The Status of Foreign Armed Forces Deployed in Post-Conflict Environments
The Status of Foreign Armed Forces Deployed in Post-Conflict Environments
A Search for Basic Principles
Abstract and Keywords
Foreign armed forces frequently play an important part in the transition from conflict to peace, yet their presence can be a source of controversy. The chapter argues that two distinct concerns relating to the legal position of foreign forces arise in post-conflict situations: 1) the effect that changes in the legal basis of their presence have on their legal status, and 2) the need to balance the principle of territorial sovereignty and the jurisdictional exemptions of foreign forces in a manner that reflects the specific features and demands of post-conflict environments. As this chapter shows, both of these concerns point towards the need for a more contextual and dynamic understanding of the legal status of foreign forces deployed in post-conflict situations. Such an approach provides greater conceptual clarity and offers a vantage point from which the position of sending states and host states can be critically assessed.
The end of armed conflict is often characterized by the presence of foreign armed forces. Foreign military deployments in post-conflict environments may come about in various ways. Sometimes, the end of an armed conflict does not lead to the prompt and complete withdrawal of all belligerent forces from the territory of their former adversary. Instead, foreign troops may remain deployed abroad for several years or even decades, occasionally in large numbers as they did in Germany after the Second World War or more recently in Afghanistan. Foreign forces may also intervene in armed conflicts between third parties and remain in theatre after the end of hostilities in order to stabilize the security situation, as happened in the case of Bosnia following the adoption of the Dayton Peace Agreement.1 Equally, foreign troops may deploy in a post-conflict environment in order to carry out an international mandate after the active phase of a conflict in which they did not participate has come to an end, as certain coalition forces did in Iraq.2
Regardless of how foreign armed forces end up in a post-conflict situation, their presence is often controversial. One of the rather obvious lessons of the conflict in Iraq is that the continued deployment of foreign troops in the territory of their former adversary can attract substantial opposition from the local population and become a significant source of instability in its own right.3 Even where foreign forces intervene at the request of the local authorities or in pursuit of an international mandate, their (p.468) presence may not meet the approval of all factions of society. In such circumstances, the rules of international law regulating the legal status of such forces assume particular importance.
The privileges and immunities enjoyed by foreign armed forces during their presence abroad are rarely seen as a purely technical matter. Instead, they are widely perceived as a reflection of the broader political relationship between sending states and host states. Given the controversial nature of many post-conflict military deployments, it is not surprising to find that questions surrounding the legal status of the foreign troops concerned are not free from controversy either. It is not uncommon for status questions to act as a lightning rod for political rows and the grievances of the local population.4 Nevertheless, as norms of law, the rules of international law regulating the legal status of foreign military deployments carry with them a promise of predictability and procedural legitimacy. If the aim of jus post bellum is to achieve a just and lasting peace, as we are told,5 then the rules of international law applicable to post-conflict military deployments should contribute to this aim. Accordingly, we may expect these rules to lay down certain standards of behavior and offer a framework for interaction between sending states and host states that recognizes their often competing interests and provides means for balancing them.6
The aim of the present chapter is to investigate to what extent international law fulfills this promise. In doing so, the chapter explores to what extent the legal status of armed forces deployed in post-conflict environments is governed by principles and considerations of international law that are unique to jus post bellum. The chapter begins by noting that the rules of international law regulating the privileges and immunities of foreign armed forces do not form a single legal regime, but derive from diverse sources (section II). From these sources, five principles of general application may be derived (section III). Understood as a normative framework, jus post bellum raises certain special legal considerations and priorities (section IV). Superimposing these on the five general principles identified earlier suggests that two sets of questions relating to the legal status of foreign forces are of particular importance in post-conflict environments. The first concerns the challenges entailed by the transition from the non-consensual to consensual presence of foreign troops (section V). The second concerns the appropriate balance to be drawn between the competing legal interests of sending states and host states in post-conflict environments (section VI). (p.469)
II. The Status of Foreign Forces: No Self-Contained Regime
Jus post bellum can be located between two main domains of public international law: the law of peace and the law of armed conflict.7 With the blurring of the legal institution of war and the dividing line between peace and armed conflict,8 today these two domains are no longer treated as two discrete branches of international law, if they ever were. It is becoming increasingly accepted that rules and principles originating in one domain may apply outside their main area of application.9 In recent years, we have thus witnessed the extension of the applicability of international human rights law to conduct carried out in situations that do not resemble normal peacetime conditions.10The applicability of rules of law outside their center of gravity and the potential for normative friction that this creates—primarily between international human rights law and the law of armed conflict11—is one of the challenges faced by contemporary legal scholarship and practice in this area. This challenge also forms a key part of the study of jus post bellum. (p.470)
De lege lata, jus post bellum is not an established branch of international law.12 While some regard it primarily as a set of moral imperatives rather than legal norms,13 it would be wrong to assume that jus post bellum is an area devoid of rules of law.14 On the one hand, international practice may already have given rise to special rules of international law applicable to post-conflict situations,15 even if these rules have not congealed into a distinct branch of international law so far.16 Whether or not such special rules exist must be determined with reference to the rules applicable to the identification of norms of international law.17 On the other hand, post-conflict situations do not constitute some sort of legal vacuum:18 whatever the shortcomings of the current legal regulation may be, a rather large body of existing rules of international law obviously does apply in such environments.19 In this respect, the challenge to jus post bellum, understood as a scholarly project aimed at filling the normative gap that is said to exist in the period of transition from a state of conflict to a state of peace,20 appears to be twofold: to better understand the particular legal considerations and requirements raised by post-conflict situations and to identify ways in which the existing rules and principles of international law may be utilized to meet those requirements.
In attempting to identify the principles of international law that govern the legal status of foreign armed forces deployed in post-conflict environments, it is therefore useful to start from what we already know about their legal position under international law in general. Here we are immediately confronted with a considerable difficulty: the applicable rules do not seem to form a coherent and interrelated set of norms. In other words, there is little evidence that a distinct “law of foreign forces” or a “law of foreign forces immunity”21 exists as a self-contained regime of international law22 that is (p.471) comparable in its function and identity to, for instance, the law of diplomatic relations.23Let me illustrate this with reference to three points.
A. State immunity and foreign armed forces
First, it is unclear to what extent the general rules of state immunity apply to foreign armed forces.24 Since national armed forces constitute one of the organs of their state, there is little doubt that their activities are in principle covered by the law of state immunity, just like the activities of any other state organ.25 However, there are various indications that suggest that the general rules of state immunity defer to any special rules applicable to armed forces. Article 31 of the European Convention on State Immunity of 1972 (ECSI) declares that “[n]othing in this Convention shall affect any immunities or privileges enjoyed by a Contracting State in respect of anything done or omitted to be done by, or in relation to, its armed forces when on the territory of another Contracting State.”26 As the Explanatory Report to the ECSI points out, the purpose of Article 31 is to recognize that the Convention is not intended to govern situations which may arise in the event of an armed conflict or to resolve problems which may arise between allied states as a result of the stationing of forces, as these problems are generally dealt with by special agreements,27 which operate as lex specialis.
The UN State Immunity Convention does not contain a provision similar to Article 31 of the ECSI nor does it include the immunities of armed forces on the list of privileges and immunities that remain unaffected by the Convention.28 However, there is other evidence to suggest that the legal status of foreign armed forces is governed by more specific rules, including a statement made by the Chairman of the Ad Hoc Committee on Jurisdictional Immunities of States and Their Property, Professor Gerhard Hafner, (p.472) in the Sixth Committee on 25 October 2004, in which he pointed out that a “general understanding had always prevailed” that military activities were not covered by the Convention.29 Basing itself partly on this statement as well as the fact that no state ever appears to have questioned it,30 the International Court of Justice (ICJ) held in the Jurisdictional Immunities of the State Case that the territorial tort exception to the principle of state immunity does not apply to acts committed on the territory of the forum state by the armed forces of a foreign state acting in the conduct of an armed conflict.31
B. Lex specialis rules of immunity?
Secondly, the content of the lex specialis rules of international law governing the legal status of foreign forces to which the ECSI and the UNCSI defer is far from certain. One possible source for these rules may be found in the very substantial number of status of forces agreements concluded by states and international organizations since the First World War.32 The main purpose of status of forces agreements is to create a legal framework for the presence of foreign forces by defining their privileges and immunities in express terms. Status of forces agreements thereby provide sending states and host states with an opportunity to balance their competing interests, in particular by resolving potential conflicts of jurisdiction over the foreign forces, and to address various practical matters. Where such agreements apply, their specific terms will prevail over the more general terms of the ECSI and the UNCSI. However, whether or not they also prevail as a matter of customary international law is a more challenging question to answer. Although a strong argument can be made that international practice in this area follows certain recurrent patterns,33 establishing whether the terms of status of forces agreements have passed into customary international law is fraught with difficulties.
The existence of a large body of such agreements may be taken as a material source of international practice that, if combined with the existence of opinio juris, could constitute evidence of customary international law. However, status of forces agreements “come in a variety of sizes and flavors,”34 with distinct classes of agreements designed to (p.473) apply to distinct sets of circumstances. This not only suggests that international practice relating to status of forces agreement is confined to the specific circumstances for which each type of agreement was designed and cannot be presumed to contribute to the development of customary international law beyond those circumstances,35 but it also raises the question whether or not status of forces agreements are by their very nature nothing more than compromises of a contractual character, so that no general inferences may legitimately be drawn from their specific terms.36
In addition, it is at least conceivable that status of forces agreements may have given rise to new rules of customary international law on their own impact, that is because they were intended by their parties to do so.37 To have this effect, their provisions would have to “be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law.”38 This requirement is often understood to mean that only multilateral treaties are capable of creating new rules of customary international law of their own impact.39 If this is correct,40 it means that the potential influence of status of forces agreements on the development of customary international law is limited to the handful of multilateral instruments currently in existence.41 (p.474)
C. The effect of armed conflict
Thirdly, it is unclear to what extent the rules and principles governing the legal status of foreign armed forces in times of peace, in particular the law of state immunity and any lex specialis rules derived from status of forces agreements, apply when foreign forces are involved in active hostilities. The reasoning of the ICJ in the Jurisdictional Immunities of the State Case provides some useful food for thought in this respect. In its judgment, the Court emphasized on several occasions that it was confining itself to the law of state immunity applicable to the acts of armed forces committed in the context of an armed conflict.42 Nonetheless, it is striking that the majority of the evidence of state practice adduced by the Court did not relate to armed conflicts nor did the Court at any point recognize the need to consider whether the law of state immunity was subject to any modifications or special rules in times of armed conflict, including in its application between former belligerents, such as between Germany and Italy.43
For the purposes of the present analysis, it suffices to note that there is some evidence to suggest that the applicability of the law of state immunity may be subject to certain modifications as a result of an armed conflict. For instance, while there is some disagreement as to what the legal effects of legislative and administrative measures adopted by occupying powers are following the termination of the occupation regime, it seems that the domestic courts of some former occupied territories have shown little hesitation in subjecting measures adopted by the occupant during the course of the occupation—including measures which undoubtedly constituted acta jure imperiis and as such in principle should have been immune from judicial review44—to their scrutiny.45 This suggests that it is unsafe to assume that the law of state immunity applies in the same manner in peace and armed conflict alike. (p.475)
III. General Principles
The foregoing points underline that the rules and principles of international law governing the legal status of foreign armed forces do not add up to a distinct set of interrelated norms: they derive from multiple sources and do not constitute an autonomous or self-contained legal regime of their own.46 The absence of such a single set of rules applicable either in times of peace or in times of armed conflict is significant in the present context in so far as it means that the legal position of troops deployed in post-conflict environments cannot be determined by applying an existing regime either directly or by way of analogy. Rather, it is necessary to identify, as a preliminary step, the key legal principles and considerations governing the status of foreign forces in general before examining whether and to what extent these need to be adapted to the special circumstances of post-conflict situations. Five relevant principles and considerations may be identified for this purpose.
A. Consent to presence and legal status
The first point to raise concerns the relationship between the rules governing the presence of foreign armed forces and the rules governing their legal status whilst deployed abroad. Although distinct, these are two closely related questions. Modern international law is based in large part on the principle of territorial sovereignty, which entitles every state to assert its exclusive authority within its territory.47 The principle implies the right of each state to decide freely whether to permit foreign troops to enter into its territory or to deny them admission as well as to request troops already present to leave:48 it follows that the presence of foreign armed forces always requires the express consent of the territorial sovereign,49 unless their deployment can be justified with reference to another legal basis which renders the need for such consent redundant.50 (p.476)
Where the territorial sovereign has granted its prior consent to the presence of foreign forces, their legal status will be subject to the applicable rules of general international law, including the principle of state immunity, as well as any specific agreements that the sending states or organizations and the host state may have entered into. The host state may invite foreign troops into its territory for a broad range of reasons, including to participate in an internal or international armed conflict.51 It may also decide to entrust them with wide-ranging executive functions, including the use of armed force.52 Should the foreign forces in question become engaged in active hostilities with third parties inside the host state as a result of such an invitation, they may also be subject to the laws of armed conflict.53 However, this does not fundamentally change their legal relationship with the host state, which continues to be governed primarily by rules of general international law and any applicable agreements already mentioned.54
By contrast, military deployments taking place without the consent of the territorial state are likely to breach the principle of non-intervention and possibly the prohibition of the use of force in international law.55 Except for special cases, for example where the non-consensual presence of foreign forces is the result of an emergency or error,56 their (p.477) relationship with the territorial state is likely to be governed by the law of armed conflict, including the law of belligerent occupation.57 Consequently, as far as the legal relationship of foreign forces with the territorial sovereign is concerned, the key criterion is not whether those forces are engaged in active hostilities in its territory, but whether their presence and activities are consensual or not.58
B. Territorial sovereignty and respect for local law
The principle of territorial sovereignty confers on every state the right to perform the functions of government within its territory, in particular by establishing and enforcing its own legal and political order.59 The territorial principle thus enables the state to exercise their jurisdiction over all persons and objects located in its territory and over any activities and events taking place therein.60 When foreign armed forces are present within its borders, their members and activities are therefore subject, in principle, to the law of the host state in both criminal and civil matters.
