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East Timor Puts U.S. Soldiers Above the Law

Versions of the following article will be published in upcoming issues of ETAN's Estafeta and Yayasan HAK's Cidadaun. It is followed by the text of the SOFA signed between the United States and East Timor governments last October 1, and the relevant excerpts of the 1961 Vienna Convention on Diplomatic Relations which is referenced in the SOFA.

East Timor Puts U.S. Soldiers Above the Law

By Charles Scheiner
12 November 2002

(The author works at La’o Hamutuk in East Timor and is the International Secretariat for the International Federation for East Timor (IFET). From 1991-2001, he was National Coordinator for the East Timor Action Network (ETAN) in the United States.)

In October, East Timor’s President, Prime Minister and Foreign Minister traveled to Washington to meet with George Bush and Colin Powell. The officials discussed many subjects important to both countries, but 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). This is an agreement 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 the tax responsibilities, immigration rights, use of radio spectrum and other public services, and other aspects for the status of foreign military forces in the receiving country.

Most importantly, SOFA agreements specify how the criminal laws of the receiving country apply to soldiers from the sending country. This is for ordinary crimes, such as robbery, rape, assault and murder. In most SOFAs (see sidebar), 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 SOFA 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, except if 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 where 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, whose focus is 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 on a regular basis. The SOFA 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 1 October, 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 can never arrest or detain them, charge them with crimes, extradite them to other countries, or 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 all 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 get 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, any other Pentagon personnel in East Timor for activities agreed by the two governments, 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 RDTL, 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.-RDTL 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 even then only with six months advance notice.

Roger S. Clark, Board of Governors Professor at Rutgers Law School in Camden, New Jersey, USA 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.

As East Timor begins its adventure into international diplomacy as a sovereign nation, it needs the legal protection and level playing field of international agreements. The United States government, through numerous USAID and other projects, has played a leading role in teaching the East Timorese people about the rule of law, that democracy means that every has equal rights and responsibilities, which are clearly specified on paper

The new SOFA undercuts East Timor’s hard-won sovereignty to serve U.S. military convenience. East Timor is small, and impoverished; its laws are just being written; its judicial system plagued with problems. But if East Timor is truly independent, its supporters and leaders need to stand up for the rights its people gave their lives for over the past quarter-century. Criminals who violate the rights of East Timorese people, whatever their nationality or uniform, must be held accountable.


Sidebar: Most SOFAs Respect the Law of the Host Country

SOFA between the United States and South Korea, 1966

“It is the duty of members of the United States armed forces, the civilian component, the persons who are present in the Republic of Korea pursuant to Article XV, and their dependents, to respect the law of the Republic of Korea and to abstain from any activity inconsistent with the spirit of this Agreement, and, in particular, from any political activity in the Republic of Korea.”

SOFA between the United States and the Philippines, 1998

“It is the duty of the United States personnel to respect the laws of the Republic of the Philippines and to abstain from any activity inconsistent with the spirit of this agreement, and, in particular, from any political activity in the Philippines. The Government of the United States shall take all measures within its authority to ensure that this is done.”

“Model SOFA” adopted by the UN General Assembly in 1990 (applied in East Timor during UNTAET)

“The United Nations peacekeeping operation and its members shall respect all local laws and regulations. The Special Representative/Commander shall take all appropriate measures to ensure the observance of those obligations [and] to ensure the maintenance of discipline and good order among members of the United Nations peacekeeping operation, as well as locally recruited personnel.”

SOFA between the United States and East Timor, 2002

(not one word acknowledging that East Timor has local laws and regulations, or committing U.S. personnel to respect the spirit of the agreement or to refrain from political activity.)


Full text of SOFA provided by Foreign Ministry of Timor-Leste

STATUS OF FORCES AGREEMENT BETWEEN THE GOVERNMENT OF THE DEMOCRATIC REPUBLIC OF TIMOR-LESTE AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA

PREAMBLE

The Government of the Democratic Republic of Timor-Leste and the Government of the United States of America (hereinafter referred to as the "Parties"), recognize the importance of closer cooperation between our two countries, and further recognize that the following principles and understandings are intended to enhance the cooperation between the Parties in furtherance of the objectives of this agreement:

1. The Parties recognize the independence and sovereignty of the Democratic Republic of Timor-Leste as matters of the highest importance;

2. The Parties recognize the importance of this agreement to their bilateral interests, regional peace and security, and humanitarian undertakings;

3. The Parties reaffirm that the principles of mutual respect, friendship, good faith, partnership and cooperation will guide the implementation of this agreement;

Therefore, the Parties have agreed as follows:

ARTICLE I

United States military and civilian personnel of the United States Department of Defense who may be present in the Democratic Republic of Timor-Leste in connection with humanitarian and civic assistance, ship visits, military training and exercises and other agreed activities shall be accorded a status equivalent to that accorded to the administrative and technical staff of the Embassy of the United States of America under the Vienna Convention on Diplomatic Relations of April 18, 1961. [see relevant excerpts below]

Such personnel may enter and exit the Democratic Republic of Timor-Leste with United States identification and with collective movement or individual travel orders; the Democratic Republic of Timor-Leste shall accept as valid, without a driving fee or test, driving licenses or permits issued by the appropriate United States authorities to United States personnel for the operation of vehicles; such personnel, including contract security guards, be authorized to wear uniforms while performing their official duties and to carry weapons when their orders call for it.

