THE STATUS OF FOREIGN ARMED FORCES ON THE ROMANIAN TERRITORY. REGULATIONS, SPECIFIC CASES, SOLUTIONS REGARDING JURISDICTIONS

Florin MACIU , legal advisor, PhD in Military Sciences, Ministry of National Defense

Regardless of the controversies caused by the presence of allied forces on the Romanian territory, reality proves beyond any doubt that the Romanian state wishes to build upon such a situation to the benefi t of its own security, especially in the current international conjuncture. Such a choice may seem logical and responsible to the great majority of the Romanian people. However, in our opinion, there is still an element that needs to be adjusted: the same people’s perception on the status of foreign armed forces on the Romanian territory. The current paper aims to approach some legal issues regarding this matter, to contribute to a better understanding of the regulations that govern this domain and to reveal a principle that needs to be unanimously accepted: the allied forces need to be treated, for better or worse, just like a host nation’s military. Key words: status of force, jurisdiction, allied forces, permanent presence, morale, liability, Romanian territory. 1. THE CASE OF THE PERMANENT considering the importance of a fully AMERICAN MILITARY PRESENCE supported implementation of the action ON THE ROMANIAN TERRITORY plan for the consolidation of the Alliance security within the context of the security After meeting Philip M. Breedlove, challenges that continue to aggravate in Supreme Allied Commander Europe the south and east vicinity of NATO [2]. of NATO Allied Command Operations Referring to the Deveselu Base, in on the 26th of November another facility offered to the American 2014, the Romanian minister of national allies on the 9th of December 2014, defense, Mircea Duşa, states that the Bogdan Auresco underlines that the Mihail Kogălniceanu Base has become anti-ballistic missile defense system an important logistic hub and a transit implemented by the USA in center as a result of the excellent shows the latter’s determination not to cooperation between Romania and the return to Russian infl uence [3] Thus, the United States of America [1]. anti-ballistic missile defense system from Also, on the 3rd of December 2014, the Deveselu base involves American the minister of foreign affairs, Bogdan permanent presence on the Romanian Auresco, meets the Secretary General territory and, hence, provides a security of NATO, Jens Stoltenberg in Brussels, warranty for Romania while showing where they discuss the progress made this country’s Westward orientation [4]. in implementing the decisions of the Shortly after Bogdan Auresco’s state and government chiefs adopted declaration that the shield is defensive at the NATO Summit in Great Britain, and does not aim towards Russia, in September the same year. Bogdan Mike Rogers, member of the Armed Auresco reconfi rms Romania’s Services Committee and Chairman of availability to host NATO command and the Subcommittee on Strategic Forces control elements on national territory, from the USA Congress declares that the Deveselu anti-ballistic missile defense attempt to get out they broke the door and system has the purpose to protect Romania the confl ict between the two parts grew and NATO allies from possible aggressions bigger in front of the bar. The scandal coming from the Russian side [5]. degenerated into a fi ght; therefore, in This is for the fi rst time an American order to calm the spirits down, the police offi cial admits that the missiles from the intervention was necessary [8]. sophisticated Aegis Ashore system located The investigations that could have in Romania and Poland are being headed been made by the Romanian authorities more to Moscow than to Teheran [6]. were stopped, because the trial, in the Regardless of the controversies event of one, had to take place in the caused by the presence of the allied USA. All this because, according to forces on the Romanian territory, reality Law no. 260/2002 for the ratifi cation proves beyond any doubt that the of the Agreement between Romania Romanian state wishes to build upon and the United States of America such a situation to the benefi t of its regarding the status of the United own security, especially in the current States of America forces in Romania, international conjuncture. Such a choice Romania acknowledges the particular may seem logical and responsible to the importance of disciplinary control great majority of the Romanian people. exerted by American military authorities However, in our opinion, there is still over the members of the military force an element that needs to be adjusted: and its effect upon operational training. the same people’s perception on the As a result, in cases similar to the one status of foreign armed forces on the above, Romania renounces to its own Romanian territory. The current paper jurisdiction. Therefore, the Prosecutor’s