This principle of territorial jurisdiction is reflected in most modern status of forces agreements, which usually contain provisions requiring foreign troops to respect the law of the host state.61 Some commentators have argued the duty to respect local law does not actually compel foreign forces and their members to abide by the laws and regulations of the host state, but merely requires them to take these into account in the course of their activities:62 a duty to respect is not equivalent to a duty to obey. Others have argued that such a restrictive interpretation of the duty to respect local law is incompatible with its underlying purpose.63 Bearing in mind that the purpose of the duty to respect local law is to give effect to the territorial sovereignty of the host state, the latter does indeed seem to be the better view. Nevertheless, it is important to recognize that the duty to respect local law is concerned solely with the need to respect the law of the host state, but not with the applicability of that law to foreign forces nor with the scope of the host state’s competence to exercise its prescriptive jurisdiction over (p.478) them. Accordingly, the duty merely affirms that foreign forces are bound to observe any applicable laws and regulations of the host state, but it neither implies that all norms in force in the host state are actually applicable to foreign forces nor does it say anything about which of those local norms are so applicable.
The duty to respect the law of the territorial sovereign is also recognized by the law of armed conflict. Most importantly, Article 43 of the Hague Regulations of 1907 provides that:
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.64
By underlining that an occupying power must respect the laws and regulations in force in the occupied territory, Article 43 of the Hague Regulations limits the legislative powers of the occupant and reaffirms the underlying sovereignty of the occupied state.65 This respect for local law and legislative competence is further reinforced by Article 64 of Geneva Convention IV,66 which provides that the:
[P]enal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention.67
C. Exemptions from local jurisdiction
While the principle of territorial sovereignty demands that foreign forces must respect local law, this does not necessarily mean that the host state is entitled to enforce its laws by subjecting foreign troops to its legal processes. In fact, foreign armed forces and their individual members benefit from various exemptions from local adjudicative and enforcement jurisdiction.
First, as already mentioned, armed forces are state organs and as such are covered by the principle of state immunity.68 This means that acts performed by foreign armed forces in the territory of the host state are exempt from the jurisdiction of the local courts, subject to any exceptions recognized by the law of state immunity.69 Secondly, (p.479) pursuant to the principle of functional immunity, all members of foreign armed forces are exempt from the adjudicative and enforcement jurisdiction of the local authorities in civil and criminal matters in relation to acts performed in the course of their official duties,70 regardless of their operational environment or the purpose of their presence abroad. This duty-related immunity in civil and criminal matters represents the minimum standard of legal protection enjoyed by members of foreign armed forces under customary international law. Thirdly, foreign armed forces also enjoy those privileges and immunities that are reasonably necessary for their continued functioning as an effective military unit in the territory of the host state. For example, sending states are entitled to maintain discipline among members of their military contingents abroad and to take measures that are necessary for their internal administration.71
As regards exemptions in times of armed conflict, during the active phase of hostilities invading forces are not, as a matter of fact, subject to the legal authority of the enemy and for this reason it is generally assumed that they are exempt from local jurisdiction.72 However, there is surprisingly little discussion of this question in the literature. In particular, it is not clear whether the complete exemption of hostile forces from local jurisdiction simply reflects a de facto state of affairs or whether it gives effect to legal principles. In the former case, local jurisdiction is merely suspended and there is no reason why the local authorities should not take cognizance of events that took place during this period as soon as the territorial sovereign has acquired control over enemy personnel73 or managed to re-establish its authority over its territory.74 In the latter case, it is unclear whether this alleged principle also prevents third parties from claiming the right to exercise their jurisdiction over the forces concerned.
The legal position of occupation forces is not free from ambiguity either. While it is well established that occupying powers may set up and operate their own military courts in the occupied territory, they are also under an obligation to respect, unless absolutely prevented, the laws in force in the occupied territory, including the continued (p.480) operation of the local judicial system.75 Belligerent occupation therefore does not displace the territorial jurisdiction of the occupied state and the local courts retain their competence to exercise jurisdiction over occupation forces. However, in practice occupation forces are subject only to the jurisdiction of their own military authorities.76It is unclear whether this exemption from local jurisdiction is the consequence of a specific immunity conferred upon all occupation forces by the law of belligerent occupation or whether it flows from the occupying power’s right to fully withdraw its forces from the jurisdiction of the local courts for security reasons.
D. Operational necessity
States and international organizations deploy military forces under their control under highly diverse operational conditions. This great range of operational environments is one of the main reasons why the legal status of foreign armed forces is not regulated in a uniform manner under international law. Military advisors passing through the territory of a political ally, for example, do not face the same security risks as troops participating in peace support operations or active hostilities. It stands to reason that the extent to which foreign forces should be subject to local legal and administrative measures should therefore vary according to their operational circumstances. This is why in the event of hostilities the NATO SOFA, which was devised to apply to allied forces stationed in non-hostile conditions, provides for the immediate review of some of its provisions and also entitles its Contracting Parties, subject to certain conditions, to suspend the application of any of the provisions of the Agreement.77
Looking at international practice as a whole therefore suggests that the extent to which foreign forces are subject to local jurisdiction is governed by the principle of military or operational necessity. In other words, the balance between the right of the sending state and the right of the host state to exercise their respective powers of jurisdiction over the foreign forces moves on a sliding scale depending on the level of operational risk they face. As a minimum, the principle of functional immunity exempts members of foreign forces from the adjudicative and enforcement jurisdiction of the host state in civil and criminal matters in relation to acts carried out in the performance of their official duties. However, this minimum level of legal protection for official duty acts is normally augmented with additional privileges and immunities should the operational objectives or environment in which the foreign troops are deployed entail greater security risks. Status of forces agreements adopted for the purposes of peace support operations thus typically provide for the complete (p.481) exemption from local criminal jurisdiction of members of national military contingents.78 The higher end of the scale is represented by the very extensive privileges and immunities conferred on foreign military authorities under the law of armed conflict, including the law of belligerent occupation.
E. Jus dispositivum
The rules of international law governing the legal status of foreign armed forces derive from multiple sources, both customary and conventional in character. The relationship between these different sources is complex and multifaceted. Status of forces agreements both reflect general rules of international law and arguably have also contributed to the emergence of new rules of customary international law. However, while states and international organizations which repeatedly deploy armed forces abroad in similar operational environments and for similar purposes usually request the same jurisdictional immunities and privileges from host states, nothing prevents the contracting parties from entering into different arrangements, even at the expense of deviating from standard practice and any applicable rules of customary international law.79
Certain jurisdictional arrangements may be more acceptable politically to some states than others. Since its adoption in 1951, the NATO SOFA has stood as an example of complete reciprocity in relations between sending states and host states, making it more difficult in some cases to justify the adoption of fundamentally different arrangements.80 Conversely, influential states and international organizations are sometimes capable of securing conditions of stay for troops under their control which are more favorable than those they would be prepared to grant to foreign forces present within their own territory or which depart from international practice applicable under comparable circumstances.81 Accordingly, the widespread use of status of forces agreements has injected a considerable measure of dynamism into this area: the rules governing the status of foreign military deployments are not necessarily static, but may be modified by the contracting parties in the light of diverse political and changing operational circumstances.
IV. The Principles of Jus Post Bellum
Understood as a legal concept, jus post bellum is based on the notion that post-conflict situations give rise to special legal considerations which are distinct from those applicable either in times of peace or in times of armed conflict and that, consequently, special (p.482) rules and principles of international law may be required to address these considerations. However, this broad idea still admits at least three different paradigms of jus post bellum.
At one end, jus post bellum may be conceived as a self-contained regime of international law in a strong sense, that is as an interrelated set of primary and secondary rules that form a clearly distinguishable system or branch of international law.82 However, there is little support for such an approach in the literature.83 This should not come as a surprise, considering the uncertain content and ambiguous status of the concept. At the other end, jus post bellum may be understood as nothing more than a convenient moniker for an area of legal practice that draws together a range of relevant norms from other areas and branches of international law. This conception of jus post bellum has been criticized as lacking in ambition, in particular as it has little analytical value and does not reflect the historic traditions of the concept.84 Moreover, as Carsten Stahn has argued, it “fails to address one of the principal dilemmas of contemporary international law, namely to define the interplay between different legal orders and bodies of law in situations of transition.”85
A third possible understanding falls between these two extremes and conceives jus post bellum as an independent normative framework which comprises certain substantive principles and concerns of its own without amounting to a full-blown sub-system or branch of international law. It has been suggested that the advantage of this approach is that it puts the “post-conflict phase and the important period of post-conflict reconstruction at the center of attention of the international community.”86 From a methodological point of view, the main appeal of understanding jus post bellum as a distinct normative framework is that doing so emphasizes certain substantive values and objectives which can serve as interpretative reference points for identifying the rules and principles of international law most relevant to post-conflict situations and for balancing these norms and prioritizing between them should they come into conflict. This, arguably, is the added value of recognizing and promoting jus post bellum as a distinct legal framework.87
The central question of course is this: what is the content and source of these substantive values?88 Various candidates have been proposed in the literature. They include the objectives of establishing a lasting peace (including political restructuring), (p.483) holding morally culpable individuals to account, extracting reparations;89 the fairness and inclusiveness of peace settlements, the demise of the concept of punishment for aggression, the humanization of reparations and sanctions, the move from collective responsibility to individual responsibility, a combined justice and reconciliation model and people-centered governance;90 accountability, stewardship, good economic governance, and proportionality;91 the “restoration of order, restoration of sovereignty, economic reconstruction, seeking a durable peace, extracting post-conflict reparations, and punishment of rights violators”;92 and the principles of rebuilding, retribution, restitution or reparation, reconciliation and proportionality.93
Despite the absence of an overarching consensus, it is clear that there are several common themes and a good many overlaps among these values and objectives. However, it is also fair to say that many, if not the majority, of the values and objectives proposed in the literature are not strictly confined to post-conflict environments. Principles such as accountability, proportionality, criminal responsibility, and good governance are of general applicability. By contrast, the emphasis on reconciliation, rebuilding, restitution, and stewardship does appear to be distinct. The common thread among this second set of values and objectives is that they envisage a process of transition from a state of conflict marked by social discord and a breakdown of the rule of law to a state of peace based on a stable political settlement and good governance. Jus post bellum is by definition “a law of transition.”94 Seen from this perspective, jus post bellum should not be understood simply as a set of rules, but as a normative process which envisages the progressive evolution of the legal framework applicable to post-conflict situations over a period of time. To be effective, jus post bellum must therefore provide the parties with appropriate legal means to effect this transition, while they in turn must adjust their legal expectations in line with the progressive transformation of their legal environment. Superimposing these requirements of jus post bellum onto the general principles and considerations governing the legal status of foreign armed forces identified earlier suggests that the two questions of critical importance arise in post-conflict scenarios: the impact that changes in the legal basis of the presence of foreign forces during the transition from conflict to peace have on their legal status and the need for the applicable status arrangements to draw an appropriate balance between the principle of territorial sovereignty and the exemptions to which foreign forces are entitled in a manner which reflects the particular features of post-conflict environments. (p.484)
V. Presence and Status under Jus Post Bellum
Describing a set of circumstances as a “post-conflict situation” to which jus post bellumapplies seems to imply that active hostilities have ceased and that the main body of the law of armed conflict no longer applies within the territory of the host state. Also, we may presume that a “post-conflict situation” is different from one of belligerent occupation and therefore that the applicability of jus post bellum excludes, in principle, the direct applicability of the law of belligerent occupation. Accordingly, the legal status of foreign forces deployed in a post-conflict environment to which jus post bellum applies is, for the most part, not governed by the main body of the law of armed conflict. However, this does not necessarily render the legal position of such forces more straightforward. On the contrary, there are a number of challenges entailed by the transition from conflict to peace which seem specific to post-conflict situations.
