New Norway - USA Defense Agreement Allows Extensive US Authority in the North

On Friday, the Norwegian parliament Stortinget voted to adopt a new defense agreement with the USA, as well as a law proposal as to how to conduct this. Both proposals were adopted against the votes of SV (Socialist Left) and Rødt (the Red Party).

The agreement has come following an American initiative, and the USA has argued that the adoption of the new agreement is an “indispensable precondition” for making new infrastructure investments in Norway.

According to the agreement, the USA will have unconditional right to access and use of four “agreed areas”. In Northern Norway, the two areas in question are Ramsund Naval Base and Evenes Air Base.

So-called “agreed areas” are basically limited places to be used jointly by the USA, Norway, and other allies for military purposes. In these areas, the USA can conduct training and exercise, deploy forces and store equipment, supplies, and other gear.

The agreement also opens up for providing the USA with exclusive access and right of use to parts of the areas following special agreements. In and immediately near these areas the USA will also have authority to exert authority over Norwegian citizens.

Another key point of the agreement is that the USA will have the first right to prosecute American troops who have committed legal offences outside duty.

The extended access to exert authority, and prosecution jurisdiction have been subject to critical reviews from the Judge Advocate General (JAG) as well as the Director of Public Prosecution (DPP). These are the top military and civilian prosecution authority in Norway, respectively.

Agreed areas

The concept of ‘agreed areas’ is an innovation compared to existing agreements, the Norwegian Ministry of Defense (MoD) writes in a hearing note.

Generaladvokat Sigrid Redse Johansen. (Foto: Generaladvokatembetet)

The two existing agreements are the 1950 defense agreement with the USA as well as the 1951 SOFA Agreement of NATO. The latter regulates visiting forces’ legal status in host countries and last winter granted the USA the right to take over the investigation of an airplane crash accident in Beiarn, Northern Norway.

The MoD also points out that American use of the areas is to “take place with full respect of Norwegian sovereignty, Norwegian laws, and public international law commitments and based on consultation between the parties”.

“The duty to respect Norwegian law may in reality be hard to demand in practice if there were to be a dispute or doubts about its adherence”, JAG Sigrid Redse Johansen writes in her hearing note.

Exertion of authority over civilians

Through the agreement’s security article VI, a wide window of opportunities opens up for American assertion of authority based on security regards, both the JAG and the DPP point out in their hearing notes.

“The access to exert authority (and power) is located with each troop member, and authority can be exerted towards anyone who comes into contact with the agreed area or who, in extraordinary cases, come in the way for an American operation”, the JAG writes.

Both offices argue that it is possible to envision that someone may end up violating American predefined security zones in relation to troop movements and exercises.

This may for instance happen at sea, where general traffic easily can run into military operations in domestic waters, the JAG points out and continues:

“Power can thus be exerted by any American troop member towards Norwegian civilians to restore order or protect the force.”

The agreement does not mention what security measures may be implemented from the American side, other than their having to be “suited and proportionate”.

Non-specified security vent

The security clause also states that “American troops shall coordinate their security plans with Norwegian authorities”. This is meant to be a security vent to prevent exaggerated and random use of power, both offices remark.

However, it does not say anything about who is to coordinate this or how to do it, they comment.

Riksadvokat Jørn Sigurd Maurud. (Foto: Riksadvokatembetet)

“Previous experiences indicate that there may be differences in opinion amongst Norwegian authorities about who should be the correct coordination authority”, the JAG writes.

The Director of Public Prosecution argues that the police should be included as coordination party and recommends that this be specified in a regulation to the law. The JAG expresses a similar view and says the following:

“Both sides undoubtedly have the best of intentions for practicing the agreement, however, the real Norwegian control with the conditions for American use of power on Norwegian territory do not appear prominent.”

Different threat perceptions

Following on from the aforementioned conditions, the JAG and the DPP argue that there may be challenges in relation to practicing the security clause in light of differing threat perceptions.

An American view on what constitutes a security threat against American forces or operations, and what countermeasures that are deemed acceptable, may diverge from the Norwegian view, the two offices remark.

Dialogue through the clause about coordination with Norwegian authorities can in many cases provide a joint situational understanding, however, hardly in all cases, the JAG writes and continues:

“In cases where differing approaches to the threat perception or what constitutes proportionate measures are taken to the extreme, Norwegian authorities do not have veto right.”

Both offices use an example of an imaginary case in which American forces respond to violations against an American-defined security zone with opening fire in adherence with standing orders.

If such an order were to be given to American troops in Norway, there may be a need to inform the population that it might be dangerous to represent an obstacle to American vessels and operations, as well as trespassing on the agreed areas”, the JAG points out.

Jurisdiction in prosecution

As for jurisdiction in prosecution, the USA’s rights are expanded in the agreements in two important areas, according to the JAG and the DPP.

The USA is given the first right to prosecute American troops that have committed criminal offences off duty, and the right to define what is an act of duty and what is not.

In special cases, Norway may revoke this first right and this is described as particularly relevant when it comes to serious crimes, such as e.g. rape. Norwegian authorities may also object to American assessments of what is an act of duty and what is not.

With this agreement, the USA will thus be able to exert primary jurisdiction in all criminal cases, the JAG points out. Following the current agreement framework (the NATO SOFA agreement), such primary right is reserved to acts of duty alone.

Norway’s possibility of revoking primary jurisdiction in special cases is a limited exemption clause, the DPP argues and continues:

“The practical main rule will in the future be that American authorities will prosecute crimes committed by their own forces.”

May challenge sense of justice

The Director of Public Prosecution indicates three main criminal offence areas that may include American troops in Norway:

• Crimes with “American content” in which those involved are American citizens and the incident has taken place in an area over which the USA holds authority.
• Less serious crimes affecting Norwegian citizens, such as a traffic incident between a Norwegian and an American vehicle.
• Serious crimes committed by American troops towards Norwegian citizens, such as grave bodily harm or sexual assault, for instance related to partying and consumption of alcohol.

“It is in particular the latter category that may challenge the Norwegian sense of justice if the outcome is for the soldier to be prosecuted in the USA, the DPP argues.

The Judge Advocate General also remarks that leaving the prosecution of serious crimes with Norwegian victims to the USA may harm the general Norwegian sense of justice.

The Judge Advocate General and the Director of Public Prosecution have not wanted to elaborate further on their original hearing comments.

This article was originally published in Norwegian and has been translated by HNN's Elisabeth Bergquist.

The first paragraph has been adjusted since publishing of the original Norwegian article to reflect events taking place since then (the formal adoption of the new agreement).