aims to approach some legal issues Offi ce belonging to the Constanta Court regarding this matter, to contribute to a House waited for a request from the better understanding of the regulations USA Embassy and the moment it came that govern this domain and to reveal a the fi le was forwarded to the American principle that needs to be unanimously authorities. accepted: the allied forces need to be treated, for better or worse, just like a 2.2. Teo Peter, the Vienna Convention host nation’s military. and the American Military Justice R.C. VanG., ex commander [9] of 2. LEGAL CHALLENGES OF the Marine security detachment at the SPECIFIC CASE STUDIES ON U.S. Embassy in Bucharest was accused FOREIGN MILITARY PRESENCE of being involved in a deadly accident ON ROMANIAN TERRITORY on the 4th of December 2004. While driving a car belonging to the Embassy In the following subchapters, a few he crashed into a cab in an intersection cases regarding the foreign military and the accident resulted in the death of presence on Romanian territory and a person. On the 18th of April 2004 Staff the legal solutions related especially to Sgt. R.C. VanG. was offi cially accused jurisdiction aspects are to be presented. by the American military Justice for being involved in the accident that 2.1. Crazy Horse, Red Bull ended with the death of the Romanian and various ingredients artist Teo Peter (T.P. from now on). The In 2007, two American soldiers commander of the US Marine Security refused to pay the bill in a striptease club of the US Embassy decided to “Crazy Horse” from Mamaia because it start an investigation in order to analyze seemed to much in comparison to what the charges that had been brought against they had actually consumed [7]. The the American marine. Americans tried to leave the bar, but the In accordance with the USA Forces administrator ordered the security staff Military Justice Code, R.C. VanG. was to close and block the exit. The American accused, of manslaughter, obstruction of soldiers were not intimidated and in their Justice, imprudent driving and making false offi cial declarations. The American not about a lawsuit, but about a request marine was also under investigation that the USA Government should pay a for other charges as well, that were not compensation and, to his mind, the USA directly linked to the car crash, such as: Government would refuse to pay. not respecting an order or a rule, driving under alcohol infl uence and reprehensible 2.3. Saber Guardian behavior while being drunk. and the Armenian military The hearing procedure is similar Between the 13th and 26th of April to the one with a jury and the accused 2013 the “Saber Guardian 2013” exercise has the right to request the presence of took place in Romania and was organized a lawyer. Also, until proven the guilt, the by the Staff accused has the benefi t of the doubt. in cooperation with the U.S. The offi cer in charge with the Europe (USAREUR). Military from investigation of the case, LTC S.C., the Republic of Armenia participated initiated a hearing, examining the charges in this activity. brought against R.C. VanG. Among Because of alcohol abuse, two these he was found guilty of “adultery” Armenian soldiers started a fi ght with [10]. As a member of the administrative civilians in Făgăraş, on the 16th of staff of the Embassy, R.C. VanG., had April 2013. The case was investigated immunity from prosecution by the by the Romanian Police because the Romanian authorities, but he was legally Armenian military were under Romanian responsible in front of the American jurisdiction, according to the provisions military legal system, according to the of the Technical Arrangement that both declaration of J.D.C.II, the American parties had signed for this activity [13]. ambassador in Romania at the time. The Vienna Convention regarding 2.4. More Case studies the diplomatic relations marks the limits and related claims resolutions to this type of immunity and stipulates A. On the 22nd of February 2012, that a diplomatic agent is not excused around 07.30 am, an American citizen from the jurisdiction of the accrediting drove a Mitsubishi Montero, property state, the one that sends him to the of the US Army, on DN2A reaching post. R.C. VanG. was tried in the USA km. 185+800 m in Mihail Kogălniceanu after the accident where T.P. lost his and crashed into another automobile, a life [11]. A Committee of the Court Smart Ford Two. According to forensics Martial consisting of 7 members found report, L.M.C., passenger in the Smart Staff Sgt. R.C. VanG. not guilty of Ford Two automobile, driven by G.V. manslaughter and adultery, but guilty of did not require any medical attendance. 