TO THE DIRECTOR MERLIN.
HORACE, B. I., O. V.

Who now from Naples, Rome, or Berlin,

Creeps to thy blood-stained den, O Merlin,
With diplomatic gold?—to whom
Dost thou give audience en costume?

King Citizen!—How sure each state

That bribes thy love shall feel thy hate;
Shall see the democratic storm
Her commerce, laws, and arts deform.

How credulous, to hope the bribe

Could purchase peace from Merlin’s tribe!
Whom, faithless as the waves or wind,
No oaths restrain, no treaties bind.

For us—beneath yon SACRED ROOF,

The Naval Flags and arms of proof,
By British valour nobly bought,
Show how true safety must be sought!

[Thiers, in his History of the French Revolution, frequently asserts

the incorruptibility (with the exception of Barras) of the French
Directory. But Alison, in his History, exposes the extraordinary
conduct of M. de Talleyrand, then Minister of Foreign Affairs, towards
the Envoys from the United States of America, who complained that
an immense number of American vessels had been seized by the
French Government under a decree of Jan., 1798, which directed
that all ships having for their cargoes, in whole or in part, any
English merchandise, should be held lawful prize, whoever was the
proprietor thereof, from the single circumstance of its coming from
England or its foreign settlements. The Envoys were told that
nothing could be done till their Government had advanced a sum
equal to 1,280,000l. as a loan, and 50,000l. as a douceur to the
Directors. These terms were, of course, indignantly rejected. The
Hanse Towns, too, only obtained licenses to navigate the high seas
by the secret payment of 150,000l. to the Republican rulers.—Ed.]

[LYRICS OF HORACE. BOOK I., ODE V.

TRANSLATED BY ARCHDEACON WRANGHAM.

What slender youth, all essenced o’er,
In sweet alcove or rosy bower,
Now woos thee, Pyrrha, to be kind?
For whom these tresses dost thou bind,
Thus simply neat? O how shall he,
Poor youth! bewail the boisterous sea,
Rough with black tempests! How accuse
Capricious Gods, and broken vows!

Fond dupe! he hopes—so sweet that kiss—

Thou’lt still be witching, still be his!
What treacherous gales beset his way,
Ah! little knows he! Hapless they,
Who ne’er thy faithless smiles have tried!
—That I have ’scaped the whelming tide,
A tablet and my dripping vest,
Hung up in Neptune’s fane, attest.—Ed.]
 No. XXX.

June 4, 1798.
Our ingenious correspondent, Mr. Higgins, has not
been idle. The deserved popularity of the extracts
which we have been enabled to give from his two
didactic poems, the Progress of Man, and the Loves
of the Triangles, has obtained for us the
communications of several other works which he has
in hand, all framed upon the same principle, and
directed to the same end. The propagation of the
New System of Philosophy forms, as he has himself
candidly avowed to us, the main object of all his
writings. A system, comprehending not politics only
and religion, but morals and manners, and generally
whatever goes to the composition or holding
together of human society; in all of which a total
change and revolution is absolutely necessary (as he
contends) for the advancement of our common
nature to its true dignity, and to the summit of that
perfection which the combination of matter, called
Man, is by its innate energies capable of attaining.
Of this system, while the sublimer and more
scientific branches are to be taught by the splendid
and striking medium of didactic poetry, or
ratiocination in rhyme, illustrated with such paintings
and portraitures of essences and their attributes as
may lay hold of the imagination while they perplex
the judgment;—the more ordinary parts, such as
relate to the conduct of common life and the
regulation of social feelings, are naturally the subject
of a less elevated style of writing; of a style which
speaks to the eye as well as to the ear,—in short, of
dramatic poetry and scenic representation.
“With this view,” says Mr. Higgins (for we love to
quote the very words of this extraordinary and
indefatigable writer),—“with this view,” says he, in a
letter dated from his study in St. Mary Axe, the
window of which looks upon the parish pump,—“with
this view I have turned my thoughts more
particularly to the German stage, and have
composed—in imitation of the most popular pieces of
that country, which have already met with so general
reception and admiration in this—a Play; which, if it
has a proper run, will, I think, do much to unhinge
the present notions of men with regard to the
obligations of civil society, and to substitute, in lieu of
a sober contentment, and regular discharge of the
duties incident to each man’s particular situation, a
wild desire of undefinable latitude and extravagance,
—an aspiration after shapeless somethings that can
neither be described nor understood,—a
contemptuous disgust at all that is, and a persuasion
that nothing is as it ought to be;—to operate, in
short, a general discharge of every man (in his own
estimation) from every tie which laws, divine or
human, which local customs, immemorial habits, and
multiplied examples, impose upon him; and to set
them about doing what they like, where they like,
when they like, and how they like,—without
reference to any law but their own will, or to any
consideration of how others may be affected by their
conduct.
“When this is done, my dear sir,” continues Mr. H.
(for he writes very confidentially)—“you see that a
great step is gained towards the dissolution of the
frame of every existing community. I say nothing of
Governments, as their fall is of course implicated in
that of the social system;—and you have long known
that I hold every Government (that acts by coercion
and restriction—by laws made by the few to bind the
many) as a malum in se,—an evil to be eradicated,—
a nuisance to be abated,—by force, if force be
practicable; if not, by the artillery of reason, by
pamphlets, speeches, toasts at club-dinners, and
though last, not least, by didactic poems.
“But where would be the advantage of the
destruction of this or that Government, if the form of
Society itself were to be suffered to continue such as
that another must necessarily arise out of it and over
it?—Society, my dear sir, in its present state, is a
hydra. Cut off one head,—another presently sprouts
out, and your labour is to begin again. At best you
can only hope to find it a polypus;—where, by
cutting off the head, you are sometimes fortunate
enough to find a tail (which answers all the same
purposes) spring up in its place. This, we know, has
been the case in France; the only country in which
the great experiment of regeneration has been tried
with anything like a fair chance of success.
“Destroy the frame of society,—decompose its
parts,—and see the elements fighting one against
another,—insulated and individual,—every man for
himself (stripped of prejudice, of bigotry, and of
feeling for others) against the remainder of his
species;—and there is then some hope of a totally
new order of things,—of a Radical Reform in the
present corrupt system of the world.
“The German Theatre appears to proceed on this
judicious plan. And I have endeavoured to contribute
my mite towards extending its effect and its
popularity. There is one obvious advantage attending
this mode of teaching;—that it can proportion the
infractions of law, religion, or morality, which it
recommends, to the capacity of a reader or
spectator. If you tell a student, or an apprentice, or a
merchant’s clerk, of the virtue of a Brutus, or of the
splendour of a La Fayette, you may excite his desire
to be equally conspicuous; but how is he to set
about it? Where is he to find the tyrant to murder?
How is he to provide the monarch to be imprisoned,
and the national guards to be reviewed on a white
horse?—But paint the beauties of forgery to him in
glowing colours;—show him that the presumption of
virtue is in favour of rapine and occasional murder on
the highway—and he presently understands you. The
highway is at hand—the till or the counter is within
reach. These haberdashers’ heroics come home to
the business and the bosoms of men.—And you may
readily make ten footpads, where you would not
have materials nor opportunity for a single
tyrannicide.
“The subject of the piece which I herewith
transmit to you is taken from common or middling
life; and its merit is that of teaching the most lofty
truths in the most humble style, and deducing them
from the most ordinary occurrences. Its moral is
obvious and easy; and is one frequently inculcated
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