Deployment of U.S. Military, Civilian and Contractor Personnel to Potentially War Hazardous Areas from a Legal Perspective

DISAM Journal, Summer, 2001 by Donald P. Oulton, Alan F. Lehman

The Problem

Recent international events raise questions as to what aspects of international law apply to personnel who are deployed to high risk (potential combat) areas. In response, we at Hanscom Air Force Base Electronic Systems Center (ES C) have researched these matters and provide the following information, in summary form.

Discussion

In general, the military and civilian employees of the Department of Defense are covered by status of forces agreements (SOFAs) between the United States government and allied nations or international organizations. These agreements, although similar, contain different rights, duties and obligations of the U.S. government (generally "the sending nation") and the foreign country (generally "the receiving nation"). The SOFAs in broad terms cover such things as the rights, privileges, duties, status and immunities of United States citizens under international law. [1] For the reader's convenience, we have included the website for a list of countries with which the United States has a formal SOFA. [2]

SOFAs We Have Dealt with at ESC

For the most part, SOFAs are similar and cover the same generic topics, regardless of what country or international organization they are with. These include, for example, a definitions section; a clause requiring the sending state to respect the laws of the receiving state; exemption from specified passport or visa regulations; credentials required the receiving nation for personnel of the sending nation, including personal identity cards (liDs); appropriate travel orders; automobiles (or other) special driving privileges; the right bear arms in the receiving state; determination of criminal jurisdiction over persons sent by the sending state; security requirements; due process requirements; settlement of claims (often a waiver of claims by participating countries against each other); control of in-country purchases (business and personal); relief from certain taxes; duties and customs; and the status/privilege and duties of dependents.

Although the generic topics above are usually addressed in SOFAs, there are significant differences in the scope of any particular SOFA and or related agreements as will be discussed below. With this in mind, it is useful to examine the North Atlantic Treaty Organization (NATO) SOFA. [3]

Article IX of the NATO SOFA provides coverage for "Members of a force (i.e., military members) or a civilian component and their dependents....". Thus, it is clear, the NATO SOFA in its original text does not cover contractors. Most other SOFAs do not automatically cover contractors either. The NATO SOFA has a supplemental agreement pertaining to forces stationed in Germany, however, and Article 73 of the supplemental agreement does cover contractor personnel if they qualify as "technical experts." [4] No other NATO country (to our knowledge at this time) grants technical expert status to contractor personnel. The SOFAs for countries such as Japan and Korea, however, as well as a host of other countries, do provide such coverage for contractor personnel who qualify as technical experts.

Potential Problems Arising from Lack of SOFA Coverage for Contractor Personnel

It is axiomatic that, on one level, SOFA benefits such as base-exchange, postal, housing, schools for minor dependent children and medical privileges (on a reimbursable basis) are a pricing term for any resulting contract. To the extent that a contractor can price its services lower where SOFA benefits are available, the United States (or the purchasing government in a foreign military sales case) can save money.

Perhaps more importantly, in the case of hostile zones such as Saudi Arabia during Desert Storm, or Bosnia at the time NATO first deployed there, SOFA benefits for contractors take on a new dimension. Contractors did accompany the forces in Desert Storm, and many contractor personnel are currently accompanying our forces in (and around) Bosnia and Kosovo, for example. They are also currently deployed in Saudi Arabia, Kuwait, and Korea, to name a few additional countries.

A major problem associated with Bosnia concerning contractor personnel was that there was no SOFA coverage extended to contractors by NATO member nations, except as previously noted while they are in Germany. The second problem for contractor personnel arose from the fact that the United States had no SOFA Agreements with any of the Eastern Bloc nations, where troops and supporting contractors would be sent. [5] These included, but were not necessarily limited to the Federation of Bosnia and Herzegovina, the Republic of Srpska, the Republic of Croatia, and the Republic of Yugoslavia.

The treaty [6] signed at Dayton, Ohio in November 1995 provided a solution to the problem. While the treaty itself did not extend diplomatic or SOFA-type benefits to contractors, a related treaty did. Specifically, subparagraph 2 of the Bosnian treaty invokes a 1946 treaty with the United Nations. [7] Article VI of that treaty provides diplomatic immunity for "technical experts" who accompany military forces on a United Nations mission. We at ESC took the view that the then current peace keeping activity in Bosnia was just such a mission. NATO forces replaced the previous United Nantions peacekeeping forces under the auspices of the United Nations Security Council. In other words, NATO was in Bosnia at the behest of the United Nations. They are in Bosnia on a United Nations mission and that is why we believed the NATO troops came under the 1946 treaty when they were first deployed. Those troops are referred to as the International Forces, or IFOR. Since then, the U.S. has SOFAs with Bosnia-Herzegovina and Cro atia related to IFOR. We also have SOFAs in place with Slovenia and the Former Yugoslav Republic of Macedonia (FYRM). Hungary is used as a staging area for IFOR, and the NATO SOFA currently applies there.