Research On The Criminal Jurisdiction And Immunity Of The Overseas Military Garrison

The development of modern overseas military garrisons has gone through a century of history.So far,no unified customary international law has been formed,and no special international treaties for overseas military garrisons have been formulated.Therefore,there is a need for further research and discussion on the issues of international law concerning overseas military garrisons and overseas bases.Studying the related issues of overseas military garrison has a positive effect on enhancing the influence of international law in this military field and improving the international legal system.At the same time,on July 11,2017,China established its first overseas comprehensive support base near the Mande Strait in Djibouti in the Horn of Africa.In the future,more military garrisons stationed abroad may carry out international cooperation in personnel training,naval escort and supply,participation in the support of UN peacekeeping operations,and carry out anti-piracy escort and humanitarian rescue missions.However,compared with the development of practice and foreign research results in the field of international law in China,the theoretical achievements of overseas military garrisons and overseas bases are obviously lagging behind.At present,there is no systematic work on the international law of overseas military bases.Therefore,from the perspective of China,it is of great forward-looking and strategic significance to do research on the international legal issues of overseas military garrisons,learn from the national practice of other countries on overseas bases,and do theoretical preparation in advance.Among the issues of international law regarding overseas military garrisons,one of the most important and most concerned topics is the criminal jurisdiction and immunity of overseas military garrisons.On this issue,customary law is intertwined with treaty law and domestic law and international law coexist.It can be said that the issue of criminal judicial jurisdiction in modern overseas military garrison activities is a relatively advanced topic.Not only the jurisdiction over military personnel abroad,but also the jurisdiction over the personnel of the garrison's entourage and hired personnel,are important research content of various overseas military powers.In addition,after the establishment of the International Criminal Court,there are realistic cases of jurisdictional conflicts for international crimes that may be committed by overseas military garrison,which is also an urgent problem in international law that needs to be resolved.More importantly,China has not yet signed the relevant statusof-forces agreement,nor has it established a mature mode of criminal jurisdiction over overseas military garrison.In the process of carrying out overseas military garrison activities,China should further improve its domestic legislation on military jurisdiction and immunity.In terms of the distribution of criminal jurisdiction of overseas military garrison,this paper analyzes the criminal jurisdiction of overseas military garrison from two dimensions on the basis of the discussion of criminal jurisdiction.The first is the general international law.For the sending state,it involves its personal jurisdiction and the extraterritorial application and extraterritorial jurisdiction of the domestic law,while for the host country,it is the territorial jurisdiction based on sovereignty.In addition,a third country and other countries in the world may,under specific circumstances,enjoy protective jurisdiction or universal jurisdiction over a country's military presence abroad.Secondly,special international law,which is opposite to general international law,mainly refers to treaties.Traditionally,under customary international law,a State should have territorial criminal jurisdiction over any crime committed on its territory,whether the perpetrator is a national or a foreign national.In response to this basic rule of international law,before the creation of Status of Force Agreements,the United States had a practice of asserting the privilege of overseas military garrisons,arguing that they had absolute sovereign immunity and that their forces were “not subject to the jurisdiction of the foreign receiving state”,a principle known as “the law of flag”.This principle was widely used in the 19 th century until the end of the World War II.But after World War II,when rising nationalism and the increasing complexity of semipermanent base logistics challenged “the law of flag”,Status of Force Agreements were adopted to clarify and stabilize the legal status of U.S.forces abroad.There are two modes of criminal jurisdiction distribution of overseas military garrison based on the Status of Force Agreements,namely concurrent jurisdiction mode and exclusive jurisdiction mode.The latter is an extreme form of the extension of the jurisdiction of the host country,which is therefore more difficult to negotiate and generally more difficult to accept by the host country.However,concurrent jurisdiction mode is generally mutually beneficial and equal.In most cases,the host country has priority over the jurisdiction,so it is widely accepted.However,with the long-term practice of the overseas military powers led by the United States,the expansion of the jurisdiction of the sending state appears in this mode.As the U.S.strategy for overseas military garrison expands,we will find that “the law of flag” “lives on”,and that the United States has always tried and often succeeded in extending its jurisdiction under the framework of Status of Force Agreements.The most common and effective one is based on the NATO Status of Force Agreement,which is embodied in three aspects:the first is the expansion of the scope of “official duty” and the control of the definition of rights;the second is the frequent use of the waiver of jurisdiction clause;the third is the expansion of criminal jurisdiction over contract employees.In the case of criminal immunity for overseas military garrison,on the one hand,based on the general international law,the sending state and the host state in the overseas military activities enjoy the ratione personae or ratione loci respectively over the soldiers stationed abroad,so there is a conflict of jurisdiction.Therefore,the sending state can properly solve the situation of such conflict of jurisdiction by granting the criminal immunity.On the other hand,the army is different from ordinary citizens in the issue of jurisdiction and immunity because of its strong sovereignty character.Criminals involve military interests,such as having access to military secrets,intelligence or even top-secret information that may affect the country's vital military interests.Moreover,common crimes committed by soldiers outside the territory are not only criminal acts,but also challenges to military discipline.If the case is under the jurisdiction of the country where the crime is committed and the sentence is abhorrent,from the perspective of domestic laws,the incompatibility between the crime and the punishment may have a negative effect on the concept of retribution of domestic soldiers,and further affect the deterrent power of domestic criminal law and military discipline.On the theoretical level,modern overseas military activities rely on Status of Force Agreements to allocate criminal jurisdiction over foreign garrisons,or directly endow foreign garrisons with criminal immunity in the courts of host countries in Status of Force Agreements.Because it is based on the consent of the host country,the legal nature of the criminal immunity established by the Status of Force Agreement for the