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

Article excerpt

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. …