A. Certain difficulties
Given that jus post bellum is located in the legal space falling between the state of armed conflict and the state of peace, the end of the applicability of the law of armed conflict might serve as the threshold event which triggers the applicability of jus post bellum principles. However, contemporary armed conflicts typically do not end with the overwhelming defeat of one of the parties. Instead, they frequently “result in unstable cease-fires, continue at lower intensity, or are frozen by an armed intervention by outside forces or by the international community.”95 Consequently, it may be unclear at what exact point in time armed hostilities or a regime of belligerent occupation have come to an end and therefore when the applicability of the main body of the law of armed conflict to foreign forces terminates, thus triggering the applicability of jus post bellum. A recent case in point is that of Iraq. On 28 June 2004, the Coalition Provisional Authority (CPA) formally handed over authority to the Interim Government of Iraq, yet it seems doubtful whether the belligerent occupation of the country did in fact come to an end with immediate effect on that date.96 The question has major implications for the legal regime governing the activities of any foreign forces deployed in Iraq at that point in time.97 (p.485)
In this respect, it is important to underline that the termination of active hostilities does not automatically transform the non-consensual presence of foreign forces into a consensual one. Unless the presence of foreign troops can be justified on the basis of one of the recognized exceptions to the prohibition of the use of force in international relations,98 their continued deployment in the territory of the host state is likely to be in breach of that prohibition.99 To avoid this outcome, sending states must therefore ensure that they obtain the host state’s consent to their continued military presence.100Such consent cannot be presumed or implied, but must be expressed by the territorial sovereign in explicit terms.101 This gives rise to several difficulties.102
The legitimacy of an invitation may be called into question, for instance where it was issued by interim authorities not enjoying the support of the majority of the local population or by governments installed and sustained by former occupying powers, a concern raised in relation to Iraq.103 Questions may arise as to who is entitled to formally express the territorial sovereign’s consent in cases where the status of the territory itself is contested or changes. The case of Kosovo illustrates the problem. To the extent that the presence in Kosovo of the NATO-led Kosovo Force (KFOR) authorized under Security Council Resolution 1244 of 10 June 1999 was based on the consent of the Governments of the Federal Republic of Yugoslavia (FRY) and the Republic of Serbia, as expressed by their adoption of the Peace Plan of 3 June 1999104 and the Military Technical Agreement (MTA) of 9 June 1999,105 it follows that the continued presence of KFOR following Kosovo’s declaration of independence on 17 February 2008 required the consent of the newly independent Kosovar authorities. However, it appears that their formal consent has not been sought by NATO.106 (p.486)
Difficulties may also arise regarding the scope of local consent, in particular as to what kind of foreign military operations and activities the local authorities have in fact agreed to. In the case of Iraq, the fact that the Interim Government was heavily dependent on the support of coalition forces, which moreover continued to carry out their activities with a very substantial degree of autonomy following the handover of authority, has led some commentators to suggest that the Iraqi invitation to the continued presence of foreign forces after June 2004 could at best be characterized as “circumscribed consent.”107
Matters may be further complicated by the fact that foreign forces deployed in a post-conflict environment are covered by an international mandate issued by the Security Council under Chapter VII of the UN Charter.108 In so far as such a mandate aims to provide a legal basis for and legitimize the presence of foreign forces, it may affect the meaning and scope of local consent. In the case of Kosovo, the adoption of Security Council Resolution 1244 helped to quell concerns about the validity of the consent expressed by the Governments of the FRY and Serbia to KFOR’s presence and activities in Kosovo under the Peace Plan of 3 June 1999 and the MTA of 9 June 1999, both of which were adopted after a prolonged bombing campaign waged by NATO forces against the FRY.109 According to some commentators, the adoption of Security Council Resolution 1244 superseded the consent expressed by the Yugoslav and Serb authorities in these instruments, which therefore did not constitute an independent legal basis for the presence of KFOR in Kosovo.110 This also appears to be the view taken by the member states of NATO.111
As these difficulties illustrate, the deployment of foreign troops in post-conflict environments may raise several problems that are idiosyncratic to this context. Does the concept of jus post bellum offer any guidance as to how these problems should be addressed? Sending states must secure an invitation by the local authorities as a precondition of the legality of their continued presence as a result of the general rules of international law: there is little benefit to be had from postulating that jus post bellumimposes a self-standing duty on sending states to place the presence of their forces in the territory of the host state on a consensual basis. By contrast, bearing in mind that jus post bellum is concerned with the transition from a state of conflict to a state of peace, and thus must be preoccupied with restoring sovereignty both in a formal and a (p.487) substantive sense, a strong case can be made that it does impose a duty on sending states and organizations deploying troops abroad on the basis of an international mandate to transform the latter into a consensual arrangement. Relying on an international mandate for a prolonged period of time is not compatible with the objective of restoring the territorial state’s ability to exercise its sovereignty. However, the implementation of this principle is often hampered by serious practical and legal difficulties, as the experiences in Kosovo and Iraq—to which we will now turn—demonstrate.
The requirement for putting the presence of foreign forces on a consensual footing has important implications for the arrangements governing their legal status, which must then rest on a consensual basis too: if it is for the territorial state to agree to the presence of foreign forces, it must be for the territorial state to determine the conditions of their presence, including their legal position.112 This principle is reflected in the MTA of 9 June 1999 concluded between the FRY and the Republic of Serbia and KFOR concerning the withdrawal of FRY forces from Kosovo and the deployment of KFOR in their place. Although the MTA did touch on certain questions related to the status of KFOR and its personnel,113 its primary purpose was not to regulate their legal position, but to provide for the phased withdrawal of FRY security forces from Kosovo and the synchronized entry of KFOR. As far as the legal status of KFOR was concerned, the MTA therefore provided for the conclusion of a separate status agreement, declaring that “[t]he parties will agree on a Status of Forces Agreement (SOFA) as soon as possible.”114 Despite this commitment, no status of forces agreement was ever concluded between the FRY and KFOR. Instead, the legal position of KFOR was regulated unilaterally by the United Nations Interim Administration Mission in Kosovo (UNMIK). On 17 August 2000, UNMIK and KFOR adopted a Joint Declaration designed “to affirm, within Kosovo, the status of UNMIK and KFOR and their personnel, and privileges and immunities to which they are entitled.”115The following day, the Special Representative of the Secretary General implemented the Joint Declaration by promulgating UNMIK Regulation No. 2000/47 on the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo.116 (p.488)
Whether or not the unilateral regulation of KFOR’s legal status was compatible with the MTA is an open question. The answer depends largely on the relationship between the MTA and the mandate given to UNMIK and KFOR under Security Council Resolution 1244. Although it is true that the MTA does not take pride of place in Resolution 1244,117 its first operative paragraph nevertheless declares that a political solution to the Kosovo crisis shall be based, inter alia, on the principles and other required elements elaborated in the Ahtisaari-Chernomyrdin Peace Plan,118 which specifically provides for the conclusion of a military-technical agreement.119 The Security Council thus affirmed the MTA, but did so indirectly. The legal effect of this affirmation is open to two opposing interpretations.
First, while Resolution 1244 endowed UNMIK with the authority to adopt legislative measures in the implementation of its mandate,120 it restricted the exercise of this authority to the terms of the MTA. Consequently, UNMIK did not enjoy the authority to define KFOR’s status in a unilateral fashion. Moreover, KFOR was in breach of its obligation under the MTA to negotiate a status agreement with the FRY when it participated in the adoption of the Joint Declaration of 17 August 2000. This was the view put forward by the Russian Federation during debates in the Security Council.121Secondly, Resolution 1244 did not render the exercise of UMMIK’s legislative authority subject to the terms of the MTA. Consequently, the FRY had to endure the unilateral determination of KFOR’s status by UNMIK as a result of the binding effect of Resolution 1244, notwithstanding the terms of the MTA. This was the view taken by the Assistant Secretary General for Peacekeeping Operations122 and supported by the United Kingdom and the United States.123 Bearing in mind that Resolution 1244 affirmed the MTA only indirectly, this second interpretation is more convincing.
However, it does not necessarily settle KFOR’s own obligations under the MTA. The undertaking given by KFOR in the MTA was a classic pacta de contrahendo, imposing on it a duty to negotiate a status agreement with the FRY. As long as such negotiations (p.489) were initiated and conducted in good faith, a failure to arrive at a mutually acceptable agreement did not necessarily constitute a violation of the MTA. However, it appears that KFOR did not pursue negotiations with the FRY.124 If that was the case, KFOR was in breach of its obligation to find a negotiated status solution, unless the adoption of either Resolution 1244 or UNMIK Regulation No. 2000/47 extinguished that obligation. The United States took the latter position when it declared that in its view Resolution 1244 “conferred upon UNMIK and KFOR the legal status necessary for them to fulfill their respective mandates” and that “UNMIK and KFOR were therefore acting within their authority in issuing a joint statement confirming their legal status and their privileges and immunities.”125 Clearly, Resolution 1244 did not define the legal status of UNMIK and KFOR directly and in express terms. At most, it did so indirectly by entrusting them with enforcement mandates, which in turn may be said to imply certain privileges and immunities.126 This notion that the Joint Declaration and UNMIK Regulation No. 2000/47 gave effect to pre-existing norms is supported by the wording of the Joint Declaration itself, which was adopted to “affirm” the privileges and immunities to which UNMIK and KFOR considered themselves “entitled.”127 The statement of the Assistant Secretary General for Peacekeeping Operations that these instruments were meant to grant UNMIK and KFOR “the basic privileges and immunities that are normally granted in such situations” also supports this view. Consequently, on this interpretation of the legal framework, the non-consensual legal basis of KFOR’s presence under Chapter VII of the UN Charter overrode its obligation under the MTA to pursue a negotiated solution to the status question.128 This conclusion also has important implications for the compatibility of the privileges and immunities accorded to KFOR with international human rights norms.129
However, it should be noted that this interpretation of the applicable law was not shared by the Russian Federation, which continued to press for a review of the status of UNMIK and KFOR.130 More generally, it may be questioned whether maintaining these unilateral status arrangements indefinitely is compatible with the interim, and by (p.490) implication transitional, nature of the legal framework created by Resolution 1244, as confirmed by the ICJ.131
The legal and practical difficulties involved in moving to a negotiated status settlement are further illustrated by the experiences in Iraq. According to press reports, American officials were keen to conclude a status of forces agreement with Iraq in advance of the handover of authority scheduled for June 2004. However, these attempts failed when influential Iraqi politicians including Grand Ayatollah Ali al-Sistani declared that the provisional Iraqi Governing Council lacked the authority to enter into such a binding agreement, leading the CPA and US officials to conclude in March 2004 that no status of forces agreement could be negotiated before the end of the occupation.132 The solution lay in extending the applicability of CPA Order 17 adopted on 26 June 2003. The purpose of CPA Order 17 as originally adopted was to exempt from the Iraqi legal process the personnel of those coalition partners that did not participate in the invasion of Iraq and consequently did not benefit from the legal status accorded to occupying powers under the law of armed conflict.133 On 27 June 2004, that is one day before the formal handover of authority to the Iraqi Interim Government, the CPA promulgated a revised version of CPA Order 17 which extended these exemptions from the Iraqi legal process to all forces and personnel acting under the Security Council resolutions authorizing the deployment of a Multinational Force (MNF) to Iraq.134
The adoption of the Revised CPA Order 17 heralded an important change in the legal justification of the status arrangements applicable to coalition forces. The original CPA Order 17 of 26 June 2003 was adopted squarely on the basis of the powers enjoyed by the CPA under the law of belligerent occupation, albeit its preamble underlined that it was meant to be consistent with Security Council Resolution 1483.135 The revised CPA Order 17 adopted a similar approach, referring to “laws and usages of war” as its legal basis and emphasizing that it was consistent with the relevant Security Council resolutions on Iraq.136 However, its preamble also made the following additional points:
Recalling that there are fundamental arrangements that have customarily been adopted to govern the deployment of Multinational Forces in host nations,
(p.491) Conscious of the need to clarify the status of the CPA, the MNF, Foreign Liaison, Diplomatic and Consular Missions and their Personnel, certain International Consultants, and certain contractors in respect of the Government and the local courts,
Recognizing the need to provide for the circumstances that will pertain following June 30, 2004, and noting the consultations with the incoming Iraqi Interim Government in this regard and on this order.
These passages clearly reveal how the transition from a non-consensual to a consensual presence had caught the CPA and coalition forces between a rock and a hard place. The customary way to regulate the deployment of multinational forces in host states is of course by way of a status of forces agreement. However, as we saw, it was not possible to conclude such an agreement before the end of the occupation regime for political reasons. Yet leaving the legal status of coalition forces unaddressed pending the conclusion of a status agreement at some uncertain point in time after the handover of authority clearly was not an option. The solution, therefore, was to settle these matters by way of a unilateral act of the CPA, whilst expressly recognizing that Iraq was about to transform from an occupied territory into a “host nation” and that the incoming Iraqi Interim Government were to be consulted on the status arrangements applicable after the occupation.
