Abstract
The phrase ‘in performance of official duty’, often used with respect to the law of immunities, can be translated as ‘on duty’ within the context of military operational law. In SOFAs ‘on duty’ is hardly ever defined, but logically a nexus is required between a specific act and the nature of the ordered tasks. In general, the visiting commanding officer will decide whether an act was performed ‘on duty’. Military command and control over the armed forces can be exercised at various levels and a part of that authority may be transferred to a foreign, international commander. However, the sending States will always retain Full Command over their deployed forces.
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Notes
- 1.
With a view to the different criteria applicable to criminal and civil procedures, interpretation of the phrase ‘on duty’ may vary in both procedures; see Mullins 1966, p. 81.
- 2.
Snee 1961, p. 131 (document D-R(51) 15).
- 3.
Id., p. 173 (document MS-R (51) 14, para 30).
- 4.
Snee and Pye 1957, p. 47.
- 5.
Not all additional agreements have been published.
- 6.
Agreement under Article IV of the Mutual Defense Treaty between the United States of America and the Republic of Korea, regarding facilities and areas and the status of United States Armed Forces in the Republic of Korea; (with agreed minutes, agreed understandings and exchange of letters); Seoul, 9 July 1966 (Vol. 674 UNTS 1971, No. 9605).
- 7.
Agreed Minutes; Re Para 3(a)(1).
- 8.
Agreed Understandings; Agreed minutes, Re Para 3(a), under 1. In Girard (U.S. Supreme Court 11 July 1957, Wilson v Girard, 354 U.S. 524 (1957). supreme.justia.com/us/354/524/case.html. Accessed November 2014. This interpretation was also applied with respect to the SOFA concluded with Japan.
- 9.
See Stanger 1957/1958, p. 218.
- 10.
U.S. Supreme Court 11 July 1957, Wilson v Girard, 354 U.S. 524 (1957). supreme.justia.com/us/354/524/case.html. Accessed November 2014.
- 11.
Administrative Agreement under article III of the Security Treaty between the United States of America and Japan; Tokyo, 28 February 1952 (Vol. 208 UNTS 1955, No. 2817). Shortly thereafter this agreement’s provisions on criminal jurisdiction were amended to be in conformity with the NATO-SOFA: Protocol to amend Article XVII of the Administrative Agreement under article III of the Security Treaty between the United States of America and Japan; Tokyo, 29 September 1953 (Vol. 208 UNTS 1955, No. 2817).
- 12.
Stanger 1957/1958, p. 229, fn. 33.
- 13.
However, the US refrained from exercising criminal jurisdiction without expressing whether the act was conducted within the limits of official duty.
- 14.
Article 11(2) Accord entre le Gouvernement de la République Française et le Gouvernement de la République des Emirats arabes unis relatif à la coopération en matière de défense; Abu Dhabi, 26 May 2009.
- 15.
Exceptions are, inter alia, Article 18 of the Supplementary Agreement to the NATO-SOFA and the Agreed Minutes to the SOFA between Korea and the US. E.g., the Agreed Minutes state that a duty certificate of the military authorities of the US is sufficient evidence of the situation of ‘official duty’ (Para 3(a)(1)). If the Korean Chief Prosecutor is of the opinion that there is evidence demonstrating the contrary, both states shall proceed to diplomatic negotiations (Para 3(a)(2)).
- 16.
Snee 1961, p. 103 (document MS(J)-R(51) 5).
- 17.
Id., pp. 172 and 173 (document MS-R(51) 14).
- 18.
Stambuk 1963, p. 88.
- 19.
- 20.
ICJ 29 April 1999, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Cumaraswamy case), Advisory Opinion, I.C.J. Reports 1999, 62, para 61.
- 21.
Mullins 1966, p. 80; see also e.g., Article 18 Supplementary Agreement (with Protocol of Signature) to the NATO regarding the Status of their Forces with respect to Foreign Force stationed in the Federal Republic of Germany; Bonn, 3 August 1959 (Vol. 481 UNTS 1963, No. 6986).
- 22.
The Philippines’ wish to determine as host State whether a US soldier acted within the limits of official duty was one of the breaking points of the negotiations between the Philippines and the US on the modification of the SOFA; Porreta-Doria 1992, p. 99.
- 23.
Article VII(5) Framework Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Turkey on Military Cooperation; London, 23 November 2011 (Cm. 8344, May 2012).
- 24.
Accord sous forme d’échange de lettres relatif à l’interprétation de l’Accord de coopération en matière de défense; Paris, 15 December 2010.
- 25.
NATO Glossary of Terms and Definitions-06, 2013 (AAP-06, 2013): “The authority vested in an individual of the armed forces for the direction, coordination, and control of military forces”. A footnote to the definition of Full Command emphasises that in the international context, command “implies a lesser degree of authority than when it is used in a purely national sense”.
- 26.
AAP-06, 2013: “That authority exercised by a commander over part of the activities of subordinate organisations, or other organisations not normally under his command, that encompasses the responsibility for implementing orders or directives”.
- 27.
Cathcart 2011, p. 238.
- 28.
Although states and international organisations use the same terms, in practice their meaning may differ; see Cathcart 2010, pp. 236–237. AAP-06, 2013: “Full Command: The military authority and responsibility of a commander to issue orders to subordinates. It covers every aspect of military operations and administration and exists only within national services”.
- 29.
With regard to Full Command the AAP-06, 2013, p. 2-F-7 specifies that “No NATO or coalition commander has full command over the forces assigned to him since, in assigning forces to NATO, nations will delegate only operational command or operational control”.
- 30.
Ibid, 2013.
- 31.
Ibid.: “The authority delegated to a commander to direct forces assigned so that the commander may accomplish specific missions or tasks which are usually limited by function, time, or location; to deploy units concerned, and to retain or assign tactical control of those units. It does not include authority to assign separate employment of components of the units concerned. Neither does it, of itself, include administrative or logistic control”.
- 32.
Also referred to as ‘Change of Operational Control’. An example is the rescue of the commercial vessel ‘Taipan’ in 2010 that was attacked and taken over by pirates. The Dutch warship ‘Tromp’, participating in EU operation ‘Atalanta’ and operating under EU command, was near the area where the ‘Taipan’ was located. However, the Tromp could not proceed under the European command, because the ‘Taipan’ was outside the EU Area of Operations. The Dutch Commander in Chief then decided to temporarily withdraw the Tromp from EU command to allow the rescue operation of the ‘Taipan’ under Dutch command.
- 33.
AAP-06, 2013.
- 34.
Ibid.
- 35.
This is based on the assumption that the conduct does not violate the national order of the host State and, as a result, does not constitute a criminal offence.
- 36.
AAP-06, 2013: “Direction or exercise of authority over subordinate or other organizations in respect to administrative matters such as personnel management, supply, services, and other matters not included in the operational missions of the subordinate or other organization”.
References
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Voetelink, J. (2015). Terminology. In: Status of Forces: Criminal Jurisdiction over Military Personnel Abroad. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-057-2_11
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