Definition and Concept of Foreign Armed Forces
Foreign armed forces are military units and formations that are under the command of a state other than the host state and are present in the territory of another state pursuant to international agreements, stationing rights, or temporary deployments. The legal framework for their presence and activities generally derives from intergovernmental treaties, special laws, and relevant provisions of international law.
The specific rights and obligations of foreign armed forces depend on the relevant international agreements and the national laws of the host state. In Germany, rules governing their presence are set primarily by residency law, the NATO Status of Forces Agreement (SOFA), supplementary treaties, and domestic regulations.
Legal Framework for the Presence of Foreign Armed Forces
International Legal Framework
Status of Forces Agreements
The primary regulatory instrument for the presence of foreign armed forces is what is known as a Status of Forces Agreement (SOFA). In Europe, the “Agreement on the Status of the Armed Forces of the NATO States” (NATO Status of Forces Agreement – NATO SOFA), signed in 1951, is fundamental. It contains detailed provisions on presence, status, disciplinary powers, jurisdiction, tax and customs exemptions, as well as compensation arrangements.
Other International Treaties
In addition to the NATO Status of Forces Agreement, there are bilateral supplementary agreements, known as “Supplementary Agreements to the Status of Forces Agreements,” which complement the general provisions of the multilateral agreements and adapt them to national legal situations—for example, the “Agreement on the Settlement of Matters arising from the Presence of Foreign Armed Forces in the Federal Republic of Germany” (Forces Agreement).
Certain states also have special arrangements, for example, for troops operating as part of UN peacekeeping missions under Security Council resolutions (Status-of-Forces Agreements, United Nations SOFAs).
Domestic Legal Foundations in Germany
Provisions Relating to Residency
The stationing or temporary stay of foreign armed forces does not require a standard residence permit under national immigration law. Rights and obligations arise directly from international treaties. The German Residence Act (AufenthG) generally does not apply to foreign armed forces or their accompanying personnel (§ 1 para. 2 no. 2 AufenthG).
Tax and Customs Privileges
The tax and customs exemptions provided in the relevant agreements are legally anchored in German tax law (§ 2 para. 3 German VAT Act, Art. 14 NATO SOFA). The same applies to the importation of personal luggage and equipment.
Supplementary Criminal Law Provisions
The Status of Forces Agreement and supplementary agreements contain detailed rules regarding legal jurisdiction (“jurisdiction”). For acts performed in the line of duty, the sending state’s courts have primary jurisdiction; for offenses outside official duties, the courts of the host state may also have jurisdiction under certain conditions.
Status and Rights of Foreign Armed Forces
Legal Status
Foreign armed forces typically enjoy a special legal status that distinguishes them from other foreign nationals. This mainly concerns partial immunity from the jurisdiction of the host country, disciplinary regulations, tax exemptions, and special powers concerning access to and use of military property.
Personal Scope of Application
The status generally covers not only military personnel but also civilian support personnel and immediate family members, provided they are part of the service member’s household.
Jurisdiction and Immunity
For official acts, members of foreign armed forces generally enjoy immunity from criminal, civil, and administrative prosecution by the host state. Certain offenses outside official duties (“outside official activity”) are excepted.
Disciplinary and Supervisory Powers
The sending states retain the right to supervise their personnel according to their own standards and, if necessary, to discipline them. The host state generally provides the necessary assistance (“administrative assistance”).
Duties and Limitations of Foreign Armed Forces
Compliance with the Law of the Host State
Although foreign armed forces benefit from extensive privileges, they are nonetheless required to comply with the laws of the host state. This applies particularly to traffic rules, environmental regulations, and construction requirements for the use of military facilities.
Liability and Compensation
Special compensation regulations apply to damages caused to third parties by members of foreign armed forces, as set out in the Status of Forces Agreement and national implementing legislation. Typically, the sending state or an entity it has established (“compensation fund”) is liable.
Restrictions on the Scope of Operations
The scope of deployment of foreign armed forces is usually limited by the relevant agreements to specific purposes such as training, exercises, transport, or collective defense. The independent exercise of executive authority (e.g., police operations) is fundamentally excluded unless expressly regulated by contract.
Foreign Armed Forces under German Law
Scope of Application in the Basic Law
The Basic Law permits the stationing of foreign armed forces on German soil within the framework of defense alliances (Art. 87a, 24 para. 2 GG). Details are regulated by federal laws and on the basis of the ratification of international agreements.
Implementing Laws and Administrative Practice
To implement international law obligations, German law includes specific statutes (e.g., the Law on Exemption from Duties in the Case of Troop Stationing, Troop Stationing Act) and administrative provisions, such as those enabling construction projects or establishing military training areas.
Significance and Practical Examples
Stationing of Foreign Armed Forces in Germany
On the basis of the NATO Status of Forces Agreement, Germany is one of the most important locations for allied foreign armed forces, particularly those of the United States, the United Kingdom, and France. The stationing rights are regularly updated and cover locations throughout the federal territory.
Temporary Stays and Joint Exercises
In addition to permanent stationing, there are also regular temporary stays, such as for participation in international exercises or maneuvers. In these cases as well, the provisions of the NATO Status of Forces Agreement and supplementary agreements apply.
