U.S. Service Members Facing Criminal Proceedings in Germany

By Dr. Julius Hagen, Attorney at Law (Germany)

Jurisdiction, waiver and specific transfer

When German police, Military Police, CID, OSI or a service member’s chain of command becomes involved, the same facts may be investigated in two legal systems. Before giving an account, counsel needs to determine who has jurisdiction, which authority controls the file and whether the case may be transferred to U.S. military authorities.

NATO SOFA does not give service members personal immunity. It allocates criminal jurisdiction between Germany and the sending state. The result depends on the accused’s status, the interests affected, any official-duty connection and whether the conduct is punishable under German law and U.S. military law.

What to do after an incident

• Do not give an uncoordinated factual account to German police, Military Police, CID, OSI or the chain of command before receiving independent defense advice. State that you want to consult counsel first. Identifying information and lawful military orders are separate matters; obligations under U.S. military law should be discussed with U.S. defense counsel.
• Keep every summons, rights advisement, seizure inventory, traffic document and unit communication. Record case numbers, offices, investigators and the time of each contact.
• Do not delete or alter messages, location data, photographs, video, dashcam material or vehicle data. These records may confirm, contradict or refine the reported sequence of events.
• Tell counsel your status, service branch, installation or TDY location and any expected PCS or transfer date. Do not send classified or restricted official material through ordinary contact channels.

Allegations that may involve NATO SOFA

NATO SOFA may become relevant after allegations involving driving under the influence of alcohol or drugs (DUI), an off-base altercation, domestic violence, drug possession or another traffic offense. The offense label alone does not answer the jurisdiction question. The incident location, personal status, any official-duty connection and punishability under both legal systems must be examined separately.

How NATO SOFA allocates criminal jurisdiction

Germany may prosecute conduct committed in Germany that is punishable under German law. U.S. military authorities may exercise the criminal and disciplinary powers granted by U.S. law over persons subject to the UCMJ. Article VII NATO SOFA governs how those powers interact.

Punishable only under U.S. law

If the conduct is punishable under the law of the sending state but not under German law, the sending state has exclusive jurisdiction. This category principally includes military offenses with no corresponding German criminal offense.

Punishable only under German law

If the conduct is punishable under German law but not under the U.S. law applicable to the person, Germany generally has exclusive jurisdiction under Article VII(2)(b). The general waiver under Article 19(1) of the Supplementary Agreement does not alter that result. A specific transfer under Article 19(5)(b) is a separate mechanism.

Punishable under both systems

Where jurisdiction is concurrent, the sending state normally has the primary right for offenses solely against its security or property, solely against a member of its force, civilian component or a dependent, and for acts or omissions in the performance of official duty. Germany otherwise begins with the primary right.

When the classification depends on whether the conduct is punishable under U.S. law, Article 17 creates a formal procedure. The German court or authority suspends the matter and notifies the competent sending-state authority. That authority may submit a certificate within 21 days identifying whether the conduct is punishable, the legal basis and the available penalty. The German decision generally follows the certificate. This period is separate from the 21-day recall period under Article 19.

Two routes to U.S. handling of a case

The first route concerns concurrent jurisdiction. Germany has generally waived its primary right under Article VII(3)(b) in favor of the United States. U.S. military authorities notify the competent German authority of individual cases. A German public prosecutor may recall the waiver within 21 days when major interests of German justice make the exercise of German jurisdiction imperative.

Article 19(5)(b) also permits the transfer of a particular criminal case in which jurisdiction rests with Germany to the military authorities of the sending state. Their consent is required, and Article 3 of the German implementing legislation assigns the German transfer decision to the public prosecutor. This is not the general waiver and does not create a U.S. offense. Before transfer, the available U.S. legal basis and possible form of disposition should therefore be established.

The German file should show which route was used, when notification arrived, whether the waiver was recalled and which authority received files or evidence. Ending the German investigation on this basis is neither an acquittal nor a finding that suspicion has disappeared. It differs from an evidential discontinuance under section 170(2) or a discretionary discontinuance under sections 153 and following of the German Code of Criminal Procedure. The service member cannot simply choose the forum.

Practical example: Illegal motor racing

Section 315d of the German Criminal Code covers organizing or conducting an unauthorized race, participating as a driver and a solo run at an inappropriate speed with the intention of reaching the highest possible speed. Endangerment, injury or death increases the sentencing exposure, and driving privileges may also be affected.

The UCMJ has no single offense matching every branch of section 315d. Article 113 covers reckless or wanton operation of a vehicle. Under the Manual for Courts-Martial, speed alone does not necessarily establish recklessness; the circumstances and the actual or imminent danger matter. Article 134 applies only if its own elements and the Manual’s limitations are satisfied.

A driver’s case may therefore involve concurrent jurisdiction, while a non-driving organizer may present a different analysis. If no offense exists under applicable U.S. law, German jurisdiction generally remains exclusive. The general waiver then does not apply; any specific transfer under Article 19(5)(b) requires separate analysis. Counsel must bring together the Article 17 certificate, the German investigation file and qualified U.S.-law advice.

Liaison offices coordinate but do not defend

Article 19 provides for notifications between military and German authorities. In cases of exclusive German jurisdiction, it expressly refers to a liaison agency designated by the sending state for service of documents. In practice, Host Nation Law or Foreign Criminal Jurisdiction personnel at installation legal offices also work with prosecutors and courts. The details depend in part on the administrative rules and practice of the German state handling the case.

Files, evidence and, where applicable, the accused may move between authorities. Defense counsel should establish who holds each original, where copies remain and how rights advisements, interpretation and transfers were documented.

The legal office’s liaison function is not independent defense representation. Official U.S. offices explain that their Foreign Criminal Jurisdiction work does not create an attorney-client relationship. Depending on the service, personal U.S. military advice may be available through Trial Defense Service, Area Defense Counsel or private military counsel. German and U.S. counsel should coordinate while remaining responsible for different legal systems.

Major U.S. installations in Germany

The jurisdiction framework may apply to incidents away from an installation. Major locations and communities include:

• Rhineland-Palatinate: Ramstein Air Base, Spangdahlem Air Base, the Kaiserslautern Military Community including Kaiserslautern, Sembach and Landstuhl, and Baumholder with Smith Barracks and Wetzel Kaserne.
• Bavaria: USAG Bavaria at Grafenwoehr, Vilseck, Hohenfels and Garmisch; and USAG Ansbach at Katterbach, Bismarck Kaserne, Barton Barracks, Bleidorn Kaserne, Shipton and Urlas Kaserne, and Storck Barracks in Illesheim.
• Hesse and Baden-Wuerttemberg: USAG Wiesbaden at Clay Kaserne and USAG Stuttgart at Patch Barracks, Panzer Kaserne, Kelley Barracks, Robinson Barracks and Stuttgart Army Airfield.
• Additional U.S. elements are present at Buechel Air Base, NATO Air Base Geilenkirchen and Kalkar. For exercises, TDY or official travel, the individual status must be verified from the relevant documents.

An off-base incident does not disapply NATO SOFA. Conversely, proximity to a U.S. installation is not enough; status and the jurisdiction rules control.