host country is relatively certain and less controversial.But,in fact,there are a number of sovereign states in the process of overseas garrison activities have not signed the terms or the Status of Force Agreement on criminal jurisdiction distribution or immunity,and the negotiation on Status of Force Agreement on jurisdiction distribution and immunities often based on customary international law.The further a jurisdictional arrangement proposed by one party deviates from the provisions of customary international law,the more likely it is to attract opposition from the other negotiating parties,which is one reason why the jurisdictional arrangements used in NATO and United Nations Status of Force Agreements are so popular.Because of the immunity of state officials from foreign criminal jurisdiction has been identified as customary international law,and in theory,as long as some subjects of overseas military activities meet the subject qualification requirements of state officials,and their actions are “act performed in an official capacity”,they can then enjoy immunity of state officials from foreign criminal jurisdiction.Therefore,the concept of Immunity Ratione Personnae can be defined as: according to the customary international law,the force,civilian component and part of the contractor in the territory of the receiving country to perform act in an official capacity shall have the immunity,but the crime of genocide,crimes against humanity,war crimes,the crime of apartheid,torture,forced disappearances and corruption should be ruled out.Then in terms of China,as a representative project of China's national defense force going out,special attention should be paid to the development of foreign-related rule of law work,and coordinate the promotion of domestic and international governance.This requires us not only to pay attention to the domestic legislation of the criminal jurisdiction of extraterritorial crimes committed by servicemen,but also to use the rule of law in the international law level to protect the interests of Chinese servicemen stationed abroad.On the issue of the conclusion of the Status of Force Agreement,China should strive harder to lead and even make the right of international discourse rules.On the basis of respecting the rights of host countries,establish a highlevel model of bilateral treaties on overseas military services.The first chapter of the dissertation outlines the definition of overseas military garrisons,the status of overseas military bases in international law,and the scope of time and space.The definition of overseas military garrisons has a broad and a narrow sense.They are “overseas bases” in the narrow sense and “rigid and partially flexible overseas military presences” in the broad sense.In the Chinese context,it is also of practical value to clarify the relationship between overseas support facilities,overseas support bases and overseas military bases in order to respond to the doubts of the Western world.The second chapter of the dissertation reviews the distribution of criminal jurisdiction in overseas military garrisons.First,based on general international law,in terms of jurisdiction theory,there is a concurrence between territorial jurisdiction and personal jurisdiction between sending state and the receiving state,and both parties can exercise criminal jurisdiction over military personnel abroad.However,in the course of historical development,especially under the influence of colonialism,due to the power gap between the sending state and the receiving state,a national practice in which the sending state has exclusive jurisdiction over criminal cases of military personnel abroad has gradually formed,called the “flag law”.However,after World War II,due to the rise of nationalism and the increasingly complex logistics of semi-permanent bases,the “flag law” was challenged.Therefore,the Status of Force Agreement has generally been adopted in overseas military garrisons to clarify and stabilize the legal status of the sending state.Criminal jurisdiction distribution models can be specifically divided into NATO models,namely concurrent jurisdiction models and exclusive jurisdiction models,which are effective in an adaptive field.The third chapter of the dissertation points out the expansion and conflict of the criminal jurisdiction of the Status of Force Agreement.The criminal jurisdiction distribution model of the Status of Force Agreement has caused many hidden concerns in practice.For example,under the concurrent jurisdiction model,the criminal jurisdiction of the sending state has been expanding,including the expansion of the definition of “official duty”,the clause on waiving jurisdiction and the extension of the criminal jurisdiction of contractor.Under the exclusive jurisdiction model,the criminal jurisdiction of the sending state has already appeared in conflict with the jurisdiction of the International Criminal Court.In addition,the criminal jurisdiction model of overseas military garrison shows a trend of simplification and standardization,which is respectively represented by the Administrative-and-technical-agreements and the Global SOFA Template.The fourth chapter of the dissertation discusses the criminal immunity of overseas military garrisons in customary international law from the perspective of jurisdictional immunity and the relationship between the criminal immunity of overseas military garrisons and the Status of Force Agreement.The criminal immunity of overseas military garrisons is subordinate to the criminal immunity of State officials.It is the right not subject to the criminal jurisdiction of the host country enjoyed by military personnel of the sending state when performing their official duties on the territory of the host country in accordance with customary international law.Its scope of application is limited,and crimes of Jus cogens need to be excluded.However,the concepts of the state immunity,diplomatic immunity,the Immunity Ratione Personnae of the overseas garrison and the overseas garrison's Immunity Ratione Materiae should be distinguished.There are differences in the scope of subjects,sources and exceptions of several concepts.In addition,the relationship between jurisdiction and immunity in overseas military garrison activities needs to be clarified.Jurisdiction and immunity have a procedural sequence.The criminal immunity of overseas military personnel under the customary international law can be adjusted to the criminal jurisdiction distribution mode under bilateral or multilateral Status of Forces Agreements,and the jurisdiction and immunity in overseas military garrison activities can be waived.The fifth chapter of the dissertation,based on China,provides a strategic outlook on the issue of criminal jurisdiction and immunity of Chinese overseas military services,starting from the two dimensions of the improvement of domestic laws and the conclusion of international treaties.There are large gaps in the current Chinese regulations on extraterritorial criminal jurisdiction on military,and it is difficult to cover the activities of overseas military services.China should Improve the legal system of military extraterritorial jurisdiction to adapt to the activities of overseas military services.In addition,the concurrent jurisdiction model should be adopted in the Status of Force Agreement signed in China's future overseas military services' activity,and it should include clauses concerning international crimes.Regarding controversial topics under the coexisting jurisdiction model,China may wish to innovate and regulate appropriately to achieve the purpose of jurisdiction while leading the formulation of international rules in related fields.