The United States government has agreed that members of their military will be subject to prosecution for all crimes committed while on duty in this country. This was one of the conditions that led T&T to capitulate and sign a two-year Status of Forces Agreement (Sofa) with the US. Other concessions have also been made by the US government causing the recently-signed agreement to be labelled as the first Sofa of its kind between the US and a foreign partner.
A Sofa is an agreement between a host country and a foreign nation stationing military forces in that country for a specific purpose. It establishes the rights and privileges of foreign personnel. No purpose has been stated for the recent agreement signed by T&T.
Since the early 1990s, circa 1994, the US government has been trying to get this country to sign onto a Sofa. This country, however, resisted because of Article 98 of the Rome Statute of the International Criminal Court (ICC). The US are not signatories to the ICC and thus wanted this country to grant them immunity from this clause which, by virtue of their partnering with Trinidad, makes US servicemen subject to prosecution for war crimes— offences or crimes committed while on duty in this country.
The US was also asking that its servicemen not be prosecuted for crimes committed while off duty, placing them outside of the legal jurisdiction of the country, in keeping with the American Service-members Protection Act (Aspa).
Brig Gen Antoine a victim of US sanctions
Because this country would not comply, the T&T military was subject to sanctions and were debarred from accessing US financing and training. Former chief of defence staff Brig Gen Ancil Antoine said he was a victim of those sanctions.
“For a number of years, when Sally Cowal was the US ambassador to this country, because we would not sign onto the Sofa, we were denied training opportunities. From 1994 to 1999, I was denied the opportunity of going to Fort Leavenworth for promotional training. We stringently resisted signing that agreement, so something in the game-plan must have changed for us to give in now,” he said.
Statements made by US Gen Bantz Craddock on Capitol Hill before the House Armed Service Committee in 1995 supports Antoine’s claims.
Craddock told the committee: “Sanctions enclosed in the Aspa statute prohibit international military education and training (Imet) funds from going to certain countries that are parties to the Rome Statute of the International Criminal Court. Of the 22 nations worldwide affected by these sanctions, 11 of them are in Latin America, hampering the engagement and professional contact that is an essential element of our regional security co-operation strategy.”
He added, “...that’s 11 nations that I cannot now do military education exchange training with their militaries, nor provide foreign military financing for articles that they will need in their defence establishment to equip their armed forces to fight the narcoterrorists, things like that.”
Issues of contention
• There were four main issues of contention beginning with the duration of the Sofa. The US initially wanted the Sofa for a indefinite period. In this new agreement, the time has been limited to a two-year period lasting till December 31, 2015.
• The “course of official duty” provision was the second issue. The US, back then, was accused of having too broad a definition on what “in the course of duty” meant. It was believed that this non-specific was intended, again, for service personnel to evade jurisdiction, to prevent the State from being able to prosecute. While this provision has been maintained, this country was able to negotiate a “consultative position” with the inclusion of a paragraph: “Where a case is of particular importance to the Government of Trinidad and Tobago, any differences concerning whether an action was taken in the course of official duties shall be subject of consultations between parties, with a view to arriving at a mutually satisfactory resolution.”
This clause is said to be the first of its kind to be agreed to by the US in a Sofa.
• The third issue was the exercising of criminal jurisdiction over US personnel for actions outside of official duties, which this agreement now permits.
• The last issue was US personnel having access to restricted areas in the country. This was resolved by restricting access to US personnel to areas in connection to training or other activities covered by the Sofa.
More on the Sofa agreement next week
Details of the agreement
The details of the recently-signed Sofa between T&T and the government of the United States are laid out in Cabinet Note No 1099. The clauses are prefaced in the manner of a proposal from the United States Embassy to the Foreign Affairs Ministry and reads:
“The Embassy proposes that United States personnel may enter and exit Trinidad and Tobago with US identification and with collective movement or individual travel orders; that Trinidad and Tobago shall accept as valid all professional licences issued by the United States, states thereof, or their political subdivisions to United States personnel for the provision of service to authorised personnel; and that Trinidad and Tobago authorities shall accept as valid, without a driving test or fee, driving licences or permits issued by the appropriate United States authorities to United States personnel for the operation of vehicles.
The Embassy further proposes that:
• United States personnel be authorised to wear uniforms while performing official duties and to carry arms while on duty if authorised by their orders.
• The Government of Trinidad and Tobago shall designate the United States of America as a “designated state” in accordance with Section 4 of the Visiting Forces Act, Chapter 14:04 of the Laws of Trinidad and Tobago and such designation shall not expire before the end of December 31, 2015.
• The Government of Trinidad and Tobago shall recognise the particular importance of United States Armed Forces maintaining discipline over United States personnel.
• In the exercise of its sovereignty, the Government of Trinidad and Tobago waive its right to exercise criminal and civil jurisdiction over United States personnel for any actions, when the United States determines that such acts were taken in the course of official duties. Where a case is of particular importance to the Government of Trinidad and Tobago, any differences concerning whether an action was taken in the course of official duties shall be the subject of consultations between the parties, with a view to arriving at a mutually satisfactory resolution. During such consultations, the Government of Trinidad and Tobago shall not exercise jurisdiction.
