Couching intervention : norms, interests, and trends in jurisdictional allocation in Status of Forces Agreements (SOFAs)

Abstract

Much ink has been spilled on the way justifications for and patterns of military intervention have changed, particularly since the end of the Cold War. One aspect of intervention that has not been well explored in this literature, however, is jurisdictional allocation, or which country should try service members who commit crimes while deployed overseas. The sending country normally seeks to retain jurisdiction to protect their service members from criminal systems that may expose them to human rights abuses or lower legal standards than they would enjoy at home. Host countries, on the other hand, often argue against this violation of their sovereignty, which undercuts their legal institutions and ability to regulate internal order. What have been the trends in jurisdictional allocation over time? Has it been consistently allocated to host countries or sending countries, and how has this been justified? What could explain these trends? I explore this question using two cases. The first case focuses on the allocation of jurisdiction in UN peacekeeping Status of Forces Agreements (SOFAs) from 1948-2013, and debates in the 2000s over reforming jurisdictional allocation in the UN's model SOFA and Memorandum of Understanding in light of allegations of rape committed by UN peacekeepers on mission. The second case looks at negotiations surrounding the US-Iraq SOFA in 2008 and 2011. Overall, I argue that patterns of SOFA jurisdictional allocation have consistently favoured the sending country. This is better explained by state interests, or sometimes a mix of interests and norms, rather than norms alone. This paper ultimately points to the need to take a more nuanced look at the dynamics of interventions, which may follow different patterns over time. In other words, not all aspects of intervention may be evolving in the same way.