Major Lepper examines an apparent irreconcilability between the NATO Status of Forces Agreement (SOFA) and the European Convention on Human Rights (ECHR) as reflected in the recent Dutch High Court decision of Short v. The Kingdom of the Netherlands. Staff Sergeant Short, a member of the United States Air Force, was charged with the murder of his wife. Under the SOFA, the Netherlands was obligated to surrender Short to the United States. It refused, basing its actions on its adherence to the ECHR and its concerns about the possible implementation of the death penalty in the United States.
The ECHR prohibits the extradition of anyone facing "inhuman or degrading treatment or punishment." Although the original ECHR did not prohibit capital punishment, a later amendment to the ECHR, the Sixth Protocol, does prohibit capital punishment. The Dutch High Court relied heavily on the European Court on Human Rights interpretation of the ECHR in the Soering case as the basis for its decision.
The Dutch High Court agreed that the NATO SOFA required surrendering SSgt Short to the United States, but determined that the perceived conflict between the SOFA and the ECHR must be resolved by applying the ECHR. The author identifies flaws in the High Court's finding that the ECHR afforded protection for SSgt Short, a finding that created the conflict between the SOFA obligation to surrender the prisoner and the ECHR mandate to shield him from capital punishment. Citing European Court precedent and the Vienna Convention's conflicting treating rules, the author finds that the SOFA and the ECHR can be read consistently and suggests that renegotiation of the SOFA is neither necessary nor inevitable.
The author next evaluates the Dutch position in Short. Because that position is grounded in the emerging jurisprudence of human rights, the author reviews Dutch human rights law and policy and the applicable portions of the ECHR. The assertion that international human rights laws supersede other international laws is analyzed in the context of international law's practice of ranking certain norms as "fundamental." Finding that capital punishment does not violate a peremptory norm, the author then analyzes the claim that it violates a fundamental right. If the right not to face capital punishment is indeed fundamental, the issue becomes whether the NATO SOFA or a customary regional norm prevails. The author considers arguments supporting each position and the suggestion that international treaty law justifies a revision of the NATO SOFA. Major Lepper, however, concludes that similar cases should be decided on a case-by-case basis so that both countries' policies can be maintained: strong alliance, military disciplinary control, and human rights. This case-by-case basis must include a mutual willingness to reach a compromise such as the one agreed to in Short: the United States agreed to forego the option of capital punishment in order to retain disciplinary control over its military personnel.
Steven J. Lepper,
Short v. The Kingdom of The Netherlands: Is it Time to Renegotiate the NATO Status of Forces Agreement?,
24 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol24/iss5/1