Although Revised CPA Order 17 thus appeared to accept the need to put the post-occupation status arrangements on a consensual basis, the fact remains that it was a unilateral instrument promulgated by the outgoing occupying power.137 However, at this point we must note the close connection between Revised CPA Order 17 and the Security Council resolutions authorizing the presence of the MNF in Iraq. Pursuant to Section 20 of Revised CPA Order 17, the latter remained in force solely for the duration of the mandate of the MNF. Tying its validity to the duration of the MNF’s mandate not only gave Revised CPA Order 17 a transitional character, but it indirectly also made it dependent on the consent of the Iraqi authorities in so far as the continued presence and mandate of the MNF were both at the request of the Interim Government of Iraq.138 In authorizing the presence of the MNF, Security Council Resolution 1546 of 8 June 2004 moreover took note of a letter sent by the US Secretary of State, Colin Powell, to the President of the Council on 5 June 2004, which declared that the:
MNF must continue to function under a framework that affords the force and its personnel the status that they need to accomplish their mission, and in which the contributing states have responsibility for exercising jurisdiction over their personnel and which will ensure arrangements for, and use of assets by, the MNF. The existing framework governing these matters is sufficient for these purposes.139 (p.492)
Although the operative paragraphs of Security Council Resolution 1546 do not expressly refer to the status arrangements of the MNF, it may nevertheless be assumed that the Security Council approved these arrangements by taking note of them.
Accordingly, the consent of the Interim Government of Iraq to the presence and mandate of the MNF, the authorization issued to the MNF by the Security Council under Chapter VII of the UN Charter and the adoption of Revised CPA Order 17 pursuant to the law of belligerent occupation combine to form the legal justification of the status arrangements applicable to the MNF following the end of the occupation in Iraq.140
VI. Balancing Competing Interests under Jus Post Bellum
There can be little doubt that the two fundamental principles applicable to the presence of foreign armed forces identified earlier—the principle of territorial sovereignty and the exemption of foreign forces from local jurisdiction—apply to post-conflict situations. It is not immediately obvious, however, whether any considerations apply in this respect that are specific to jus post bellum and, consequently, where the balance between these two principles lies in post-conflict environments. While international practice on status of forces agreements offers several paradigms on which the status arrangements of forces deployed in such environments may be modeled, considerable confusion seems to prevail about the relationship between the relevant instruments and the circumstances in which they apply. The judgments of the Italian courts in the Lozano case offer some useful lessons in this respect.
A. The Lozano case
The Lozano case arose out of the fatal shooting of Nicola Calipari, an Italian military intelligence officer, by US armed forces at a roadblock in Iraq in March 2005.141 Mario Lozano, the soldier responsible for firing the shots that killed Calipari and wounded two other Italians, was charged with murder by the Italian authorities and was subsequently tried in absentia. The circumstances of the case were somewhat unusual. Typically, judicial proceedings involving visiting armed forces arise between foreign troops on the one hand and the local authorities and residents on the other hand. By contrast, the Lozano case concerned a situation where one sending state, Italy, sought to exercise its criminal jurisdiction over a member of the military forces belonging to another sending state, the United States, for acts committed by the latter against its personnel and nationals in the territory of a third state, namely Iraq. The Italian courts decided that this set of circumstances was not addressed by any of the applicable legal instruments and therefore proceeded to examine whether they were competent to exercise criminal jurisdiction over the US soldier in question on the basis of customary international law. (p.493)
Delivering its judgment at first instance, the Court of Assizes of Rome found that the United States enjoyed exclusive jurisdiction over its armed forces in Iraq.142 The Court began its analysis by considering the legal context in which the incident occurred. According to the Court, the initial occupation of Iraq by US and British armed forces constituted an armed conflict. However, the adoption of Security Council Resolution 1546—which welcomed the pending termination of the occupation regime and noted that the continued presence of the MNF in Iraq was at the request of the incoming Interim Government143—fundamentally changed the purpose and legal character of the presence of coalition forces in Iraq.144 The shooting of Calipari in March 2005 thus occurred in a context that in the Court’s view could be qualified “as an armed conflict in a broad sense, involving the presence of multinational forces under the aegis of the UN for humanitarian missions in a substantially occupied nation.”145
Turning its attention to the question of jurisdiction, the Court held that in such situations of “warfare or quasi-warfare or the presence of multinational forces carrying out humanitarian missions in foreign territory,”146 the customary principle of the law of the flag (principio del diritto di bandiera) overrides jurisdictional principles of a more general character, including the territorial principle. The Court saw this principle of the law of the flag confirmed by international practice relating to multinational forces that occupy the territory of other states for humanitarian purposes. The Court here specifically referred to the UN Model SOFA of 1990, which it described as “a kind of general framework norm.”147 In the present context, it also saw the principle confirmed by Colin Powell’s letter annexed to Security Council Resolution 1546 and by Revised CPA Order No. 17, both of which envisaged the continuation of the existing status arrangements after the end of the occupation. Based on these findings, the Court of Assizes concluded that the exclusive jurisdiction enjoyed by the United States pursuant to the principle of the law of the flag prevailed over the passive jurisdiction claimed by the Italian state,148 and accordingly dismissed the case against Lozano.
On appeal, the Court of Cassation affirmed the outcome reached by the lower court, but reversed the reasoning. The Court of Cassation began by considering the legal character of the MNF in Iraq,149 but found it difficult to reconcile its multinational and multifunctional nature with classic patterns of belligerent occupation. Since Security Council Resolution 1546 transformed the MNF into a peace support operation authorized under Chapter VII of the UN Charter, at the material time it was not some sort of quasi-occupation force as the Court of Assizes suggested. The Court of Cassation consequently considered it “highly inappropriate” for the Court of Assizes to deny the (p.494) passive jurisdiction of the Italian state by relying on the principle of the law of the flag.150 More fundamentally, the Court of Cassation rejected the very idea that the principle of the law of the flag confers exclusive jurisdiction on sending states as a matter of customary international law. Instead, it suggested that current international law now gives effect to the territorial jurisdiction of the receiving state alongside the principle of the law of the flag, as evidenced by the sophisticated arrangements governing the exercise of criminal jurisdiction by sending states and receiving states under Article VII of the NATO SOFA.151
Turning its attention to international treaty practice,152 the Court of Cassation argued that the great diversity of modern peace support operations has made it increasingly difficult to identify their legal position in municipal and international law. Sending states and host states therefore tend to enter into status of forces agreements in order to regulate the legal position of multinational operations and their personnel in express terms. Like the lower court, the Court of Cassation identified the UN Model SOFA of 1990 as a key reference point for drafting such agreements. However, the Court noted that bilateral and multilateral status of forces agreements, even the most sophisticated ones, are concerned solely with the allocation of the right to exercise jurisdiction on a “vertical” level between sending states and the receiving state, rather than on a “horizontal” level between one sending state and another. Consequently, since neither customary international law nor treaty practice allocates jurisdictional competences on a horizontal level, the Court of Cassation concluded that no specific rules of international law actually exist which govern the legal status of national contingents participating in multinational operations vis-à-vis other sending states. Accordingly, the jurisdictional arrangements contained in Resolution 1546 were irrelevant to the present case. The Court then went on to find that the acts of Lozano were covered by the principle of functional immunity under customary international law and dismissed the case against him on these grounds.153
The Lozano case constitutes an exceptionally rich source of jurisprudence on the status of foreign armed forces under customary international law. For our purposes, the following points are of particular interest. The Court of Cassation was right to doubt whether the principle of the law of the flag prevailed over all competing jurisdictional principles as a matter of customary international law currently in force. Yet by asking itself this question it clearly missed the point of what the Court of Assizes had argued. Instead of declaring that sending states enjoyed exclusive jurisdiction over their armed forces at all times and under all circumstances, the Court of Assizes suggested that the principle of the law of the flag applied only in war and what it termed “warlike” conditions. The Court of Assizes thus recognized that the legal status of foreign forces depends on their operational context.154 Earlier, we have described this idea (p.495) as the principle of military or operational necessity. By contrast, the Court of Cassation adopted a completely linear view of the matter: whereas the principle of the law of the flag may have prevailed in the past, it has since given way to the more progressive principle of concurrent jurisdiction. This image may have been inspired by the classic understanding of the evolution of the law of state immunity from the absolute doctrine of old to the restrictive theory of today. However, there is little evidence to support the view the legal status of foreign armed forces underwent a similar evolution under customary international law. On the contrary: in modern practice exclusive sending state jurisdiction has never been accepted as a universally applicable principle; rather, different types of military deployments have been subject to different status arrangements.
With some of this subtlety lost, it is not surprising to see that the Court of Cassation also misapprehended the legal basis and effect of Revised CPA Order 17 and Security Council Resolution 1546. The status arrangements adopted in those two instruments were based on the law of belligerent occupation and were not inspired, as the Court of Cassation erroneously held,155 by the UN Model SOFA. Consequently, while it is true that status of forces agreements such as the UN Model SOFA typically do not regulate the “vertical” relationship between sending states, this fact in no way rendered Revised CPA Order 17 and Security Council Resolution irrelevant to the Lozano case as the Court of Cassation held.156 Neither of these two instruments was a status of forces agreement; both were unilateral acts.157 Whether or not they were binding on Italy and barred its courts from exercising their jurisdiction thus depended on their individual terms and status.158
B. The sliding scale
The more nuanced judgment of the Court of Assizes in Lozano supports the idea that the extent of the jurisdictional privileges and immunities accorded to foreign armed forces in international practice moves on a sliding scale: the greater the operational risks faced by foreign troops are, the more extensive their immunities tend to be. Of course, this notion of a sliding scale only offers a crude guide as to where the balance between the exercise of authority by the sending state and by the host state over the foreign troops should lie. While the existence and scope of certain operational risks may be determined in a more or less objective manner, for instance with reference to (p.496) the likelihood of foreign forces being subject to armed attacks during their deployment, other operational risks are more subjective in nature. For example, a lack of trust in local legal and administrative processes may render sending states reluctant to subject their personnel to the jurisdiction of the host state. For this reason, the level of operational risk faced by foreign forces is not something that can be determined with reference to legal criteria alone, but is subject to a political and military judgment call.
The Court of Assizes clearly struggled with this problem in Lozano. The Court distinguished warfare and warlike conditions (contesto bellico o parabellico), which it believed are governed by the principle of the law of the flag, from the stationing of foreign forces within military alliances, where more balanced jurisdictional arrangements such as those found in the NATO SOFA apply.159 However, this distinction is problematic in as much as the Court drew it in the wrong place by treating war and warlike situations alike. As we saw earlier, there exists a fundamental difference, in fact as well as in law, between the consensual and non-consensual presence of foreign armed forces. Foreign military forces locked into an armed conflict with the territorial state to a large extent place themselves outside its legal authority through the use of arms,160 while foreign forces stationed abroad at the invitation of the territorial state are subject to its legal authority and to any conditions it may attach to its invitation.161What is missing from the Court’s assessment is an appreciation that “warlike” situations such as those prevailing in Iraq at the time of the shooting of Nicolar Calipari fall in the domain located between armed conflict and the peacetime stationing of foreign forces, that is in the domain of jus post bellum.
With this in mind, one would expect the privileges and immunities applicable in jus post bellum to fall somewhere in between the legal arrangements applicable between belligerent parties in the context of an armed conflict on the one hand and those applicable between close military and political allies on the other hand. This is so because post-conflict situations do not mirror either of those operational environments, but combine elements of both. At one end of the spectrum, the law of armed conflict provides foreign forces with the broadest exemptions from local jurisdiction. As far as prescriptive jurisdiction is concerned, it is interesting to note that CPA Order 17 as originally adopted on 26 June 2003 recalled in its preamble that “under international law occupying powers, including their forces, personnel, property and equipment, funds and assets, are not subject to the laws or jurisdiction of the occupied territory.”162This clearly overstates the case, as a glance at the Hague Regulations of 1907 shows (p.497) that occupying powers must respect local law and in this sense are clearly subject to it. Nevertheless, it is generally considered self-evident, even if there is scant doctrinal or judicial consideration of this point, that the military authorities and forces of a belligerent state are not subject to the adjudicative and enforcement jurisdiction of their adversary, at least for the duration of the hostilities.
