How America looks out for its military personnel abroad

Malta will have to afford America criminal jurisdiction on US military personnel who break local laws if it reaches a Status of Forces Agreement.

Criminal jurisdiction is one of the key clauses in these arrangements that lay down the privileges and immunity enjoyed by US military personnel and contractors of the American defence department.

Malta has no such agreement yet, having shunned attempts over the past two decades by the US to broker a SOFA.

But Malta is now on the brink of giving up its long-standing opposition in what sources close to government say is a deal to secure US support on the Moneyval test next month.

To better understand what a SOFA is, MaltaToday has reviewed two recently-concluded agreements between the US and countries in the Caribbean and Africa.

The first is an agreement between the US and the Caribbean archipelago of Antigua and Barbuda, which was signed in 2014 and entered into force in January this year.

The second is an agreement between the US and Rwanda, which came into force in May this year, replacing previous arrangements in place since 2005.

The two treaties are not very long - each have six pages - and are very similar, with most of the clauses being a cut and paste job.

Any eventual agreement with Malta is unlikely to be very different although it may include additional clauses to clarify any issues that could be interpreted as going against the Constitution.

Ship visits, training and agreed activities

The SOFA defines personnel as members of the US armed forces and civilian employees of the American defence department. Contractors are American companies under contract by the US defence department, and their employees who are not nationals of the host country.

Each of the agreements reviewed apply to the “temporary presence” of US personnel and contractors in connection with activities that are mutually agreed.

In both cases, ship visits, training, exercises and humanitarian activities are specifically listed as examples of mutually agreed activities.

Diplomatic status and criminal jurisdiction

Significantly, the agreements make it clear that US personnel “shall be accorded privileges, exemptions, and immunities equivalent to administrative and technical staff” of a diplomatic mission.

Additionally, Antigua and Rwanda both authorised the US to “exercise criminal jurisdiction” over American personnel on their territory.

This means that an American soldier involved in a crime in the host country will be tried and judged by the US military and not the local courts.

However, the Antigua agreement includes a qualifying clause that makes it incumbent on the US authorities to inform the host country of those cases where the US will exercise jurisdiction. The Rwanda agreement contains no such provision.

Uniforms and arms

The SOFAs reviewed by this newspaper make it clear that the host countries will authorise US personnel on official duties to wear uniforms and carry arms if required to do so by their orders.

Again, the Antigua agreement includes a clause requiring the US armed forces to “consult” with the host country when issuing such orders. The Rwanda SOFA has no such provision.

Under both agreements, US personnel are allowed to enter and exit the host country using “US identification and with collective movement or individual travel orders”.

Other standard clauses in SOFA agreements are the acceptance by the host country of all professional licenses issued by the US for the provision of services to authorised personnel. Driving licenses issued by the US authorities will also be accepted as valid.

Tax and fee exemptions will apply to US personnel, vessels and aircraft. Additionally, the SOFA makes it clear that vessels of the US government “shall be free from boarding and inspection”.

In both cases, ship visits, training, exercises and humanitarian activities are specifically listed as examples of mutually agreed activities

What does a SOFA contain?

Definitions

• US personnel means members of the US armed forces and civilian employees of the US Defence Department.
• US contractors means non-host country companies and their employees who are not host country nationals, under contract to the US Defence Department.

Scope

• The agreement shall apply to the temporary presence of US personnel and US contractors in the host country in connection with activities as mutually agreed, including, for example, ship visits, training, exercises, humanitarian activities, and other activities as mutually agreed.

Privileges, exemptions and immunities

• US personnel shall be accorded privileges, exemptions, and immunities equivalent to members of a diplomatic mission as outlined in the Vienna Convention on Diplomatic Relations.
• Under this same clause, the Rwanda agreement, “authorises the US to exercise criminal jurisdiction over US personnel while in the territory of the Republic of Rwanda”.
• The Antigua agreement has a separate clause dealing with jurisdiction – it allows the US to exercise criminal jurisdiction over its personnel but makes it incumbent on the US armed forces to inform the host country’s authorities of the cases where the US will exercise such jurisdiction.

Entry, exit and travel documentation

• US personnel will be able to enter and exit the country using “US identification and with collective movement or individual travel orders”.
• In the same clause, the Rwanda agreement adds that “US personnel shall have freedom of movement and access to and use mutually agreed transportation, storage, training, and other facilities required in connection with activities under this agreement”. The Antigua agreement lists this under a separate clause.

Licenses and permits

• The host country will “accept as valid all professional licenses issued by the US” for the provision of services to authorised personnel.
• The host country shall also accept as valid “without a driving test or fee” driving licenses or permits issued by the appropriate US authorities for the operation of vehicles.

Uniforms and weapons

• US personnel shall be authorised to “wear uniforms while performing official duties and to carry arms while on duty if authorised to do so by their orders”.
• The Antigua agreement adds that “in issuing such orders, the US armed forces authorities intend to consult with the appropriate authorities” of the host country.

Taxation

• US Defence Department and its personnel “shall not be liable to pay any tax or similar charge” within the host country.
• US personnel can import, export and use in the host country “any personal property, equipment, supplies, material, technology, training, or services in connection with activities” outlined in the agreement.
• Importation, exportation and use shall also be “exempt from any inspection, license, other restrictions, customs duties, taxes, or any other charges”.
• The Antigua agreement adds that “such importation and exportation shall be coordinated, as appropriate, with the competent authorities” of the host country.

Security

• The host country agrees to take all necessary measures to ensure “the security and protection of US personnel, property, equipment, records, and official information” in the host country.

Vessels, vehicles and aircraft

• The agreements exempt vessels and vehicles “operated by or, at the time exclusively for the US Defence Department”, from any transit tolls and allows them free movement within the territory of the host country.
• The Rwanda agreement adds that this has to be done “with respect for the relevant rules of air, maritime, and land safety” in the country.
• Vessels and aircraft are exempt from airport landing fees and sea port charges. Aircraft are also exempt from paying terminal and overflight fees.
• The agreements say that the US Defence Department shall pay “reasonable charges for services requested” at rates there are “no less favourable” than those paid by the armed forces of the host country.
• Aircraft and vessels of the US government “shall be free from boarding and inspection”.

Contracting and contractors

• The US Defence Department can buy supplies and contract contractors for services according to US laws and regulations.
• Any goods and services contracted in connection with activities under the agreement will be exempt from taxes, charges and be exempt from import and export licenses, and customs duties.
• The Antigua agreement makes it clear that property, equipment, supplies, materials and technology imported by US contractors under the agreement “shall not ordinarily be disposed of” in the host country, except as authorised by the host country.

Telecommunications

• Agreements grant US armed forces the right to use all radio spectrum as necessary and against no cost.
• The Rwanda agreement adds that the US will make “every reasonable effort to coordinate the use of frequencies with the relevant” host country authorities.

Claims

• Parties to the agreement agree to waive “any and all claims” (other than contractual claims) against each other for damage to, loss of property, injury or death of either party’s military or civilian personnel involved in official duties on activities arising under the agreement.
• The agreement also makes it clear that claims by third parties for damages or loss caused by US personnel “shall be resolved by the US government in accordance with US laws and regulations”.
• The Antigua agreement, however, also includes that if settlement is not accepted, the third party can seek a remedy as per local laws but US personnel will still be considered as diplomatic staff.