Understanding the Foreign Military Investigation Process
Overseas deployment can be an opportunity to sightsee while abroad. If you’re stationed in a friendly country, you may decide to take leave and travel for a bit. However, as soon as you step foot off the military installation, you could be subject to the jurisdiction of a foreign government.
What happens if you are involved in a criminal incident while stationed overseas? Are you subject to that country’s laws? Can you ensure you will be granted basic due process rights as guaranteed by the US Constitution and Uniform Code of Military Justice (UCMJ)?
Rest assured that wherever you’re serving, you have access to legal benefits, privileges, and protections under a Status of Forces Agreement (SOFA). Learn more about SOFAs and what to do if you’re facing criminal charges while deployed overseas.
What the NATO SOFA Agreement?
The North Atlantic Treaty Organization (NATO) SOFA is a peacetime agreement originally signed in 1951. It sets forth the legal rights and responsibilities of US military service members, civilian employees, and their families. The NATO SOFA, which applies to all NATO-partnering countries, is the only SOFA that has been established as part of a treaty.
What About Other SOFAs?
Many other SOFA agreements have been signed since 1951. In fact, the United States has some form of SOFA agreement with more than 100 countries, about half of which are under the NATO SOFA. Some comprehensive agreements exist with longstanding allies like Australia, Israel, Japan, and Korea, and various less comprehensive agreements have been signed with other nations.
Anytime the US expects to maintain military forces in a foreign country, the federal government usually attempts to enter into a SOFA if one does not already exist. The purpose is to increase stability, diminish threats to peace, and build strengthened security relations. SOFAs differ in their complexity, specificity, and transparency, depending on what country is involved.
No matter where you’re stationed or what SOFA applies, you can expect the agreement to affect numerous aspects of your life, from housing and taxation to entry and departure from the country to military training and driving privileges. Perhaps most importantly, SOFAs address how to handle law enforcement and investigations regarding US personnel.
Legal Jurisdictions as Defined by SOFAs
SOFAs establish how civil and criminal laws of the foreign jurisdiction apply to service members deployed in that country. The Department of Defense’s policy is “to protect, to the maximum extent possible, the rights of US personnel who may be subject to criminal trial by foreign courts and imprisonment in foreign prisons.”
The rules vary depending on the country, SOFA, and specific circumstances surrounding the incident. When addressing the question of foreign jurisdiction, a SOFA may take one of two approaches—exclusive jurisdiction or shared jurisdiction.
Exclusive jurisdiction is when the US retains the right to perform all criminal prosecutions and disciplinary actions when a service member is deployed in a foreign nation, even if a crime is committed under the foreign country’s laws. In this case, service members would most likely face trial in a court martial setting.
Shared jurisdiction is more common. This is when each country in the agreement retains exclusive jurisdiction over certain offenses. However, it still allows the US to request that the host country waive its criminal and disciplinary jurisdiction in some instances. If the host country declines this request, service members could find themselves in a foreign court facing punishments under foreign law.
If you expect to be deployed overseas soon, understand that you are subject to local laws and regulations during your time in a foreign nation. Learn about your destination and any laws that might differ from those in the United States. Then, find out if a SOFA exists with the country where you will be deployed and whether exclusive or shared jurisdiction applies.
What to Do if You’re Facing Criminal Charges While Deployed Overseas
First and foremost, inform your chain of command of the charges, especially if you think you will be subject to the foreign nation’s jurisdiction rather than the US military justice system. Your commander may advise you to remain on base to avoid being apprehended by foreign authorities.
If you are far from a military installation when you learn about the criminal charges against you, contact the nearest US Embassy or Consulate. If you have been arrested in a foreign country, the Vienna Convention on Consular Relations guarantees your right to have the US Embassy informed of your detainment. You also have the right to contact a US Embassy representative. Although you may not get out of jail, the Embassy can:
- Provide a list of local attorneys who speak English
- Contact your family and friends for you
- Ensure that you receive proper medical care while detained
- Provide you with an overview of the local criminal justice process
- Assist with the transfer of funds from friends and family
We also recommend that you contact a US-based military attorney who can advise you of your rights under the UCMJ while facing criminal prosecution in a foreign land. Joseph L. Jordan, Attorney at Law has years of experience representing clients overseas that are affected by exclusive and shared jurisdictions. Whether you’re facing a criminal investigation led by the US military or a foreign civilian police department, we can represent you. Our firm will work tirelessly on your behalf to make sure you receive fair treatment and an excellent defense.