2 minor charges, obstruction of justice During the interrogatory, G.V. said and false declarations. After a touching that he would not press any charges for statement about his character, made by the damage caused in the car crash, nor his family and co-workers, presented would he want to be seen by the medical at the conviction hearing, the jury examiner. Both drivers had been tested recommended that the accused should for alcohol consumption, resulting 0,00 be given a reprimand letter [12]. mg/l, in both cases. Subsequently to the verdict, the On the 23rd of February 2012 the president of the National Institute for Army General Headquarter Department Military Justice in Washington, E.F., – Intervention Forces from Mihail stated for BBC that T.P.s family had two Kogălniceanu Airfi eld communicated solutions. The victims’ family could sue that the American citizen P.A. was a R.C. VanG. in Romania, but they would member of the United States armed never fi nd him because it was expected forces, with a contract in Romania at that he would never return to Romania Mihail Kogălniceanu Airfi eld and that or they could have fi led a complaint according to art. VII, paragraph 3, letter against the USA Government, asking for a (ii) from the Agreement between damages repair. According to E.F., it was the member countries of the North Atlantic Treaty regarding the status of 2.5. Example of a procedure on forces, ratifi ed by Law no. 23/1996, establishing liability and jurisdiction the jurisdiction priority belonged to the As previously shown, in spite of the American military authorities. The latter had relatively short experience regarding the requested to use this right and the Romanian presence of allies on Romanian territory, authorities had not fi led a petition asking to the cases already tried prove that current give up this jurisdiction right. agreements are successfully applied. The conclusion in this case was that Thus, by resorting to the examples the authorization from the competent above we managed to outline cases of agency was missing. Therefore the civil and penal liability of the allies Romanian criminal procedure would on Romanian territory. A quite simple not be applied P.A. and he would not be diagram describes the path to follow in accused of injury by negligence, which is order to establish such liability in the case provided and punished according to art. of the American armed forces stationed 184, paragraph (1) and (3) Penal Code. on Romanian ground. Thus, as far as According to the Implementation Romania is concerned, these rules or Arrangement between the United States paths are axioms where there is no room and Romanian designated authorities for “de lege ferenda”(see Figure 1). regarding claims procedures in the implementation of the Agreement between the United States of America and Romania concerning the activities of the United States forces located on the territory of Romania, the persons who have suffered damages can request reparation according to the procedures developed by the American authorities. B. On the 23rd of June 2014 at 10.18 hours, in Vâlcea district, a Chevrolet Aveo automobile, private property belonging to the complainer B.M.E., collided with a Volvo Van belonging to the USA army forces, driven by N.T., member of the US forces, who did 3. CONCLUSIONS not maintain the proper side distance from the Chevy [14]. Based on current The rules concerning the presence regulations and inherent provisions, the of foreign military on a allied state’s conclusions were as follows: territory are common for the majority - Mrs. B.M.E.’s petition for 3153.48 of the allies. When these rules are lei, the equivalent for the repairs of the not applicable, then bi or multilateral damaged motor vehicle, falls under the provisions of art. VIII, paragraph 5 from Arrangements are used; otherwise the the Agreement between the Parties to members of the force are treated like the North Atlantic Treaty regarding the simple tourists. Status of their Forces (NATO SOFA), There are, also, some cases in which ratifi ed by Law no. 23/1996. our allies were subjects of unfortunate - Solving the payment claims is the events that happened on the Romanian responsibility of the Romanian state, territory, in these situations both, the the amount is determined either through perpetrator and the victim belonged an Arrangement or through courts to the same force (American allies). order. Mrs. B.M.E. requested to receive 3153.48 lei based on the repair receipt From a legal point of view it is not in from an auto service in Galati. our interest how the allies cause damage - According to the aforementioned to each other, without affecting the life Agreement, the amount is to be paid or the goods belonging to Romanian as follows: 25% is to be covered by citizens. Although these exist, in this the Romanian side and 75% by the current paper we did not approach this American side. matter. Because, in our opinion, such events do not affect or infl uence the [7] The American soldiers were irritated to see Romanian people morale we will not that for two beers, two glasses of whisky and two make references to them. energizers, Red Bull, they had