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.


A U.S. Marine stands guard on the shoreline in Dili as USS Blue Ridge rests at anchor. US Navy photo.

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.
Roger S. Clark, Board of Governors Professor at Rutgers Law School in Camden, New Jersey, is an expert on international law. Prof. Clark called the agreement “heavy-handed. . . . This is unlike any SOFA I have ever actually seen.” A foreign diplomat living in East Timor expressed amazement that the U.S. could get away with this agreement.

A version of this article also appeared in Yayasan HAK’s Cidadaun newspaper, in Bahasa Indonesia.

U.S. Military Aid on the Ground in East Timor

by Curt Gabrielson

The Pentagon is pouring money into East Timor, primarily through a program called U.S. Support Group East Timor. At present USGET consists of ten soldiers, down from 15 last year, who were originally stationed on a luxury foreign hotel ship bobbing in Dili’s harbor but have since moved to quarters on land. The support and maintenance of this group costs U.S. taxpayers over $1 million per soldier per year.

USGET’s stated purpose? To “show the flag.” The group’s primary activity is to prepare for U.S. ship visits every few weeks, during which U.S. military personnel sift into communities throughout East Timor to carry out aid projects: painting schools, performing basic dentistry and eye surgery, distributing food and medicine, all things that can be carried out in a few days. A few big projects per year tackle larger problems requiring engineering or construction. In this way, the friendly American soldiers make a good name for themselves in East Timor.

East Timorese, U.S. military and State Department officials deny that the U.S. is looking to build a military base in East Timor, despite ongoing rumors. At the very least, the government of East Timor is being made aware that the world’s only superpower is following its every move.

A most troubling aspect of USGET — beyond the fundamental oddity of the military carrying out humanitarian aid — is that the Pentagon pays an enormous private company to maintain the mission. DynCorp has 23,000 on its worldwide payroll, about 30 of whom handle all logistical issues for USGET. DynCorp has long worked as a proxy for the Defense Department by providing military training to Colombian armed forces, among others, thus removing direct responsibility from the U.S. government. Farmers and the indigenous community in Colombia and Ecuador are now suing DynCorp for spraying toxic chemicals on people as part of the “War on Drugs.” DynCorp is also being sued by an ex-employee who alleges his fellow workers were involved in child prostitution and sexual slavery in Bosnia. A U.S. Army investigation verified these charges but no criminal prosecutions resulted; in fact, DynCorp kept its contract.

There are no allegations as of yet against DynCorp or U.S. soldiers in East Timor, but the mere presence of this company is not an optimistic forecast of how the U.S. military intends to interact with the people of East Timor.

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