• In the exercise of its sovereignty, the Government of Trinidad and Tobago waive its right to exercise criminal jurisdiction over United States personnel for actions taken outside of the course of their official duties except in cases of particular importance to the Republic of Trinidad and Tobago. If the Government of Trinidad and Tobago determines that a case is of particular importance, it shall communicate such determination to the United States authorities within twenty-one (21) calendar days of the discovery of the alleged offense giving rise to such a case. If the Government of Trinidad and Tobago does not communicate such determination to United States authorities within 21 calendar days, the Government of Trinidad and Tobago shall be deemed to have waived its right to exercise criminal jurisdiction over United States personnel for the alleged offense. If the Government of Trinidad and Tobago waives jurisdiction in relation to actions taken by United States personnel outside the course of official duties, the United States armed forces may exercise jurisdiction over its personnel for such actions.
• The Government of Trinidad and Tobago also confirms that, pursuant to Section 7 of the Visiting Forces Act, the United States Armed Forces may exercise jurisdiction in relation to actions taken by United States personnel in the course of official duties.
• The United States Department of Defense and United States personnel shall not be liable to pay any tax or similar charge assessed in connection with activities under this agreement within Trinidad and Tobago, and that the United States Department of Defense and United States personnel may import into, export out of and use in Trinidad and Tobago any personal property, equipment, supplies, material, technology, training and services in connection with activities under this agreement. Such importation, exportation, and use shall be exempt from any inspection, licence, other restrictions, custom duties, taxes or any other charges assessed within Trinidad and Tobago. The United States Government certifies that the aforementioned items imported by United States personnel shall be for purposes connected to activities under this agreement. The parties shall co-operate to take such measures as may be necessary to ensure the security and protection of United States personnel, property, equipment, records and official information in Trinidad and Tobago.
• Vessels and vehicles operated by or, at the time, exclusively for the United States Department of Defense may enter, exit and move freely within the territory of Trinidad and Tobago, except for those areas where access may be restricted, and that such vehicles (whether self-propelled or towed) shall not be subject to the payment of overland transit tolls. Vessels and aircraft owned or operated by or, at the time, excusively for the United States Department of Defense shall not be subject to the payment of landing, parking, or port fees, pilotage charges, lighterage, or harbour dues at facilities owned and operated by the Government of Trinidad and Tobago. Aircraft owned and operated by or, at the time, exclusively for the United States Department of Defense shall not be subject to payment of navigation, overflight, terminal, or similar charges when in the territory of Trinidad and Tobago. The United States Department of Defense shall pay reasonable charges for services requested and received at rates no less favourable than those paid by the armed forces of Trinidad and Tobago less taxes and similar charge. Aircraft and vessels of the United States Government shall be free from boarding and inspection.
• The United States Department of Defense may contract for any material, supplies, equipment and services (including construction) to be furnished or undertaken in Trinidad and Tobago without restriction as to choice of contractor, supplier, or person who provides such material supplies, equipment, or services. Such contracts shall be solicited, awarded and administered in accordance with the laws and regulations of the United States Government. Acquisition of articles and services in Trinidad and
Tobago by or on behalf of the United States Department of Defense in connection with activities under this agreement shall not be subject to any taxes or similar charges in Trinidad and Tobago.
• United States contractors shall not be liable to pay any tax or similar charge assessed within Trinidad and Tobago in connection with activities under this agreement and that such contractors may import into, export out of, and use in Trinidad and Tobago any personal property, equipment, supplies, material, technology, training or services in fulfilment of contracts with the United States Department of Defense in connection with activities under this agreement. Such importation, exportation, and use shall be exempt from any licence, other restrictions, customs duties, taxes, or any other charges assessed within Trinidad and Tobago.
• United States contractors shall be granted the same treatment as United States personnel with respect to professional and drivers’ licences.
• United States personnel may enter and exit and, except in those areas where access may be restricted, move freely within the territory of Trinidad and Tobago, and have access to and use of mutually-agreed transportation, storage, training and other facilities required in connection with activities under this agreement. The Government of Trinidad and Tobago shall, as far as practicable, provide the United States with advance notification of any restricted areas.
• The Government of Trinidad and Tobago recognise that it may be necessary for the United States armed forces to use the radio spectrum. The United States Department of Defense shall be allowed to operate its own telecommunication systems...This shall include the right to utilise such means and services as required to ensure full ability to operate telecommunication systems, and the right to use the radio spectrum assigned by the relevant Trinidad and Tobago authorities for this purpose. The United States shall respect frequencies in use by or reserved for local operators. Use of the radio spectrum shall be free of cost to the United States government.
• Parties waive any and all claims (other than contractual claims) against each other for damage to, loss or destruction of the other’s property or injury or death to personnel of either party’s armed forces or their civilian personnel arising out of the performance of their official duties in connection with activities under this agreement. Claims by third parties for damages or loss caused by United states personnel shall be resolved by the United States government in accordance with United States laws and regulations.
• That any disputes between the parties shall be resolved through consultation between the parties. Disputes and other matters subject to consultation under this agreement shall not be subject to adjudication or decision by any court or third party unless otherwise mutually agreed.
• That the parties undertake to enter into negotiations for the renewal of this agreement six months prior to its expiration.