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Published online by Cambridge University Press: 27 February 2017
In the Notes and Comments section of the January 1991 issue of the Journal, Professor Richard Lillich presented a thorough and timely analysis of the Soering decision of the European Court of Human Rights, a significant addition to international human rights law. His evaluation of the Soering judgment and his reflections on several of its wider ramifications are especially relevant to the United States military, for the decision constitutes a serious threat to the administration of U.S. military justice overseas and to the treaty relationships between the United States and its NATO allies. A recent European case, Short v. Kingdom of the Netherlands, demonstrates that this threat is far from hypothetical.
1 Lillich, The Soering Case, 85 AJIL 128 (1991).
2 Agreement between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, June 19, 1951, 4 UST 1792, TIAS No. 2846, 199 UNTS 67 [hereinafter NATO SOFA].
3 See S. Lazareff, Status of Military Forces under Current International Law 160–61 (1971).
4 This is known as “inter se” jurisdiction. The only other cases over which the sending state has the primary right to exercise jurisdiction under the NATO SOFA are those arising out of the performance of official duties. NATO SOFA, supra note 2, Art. VII, para. 3(a). Theoretically, in these two categories of cases the sending state has the greater interest in asserting jurisdiction. S. Lazareff, supra note 3, at 161.
5 Statement of Senate on giving its advice and consent to ratification, 4 UST at 1828. See Parkerson & Stoehr, The U.S. Military Death Penalty in Europe: Threats from Recent European Human Rights Developments, 129 Mil. L. Rev. 41, 48 (1990).
6 Such an agreement exists between the United States and the Netherlands. See Agreement Relating to the Stationing of United States Armed Forces in the Netherlands, with Annex, Aug. 13, 1954, United States-Netherlands, annex, para. 3, 6 UST 103, TIAS No. 3174, 251 UNTS 91.
7 Nov. 4, 1950, 213 UNTS 221, Europ. TS No. 5 [hereinafter Convention].
8 See Lillich, supra note 1, at 142.
9 Serious Incident Report Message from 32TFS/JA to HQ USAF/JACI (Mar. 31, 1988). All of the following facts derive from this and other such messages reporting updated facts to Washington. For the sake of brevity, we will not cite them all.
10 10 U.S.C. §801 et seq. (1988).
11 Judgment of May 9, 1988, District Court, The Hague (Nos. 88/614, 88/615) (unofficial translation by 32TFS/JA of unpublished opinion).
12 See Message from CINCUSAFE to USCINCEUR (Oct. 18, 1988).
13 See Message from 32TFS/JA to HQ USAF/JACI (Nov. 21, 1988).
14 See Memorandum from HQ USAF/JACI to HQ USAF/JAC (Jan. 2, 1990).
15 See 29 ILM 1388, 1389.
16 Convention, supra note 7.
17 Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, Apr. 28, 1988, Europ. TS No. 114.
18 Application No. 6231/73 (May 28, 1975), summarized in 1 Council of Europe, Digest of Strasbourg Case-Law Relating to the European Convention on Human Rights 16(1984).
19 Id. at 17.
20 The Netherlands ratified the NATO SOFA on Nov. 18, 1953, and the Convention on Aug. 31, 1954.
21 Lillich, supra notel, at 141.
22 Id. at 142.
