Vol. 8, No. 1
Congress Moves to Renew Military Ties with
East Timor Puts U.S. Soldiers Above the Law
East Timor Puts U.S. Soldiers Above the Law
by Charles Scheiner
In October, East Timor’s President, Prime Minister and Foreign Minister traveled to Washington to meet with George Bush and Colin Powell. Only one formal agreement emerged from their conversations: the government of East Timor gave up its authority to ask U.S. soldiers in East Timor to obey East Timorese laws.
East Timor and the United States signed a Status of Forces Agreement (SOFA), which defines the rights and responsibilities of soldiers from one country (the “sending state”) who are based in another (the “receiving state”).
Some SOFAs, such as the one signed by NATO countries, are multilateral agreements, while most (including the more than 100 the United States has with other governments) are between two countries. These agreements specify tax responsibilities, immigration rights, use of radio spectrum and other public services, and other details regarding foreign military forces in the host country.
Most importantly, SOFA agreements specify how criminal laws (for ordinary crimes, such as robbery, rape, assault and murder) of the “receiving” country apply to soldiers from the “sending” country. In most SOFAs, the foreign soldiers are committed to respect the laws of the country they are visiting. If they violate the law, they could be prosecuted by the legal system of either their own country or the one they are in — this is called “concurrent jurisdiction.”
The agreement defines which country has “primary jurisdiction” — that is, which has the main responsibility for prosecuting and punishing soldiers who commit crimes. In a typical SOFA, the receiving country has primary jurisdiction for most violations of its laws, unless the victim of the crime is from the sending country. In some SOFAs, such as the one between the United States and the Philippines, the receiving country (Philippines) waives its right to primary jurisdiction except in cases of particular importance to the Philippines, as Manila decides. In any event, concurrent jurisdiction remains, and either the Philippines or the United States may prosecute cases when the country with primary jurisdiction fails to do so.
In August, East Timor signed an “Article 98 impunity agreement” with the United States, in which East Timor agreed not to send any U.S.-related personnel to the International Criminal Court (ICC). This is different from the SOFA signed in October, which focuses on ordinary crimes – not the war crimes and crimes against humanity which come under the ICC. The “impunity” agreement is a matter of political principle for the United States, part of a worldwide effort to undercut the ICC — it will probably never be applied. The SOFA, on the other hand, is a practical agreement which will be used regularly. It also restates the impunity for U.S. personnel from the ICC. The SOFA between the U.S. and East Timor, signed by Colin Powell and José Ramos-Horta on October 1, treats United States military personnel in East Timor as if they were administrative staff in the U.S. embassy. It invokes the 1961 Vienna Convention on Diplomatic Relations to give them “diplomatic immunity” from prosecution and other responsibilities. U.S. embassy personnel, as well as U.S. soldiers and civilians working for the Pentagon, are not subject to East Timorese taxes, contract regulations or criminal laws. East Timorese authorities cannot arrest or detain them, charge them with crimes, extradite them to other countries, compel them to testify in court, or hold them responsible for any half-East Timorese children they might father. Their homes and personal property are “inviolable.” They are immune from civil liability for actions related to their official duties.
East Timor has not yet signed the Vienna Convention on Diplomatic Relations, although its terms have sometimes been applied when East Timor and another country exchange embassies or consulates. It is a convention based on the “sovereign equality of States” and reciprocity: every country gives the same rights to the diplomats of every other. As its Preamble states, “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.”
Applying diplomatic immunity to U.S. military personnel in East Timor is a distortion of this convention. There is no reciprocity — East Timorese military personnel in the United States (if any), do not receive the same privileges. The protection is only for U.S. military personnel in East Timor — soldiers and foreign civilian employees of the U.S. Support Group East Timor (USGET) and its DynCorp contractor (See LH Bulletin Vol. 3, No. 2-3), crews of visiting warships, UN military observers, U.S. military trainers and advisors to East Timor’s government, Pentagon personnel in East Timor and their families. The Preamble of the Status of Forces Agreement “recognizes the independence and sovereignty of the Democratic Republic of Timor-Leste as matters of the highest importance.” Both countries “reaffirm that the principles of mutual respect, friendship, good faith, partnership, and cooperation will guide the implementation of this agreement.” But the agreement’s nine articles do not embody partnership; they show no mutual respect. What they recognize is the power of a large country over a small one; they affirm that East Timor’s hard-won sovereignty cannot stand up to the might of the United States. During the transitional period, U.S. and other foreign military personnel in East Timor were covered by SOFAs between their governments and the United Nations, and UN peacekeepers were covered by a model SOFA approved by the General Assembly in 1990. In that agreement, the UN pledges to “respect all local laws and regulations.”
Those agreements have not applied since independence. The new UNMISET
UN mission is negotiating a Status of Forces Agreement with the government
of East Timor, which will probably be similar to the model one, but U.S.
and other foreign soldiers here separate from UNMISET are not included. A
U.S. military advisor to East Timor’s armed forces felt he had “no
protection” after 20 May, and was “hanging out there” until he was
given immunity from East Timorese law by the SOFA signed in Washington.
The U.S.-East Timor SOFA came into effect immediately upon signing, and
does not require approval by East Timor’s Cabinet, Parliament or
President (although President Xanana Gusmão presided over the signing
ceremony in Washington). It was negotiated in secret, with no public or
parliamentary discussion. It cannot be changed until April 2004, and then
only with six months advance notice.
A version of this article also appeared in Yayasan HAK’s Cidadaun newspaper, in Bahasa Indonesia.
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