At the other end, status arrangements between allied states are typically based on the principle of reciprocity. Reciprocity as a guiding principle was first explicitly recognized in a multilateral setting by the Brussels Treaty Status of Forces Agreement (“Brussels Treaty SOFA”) of 21 December 1949,163 which set up a system of concurrent jurisdiction in an attempt to balance the competing legal interests of sending states and host states in an equitable manner. Although it never entered into force, the Brussels Treaty SOFA served as the basis for the negotiation of the NATO SOFA.164 By upholding the principle of concurrent jurisdiction, but at the same time enabling sending states to exercise their authority in those cases where their interests were most directly affected,165 in particular on-duty cases, the drafters of the NATO SOFA were able to devise a flexible system for the allocation of the right to exercise jurisdiction “which each side could accept as being equitable.”166 The NATO SOFA is thus generally regarded as having attained an equitable balance between the interests of sending states and host states and has thus attained a high level of international legitimacy, serving as a blueprint for numerous bilateral and multilateral status of forces agreements.167
Since jus post bellum falls between the domains of war and peace, it would be reasonable to conclude that neither the near-complete exemption of foreign forces from local jurisdiction seen in times of armed conflict nor the concurrent exercise of jurisdiction between close military and political allies in times of peace as seen under the NATO SOFA provide an appropriate model for status arrangements in post-conflict situations. Indeed, the legitimacy of Revised CPA Order 17 may be questioned precisely on the grounds that it provided for the complete exemption of the MNF for the entire duration of its mandate, thus prolonging status arrangements based on the law of belligerent occupation until the termination of the MNF on 31 December 2008.168 (p.498) Similarly, the appropriateness of applying the terms of the NATO SOFA at the beginning of a post-conflict situation may be questioned on the basis that relations between sending states and the host state simply do not reflect the principle of complete reciprocity.169The difficulty with both of these scenarios is that they involve applying a jurisdictional regime outside its normal context of operation in an attempt to tip the balance of jurisdiction in favor of the sending state or the host state, as the case may be. In principle, it may well be appropriate to comprehensively exempt foreign troops deployed in a post-conflict environment from local jurisdiction in the early stages of the transition from conflict to peace or to negotiate status arrangements based on some form of concurrent jurisdiction towards the final stages of that transition process: it is applying these regimes in reverse order that is problematic.
By contrast, the jurisdictional provisions of the UN Model SOFA provide something of an intermediate arrangement. Pursuant to the UN Model SOFA, all members of UN peacekeeping operations are “immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity.”170 This immunity extends to both civil and criminal matters.171 The local authorities may institute legal proceedings against the civilian personnel of the operation with the agreement of the Special Representative/Commander, but military members of a UN operation are subject to the exclusive jurisdiction of their respective contributing states in respect of any criminal offences committed by them in the territory of the host state.172 As far as military personnel are concerned, the arrangements set out in the UN Model SOFA thus go beyond the principle of concurrent jurisdiction by granting sending states exclusive jurisdiction over their troops in criminal matters, yet stop short of endowing them with near-complete exemptions applicable under the law of armed conflict by limiting their immunity in civil matters to acts performed in their official capacity. For this reason, the status arrangements under the UN Model SOFA may be viewed as drawing a balance between these two ends of the spectrum and as such may be deemed particularly appropriate for post-conflict environments.
Nevertheless, commentators have criticized the extent of the immunities conferred by the UN Model SOFA as excessive. Róisín Burke, for example, has argued that the jurisdictional immunities granted to military personnel deployed on UN peacekeeping operations must not be absolute and ought to be limited to what is strictly necessary to enable the operation to function.173 Clearly, the immunities conferred by the UN Model SOFA are not absolute at all, bearing in mind that foreign troops are subject to local jurisdiction in civil proceedings relating to acts not performed in the course of their official duties. Burke suggests that granting sending states exclusive jurisdiction over their troops in criminal matters is not strictly necessary to enable a peacekeeping (p.499) operation to function, yet she does not explain why this is so. Nor does she clarify what functional necessity requires in these circumstances, beyond referring to a proposal by August Reinisch to the effect that it may be more appropriate to determine functional necessity with reference to the consequence which the denial of immunity would have for the beneficiary of immunity, in particular whether it would impede its activities, rather than with reference to the nature of the acts covered by immunity.174 This is not a particularly compelling idea when applied to military operations.175 Essentially, it would entail making the availability of immunity applicable to military personnel dependent on the consequences of its denial to the operation as a whole. The task of answering this question would presumably fall to the forum courts on a case-by-case basis. Not only does this pose a threat of inconsistency,176 but it would almost certainly compel the local courts to determine the availability of immunity on the basis of the merits of the case, something that the principle of immunity was meant to prevent in the first place.177 Most importantly, it would empower those courts to decide what level of impediment to its operational effectiveness and mandate a peacekeeping force must endure before the immunity applicable to its members would become available. This scheme would not only make a mockery of the immunity from criminal jurisdiction enjoyed by individual military personnel, but also undermine the immunity attaching to the operation and its sending state or organization as a whole.
Bearing in mind the general principles applicable to foreign forces described earlier, it follows that the concept of functional necessity must either already include considerations of operational necessity or that functional and operational necessity must be applied side by side. Peacekeeping forces may be deployed in environments where a break-down in the rule of law has for the most part rendered the local criminal justice system ineffective, where fundamental human rights standards and fair trial guarantees are not observed and where foreign military personnel detained by the local authorities may face a risk of mistreatment. Based on these considerations, granting sending states exclusive jurisdiction over their forces in criminal matters in such operational environments does not appear to be grossly excessive. Since similar considerations apply in post-conflict environments, and may do so with even greater force, the application of the jurisdictional arrangements set out in the UN Model SOFA to jus post bellumappear to be equally justified.
Jus post bellum is a law of transition: the transition from a state of armed conflict to a state of peace. Foreign armed forces frequently play an important part in this process, but their presence more often than not is a source of controversy and even instability. (p.500) Under these circumstances, we may legitimately expect the rules of international law governing the legal status of such forces—which tends to be a highly controversial topic in its own right—to serve a dual function: they should lay down certain general standards of behavior and provide a framework for interaction between sending states and host states, thus injecting a measure of predictability and procedural legitimacy into an otherwise highly volatile legal and political environment. The fact that the legal status of foreign armed forces is not governed by a self-contained regime of international law, but instead derives from multiple sources, renders this task more difficult. However, as we have seen, a number of basic principles and considerations may be derived from international practice which are applicable to foreign military deployments in general terms, in particular the close relationship between the rules regulating their presence and the rules governing their status, the principle of territorial sovereignty, the principle of exemption from local jurisdiction, the principle of military or operational necessity, and the wide-spread use of status of forces agreements as regulatory instruments.
Bearing in mind the objectives usually associated with jus post bellum, I have suggested that two distinct concerns relating to the legal position of foreign forces arise in post-conflict situations: the effect that the inevitable change in the legal basis of their presence has on their legal status and the need to balance the principle of territorial sovereignty and the jurisdictional exemptions of foreign forces in a manner that reflects the specific features and demands of post-conflict environments. On the first question, our analysis of international practice relating to Kosovo and Iraq, the two most important test cases of recent years, has demonstrated the close legal link between the presence and status of foreign forces. In particular, both cases have highlighted how consensual and non-consensual elements combine, for legal and for practical reasons, to make up the legal framework of foreign military deployments, which as a result is multilayered and complex. On the second question, our analysis of the Lozano case, arguably one of the most significant judicial considerations of the legal position of foreign forces under customary international law in recent decades, has shown the difficulties and pitfalls involved in translating the recurrent patterns identifiable in international practice into legal principles of general application. The judgments in Lozano thus demonstrate the need for greater conceptual clarity to make sense of the multitude of legal regimes and principles applicable in this area.
This is precisely where, I would suggest, the concept of jus post bellum promises real added value. Conceiving of jus post bellum as a process of transition, rather than just as a set of norms, emphasizes that the legal standards applicable in post-conflict environments are not static but evolutionary. This is both a factual and a normative claim. On the one hand, conditions on the ground change as the transition from conflict to peace progresses. The legal interests of sending states and host states therefore cannot be balanced in the abstract with reference to absolute principles, but must be weighed against the background of the changing environment, including their mutual relationship. This is where the principle of operational or military necessity assumes paramount importance: recognizing that the privileges and immunities of foreign forces move on a sliding scale introduces a degree of normativity and objectivity into the task of determining the status of foreign forces which otherwise would be lacking. On the other hand, the transitional nature of jus post bellum underlines that actors operating in post-conflict (p.501) environments must not only adjust their legal expectations in line with the overarching objective of the transition from a state of conflict to a state of peace, but that they must also actively pursue that objective. Seen from this perspective, jus post bellum imposes a duty on sending states and host states to put the status arrangements applicable in post-conflict environments onto a consensual basis.
The contextual and dynamic approach to the legal status of foreign armed forces deployed in post-conflict situations advocated here does not translate into hard and fast rules that can be applied out of the box. It would be unrealistic to expect this. The general nature of the principles identified in this chapter and the great variation in the legal and factual circumstances of different post-conflict scenarios rules this out. Moreover, while I have argued that there are certain patterns and base lines in international practice, such as the principle of functional immunity, the law applicable in this area can be adjusted by mutual consent, above all through the conclusion of status of forces agreements. To the extent that such agreements are political bargains, it is difficult to assess their compatibility with standard international practice from a strictly legal point of view.178 What the contextual approach proposed in this chapter offers instead is a framework for a more nuanced understanding of international practice and the interaction between different legal regimes applicable to foreign armed forces. By emphasizing the transitional nature of the law, it hopes to inject greater conceptual clarity and offer a vantage point from which the position of sending states and host states can be critically and more realistically assessed.
(1) General Framework for Peace in Bosnia and Herzegovina (Dayton Agreement), 14 December 1995, (1996) 35 International Legal Materials 75. On the expiry of the mandate of the UN Protective Force (UNPROFOR) on 31 January 1996, 17,000 of its troops were incorporated into the NATO-led Implementation Force (IFOR). See Lawrence S. Kaplan, NATO and the UN: A Peculiar Relationship (University of Missouri Press 2010) 165.
(2) Marten Zwanenburg, “Existentialism in Iraq: Security Council Resolution 1483 and the Law of Occupation” (2004) 86 International Review Red Cross 745, 753–5.
(3) Sean Rayment, “Secret MoD poll: Iraqis support attacks on British troops,” The Sunday Telegraph (London, 23 October 2005) (describing an unpublished opinion poll commissioned by the UK Ministry of Defence showing that up to 65 percent of Iraqi citizens support attacks against coalition forces and that fewer than 1 per cent think that the presence of coalition forces is helping to improve security in Iraq) <http://www.telegraph.co.uk/news/worldnews/middleeast/iraq/1501319/Secret-MoD-poll-Iraqis-support-attacks-on-British-troops.html> (accessed 25 July 2013); Amit R. Paley, “Most Iraqis Favor Immediate U.S. Pullout, Polls Show,” The Washington Post, (Washington DC, 27 September 2006) (describing the findings of an opinion poll commissioned by the US Department of State showing that most Iraqis favored an immediate withdrawal of coalition forces) <http://www.washingtonpost.com/wp-dyn/content/article/2006/09/26/AR2006092601721.html> (accessed 25 July 2013).
(4) A vivid example is offered by Ayatollah Khomeini’s speech of 26 October 1964 (Speech 16) denouncing the extension of diplomatic immunities to American military personnel in Iran <http://rkhomeini.org.temporaryurl.net/eBook/imam_eBook.cfm?book_id=238&start_page=259 > (accessed 4 October 2013).
(5) Larry May, After War Ends: A Philosophical Perspective (Cambridge University Press 2012) 17.
(6) In other words, we may expect international law to play a role both as rules and as process: see Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon Press 1994) 2–12.
(7) Carsten Stahn, “‘Jus ad Bellum,’ ‘Jus in Bello’...‘Jus Post Bellum’? Rethinking the Conception of the Law of Armed Force” (2006) 17 European Journal of International Law 921, esp. 923–4.
(8) Christopher Greenwood, “The Concept of War in Modern International Law” (1987) 36 International and Comparative Law Quarterly 283.
(9) So far, this has mainly involved arguments in favor of extending the application of the laws of peace, in particular international human rights law, to conflict situations. See e.g. Esther Rosalind Cohen, Human Rights in the Israeli-occupied Territories, 1967–1982 (Manchester University Press 1985) 8–9 and passim. Arguments for the de facto application of the laws of armed conflict, including the law of belligerent occupation, to situations where they are not formally applicable have been voiced less frequently, e.g. Tristan Ferraro (ed.), Occupation and Other Forms of Administration of Foreign Territory: Expert Meeting (International Committee of the Red Cross 2012) 85–7 (cataloguing reasons both for and against the de facto application of the law of belligerent occupation to territories under international administration). See also Steven R. Ratner, “Foreign Occupation and International Territorial Administration: The Challenges of Convergence” (2005) 16 European Journal of International Law 695; Carsten Stahn, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (Cambridge University Press 2008) 115–46; Bernhard Knoll, The Legal Status of Territories Subject to Administration by International Organisations (Cambridge University Press 2008) 243–7.
(10) The jurisprudence of the European Court of Human Rights is particularly rich in such cases: see e.g. Loizidou v. Turkey, App. No. 15318/89 (preliminary objections), 20 EHRR 99; Isayeva v. Russia, App. No. 57950/00, 24 February 2005, 41 EHRR 38; Isayeva, Yusupova and Bazayeva v. Russia, App. No. 57947/00, 57948/00, and 57949/00, 24 February 2005, 41 EHRR 39; Issa v. Turkey, App. No. 31821/96, 16 November 2004, 41 EHRR 27; Al-Saadoon and Mufdhi v. United Kingdom, App. No. 61498/08, 2 March 2010, 51 EHRR 9; Al-Jedda v. United Kingdom, App. No. 27021/08, 7 July 2011. For commentary on some of these cases, see William Abresch, “A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya” (2005) 16 European Journal of International Law 741; Marko Milanovic, “Al-Skeini and Al-Jedda in Strasbourg” (2012) 23 European Journal of International Law 121. See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) (2004) ICJ Rep. 136, para. 106; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), (2005) ICJ Rep. 168, para. 216.