Further Reading and References
- Agreement on the Status of the Armed Forces of the NATO States (NATO Status of Forces Agreement of June 19, 1951)
- Supplementary Agreement to the NATO Status of Forces Agreement of August 3, 1959 (BGBl. 1961 II p. 1183)
- Lutz, Dieter: The Status of Forces Agreement and Its Implementing Laws, in: Handbook of International and European Law
- BeckOK Residency Law, on § 1 AufenthG, as of the commentary date
- Federal Ministry of Defense: Stationing of Foreign Armed Forces in Germany (current information and statistics)
Summary: Foreign armed forces are a legally well-defined concept, governed by extensive international and national regulations. Their rights and obligations arise from international agreements, notably the NATO Status of Forces Agreement, and are further specified by national laws. To ensure alliance security, cooperation, and protection of service members, a nuanced and detailed system of privileges, jurisdictions, and liability rules has been established.
Frequently Asked Questions
Are foreign armed forces in Germany subject solely to the law of the host state, or do special rules apply?
As a rule, foreign armed forces present in Germany under international agreements—particularly the NATO Status of Forces Agreement (NATO SOFA) and its supplementary agreements—are not subject exclusively to German law. Rather, a special regime of international law applies, which includes numerous provisions that differ from domestic law. This notably includes immunities and privileges for members of the sent armed forces, special rules on judicial and administrative jurisdiction, and specific procedures for criminal and civil matters. For example, for certain actions related to official duties, criminal and disciplinary responsibility lies primarily with the sending state. However, the law of the host state remains generally applicable unless the NATO Status of Forces Agreement and resulting agreements provide for different rules. Thus, for crimes committed outside of duty, German courts are often responsible, with reciprocal information and cooperation obligations between the states.
What specific rules apply to traffic accidents involving members of foreign armed forces?
For traffic accidents involving members of foreign armed forces, the special provisions of the Supplementary Agreement to the NATO Status of Forces Agreement apply. While driving on official duty, the individuals concerned are, in most cases, subject to the jurisdiction of the sending state, unless the actions are directed against the host state itself or its citizens. Outside official duty, German criminal and civil law may apply. Questions of liability and compensation are assigned under a substitution principle: in civil cases, the sending state or its authorities regularly assume responsibility for satisfying claims. Special clearing offices facilitate the process. Offenses such as negligent bodily injury are prosecuted according to the rules of dual criminal jurisdiction, with priority of jurisdiction for individual cases to be coordinated between the sending and host states.
How is labor law regulated for local civilian employees working for foreign armed forces?
Local civilian employees working on behalf of foreign armed forces in Germany are generally subject to German labor law pursuant to the Supplementary Agreement to the NATO Status of Forces Agreement. This includes, in particular, occupational safety law, the Protection against Dismissal Act, and collective bargaining agreements. However, there are some exceptions concerning collective labor law and company co-determination, as members of the forces are not considered standard employers within the meaning of the Works Constitution Act. Employment contracts are generally concluded subject to the continued presence of the sending forces and often contain special provisions regarding transfers, termination, and compensation in the event of a force reduction.
What tax exemptions apply for foreign armed forces and their dependents?
Members of foreign armed forces and their civilian affiliates are exempt from direct and indirect taxation by the German state under certain conditions. This notably includes exemption from income tax on pay received for employment with the sending state and from value added tax on the purchase of goods and services for personal use or official purposes within the framework of the respective stationing provisions. However, tax exemption does not extend to income earned in Germany from other, non-official activities. Companies working on behalf of foreign armed forces may benefit from specific reductions, such as on value added tax, provided services are rendered directly to the unit.
How does jurisdiction work in cases of crimes committed outside official duty?
If a member of a foreign armed force commits a criminal offense outside of their official duties, the NATO Status of Forces Agreement provides that, in such cases, the jurisdiction of the host state, i.e., the German prosecuting authorities and courts, generally takes precedence. Exceptions exist if the sending state claims a special interest or the case is particularly sensitive, for example, in matters relevant to security policy. The assumption of prosecution by the sending state typically occurs following a formal request to the German authorities. The decision lies at the discretion of the host state, which may grant such a request but is not obliged to do so. In all cases, both states are required to cooperate and exchange information extensively when handling criminal cases.
Are there any special features concerning property and the use of real estate by foreign armed forces?
Properties made available to foreign armed forces generally remain the property of the German state or private third parties and are provided for use based on stationing agreements. Special procedures and compensation apply to construction work, changes, or the return of property, with the involvement of both German authorities and the armed forces of the sending state. Environmental liability and remediation after return are governed by specific rules in the stationing agreements and may differ from German environmental law. The same applies to expropriation procedures when new land is needed for military purposes.
Are members of foreign armed forces subject to German registration and immigration rules?
Due to their status, members of foreign armed forces enjoy extensive privileges with regard to German immigration law and registration requirements. Pursuant to the Supplementary Agreement to the NATO Status of Forces Agreement, they are generally exempt from the general registration obligation and from the provisions of the Residence Act. German residence permits are not issued for them. Instead, identification and status determination take place via identification documents from the sending state and special certificates issued by the competent military authorities. Family members and civilian affiliates benefit from the same exemptions to a large extent, provided they are recognized under the terms of the status agreement.
