situation. With the drafting of the NATO SOFA, a consensus was developed. This international agreement has been repeated in substance for other areas of the world, such as Japan, Korea, and the Phillippines. Its substantive rules have been generally followed in similar agreements negotiated by the Soviet Union with its allies.

Treaty Rules on Criminal Liability—Initially, a SOFA grants to the US the right to exercise authority over criminal acts committed within the territory of the host country by members of US military forces. This represents a modification of the traditional international norm that each state has exclusive jurisdiction within its own territory. Second, the SOFA provides that when an act violates the law of only one state, such as absence without authority, that state is granted exclusive jurisdiction (the sole authority to punish the actor). Third, when the act violates the law of both states, a formula is set out to determine which state has primary jurisdiction (the first right to punish the offender) and which state has secondary jurisdiction (the right to punish if the primary jurisdiction is waived by the other state). Fourth, provision is made requiring the state of primary jurisdiction to seriously consider the request by the state of secondary jurisdiction to allow it to punish the offender. By such request the state of secondary jurisdiction desires the primary state to waive jurisdiction. Fifth, the sending state is given the initial right to determine whether an act occurred within the performance of official duties. This determination often decides which state has primary jurisdiction. Last, certain basic rights are enumerated to guarantee a fair and just trial of any accused person.

As these rules have been interpreted and implemented, the US exercises jurisdiction over most criminal offenses committed by military personnel. As a practical matter, the US fails to exercise its jurisdiction only where the act does not violate US law, e.g., a minor traffic offense. This result has been occasioned by two US actions. The first is the broad definition given to the concept of performance of official duties. The SOFA provides that the sending state (usually the US) will have primary jurisdiction for criminal offenses committed by US personnel "while in the performance of official duties." By including many types of acts within this category, the US, as the sending state, has the primary right to punish the offense rather than the host country. Secondly, it is US policy to request the host country to waive its right to punish when the host country possesses primary jurisdiction pursuant to the SOFA. Conversely, the US in almost all cases does not waive its right to punish the offender. That is, it does not permit the host country to act where the provisions of SOFA bestow primary jurisdiction on the US. As a result of these two factors, over 90 percent of all offenses by US military personnel are handled by the US.

The favorable results for US military personnel have not just happened. They are the result of extensive efforts by the US and its personnel to live harmoniously in foreign countries and still perform

their military mission. This cooperative attitude has fostered a mutual respect for each other's laws, customs and culture. Thus the favorable results are an expression of confidence and respect by foreign countries for the US and its personnel.

In relation to civilian employees and dependents an opposite result has occurred. For offenses by these personnel, the host state exercises virtually exclusive jurisdiction. This has been occasioned by the US legal system. As late as 1975, there was no US court which had authority to punish most offenses committed by nonmilitary personnel outside the territory of the US. This lack of authority was not a failing of the SOFA, but rather a limitation imposed upon US military action by the US Constitution.

In 1957, the US Supreme Court in the case of Reid v. Covert, 354 U.S. 1, 22 (1957) declared, "In the light of these as well as other constitutional provisions, and the historical background in which they were formed, military trial of civilians is inconsistent with both the 'letter and spirit of the constitution'." The Court further agreed with Colonel Winthrop, an expert on military jurisdiction, who declared, "a statute cannot be framed by which a civilian can lawfully be made amenable to the military jurisdiction in time of peace." The right to try US civilians in occupied territory by military courts was not affected. Modsen v Kinsella, 343 US 341 (1952); Reid v Covert, 354 US 1,35 m.63 (1957). The only Territory currently occupied by US forces is Berlin.

Treaty Rules on Civil Liability-Due to the large number of personnel, including military, civilian and dependents, it was inevitable that they would cause damage to property and injury to persons in the host countries as the result of automobile accidents, maneuvers or other training exercises, criminal offenses and similar incidents. Rules were determined and expressed to control these problems.

If injury or death to persons or damage to property are caused by the US or by military personnel or civilian employees while they are acting within the performance of their official duties, the incident is handled by the host country. That state will investigate the incident, adjudicate the claim for damages, and then pay the injured or damaged persons. Subsequently, the US will reimburse the host state for 75 percent of the amount paid on the claim. Thus, our personnel cannot be hauled into a foreign court and forced to pay for damages caused by their official actions. However, when the damage is caused by actions occurring outside performance of official duties, the injured person has a choice of remedies. That person may bring a civil law suit against the US person who caused the injury. The case is tried in the foreign court, and the military member or civilian employee must pay any judgment rendered against him. The injured person may, however, file an administrative claim against the US, rather than suing the US member. If this is done, the US will investigate the incident, adjudicate the claim, and pay the claim to the injured person. These claim procedures apply when the

injured person is a citizen of the host country or, in some cases, a third country national, but not to every incident caused by US personnel.

Dependents are given no protection under the treaty rules. They are subject to the authority and jurisdiction of the foreign courts for their actions that cause injury or damages just as for their criminal offenses. If a judgment is given against them, they alone are responsible for paying it.

Armed conflict-It has been customary for the US to negotiate a treaty on the legal status of its personnel, even during periods of active hostilities. US policy has been to retain exclusive jurisdiction or the sole authority to punish any and all criminal offenses by its personnel in such situations. This policy is based on the probable inability of the foreign state's civilian courts to operate while hostilities are being conducted there. Further, many other nations suspend the operation of their civilian courts during emergencies and armed conflict, so that all criminal offenses are tried by military courts. Thus, no purpose would be served in allowing US personnel to be tried by foreign military courts. Lastly, during combat it is imperative that US commanders retain close disciplinary control over all of their personnel. This is absolutely necessary for safety of the personnel and for accomplishment of combat missions. This control would be seriously endangered if US combat personnel were subject to the authority of foreign courts during actual armed conflict. In this regard, it is noted that SOFAS to which the US is a party provide for its termination or supension if hostilities begin or martial law is declared in that country. Agreements are used in these situations as a means of clarifying and expressing the situation. It is a type of preventive law, ensuring that everyone knows the rules before problems arise.