(11) The literature on the relationship between these two branches of international law is substantial. For a range of views, see Michael J. Dennis, “Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation” (2005) 99 American Journal of International Law 119; Cordula Droege, “The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict” (2007) 40 Israel Law Review 310; Alexander Orakhelashvili, “The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?” (2008) 19 European Journal of International Law 161; Jann K. Kleffner, “Human Rights and International Humanitarian Law: General Issues” in Terry D. Gill and Dieter Fleck (eds), The Handbook of the International Law of Military Operations (Oxford University Press 2010) 51.
(12) Cf. Carsten Stahn, “Jus Post Bellum: Mapping the Discipline(s)” (2008) 23 American University International Law Review 311, 316.
(15) For an argument to this effect concerning an emerging rule on the promotion of the “rule of law” in post-conflict environments, see Christina C. Benson, “Jus Post Bellum in Iraq: The Development of Emerging Norms for Economic Reform in Post Conflict Countries” (2012) 11 Richmond Journal of Global Law & Business 315.
(16) This is not to suggest that such a development will necessarily take place.
(17) James Crawford, Bronwlie’s Principles of Public International Law (Oxford University Press 2012) 23–30.
(18) For example, Ralph Wilde, “Are Human Rights Norms Part of Jus Post Bellum, and Should They Be?” in Carsten Stahn and Jann K. Kleffner (eds), Jus Post Bellum: Towards a Law of Transition from Conflict to Peace (TMC Asser Press 2008) 163.
(19) The fact that transition from war to peace to a large extent is already covered by existing rules and principles of international law has led some commentators to question whether there is any added value in recognizing jus post bellum as a distinct legal framework, considering that the concept appears to merely replicate what is already there: see Eric De Brabandere, “The Responsibility for Post-Conflict Reforms: A Critical Assessment of Jus Post Bellum as a Legal Concept” (2010) 43 Vanderbilt Journal of Transnational Law 119, 142–8. For one response to this objection, see n. 87 and the accompanying text.
(21) Although the term “law of visiting forces” is commonly used in the literature to describe the rules of international law regulating the legal position of foreign armed forces, see in particular Dieter Fleck (ed.), The Handbook of the Law of Visiting Forces (Oxford University Press 2001), so far no sustained attempts have been made to investigate whether or not these rules can be characterized as a self-contained regime.
(22) Famously, the ICJ used the term “self-contained regime” to describe the rules of diplomatic law in the Case concerning the United States Diplomatic and Consular Staff in Tehran (USA v. Iran), (1980) ICJ Rep. 41, para. 86. For a critical review of the concept, see Bruno Simma and Dirk Pulkowski, “Of Planets and the Universe: Self-contained Regimes in International Law” (2006) 17 European Journal of International Law 483, esp. 490–505.
(23) See also Siobhán Wills, Protecting Civilians: The Obligations of Peacekeepers (Oxford University Press 2009) 171 (noting that “[i]nternational law recognizes no relationship of a general nature between the inhabitants of the territory in which a foreign military force is deployed, and the State or organization that has deployed the force”).
(24) As Dieter Fleck has suggested, “[t]he starting point of deliberations is the principle of immunity of foreign armed forces which, as vaguely as it is defined in various agreements and ongoing state practice over the last centuries, remains essential for all activities of armed forces permanently or temporarily stationed on foreign territory”; see Dieter Fleck, “Introduction” in Fleck, (ed.), The Handbook of the Law of Visiting Forces (n. 21) 3.
(25) See Gerhard Hafner and Ulrike Köhler, “The United Nations Convention on Jurisdictional Immunities of States and their Property” (2004) 35 Netherlands Yearbook of International Law 3, 13–17. During its work on the law of state immunity, the International Law Commission recognized in express terms that armed forces are one of the autonomous state organs to which the law of state immunity applies. See Draft Articles on the Jurisdictional Immunities of States and their Property, with Commentaries Report of the International Law Commission on the work of its forty-third session (29 April–19 July 1991), (1991) II(2) Yearbook of the International Law Commission 13, 15–16.
(26) European Convention on State Immunity, 16 May 1972, 1495 UNTS 182.
(27) Council of Europe, Explanatory Reports on the European Convention on State Immunity and the Additional Protocol (1985) 39; reprinted in Andrew Dickinson et al. (eds), State Immunity: Selected Materials and Commentary (Oxford University Press 2004) 64.
(28) Article 3 of the United Nations Convention on Jurisdictional Immunities of States and Their Property, 2 December 2004, Annex to GA Res. 59/38 (2 December 2004).
(29) Summary Record of the 13th Meeting of the Sixth Committee, UN Doc. A/C.6/59/SR.13, 22 March 2005, para. 36. Both the status and the accuracy of the Professor Hafner’s statement have been called into question: Andrew Dickinson, “Status of Forces Under the UN Convention on State Immunity” (2006) 55 International and Comparative Law Quarterly 427, 428–31.
(30) In addition to relying on Professor Hafner’s statement, the Court also noted the fact that the ILC Commentary on the Draft Articles on Jurisdictional Immunities of States and Their Property declared Art. 12 of the UNCSI to be inapplicable to “situations involving armed conflicts”; see Case concerning Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment of 3 February 2012, para 69.
(31) Case concerning Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment of 3 February 2012, paras 62–79. On the Court’s treatment of the territorial tort exception, see Andrew Dickinson, “Germany v. Italy and the Territorial Tort Exception: Walking the Tightrope” (2013) 11 Journal of International Criminal Justice 147.
(32) Generally, see Derek W. Bowett, “Military Forces Abroad” in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law (Elsevier 1997) 388.
(33) See e.g. Aurel Sari, “Status of Forces and Status of Mission Agreements under the ESDP: The EU’s Evolving Practice” (2008) 19 European Journal of International Law 67.
(34) Max S. Johnson, “NATO SOFA: Enunciating Customary International Law or Just a Model, and What Does the Future Portend?” in Horst Fischer et al. (eds), Krisensicherung und Humanitärer Schutz—Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck (2004) 287, 291.
(35) For example, this means that the provisions of the Agreement between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, 19 June 1951, 199 UNTS 68 (NATO SOFA) at most could only have become rules of customary international law in the context of the mutual stationing of allied forces on the basis of political and legal reciprocity, but not in the context of peace support operations, ceremonial visits, and other deployments normally governed by different arrangements.
(36) In the Case Concerning the Barcelona Traction, Light and Power Co. Ltd (Belgium v. Spain), (Second Phase) (1970) ICJ Rep. 3, para. 62, the ICJ refused to consider as relevant for the purposes of lifting the corporate veil “the various arrangements made in respect of compensation for the nationalization of foreign property” on the basis that “[t]heir rationale [...] derived as it is from structural changes in a State’s economy, differs from that of any normally applicable provisions. Specific agreements have been reached to meet specific situations, and the terms have varied from case to case. Far from evidencing any norm as to the classes of beneficiaries of compensation, such arrangements are sui generis and provide no guide in the present case.”
(37) On the distinction between treaties serving as a material source of state practice and creating customary international law of their own impact, see Maurice H. Mendelson, “The Formation of Customary International Law” (1998) 272 Recueil des Cours 155, 322–32. See also Anthony D’Amato, “Manifest Intent and the Generation by Treaty of Customary Rules of International Law” (1970) 64 American Journal of International Law 892 and N. G. Onuf, “Further Thoughts on a New Source of International Law: Professor D’Amato’s ‘Manifest Intent’” (1971) 65 American Journal of International Law 774.
(38) North Sea Continental Shelf Cases (Germany v. Denmark; Germany v. Netherlands), (1969) ICJ Rep. 3, para. 72.
(39) For example, Bing Bing Jia, “The Relations between Treaties and Custom” (2010) 9 Chinese Journal of International Law 81, 92–3. See also “Resolution on Problems Arising from a Succession of Codification Conventions on a Particular Subject” (1995) 66 II Annuaire de l’Institut de Droit International 435.
(40) A number of authors admit that a succession of similar or near identical bilateral agreements may also generate new rules of customary international law: see Mendelson, “The Formation of Customary International Law” (n. 37) 329–32; Yoram Dinstein, “The Interaction between Customary International Law and Treaties” (2006) 322 Recueil des Cours 243, 375–6.
(41) In addition to the NATO SOFA of 1951 (n. 35), other examples of multilateral status of forces agreements include the Partnership for Peace Status of Forces Agreement, 19 June 1995, TIAS 12666 and the Agreement between the Member States of the European Union concerning the status of military and civilian staff seconded to the institutions of the European Union, of the headquarters and forces which may be made available to the European Union in the context of the preparation and execution of the tasks referred to in Art. 17(2) of the Treaty on European Union, including exercises, and of the military and civilian staff of the Member States put at the disposal of the European Union to act in this context (EU SOFA), 17 November 2003, OJ  C 321/6. On the latter agreement, which is not in force, see Aurel Sari, “The EU Status of Forces Agreement: Continuity and Change in the Law of Visiting Forces” (2007) 46 Military Law and Law of War Review 9.
(42) Jurisdictional Immunities of the State (n. 31), for example paras 65, 73, and 77–8. The Court thus extracted a rather narrow question of law from the central aspect of the dispute between Germany and Italy. This may be contrasted with the much broader scope of analysis adopted by the Italian Court of Cassation in Ferrini v. Germany (Italy, Court of Cassation, All Civil Sections) Judgment No. 5044/04, 6 November 2003, 128 International Law Reports 658, the case which gave rise to the proceedings before the ICJ, which examined whether a state is exempt from the civil jurisdiction of another state in proceedings relating to crimes committed under international law generally.
(43) While the Court declared proceedings concerning acts allegedly committed by foreign armed forces in the course of an armed conflict to be the “most pertinent” for the purposes of the case before it, see Jurisdictional Immunities of the State (n. 31) para. 73, this merely begs the question of why it considered state practice relating to acts carried out by foreign armed forces in times of peace relevant at all in the present case and, if so, why it did not regard it as equally relevant.
(44) This assumes that the occupying power is exercising its own jurisdiction or that the authorities of the occupied territory act under its control and instructions, so that the measures in question are attributable to the occupying power. See Eighth Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur, 24 January, 5 February, and 15 June 1979, UN Doc. A/CN.4/318 and ADD. 1–4, (1979) II(1) Yearbook of the International Law Commission 3, 19–21.
(45) See Felice Morgenstern, “Validity of the Acts of the Belligerent Occupant” (1951) 28 British Yearbook of International Law 291; Romulus A. Picciotti, “Legal Problems of Occupied Nations After the Termination of the Occupation” (1966) 33 Military Law Review 25; Arnold McNair and Arthur Desmond Watts, The Legal Effects of War (4th edn, Cambridge University Press 1966) 408–18; Yutaka Arai-Takahashi, The Law of Occupation: Continuity and Change of International Humanitarian Law and its Interaction with International Human Rights Law (Martinus Nijhoff 2009) 147–57, with extensive references to the relevant case-law.
(46) Consequently, while it may be convenient to refer to the different norms relevant to the consensual deployment of foreign armed forces as the “law of visiting forces,” the law in question lacks the internal coherence that would justify describing it as a distinct regime or branch of international law. This and similar labels are therefore better employed in a weaker sense to refer to the subject as an area of legal practice.
(47) As Max Huber famously put it: “[s]overeignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State”; Island of Palmas Case (1928), 2 Reports of International Arbitral Awards 829 (PCA) 838.
(48) Examples demonstrating that consent to the presence of foreign troops may be withdrawn include the case of the United Nations Emergency Force in Egypt and France’s withdrawal from NATO’s integrated command: see, respectively, Nabil Elaraby, “United Nations Peacekeeping by Consent: A Case Study of the Withdrawal of the United Nations Emergency Force” (1968) 1 New York University Journal of International Law & Policy 149; Eric Stein and Dominique Carreau, “Law and Peaceful Change in a Subsystem: ‘Withdrawal’ of France from the North Atlantic Treaty Organization” (1968) 62 American Journal of International Law 577.
(49) This point was confirmed by Chief Justice Marshall in the case of The Schooner Exchange v. McFaddon, 11 US 116 (US Sup. Ct. 1812) 140–1, where he noted the dangers involved in the presence of foreign forces and held that “the general license to foreigners to enter the dominions of a friendly power is never understood to extend to a military force; and an army marching into the dominions of another sovereign, may justly be considered as committing an act of hostility; and, if not opposed by force, acquires no privilege by its irregular and improper conduct.”
(50) The consent of the territorial sovereign is not required in enforcement operations authorized by the Security Council acting under Chapter VII of the UN Charter or in cases where the deployment of armed forces abroad can be justified as a necessary and proportionate act of self-defense within the meaning of Art. 51 of the UN Charter.
(51) However, foreign military intervention into an internal conflict at the invitation of the local government may not be permissible under all circumstances, in particular where the right to self-determination is at play. See Louise Doswald-Beck, “The Legal Validity of Military Intervention by Invitation of the Government” (1985) 56 British Yearbook of International Law 189; Georg Nolte, Eingreifen auf Einladung: Zur völkerrechtlichen Zulässigkeit des Einsatzes fremder Truppen im internen Konflikt auf Einladung der Regierung (Springer 1999).