to pay 300 RON. [8] One of the men who had been hit by the States always try to protect their own Americans, the bar’s administrator, had a broken forces as much as possible, assuring, leg and hand injuries, so he needed between 12- among other things, a proper morale 14 days of medical recovery. He was transported for the troops (check, for example, to the Central Hospital in Constanta for medical Romania’s case involving gendarmes care. At the scene of the incident almost all of the in , , when even our country Military Police management team was present. protected its troops by withdrawing The latter held competence for solving the case, them immediately after being involved as well as the possible complaints that could be in a tragic event that ended with loss of fi led against the two Americans. [9] The member of the Marine Security civilian lives). On the contrary Romanian Department of the USA Embassy in Bucharest population desires to see all the people was driving the motor vehicle that crashed into who break the law (including on allies) a taxi in Bucharest, taking the life of a popular tried and condemned by the Romanian Romanian musician. He was assigned to authorities, according to Romanian law. accomplish administrative tasks at his Battalion Romania and its people must Headquarters in Virginia. Meanwhile, the military PERCEIVE and TREAT allied troops investigators traveled to Bucharest to determine as they does do with their own soldiers, if Staff Sgt. R.C. VanG., age 31 should be charged Allies are not occupational troops. They with the death of T.P. The veteran rocker, in his 50s was the bassist of the Romanian rock band are on the Romanian territory based “Compact”. R.C. VanG., ex commander of the on Arrangements signed between the Marine security detachment at the U.S. Embassy sovereign states and their presence in in Bucharest was removed from Romania Romania is benefi cial. shortly after the accident, which irritated most Without taking into consideration of the Romanian citizens. The Romanian prime- the previous principle, we will only have minister, Adrian Năstase, sent a letter to President endless frustrations, with unpleasant Bush asking him to get involved in solving this consequences, especially in the areas where situation in order to calm down the Romanian the allies benefi t from Romanian facilities. public, maybe by removing the diplomatic immunity of R.C. VanG and returning him in Romania, according to the information presented NOTES AND REFERENCES by the Romanian authorities. According to some [1]http://www.agerpres.ro/politica/2014/11/26/ news sources R.C. VanG appears to have driven dusa-romania-este-un-partener-solid-si-de- while drinking and that is the reason why he had incredere-al-sua-19-16-02, last retrieved refused the alcohol test and the investigations of 17.12.2014 the local authorities.“I know that the perception [2]http://www.mediafax.ro/politic/aurescu- in Romania is that he was smuggled out of the reconfirma-disponibilitatea-romaniei-de-a- country” said during a telephonic interview Major gazdui-elemente-de-comanda-si-control-ale- M.W.M., spokesman of the 4th Expeditionary -13698567, last retrieved 18.12.2014 Marine from Camp Jejeune.“It was the [3]http://adevarul.ro/news/eveniment/ ambassador’s decision. In conclusion the case is bogdan-aurescu-sistemul-antiracheta- still being investigated and R.C. VanG isn’t going provoaca-ingrijorare-rusia-e-garantie- anywhere, currently he is located at his romania-nu-intoarce-alta-sfera-influenta- Headquarter.” 1_5487ce2d448e03c0fd9e1439/index.html, last [10] The protagonist of the “case” was the retrieved 18.12.2014 daughter of M.W., counselor for public affairs at [4]http://www.agerpres.ro/ the Embassy. Regarding R.C.VanG another two politica/2014/12/09/aurescu-deveselu-o- charges have been brought against him, referring preocupare-pentru-moscova-intrucat-e-garantia- to “the request of committing an offence”, ca-romania-nu-se-va-intoarce-sub-o-alta-sfera- because he had asked W. to erase all email de-infl uenta-22-51-53, last retrieved 19.12.2014. correspondence and not to mention about their [5]http://oradetimis.oradestiri.ro/americanii- relationship (affair).The marine has been accused recunosc-destinatia-bazei-de-la-deveselu/#. as well of driving while drinking and reprehensible VKuWRtk7fWU, last retrieved 19.12.2014. behaviour. According to the declaration of the [6] http://www.puterea.ro/eveniment/scutul-de- Marine ’ spokesman, R.C.VanG has la-deveselu-cu-fata-catre-moscova-105613.html, voluntarily submitted to the alcohol test at the accessed on last retrieved. scene of the accident, on the 3rd of December. He has also been submitted to a blood test, but only [15] Law no. 291/2007 regarding the entrance, after determining that the tests will be executed by the stationing, the deploying of operations or the transit American personnel. of foreign armed forces on Romanians territory. [11] According to art. No.31 from the Vienna [16]http://www.ziuaconstanta.ro/stiri/ Convention, a diplomatic agent has penal eveniment/patronul-de-la-crazy-horse-ramane- jurisdiction immunity of the accredited state (the cu-buza-umfl ata-219514.html. country where he was sent to post). He also has [17]http://www.hotnews.ro/stiri-arhiva- civil and administrative jurisdiction immunity. 