In his brief but highly successful visit to Australia last November President Barack Obama announced that the US planned to deploy marines to be based in northern Australia and rotating in six-month deployments. The number would start at about 200 to 250, but would increase over time to a full-time force of 2500 personnel. Prime Minister Julia Gillard expressed her agreement with this plan.
Since that announcement there has been little or no public discussion about the proposal, but I have noticed two letters to the editor, in different newspapers, which were almost identical and simply raised the question of what status of forces agreement would be negotiated for this deployment.
I claim no expertise in military law, either American or Australian, but I do know something about how foreigners who break the law are dealt with in Australia, and conversely how Australians who break the law in countries overseas are dealt with. I would also be prepared to make a guess about the nature and incidence of law-breaking that might be expected from 2500 young men away from home for an extended period, even though I have no doubt that the US marines would have been fully briefed about the type of behaviour that is expected.
In nearly every case where troops are deployed in foreign countries in peacetime a Status of Forces Agreement (SOFA) is negotiated between the two governments which, among other things, specifies how misbehaviour by the troops will be dealt with. This can be a very controversial and politically sensitive subject. SOFAs have led to criticism of the US in a number of situations, and, in at least one case, Australia has been embarrassed by this issue.
Every SOFA tries to cover the most important legal issues associated with military individuals and property. Some of these are relatively mundane, such as tax liabilities and postal services, but others are more contentious, such as specifying how civil damages caused by military personnel will be determined and paid. Most controversial are those parts of a SOFA which specify whether or not the visiting forces will have immunity from prosecution for offences committed outside the base and which involve residents of the host country. The rights of local police to investigate and interview military personnel who are accused or suspected of committing offences will also be spelled out.
In countries like Japan and South Korea which have hosted large numbers of US troops for many years, the immunity from prosecution granted to military personnel has often become a major political issue, especially following offences such as murder, manslaughter, robbery or sex crimes. The host nations see it as totally unacceptable that their own police, courts and correctional systems are not permitted to respond to serious crimes in their own territory. In defence of their position American authorities are quick to point out that South Korea has some of its own forces stationed in Kyrgyzstan and they have negotiated a SOFA that confers total immunity to its service members from prosecution by Kyrgyz authorities for any crime, which is seen as stricter than the SOFA it has with the US.
The Australian case in which a SOFA led to international difficulties involved police, not military personnel, who were to be deployed in Papua New Guinea. In late 2003 a joint ministerial forum resolved that Australia would help PNG to lessen its serious crime problem by sending up to 230 experienced police officers to a number of locations in PNG. The officers would not be advisers but would exercise real authority as temporary members of the Royal PNG Constabulary. This program was costed at $800 million over a five-year period and was to be additional to the general program of assistance to PNG.
Before the program could become fully operational, however, some disagreement between the two governments occurred over the conditions of deployment. Australia insisted that its personnel be granted immunity from prosecution under PNG law, but this was resisted by some PNG political leaders.
The matter was eventually resolved, in May 2005, by a unanimous decision of the PNG Supreme Court stating that to grant immunity would be unconstitutional. The program was then abandoned.
To grant immunity to US marines would place them in a more favourable position than the many thousands of American tourists, business people and students who come to Australia every year and who receive no special treatment or protection if they break the law here.
A number of Americans who have been sentenced to jail terms in Australia have been transferred back to the US part-way through their sentences to serve the remaining time in jail at home.
Finally, it must be pointed out that US marines who are charged with offences in Australia would be much better off facing Australian courts than US military tribunals.
For most offences, sentences imposed in Australia are significantly shorter than in the US, and we have abolished capital punishment while the death penalty remains a part of American military law.
It is not clear, however, how Australian authorities would react if a US military tribunal sentenced one of their own troops to death in this country.
This was not a problem in 1942 when a young US soldier was hanged on the orders of a US military tribunal in Melbourne for the rape and murder of three Australian women - but attitudes and behaviours today are not the same as they were 70 years ago.
David Biles is a Canberra-based consultant criminologist.