Legal Immunity From Criminal Prosecutions To Armed Forces At Foreign Jurisdictions

Legal immunity from criminal prosecutions of armed forces personnel of one nation present in another nation is a complicated aspect. It requires analysis of public international law, international treaties and convention, multilateral agreement, bilateral agreements between two countries and so on.

For instance, if a member of United States armed forces commits felony, sedition, murder or any other offence against national security of the nation where he/she is present, his/her criminal prosecution is imminent. However, who would criminally prosecute such US personnel is the real question. Will it be the US government/armed force or would it be the criminal courts of the nation whose criminal laws have been violated?

It all depends upon either the international treaty/multilateral agreement in this regard to which both the US and that nation are party or it may depend upon a bilateral agreement between the US and that nation. However, there is nothing like an automatic immunity or absolute immunity to such US personnel in all circumstances. In fact, there may be circumstances where such US personnel may be prosecuted under the criminal laws of the nation whose criminal laws have been violated.

In short, armed forces immunity can be claimed either under the international law and in a member country alone that is also part to any treaty in this regard to which US is also a member or it must be claimed through an executive agreement with the concerned country where US armed forces are stationed.

Until the post-World War II era, status of forces agreement (SOFAs) addressed this conflict between sovereigns and US policy was to rely heavily on the concept of immunity from host nation criminal jurisdiction created by the host nation's implied consent in expressly consenting to US forces being stationed there. The US policy of insisting on complete immunity from foreign criminal jurisdiction continued in the early post-World War II period, but ultimately gave way to the negotiation of systems of "concurrent jurisdiction" in SOFAs and bilateral supplementary agreements.

With the exception of the multilateral SOFA among the United States and North Atlantic Treaty Organisation (NATO) countries, a SOFA is specific to an individual country and is in the form of an executive agreement. A US personnel who is accused of a criminal act in another country may be criminally prosecuted in the host country, especially if the alleged criminal act has nothing to do with the official duty of such personnel.