18 agreements mentioned included the Bilateral Infrastructure Agreement (BIA) of 20 October 1954; Memorandum of Understanding (PROTOCOLE OF ACCORD, MOU) on the use of Aviano Air Base, November 30, 1993; and Shell`s agreement of 2 February 1995 between the Italian, the Secretary of Defense and the US Department of Defence. Due to their nature of “classified information”, the content of these agreements was known to the public prosecutor, but could not be disclosed. The “declassification” had been requested but had not yet been granted. The temporary deployment of the Partnership for Peace (PfP) armed forces and other third countries to Germany requires an agreement under the Visiting Forces Act of 20 July 1995 (Bundesgesetzblatt 1995 1995, p.554, Bundesgesetzblatt 2002 II P.2482). Under Article 1 of the Act, the federal government can make such agreements with foreign states effective regarding the entry and short-term presence of their armed forces in Germany for exercises, overland transit and legal instrument training. So far, the federal government has concluded such agreements with Poland (agreement of 23 August 2000) and the Czech Republic (agreement of 31 July 2003). The status of NATO headquarters and its personnel is governed by the protocol on the status of the international military headquarters established under the North Atlantic Treaty of 28 August 1952 (Bundesgesetzblatt 1969 II P.2000). The complementary agreement to the Siege Protocol of 13 March 1967 also applies in Germany (agreement between the Federal Republic of Germany and the Higher Headquarters of the Allied Powers of Europe on the special conditions for the creation and operation of an international military headquarters in the Federal Republic of Germany, Bundesgesetzblatt 1969 II, p.2009). 17 NATO SOFA was seen as a remake of the established principle of international customary law of the “flag law”.
The status of the armed forces abroad, in the absence of a treaty providing for the exercise of criminal justice, was discussed by Serge Lazareff, status of the armed forces under international law 11-18 (1971). An in-depth analysis of state practice prior to World War II can be found under G. P. Barton, Foreign Armed, Forces: Immunity from Criminal Jurisdiction, 27 Brit. Y.B. Int`l L. 186 (1950); and G. P. Barton, Foreign Armed Forces: Qualified Jurisdictional Immunity, 31 Brit. Y.B. Int`l L.
341 (1954). See also D. S. Wijewardane, Criminal Jurisdiction over Visiting Forces with Special Reference to International Forces, 41 Brit. Y.B. Int`l L. 122, 141, 146, 194 (1965-66) (noting that Article VII, far from being a “radically new system,” is a coherent statement on the principles and practices already established in international law). The view that no general rule of international law supports the immunity of foreign forces for acts taken at their official status was recently defended by Pasquale de Sena, Diritto internazionale e immunity funzionale degli organi statali 244-50 (1996).
The presence of foreign armed forces on German territory requires a specific legal basis. The distinction must be made between the right of attendance and the rules of power law. The right of presence stems from the necessary formal agreement of the Federal Republic of Germany for the presence of foreign armed forces on its territory. The right of residence for their presence includes all the legal provisions to which foreign forces are subject while they are on German soil. The presence of NATO troops stationed in Germany on the basis of a special agreement is subject to the NATO Agreement on the Status of the Armed Forces (SOFA) of 19 June 1951 (agreement between the contracting parties to the North Atlantic Treaty on the Status of their armed forces, Bundesgesetzblatt 1961 II p.1190) and the additional SOFA agreement of 3 August 1959 (agreement complementing the agreement between the contracting parties to the North Atlantic Treaty on the status of (Bundesgesetzblatt 1961 II P.1218).