Summary-Needs of national security for many nations have led to creation and formation of numerous security alliances. For these alliances to be effective, many US forces have had to be stationed in foreign countries. The need for security and the need to control the conduct of these forces has mandated close and continuing cooperation between members of the alliances. Those needs have been so important and have been so mutual in concept that states have reached a consensus on them. SOFAs are the legal expression of the implementation of these shared expectations and interests.

THE LAWS OF WAR

Customary Law of War and the Hague and Geneva Conventions-As a result of centuries of warfare between various nations, unwritten laws and rules governing the conduct of war developed. These unwritten laws are known as the customary law of war. The customary law of war is firmly based on the lessons of history, which have shown that the purpose and results of these rules is to allow the military force to

accomplish its mission without causing unnecessary suffering or destruction. The general purpose of these rules is to limit the suffering or destruction to military targets and to provide humane treatment for all persons who are taken out of the fight.

It has been so clearly recognized that any commander can accomplish his mission without violating the law of war that the United States and most other nations, including the Communist nations, consider themselves bound by it.

In the last 100 years, however, nations have also adopted specific rules concerning the treatment of all persons who fall into the hands of a military force. Americans can be proud that the United States was a leader in adopting for its military forces rules which recognized that the enemy was also a human being, that unnecessary destruction or suffering must not occur, and that captured persons are entitled to certain fundamental human rights regardless of their prior conduct or beliefs. During the Civil War, President Lincoln issued General Order 100 which provided for humane treatment of captured enemy soldiers. This order had been written by Dr. Francis Lieber and became known as the Lieber Code. Since then, these principles have been expanded and incorporated in other national and international proscriptions. The Hague Conventions of 1907 and the Geneva Conventions of 1949 represent the major efforts by the countries of the world to reduce to written form certain basic concepts of the law of war. These Conventions do not replace the customary, or unwritten, law of war, but merely reinforce and supplement that body of law. The United States has signed the Hague and Geneva Conventions. We have solemnly pledged to observe all the provisions of these treaties. As a matter of honor and selfrespect, we must fulfill that pledge.

Prohibitions on Targets-The customary law of war and Hague Convention No. IV, entitled, "Respecting the Laws and Customs of War on Land," with annex thereto, established definite rules which limit the kinds of targets military forces can attack and the weapons that can be used. In accordance with these Hague provisions, appropriate military commanders issue rules of engagement which tell soldiers where, when, and what they can shoot. These rules may differ from one combat zone to another. They are often classified, because they normally apply to the actual conduct of combat operations in a specific area. These rules of engagement will always embody, as a minimum, the requirements of The Hague Regulations. The Hague Regulations prohibit the destruction or the seizure of private or public property unless imperatively demanded by the necessities of war. Assume, for example, that a search is being conducted in a built-up area. As the soldiers go from one building to another they discover only a few weapons. In one home, though, they see some interesting art objects-hand carved figures, for instance and decide to take one. Would their taking the hand carved figure be a crime? "Yes." By taking it they have violated the law of war

and the Uniform Code of Military Justice. They have no right to take such property. If during the same search, they deliberately smash dishes, burn books and scatter clothing, they are also violating the law of war by destroying property when not demanded by military necessity. Consider another example. During a search in a rural village, a soldier dares his buddy to see who can shoot a farmer's water buffalo first, or who can shoot out a candle on an outdoor shrine. Neither of these soldiers can win those contests because they would both be violating the law of war and the Uniform Code of Military Justice, and both of them could be prosecuted.

Under the provisions of the Hague Conventions, a military target or a place occupied by a combatant force can be attacked. However, the attack or shelling by any means whatsoever of undefended towns, villages, dwellings or buildings is prohibited. According to recent interpretation, this means that military targets can be attacked wherever they are located, but a town with no military targets must be spared. The main point now is whether a town contains a military target or not. If it does, the target (and only the target) may be attacked, even if the town is undefended. Furthermore, in attacking a military target, the amount of suffering or destruction must be held to the minimum necessary to accomplish the mission, and any excessive destruction or suffering not required to accomplish the objective would be illegal as a violation of the law of war. Some examples which illustrate these rules follow. A unit is in a defensive position just outside a small village. They receive sniper fire from what appears to be a single building within the village. Before taking any other action and without checking with a higher commander, they call in all available artillery and destroy the entire village. They have used excessive force not required to accomplish the mission of neutralizing the sniper fire. They have caused unnecessary suffering by destroying much more than the military target, and have violated the law of war. They might have accomplished their mission by calling for a direct fire weapon, such as a tank or an antitank gun, or by using small arms or automatic weapons within their resources to neutralize the sniper. Consider the pilot returning from a mission with some unused bombs. Not wanting to land with the bombs, he decides to drop them on a village which he believes to be undefended and containing no military target but sympathetic to the enemy. Again, the pilot also has used force indiscriminately, without any military necessity, and violated the law of war.

Also remember that, in attacks and shellings, all necessary measures must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes. The same applies to historic monuments, hospitals or other places where the sick and wounded are collected-even if enemy soldiers are the sick and wounded inside of those areas-provided these buildings and places are not being used for