ARTICLE II

Vehicles, vessels and aircraft owned or operated by or for the United States armed forces shall not be subject to the payment of landing, navigation, overflight or parking charges, port and pilotage fees, or overland transit fees while in the Democratic Republic of Timor-Leste; however, the United States armed forces shall pay reasonable charges for services requested and received. Aircraft, vessels and vehicles of the United States shall be free of inspections.

ARTICLE III

The Government of the United States of America, its military and civilian personnel, contractors and contractor personnel shall not be liable to pay any tax or similar charge assessed within the territory of the Democratic Republic of Timor-Leste.

The Government of the United States of America, its military and civilian personnel, contractors and contractor personnel may import into, export out of, and use in the Democratic Republic of Timor-Leste any personal property, equipment, supplies, materials, technology, training or services utilized in connection with activities covered by this agreement. Such importation, exportation and use shall be exempt from any inspection, license, other restrictions, customs duties, taxes or any other charges assessed within the territory of the Democratic Republic of Timor-Leste.

ARTICLE IV

The Government of the United States of America and the Government of the Democratic Republic of Timor-Leste shall cooperate in taking such steps as shall be necessary to ensure the security of the United States personnel and property in the territory of the Democratic Republic of Timor-Leste.

ARTICLE V

In the event that the Government of the United States of America awards contracts for the acquisition of articles and services, including construction, to implement this agreement, such contracts shall be awarded in accordance with the laws and regulations of the Government of the United States of America. Acquisition of articles and services in the Democratic Republic of Timor-Leste by or on behalf of the Government of the United States of America in connection with activities covered by this agreement shall not be subject to any taxes, customs duties or similar charges in the territory of the Democratic Republic of Timor-Leste.

ARTICLE VI

The Government of the Democratic Republic of Timor-Leste recognizes the particular importance of disciplinary control by U.S. military authorities over United States personnel and, therefore, the Government of the Democratic Republic of Timor-Leste authorizes the United States Government to exercise criminal jurisdiction over such personnel. The Government of the Democratic Republic of Timor-Leste and the Government of the United States of America confirm that such personnel may not be surrendered to, or otherwise transferred to, the custody of an international tribunal or any other entity or state without the express consent of the Government of the United States of America.

ARTICLE VII

The Government of the Democratic Republic of Timor-Leste recognizes that it shall be necessary for U.S. personnel and systems to use the radio spectrum. The United States Government shall be allowed to operate its own telecommunication systems (as telecommunication is defined in the 1992 Constitution of the International Telecommunication Union). This shall include the right to utilize such means and services as required to assure full ability to operate telecommunication systems, and the right to use all necessary radio spectrum for this purpose. Use of radio spectrum shall be free of cost.

ARTICLE VIII

Other than contractual claims, the Parties waive any and all claims against each other for damage to, loss or destruction of property owned by each party, or death or injury to any military or civilian personnel of the armed forces of either party, arising out of activities in the Democratic Republic of Timor-Leste covered by this agreement. Claims by third parties arising out of the acts or omissions of any U.S. personnel may, at the discretion of the United States Government, be dealt with and settled by the United States Government in accordance with U.S. law.

ARTICLE IX

This Agreement shall enter into force upon signature of both Parties. After this Agreement has been in force for one year, either party may request a review of the Agreement. Such review shall begin 180 days after either party has made the request in writing.

Done at Washington this first day of October, 2002, in duplicate in the English language.

FOR THE GOVERNMENT OF THE DEMOCRATIC REPUBLIC OF TIMOR-LESTE: 

/s/ 

J. Ramos-Horta 

FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA: 

/s/ 

Colin L. Powell 


For reference, relevant excerpts from the Vienna Convention on Diplomatic Relations, 18 April 1961

[East Timor has not signed this convention, although UNTAET Regulation no. 2000/14 enacted similar language during the transitional period. RDTL has signed a number of bilateral agreements for diplomatic relations which make reference to the Vienna Convention, as does the SOFA with the U.S.]

Article 37 (2)

2. Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in Articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of Article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in Article 36, paragraph 1, in respect of articles imported at the time of first installation.

Article 29

The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

Article 30

1. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.

2. His papers, correspondence and, except as provided in paragraph 3 of Article 31, his property, shall likewise enjoy inviolability.

Article 31

1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

2. A diplomatic agent is not obliged to give evidence as a witness.

3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.

4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.

Article 32

1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State.

2. Waiver must always be express.

3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim.

4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary.

Article 33

1. Subject to the provisions of paragraph 3 of this Article, a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State.

2. The exemption provided for in paragraph 1 of this Article shall also apply to private servants who are in the sole employ of a diplomatic agent, on condition:

(a) that they are not nationals of or permanently resident in the receiving State; and

(b) that they are covered by the social security provisions which may be in force in the sending State or a third State.

3. A diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of this Article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers.

4. The exemption provided for in paragraphs 1 and 2 of this Article shall not preclude voluntary participation in the social security system of the receiving State provided that such participation is permitted by that State.

5. The provisions of this Article shall not affect bilateral or multilateral agreements concerning social security concluded previously and shall not prevent the conclusion of such agreements in the future.

Article 34

A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:

(a) indirect taxes of a kind which are normally incorporated in the price of goods or services;

(b) dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(c) estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of Article 39;

(d) dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State;

(e) charges levied for specific services rendered;

(f) registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of Article 23.

Article 35

The receiving State shall exempt diplomatic agents from all personal services, from all public service of any kind whatsoever, and from military obligations such as those connected with requisitioning, military contributions and billeting.

Article 36

1. The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on:

(a) articles for the official use of the mission;

(b) articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment.


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