Status Of Forces Agreements - A Primer

Government contractors are called-upon with increasing frequency to perform their contractual obligations abroad. Apart from the myriad of laws and regulations governing their performance on the international stage, government contractors also must be cognizant of the terms and conditions of any applicable Status of Forces Agreements. SOFAs, as they are commonly referred to, are voluntary multilateral or bilateral peacetime agreements that define the legal status of personnel and property ("covered individuals") of one nation in the territory of another nation ("host nation"). Covered individuals will want to familiarize themselves with the pertinent SOFA because it is the agreement that sets forth the legal framework under which they operate in the host nation. The pertinent SOFA may cover a broad range of topics, ranging from civil and criminal jurisdiction to the wearing of uniforms by armed forces while away from military installations.

Scope and Substance

Individuals and property covered by SOFAs between the United States and other nations include members of the United States Armed Services and, in certain circumstances, personnel of private contractors working on behalf of the United States government. Additionally, SOFAs are often limited to cover conduct when the personnel are "on duty." However, since SOFAs are peacetime agreements, they do not address the rules of war, the Laws of Armed Conflict, or the Laws of the Sea. In the event of an armed conflict, the terms of a SOFA become inapplicable.

The most common topic addressed by SOFAs is the application of domestic civil and criminal laws to covered individuals in the host nation. Typically, SOFAs provide for the United States to share jurisdiction with the host nation. An example of a SOFA with shared jurisdiction is the SOFA between the United States and the members of the North Atlantic Treaty Organization ("NATO"). In shared jurisdiction SOFAs, if a covered individual violates the laws of just one country (be it the United States or the host country), that country is typically the only country that can assert jurisdiction over the offender. If an individual commits an act that violates the laws of both countries, however, both countries may have concurrent jurisdiction over the offender. In the event of concurrent jurisdiction, there are additional agreed-upon protocols in place that determine which country can assert jurisdiction.

In contrast to SOFAs providing for shared...

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