Given its presence around the world, the U.S. military provides unique travel opportunities – from friendly countries like Germany or South Korea to less friendly countries where the U.S. may be engaged in combat operations. While service members overseas will likely spend most of their time on military installations, depending on where they’re located, they may also spend a significant amount of time off of their base or post. For example, those stationed in friendlier countries may take leave to travel around those countries.
However, whenever service members serving abroad step off of a military installation, they enter territory subject to the jurisdiction of a foreign government. Their resulting interactions with foreign nationals or use of foreign property are thus governed by foreign law. What happens if service members are involved in a criminal incident in the territory of another country? Are they subject to prosecution under that nation’s laws? Will they be granted adequate due process rights guaranteed to them by the U.S. Constitution and by the Uniform Code of Military Justice (UCMJ)?
This article explains the laws and jurisdictional issues that apply to service members stationed abroad, the legal protections they may have, and what they should do if they find themselves facing criminal charges in a foreign country.
Military vs. Civilian Jurisdiction
Service members, regardless of where they’re located, are always subject to the military's jurisdiction under the UCMJ, which has its own set of criminal laws enforced through the court-martial process. This can sometimes conflict with civilian laws when a service member commits a crime off of a military installation where civilian authorities also have jurisdiction. So, for example, a service member who is arrested for a DUI while off of a military installation in the U.S. would be subject to the criminal jurisdiction of both civilian and military authorities.
Similarly, a service member who commits a crime in a foreign country would generally be subject to the jurisdiction of that country’s legal system as well as the UCMJ, absent a formal agreement to the contrary. This can be tricky especially if that country’s legal system lacks basic due process rights. Enter the Status of Forces Agreement (SOFA). Whenever the U.S. government is expecting to maintain military forces in a foreign country, it normally will attempt to enter into a SOFA with that country to address, among other things:
When addressing the question of foreign jurisdiction over service members, a SOFA can use a variety of jurisdictional approaches. For example, it can allow the U.S. to retain exclusive jurisdiction over service members in the foreign country, even if they commit crimes under the foreign country's laws. If that’s the case, the service member would likely face trial in a court-martial for any crimes committed in that country’s territory.
Another option is shared jurisdiction where the U.S. and the foreign country each retain exclusive jurisdiction over certain criminal offenses, but the U.S. is allowed to request that the foreign country waive its jurisdiction in certain cases.
What Does This Mean for You?
If you expect to be stationed in a foreign country, it's important to know whether a SOFA is in place and whether the U.S. retains exclusive jurisdiction over you. If so, then even if you commit an offense under that country's criminal laws while off of your post or base, you’ll face the military's justice system rather than that of the foreign country. However, if you're going to be in a country that can exercise any jurisdiction over you, you could find yourself in a foreign court facing punishments under foreign law.
To find out what types of SOFAs the U.S. is currently a party to, see the U.S. State Department’s updated lists of current treaties.
What if You’re Facing Criminal Charges in a Foreign Country?
If you find yourself subject to the criminal jurisdiction of a foreign country, it's important to immediately inform your chain of command. Depending on the circumstances and whether the investigation is legitimate, your command may want you to remain on post to avoid apprehension by foreign authorities. While you may be subject to criminal prosecution under the UCMJ, at the very least you’ll be provided the rights and protections granted under the UCMJ and U.S. Constitution.
If you're not in the proximity of a military installation and are facing criminal prosecution in another country, you should contact the nearest U.S. Embassy or Consulate to assist you. If you’ve been arrested in a foreign country, the Vienna Convention on Consular Relations guarantees you the right to have the U.S. Embassy informed of your detention as well as the rights to communicate with and visit U.S. Embassy representatives. Although the Embassy can’t necessarily get you out of jail, it can:
In addition to this, you should consider speaking with a U.S. attorney who can advise you of all of your rights under military law.
Contact a qualified military law attorney to help you with military-related issues.