(52) Thus, pursuant to Art. I(2)(b) of Annex 1A (Agreement on the Military Aspects of the Peace Settlement) to the Dayton Peace Agreement (n. 1), the parties to the latter agreed to authorize “IFOR to take such actions as required, including the use of necessary force, to ensure compliance with this Annex, and to ensure its own protection.” As pointed out by Trevor Findlay, The Use of Force in UN Peace Operations (Oxford University Press 2002) 264, the parties to the Peace Agreement “in effect consented to the use of force against themselves.” More generally on the exercise of foreign governmental functions under the Dayton Peace Agreement, see Simon Hennes, Externe Hoheitsgewalt in Krisengebieten (Nomos 2006) 128–65.
(54) Ademola Abass, “Consent Precluding State Responsibility: A Critical Analysis” (2004) 53 International and Comparative Law Quarterly 211, 242 (“[a] consensual use of force cannot be viewed as a coercive use of force, which Article 2(4) of the UN Charter must be understood to prohibit”).
(55) Cf. Art. 3(a) and (e), GA Res. 3314 (XXIX), Definition of Aggression, 14 December 1974. See David Wippman, “Treaty-Based Intervention: Who Can Say No?” (1995) 62 University of Chicago Law Review 607, 621–2 (“the prohibition on the use of force contained in Article 2(4) of the UN Charter [...] should be understood as a prohibition on the coercive use of force, that is, on force used without the consent of the affected state”); Théodore Christakis and Karine Mollard-Bannelier, “Volenti non fit injuria? Les effets du consentement à l’intervention militaire” (2004) 50 Annuaire Français de Droit International 102, 111–20.
(56) An example of the first scenario is the Hainan Island Incident, see Yann-Huei Song, “The EP-3 Collision Incident, International Law and Its Implications on the U.S.-China Relations” (2001) 19 Chinese (Taiwan) Yearbook of International Affairs 1; Margaret K. Lewis, “An Analysis of State Responsibility for the Chinese-American Airplane Collision Incident” (2002) 77 New York University Law Review 1404; Eric Donnelly, “The United States-China EP-3 Incident: Legality and Realpolitik” (2004) 9 Journal of Conflict & Security Law 25. An example of the second is the accidental crossing of 170 Swiss troops into Liechtenstein in 2007, see Peter Stamm, “Switzerland invades Liechtenstein” The New York Times (New York, 13 March 2007) <http://www.nytimes.com/2007/03/13/opinion/13iht-edstamm.4893796.html?_r=0> (accessed 25 July 2013). Apparently, the incident is not without precedent: see “Swiss Militiamen (Whoops!) Invade Little Liechtenstein” The New York Times (New York, 1 September 1976), and “Swiss Inform Liechtenstein of Error in Troop Maneuvers” The New York Times (New York, 18 October 1992).
(57) It is worth recalling in this context that in accordance with their common Art. 2, the Geneva Conventions of 1949 are applicable “to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.”
(58) For examples of situations where consent to the presence of foreign forces alone may not be sufficient, but consent to their activities may also be required, see Arai-Takahashi, The Law of Occupation (n. 45) 597–9.
(60) See e.g. Laker Airways v. Sabena and KLM, 731 F.2d 909 (DC Cir. 1984) 921 (noting that territoriality “is the most pervasive and basic principle underlying the exercise by nations of prescriptive regulatory power”).
(61) For example, Art. II of the NATO SOFA (n. 35); para. 6 of the Model status-of-forces agreement for peace-keeping operations: Report of the Secretary-General (UN Model SOFA), UN Doc. A/45/594, 9 October 1990; Art. 3 of the EU SOFA (n. 41); Art. 2(1) of the Draft Model Agreement on the status of the European Union-led forces between the European Union and a Host State, Council Doc. 11894/07, 20 July 2007; Art. 2(1) of the Draft Model Agreement on the status of the European Union Civilian Crisis Management Mission in a Host State (SOMA), Council Doc. 17141/08, 15 December 2008.
(62) For example, Mark D. Welton, “The NATO Stationing Agreements in the Federal Republic of Germany: Old Law and New Politics” (1988) 122 Military Law Review 77, 95–6.
(63) For example, Hermann Kortland, Die Rechte und Pflichten der in der Bundesrepublik Deutschland stationierten ausländischen Streitkräften auf den von ihnen benutzten Liegenschaften, insbesondere bei der Durchführung militärischer Baumaßnahmen (Dissertation 1987) 48–55.
(64) Regulations concerning the Laws and Customs of War on Land, Annex to Convention (IV) respecting the Laws and Customs of War on Land, 18 October 1907, reprinted in Adam Roberts and Richard Guelff, Documents on the Laws of War (3rd edn, Oxford University Press 2000) 73.
(65) The provision thus attempts to draw a balance between the interests of the occupying power and the occupied state; see Eyal Benvenisti, The International Law of Occupation (2nd edn, Oxford University Press 2012) 89–95.
(66) Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287.
(67) However, it should be noted that the second paragraph of Art. 64 goes on to invest the occupying power with broader legislate authority than Art. 43 of the Hague Regulations does. See Benvenisti, The International Law of Occupation (n. 65) 95–102.
(69) Although the activities of the armed forces are widely understood to fall within “the core area of State sovereignty,” see McElhinney v. Ireland, App. No. ECtHR, 34 EHRR 322, para. 38, this does not of course mean that all their activities are of a sovereign character and enjoy immunity: see e.g. Trendtex Trading Corp v. Central Bank of Nigeria  QB 529 (CA) 558. However, as Hoffmann L.J. suggested in Littrell v. USA (No. 2)  1 WLR 82 (CA) 95, there is no single test or “bright line” by which sovereign military activities may be distinguished from non-sovereign transactions performed by the armed forces.
(70) Mario Luiz Lozano, Judgment No. 31171/2008, 24 July 2008 (Italy, Court of Cassation, First Criminal Division), 91 RDI 1223; ILDC 1085 (IT 2008) 1230–2. On the notion of functional immunity generally, see Rosanne van Alebeek, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law (Oxford University Press 2008) 103–57.
(71) For example, German Federal Labor Court, Judgment of 25 May 2012, 2 AZR 163/11, para. 27 (noting that the internal organization of a foreign force falls within the sovereign jurisdiction of the sending state and therefore decisions in this area are not, in principle, subject to review by the local courts).
(72) Cf. Eric Stein, “Application of the Law of the Absent Sovereign in Territory under Belligerent Occupation: The Schio Massacre” (1947–48) 46 Michigan Law Review 341, 361.
(73) Article 85 of the Geneva Convention III declares that a detaining power is entitled to prosecute prisoners of war for acts committed prior to capture under its own laws. The existence of this provision implies that at least some of the enemy belligerent’s penal laws are binding on enemy combatants and that the latter do not enjoy immunity from prosecution under those laws. However, Art. 85 does not clarify to what extent prisoners of war are subject to the prescriptive, and hence the adjudicative and enforcement, jurisdiction of their enemy in any greater detail, leaving the scope of this provision uncertain and prompting speculation about the intentions of its drafters. See Jean de Preux, Geneva Convention Relative to the Treatment of Prisoners of War: Commentary (Vol. III) (International Committee of the Red Cross, 1960) 416–22.
(75) UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford University Press 2004) 283–4.
(76) For example, Bennett v. Davis, 267 F.2d 15 (10th Cir. 1959) 17–18 (holding that “crimes committed in occupied foreign countries by members of United States Armed Forces are subject to military law and within the exclusive jurisdiction of constituted [United States] military tribunals”). See also Preamble, CPA Order 17 <http://www.usace.army.mil/Portals/2/docs/COALITION_PROVISIONAL.pdf> (accessed 21 March 2013) (“[r]ecalling that under international law occupying powers, including their forces, personnel, property and equipment, funds and a sets, are not subject to the laws or jurisdiction of the occupied territory”).
(79) With the exception, of course, of rules of jus cogens. However, this constraint is of limited relevance in the present context.
(80) The United States was thus forced to renegotiate on successive occasions the one-sided military base agreement it had concluded with the Philippines in 1947 in order to bring it into line with the NATO SOFA. See William E. Berry, US Bases in the Philippines: The Evolution of the Special Relationship (Westview Press 1989) 47–68; Rafael A. Porrata-Doria, “The Philippine Bases and Status of Forces Agreement: Lessons for the Future” (1992) 137 Military Law Review 67, 70–81.
(82) On the concept of a self-contained regime, see n. 22. See also Report of the Study Group on the Fragmentation of International Law, Finalized by Martti Koskenniemi, UN Doc. A/CN.4/Law.682, 13 April 2006, paras 128–9.
(83) For example, Inger Österdahl and Esther van Zadel, “What Will Jus Post Bellum Mean? Of New Wine and Old Bottles” (2009) 14 Journal of Conflict & Security Law 175, 179.
(87) Based on this understanding, the main purpose of jus post bellum is not to reinvent the wheel by replicating or replacing existing rules. It would indeed be of limited value if it were merely posing as an alternative legal framework, as has been suggested by De Brabandere, “The Responsibility for Post-Conflict Reforms” (n. 19). However, that is not the case if jus post bellum is understood as an interpretative framework, as advocated here.
(89) Richard P. DiMeglio, “The Evolution of the Just War Tradition: Defining Jus Post Bellum” (2005) 186 Military Law Review 116, 146–62.
(91) Kristen E. Boon, “Obligations of the New Occupier: The Contours of Jus Post Bellum” (2009) 31 Loyola LA International and Comparative Law Review 57, 75–82. For an earlier list, see Kristen Boon, “Legislative Reform in Post-Conflict Zones: Jus Post Bellum and the Contemporary Occupant’s Law-Making Powers” (2005) 50 McGill Law Journal 285, 293–5 (trusteeship, accountability, and proportionality).
(95) Marco Sassóli et al., How Does Law Protect in War: Cases, Documents, and Teaching Materials on Contemporary Practice in International Humanitarian Law (3rd edn, International Committee of the Red Cross 2011) 34.
(96) See Adam Roberts, “The End of Occupation: Iraq 2004” (2005) 54 International and Comparative Law Quarterly 27; Andrea Carcano, “End of the Occupation in 2004? The Status of the Multinational Force in Iraq After the Transfer of Sovereignty to the Interim Iraqi Government” (2006) 11 Journal of Conflict & Security Law 41; Robert Kolb, “Occupation in Iraq since 2003 and the Powers of the UN Security Council” (2008) 90 International Review of the Red Cross 29, 43–7; Benvenisti, The International Law of Occupation (n. 65) 254–6.
(97) As pointed out by several authors, including Knut Dörmann and Laurent Colassis, “International Humanitarian Law in the Iraq Conflict” (2004) 47 German Yearbook of International Law 293, 309; Daniel Thürer and Malcolm MacLaren, “‘Ius Post Bellum’ in Iraq: A Challenge to the Applicability and Relevance of International Humanitarian Law?” in Klaus Dicke et al. (eds), Weltinnenrecht: Liber Amicorum Jost Delbrück (Nomos, 2005) 753, 770.
(99) Such a situation may be described as “forcible peacetime occupation,” see Adam Roberts, “What Is a Military Occupation?” (1984) 55 British Yearbook of International Law 249, 274–6.
(102) For a more detailed assessment of these difficulties, see David Wippman, “Military Intervention, Regional Organizations, and Host-State Consent” (1996–97) 7 Duke Journal of Comparative & International Law 209. In more general terms, see Abass, “Consent Precluding State Responsibility” (n. 54) 213–17.
(103) Dörmann and Colassis, “International Humanitarian Law in the Iraq Conflict” (n. 97) 311–12; Kolb, “Occupation in Iraq since 2003” (n. 96) 45; Benvenisti, The International Law of Occupation (n. 65) 254–55.
(104) Agreement on the Principles (Peace Plan) to Move toward a Resolution of the Kosovo Crisis Presented to the Leadership of the FRY by the President of Finland, Mr. Ahtisaari, Representing the European Union, and Mr. Chernomyrdin, Special Representative of the President of the Russian Federation, 3 June 1999 and FRY, Statement from the Federal Government’s Meeting, Belgrade, 3 June 1999, both reprinted in Heike Krieger, The Kosovo Conflict and International Law: An Analytical Documentation 1974–1999 (Cambridge University Press 2001) 360–1.
(105) “Military Technical Agreement between the International Security Force (KFOR) and the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia, 9 June 1999” (1999) 38 International Legal Materials 1217.
(106) At their Bucharest Summit held on 3 April 2008, NATO Heads of State and Government reiterated that “KFOR will remain in Kosovo on the basis of United Nations Security Council Resolution (UNSCR) 1244 to ensure a safe and secure environment, including freedom of movement, for all people in Kosovo unless the Security Council decides otherwise” <http://www.nato.int/cps/en/natolive/official_texts_8443.htm> (accessed 2 April 2013). This suggests that the member states of NATO consider SC Res. 1244 to be the overriding legal basis of KFOR’s presence in Kosovo. This may be contrasted with bilateral deployments: on 18 February 2012, the Government of Kosovo and the United States signed a status of forces agreement to regulate the legal position of US forces operating alongside the international security presence, <http://pristina.usembassy.gov/ds_bill_burns_visit_to_kosovo.html> (accessed 28 March 2013).