1060765-soldati-americani-implicati-intr- The same article shows that “the diplomatic agent scandal-mamaia.htm. cannot be forced to testify“ and that against him [18]http://www.realitatearomaneasca. one can take no measure that could harm “personal ro/content.php?c=articole&id_ or residence immunity”. The “diplomatic agent” categorie=6&articol_id=7349&article=militari+ is the chief of the mission or a member of the americani+batuti+la+un+club+din+mamaia. diplomatic staff of the mission. [19]http://www.9am.ro/stiri-revista- [12] In the opening pleading, the main presei/2007-06-20/doi-ofi teri-americani-batuti-intr- prosecutor, captain C.M., from the Marine un-club-de-noapte-din-mamaia.html. stated in front of the court that R.C.VanG [20]http://www.antena3.ro/romania/militari- (married with two children) ignored three traffi c americani-batuti-intr-un-club-de-striptease-din- lights and hit the taxi where T.P. was. Afterward mamaia-34443.html; the accused lied to the investigators regarding [21]http://jurnalul.ro/stiri/observator/mamaia- the events in the night of the accident. The main militari-americani-batuti-intr-un-club-95308.html. lawyer representing R.C.VanG, Major P.S., stated [22]http://www.gandul.info/stiri/doi-militari- in front of the court that the traffi c in Bucharest americani-batuti-intr-un-club-de-striptease-din- is so “chaotic” and the intersection where the mamaia-350186. accident occurred is so confusingly lighted that [23]http://www.mediafax.ro/social/militari- the accused could not have avoided the crash, americani-batuti-la-un-club-din-mamaia-fi indca- even if he had exceeded the maximum legal speed au-refuzat-sa-achite-nota-de-plata-349614. and the taxi “also moved very fast”. The Court [24]http://www.military.com/ Martial, formed out of 7 members, is the military NewContent/0,13190,SS_121504_Crash,00.html. equivalent of a jury Court. Its members - 3 of [25] http://jurnalul.ro/stiri/observator/ucigasul- them being sergeants, another is sergeant lui-teo-peter-este-acuzat-si-de-adulter-40526.html. major and three majors – had been designated on [26]http://jurnalul.ro/stiri/observator/cazul- Monday, one day before the hearings. teo-peter-omor-prin-imprudenta-46481.html. [13] The exercise took place in Romania at [27]http://stiri.tvr.ro/ce-spune-conventia-de- the Training Combat Centre of the Land Forces la-viena-despre-imunitatea-diplomatica-van- Cincu, between the 13th and 26th of April goethem-e-liber-ionescu-e-judecat_22910.html. 2013. Following this incident the Prosecutors [28]http://www.stripes.com/news/ Offi ce within the Courthouse in Făgăraş, started vangoethem-cleared-of-major-charges-in- a judicial fi le. According to the provisions of romanian-s-death-1.44302. Law no. 291/2007 regarding the entrance, the [29]http://www.9am.ro/stiri-revista- stationing, the deploying of operations or the presei/2006-01-26/avocatii-lui-vangoethem-teo- transit of foreign armed forces on Romanians peter-nu-a-murit-din-cauza-impactului.html. territory “the military authorities of the sending [30]http://www.libertatea.ro/detalii/articol/ nation are obliged to notify the Ministry of Justice ucigasul-lui-teo-peter-de-negasit-199886.html; of the host nation, in 24 hours from the moment the [31]http://www.bbc.co.uk/romanian/news/ act was committed, which has all the elements of story/2006/02/printable/060203_justitie_ a crime committed by a member of its own force, american.shtml. regardless if the action was performed inside or outside the facilities or the established zones”. ACKNOWLEDGMENT The obligation of the Armenian military personnel participating to SABER GUARDIAN 13 to submit This work was possible with the fi nancial to Romanian laws was foreseen in article 7 from support of the Sectoral Operational Programme for the Technical Arrangement between the Armenian Human Resources Development 2007-2013, co- Ministry of Defense and the Romanian Ministry fi nanced by the European Social Fund, under the of National Defense regarding the provisions of project POSDRU/159/1.5/S/138822 with the title the host nation support for the military exercise “Transnational network of integrated management “SABER GUARDIAN 13”. of intelligent doctoral and postdoctoral research [14] According to the Police Report no. CP in the fi elds of Military Science, Security and 6931125, registered at the Road offi ce from Intelligence, Public order and National Security Râmnicu Vâlcea, attached to the fi le, guilty for – Continuous formation programme for elite the accident is N.T. researchers - “SmartSPODAS””.