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Chicago Journal of International Law

Abstract

The current deployments of military forces to Iraq and Afghanistan have caught the attention of the American public, but many Americans forget that large numbers of their fellow citizens are also stationed elsewhere around the world, serving in uniform. These servicemembers had been stationed overseas before Operation IRAQI FREEDOM began, and they will remain there long after that conflict has ended. These men and women face special circumstances: they are US citizens, subject to the laws of the United States and the US military. But at the same time, they are living in another country and are also subject to the laws and jurisdiction of their host country. For the most part, negotiated legal agreements decide which country will prosecute them in the event of criminal misconduct, and prosecutions are handled routinely in most cases. But if a servicemember is accused of a crime which could be punished by the death penalty in the United States, the host country often becomes concerned. This is especially true in Europe, where a number of treaties ban the imposition of the death penalty in all circumstances. In these cases, European countries try to assert their own jurisdiction over the accused so as to prevent a possible death sentence for him or her, even when such action conflicts with a bilateral treaty signed with the US. Such situations force European countries to choose between conflicting international treaty obligations: one which abolishes the death penalty and another which directs them to hand over criminal defendants to the US military. This Development discusses the issues that arise from such conflicting treaty obligations in the case of US servicemembers stationed abroad and proposes solutions consistent with international law and the current status of diplomatic relations between the US and European states.

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