(107) Siobhán Wills, “Occupation Law and Multi-National Operations: Problems and Perspectives” (2006) 77 British Yearbook of International Law 256, 300.
(108) See Christine Gray, “Host-State Consent and United Nations Peacekeeping in Yugoslavia” (1996–97) 7 Duke Journal of Comparative & International Law 241, 257–63.
(109) John Cerone, “Minding the Gap: Outlining KFOR Accountability in Post-Conflict Kosovo” (2001) 12 European Journal of International Law 469, 484; Enrico Milano, “Security Council Action in the Balkans: Reviewing the Legality of Kosovo’s Territorial Status” (2003) 14 European Journal of International Law 999, 1004–09; Knoll, The Legal Status of Territories (n. 9) 44–7. No such doubts were entertained by the European Court of Human Rights, which in Behrami and Behrami v. France and Saramati v. France, Germany and Norway, App. No. ECtHR, 45 EHRR SE10, para. 69, declared that the FRY “had agreed in the MTA, as it was entitled to do as the sovereign power [...] to withdraw its own forces in favor of the deployment of international civil (UNMIK) and security (KFOR) presences.”
(110) Christian Tomuschat, “Yugoslavia’s Damaged Sovereignty over the Province of Kosovo” in Gerard Kreijen et al. (eds), State, Sovereignty, and International Governance (Oxford University Press 2002) 323, 338–9.
(113) Article 3, Appendix B (“International Security Force (‘KFOR’) Operations”) to the MTA (n. 105) excludes the liability of KFOR and any of its personnel or staff for any damages to public or private property that they may cause in the course of duties related to the implementation of the Agreement.
(116) UNMIK Regulation No. 2000/47 on the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo, UN Doc. UNMIK/REG/2000/47, 18 August 2000 <http://www.unmikonline.org/regulations/2000/reg47-00.htm> (accessed 2 April 2013). Section 2(1) of the Regulation provides that “KFOR, its property, funds and assets shall be immune from any legal process,” while Section 2(4) declares that “KFOR personnel [...] shall be: immune from jurisdiction before courts in Kosovo in respect of any administrative, civil or criminal act committed by them in the territory of Kosovo. Such personnel shall be subject to the exclusive jurisdiction of their respective sending States; and immune from any form of arrest or detention other than by persons acting on behalf of their respective sending States. If erroneously detained, they shall be immediately turned over to KFOR authorities.”
(120) On the scope of UNMIK’s legislative powers, see Leopold von Carlowitz, “UNMIK Lawmaking between Effective Peace Support and Internal Self-determination” (2003) 41 Archiv des Völkerrechts 336; Michael Bothe and Thilo Marauhn, “UN Administration of Kosovo and East Timor: Concept, Legality and Limitations of Security Council-Mandated Trusteeship Administration” in Christian Tomuschat (ed.), Kosovo and the International Community: A Legal Assessment (Kluwer Law International 2002) 217, 224–6.
(121) According to the Russian representative, the legal status of KFOR and UNMIK had to be established “through negotiations with the host country and through the signing of an agreement on the status of forces.” He proceeded to remind the Council that KFOR committed itself to such a process under the MTA and has violated this commitment. He also declared that the Russian Federation considered UNMIK Reg No. 2000/47 to have “no legal force.” See Security Council, 4190th Meeting, 24 August 2000, UN Doc. S/PV.4190, 8–9. The Russian Federation had already expressed its opposition to a unilateral solution and called for the conclusion of a status agreement in earlier debates: see Security Council, 4138th Meeting, 11 May 2000, UN Doc. S/PV.4138, 9.
(122) According to the Assistant Secretary General, “it was felt, after a careful legal review of the matter, that it was necessary to enable [personnel operating under Resolution 1244] to carry out their functions under normal conditions, that it was necessary to grant them the basic privileges and immunities that are normally granted in such situations.” See S/PV.4190 (n. 121) 19.
(124) Marc Guillaume, “Le cadre juridique de l’action de la KFOR au Kosovo” in Christian Tomuschat (ed.), Kosovo and the International Community: A Legal Assessment (Kluwer Law International 2002) 243, 253.
(128) This is in line with Tomuschat’s view of the legal effect of SC Res. 1244 on the FRY’s acceptance of the Peace Plan and the MTA. See n. 110. Incidentally, this conclusion also has important implications for the compatibility of UNMIK Reg No. 2000/47 with international human rights norms.
(129) The Ombudsperson Institution in Kosovo has declared UNMIK Reg No. 2000/47 to be incompatible with recognized international human rights standards in his Special Report No. 1 On the Compatibility with Recognized International Standards of UNMIK Regulation No. 2000/47 on the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo (18 August 2000), 26 April 2001 <http://www.ombudspersonkosovo.org/repository/docs/E4010426a.pdf> (accessed 31 March 2013). However, the Report ignores that SC Res. 1244 may displace or qualify the exercise of some of the rights affected by UNMIK Reg No. 2000/47. The possibility that Security Council resolutions based on Chapter VII of the Charter may have this effect was accepted by the European Court of Human Rights in Al-Jedda (n. 10) paras 99–105.
(130) Security Council, 4200th Meeting, 27 September 2000, UN Doc. S/PV.4200, 10; Security Council, 4225th Meeting, 16 November 2000, UN Doc. S/PV.4225, 12. It should also be noted that the representative of Yugoslavia declared his country ready to “commence dialogue and cooperation with the representatives of the international community” with the aim of concluding a status agreement, UN Doc. S/PV.4225, 23.
(131) Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) (2010) ICJ Rep. 403, para. 99.
(132) See United Press International, “Analysis: U.S. forces status in Iraq ambiguous” 23 April 2004; Robin Wright and Colum Lynch, “U.N. Iraq Resolution A Tough Sell” The Washington Post (Washington DC, 26 April 2004).
(133) Preamble, CPA Order 17 (n. 76). In addition, CPA Order 17 also granted various exemptions from Iraqi legal process to contractors and sub-contractors supplying goods and/or services to or on behalf of coalition forces or the CPA.
(134) Coalition Provisional Authority, “Coalition Provisional Authority Order No. 17 (Revised), Status of the Coalition Provisional Authority, MNF—Iraq, Certain Missions and Personnel in Iraq” <http://www.refworld.org/docid/49997ada3.html> (accessed 26 July 2013).
(135) Preamble, CPA Order 17 (n. 76). On the status of the CPA under the law of belligerent occupation, see Rüdiger Wolfrum, “Iraq—from Belligerent Occupation to Iraqi Exercise of Sovereignty: Foreign Power versus International Community Interference” (2005) 9 Max Planck Yearbook of United Nations Law 1, 20–2.
(137) Besides, it is doubtful whether the law of belligerent occupation entitled the CPA to adopt legislative measures that were not connected with the normal administration of the occupied territory and were aimed at laying down a regulatory framework for events after the end of occupation. It seems that US officials were aware of these difficulties: see United Press International, “Analysis: U.S. forces status in Iraq ambiguous” (n. 132).
(138) The role of Iraqi consent is reinforced by operative para. 12 of SC Res. 1546, where the Security Council declared itself ready to terminate the mandate of the MNF if requested to do so by the Government of Iraq.
(139) Annex, SC Res. 1546.
(141) The background and political fallout from the case are described in greater detail by Marco Clementi, “Italy and World Affairs: The Sgrena-Calipari Case” (2006) 21 Italian Politics 85.
(142) Italy v. Mario Luiz Lozano, Judgment No. 07/21, 14 October 2007 (Italy, Court of Assizes, Rome) (on file with the author). All page references to the judgment refer to the original Italian text; all quotations in English are based on an English translation of the case on file with the author. For commentary, see Matteo Tondini and Federica Bertolin, “La sentenza Calipari: Volenti non fit iniuria?” Forum di Quaderni costituzionali, 3 April 2008, <http://www.forumcostituzionale.it/site/images/stories/pdf/documenti_forum/paper/0036_tondini_bertolin.pdf> (accessed 2 April 2013); Eric Talbot Jensen, “Exercising Passive Personality Jurisdiction Over Combatants: A Theory in Need of a Political Solution” (2008) 42 International Lawyer 1107.
(143) Operative paras 2 and 9, SC Res. 1546.
(154) See in particular Lozano (n. 142) 23–6. The Court of Assizes was adamant that applying any “precedents that occurred in very different situations is totally misleading; accordingly the episodes recalled in various quarters (the Achile Lauro case, Cermis etc.) must absolutely not be taken as reference points, not so much because in some cases they gave rise to discordant decisions, but instead because they do not involve situations of war or quasi-war, let alone the management of multinational forces in foreign territory” (at 17–18).
(158) Pursuant to Section 2(3) of Revised CPA Order 17, personnel covered by the Order were subject “to the exclusive jurisdiction of their Sending States.” The Italian courts therefore should have deferred to the exclusive jurisdiction of the US over Mario Lozano, provided that the Order was binding on Italy. As a legislative act of the former belligerent occupant, Revised CPA Order 17 had the status of Iraqi law that Italy as a sending state was obliged to respect. Whether the Italian courts were also bound to give effect to the Order as a matter of Italian law seems to depend on its status under Italian law and whether it prevailed over other jurisdictional principles under international law. The position would have been more straightforward had SC Res. 1546 endowed the Order with binding effect under Chapter VII. However, it is questionable whether the fact that the Security Council took note of Colin Powell’s letter had this effect. But see Fleck, “Status of Forces in Enforcement and Peace Enforcement Operations” (n.126) 103, who suggests that third states had to respect the exclusive jurisdiction of sending states pursuant to SC Res. 1546.
(160) As the Operational Law Handbook prepared by the US Judge Advocate General’s Legal Center and School puts it dryly, “during the Persian Gulf War, the coalition invasion force did not bother to stop at Iraqi traffic lights in late February 1991.” John Rawcliffe (ed.), Operational Law Handbook (Judge Advocate General’s Legal Center and School 2007) 68.
(161) For instance, the territorial state may consent to the presence of foreign forces only for certain defined purposes and periods. A violation of these conditions may constitute an act of aggression under Art. 3(e) of GA Res. 3314 (XXIX), Definition of Aggression, 14 December 1974. In addition, a receiving state may impose new conditions on the presence of foreign forces or revoke its consent to their presence in accordance with any applicable treaty rules, as France did in 1966. See Eric Stein and Dominique Carreau, “Law and Peaceful Change in a Subsystem: ‘Withdrawal’ of France from the North Atlantic Treaty Organization” (1968) 62 American Journal of International Law 577.
(162) Emphasis added.
(163) “Agreement Relative to the Status of Members of the Armed Forces of the Brussels Treaty Powers, 21 December 1949” (1950) Cmd 7868. The agreement was adopted to define the legal status of forces operating pursuant to the Treaty for Collaboration in Economic, Social and Cultural Matters and for Collective Self-defense, 17 March 1948, 19 UNTS 53, concluded between Belgium, France, Luxembourg, the Netherlands, and the United Kingdom.
(164) Status of Forces Agreement—Draft Submitted by the United States Deputy, 23 January 1951, D–D(51) 23, in Joseph M. Snee (ed.), NATO Agreements on Status: Travaux Préparatoires (United States Government Printing Office 1966).
(168) While the terms of Revised CPA Order 17 may have been perfectly appropriate during the immediate aftermath of the occupation, its continued existence without change does not seem to be compatible with the transitional character of the jus post bellum. At the same time, the re-affirmation of the MNF’s mandate in successive Security Council resolutions at the request of the Iraqi Government may be understood as an implicit re-affirmation of its terms. The broad immunities granted to KFOR under UNMIK Regulation No. 2000/47 raise similar concerns.
(170) UN Model SOFA, para. 46.
(171) Paragraph 46 of the UN Model SOFA is based on Section 22 of the Convention on the Privileges and Immunities of the United Nations, 13 February 1946, 1 UNTS 15, which provides in express terms that experts on mission for the UN are “immunity from legal process of every kind” for acts performed on duty.
(172) UN Model SOFA, para. 47.
(173) Róisín Burke, “Status of Forces Deployed on UN Peacekeeping Operations: Jurisdictional Immunity” (2011) 16 Journal of Conflict & Security Law 63, 93.
(174) August Reinisch, International Organizations before National Courts (Cambridge University Press 2000) 365–6.
(175) To be fair to Reinisch, he made his proposal whilst writing about the immunities of international organizations in general and not specifically, or necessarily, in relation to the immunity enjoyed by military personnel from local criminal jurisdiction.
(178) A case in point is the agreement concluded between the United States and Iraq following the end of the MNF’s mandate. See Chris Jenks, “A Sense of Duty: The Illusory Criminal Jurisdiction of the U.S./Iraq Status of Forces Agreement” (2009–10) 11 San Diego International Law Journal 411.