NATO SOFA STATUS FOR NON-DOD USG CIVILIANS AT U.S.

C O N F I D E N T I A L BERLIN 001204

SIPDIS

DEPARTMENT PLS PASS TO USDA FAS WASHDC AND
USDA APHIS WASHDC

E.O. 12958: DECL: 08/28/2018
TAGS: PREL MARR NATO AMGT APER GM XA
SUBJECT: NATO SOFA STATUS FOR NON-DOD USG CIVILIANS AT U.S.
MILITARY COMMANDS IN GERMANY: DUAL APPOINTMENTS OFFER
EXPEDITIOUS SOLUTION

REF: A. BERLIN 1102

B. BERLIN 1033

C. BERLIN 90

D. 07 STATE 167990

Classified By: DCM JOHN KOENIG. REASONS: 1.4 (B) AND (D).


1. (U) This is an action request. See para 10.


2. (C) SUMMARY: In its most recent correspondence with the
Embassy, the German Foreign Office retreats from some of its
previous unhelpful positions, but continues to contend that
only DOD USG civilian employees or dual-appointed non-DOD USG
civilian employees can be considered "in the employ of an
armed service" and therefore eligible for NATO SOFA status.
While our back-and-forth discussion with the Germans has
focused on USAFRICOM, the Foreign Office has made it clear
that its conclusions about the applicability of the SOFA to
non-DOD USG civilian personnel is valid for all U.S. military
commands in Germany, including for USEUCOM and its component
commands. The Germans are strongly encouraging us to resolve
this issue by simply dual-appointing all non-DOD USG
civilians. While the Foreign Office indicates a willingness
to explore other avenues for covering non-DOD civilians, such
as through a supplementary agreement to the SOFA, this would
likely be a lengthy process, which could be complicated by a
number of domestic factors, including expected parliamentary
elections in September 2009. The practical effect of this
impasse is to prohibit a small number of USG civilian
employees assigned to work at USEUCOM, USAFRICOM and other
U.S. military commands in Germany from receiving SOFA status.
Unless we reach a resolution in the next two months, the
continued assignments of at least two of these employees are
at risk. Even if dual appointments are ultimately judged as
not being the ideal long-term solution, we strongly recommend
effecting dual appointments for all non-DOD USG civilians in
the short term until an permanent agreement can be negotiated
with the Germans. END SUMMARY.

Latest Letter from Foreign Office: Some Progress


3. (U) Foreign Office Legal Advisor Georg Witschel sent a
letter to the Embassy on August 22 (see full text in para 11
below),responding to the Charge's August 6 letter (ref A) on
the issue of SOFA status for non-DOD U.S. government
employees serving at USAFRICOM. In the letter, Witschel
backs away from the intimation in his previous correspondence
(ref B) that AFRICOM would be limited to no more than 100
dual-appointed non-DOD civilian employees, underscoring that
Germany is "prepared to react in a flexible manner to
accommodate the human resource requirements incumbent in
manning AFRICOM." He does not challenge our assertion that
the number of DOD employees who can serve in Germany --
including dual-appointed personnel -- is limited only by the
Presence Convention. Witschel also fails to reiterate his
previous assertion that dual-appointed personnel would not be
eligible for SOFA status unless they serve in a "troop
support" role.

Dual Appointments: "Simplest and Quickest Solution"


4. (U) Witschel, however, states that he does not accept the
U.S. view that the wording of Article I of the SOFA ("in the
employ of an armed service") is flexible enough to cover any
government employee whose services are utilized or engaged by
an armed service, provided they accompany the force. He
insists that only DOD civilian employees or those non-DOD
civilians detailed to DOD through an appointment, may be
considered in the employ of an armed service and therefore
eligible for SOFA status. He concludes that from the German
perspective, the "simplest and quickest solution" regarding
the legal status of non-DOD civilian employees at AFRICOM is
to dual appoint them to DOD. Nevertheless, he leaves the
door open to "a possible arrangement under public
international law" and offers further discussions in this
regard.

Effect on USEUCOM and its Component Commands


5. (C) While the Witschel letter specifically addresses only
AFRICOM, the Foreign Office has made it clear to us that its


conclusions about the applicability of the SOFA to non-DOD
personnel is valid for all U.S. military commands in Germany,
including EUCOM and its component commands. In recent years,
the Foreign Office had been willing, through an exchange of
diplomatic notes, to extend SOFA status to a small number of
non-DOD U.S. civilian personnel working at EUCOM. This is
how, for example, SOFA status was extended just last year to
the new six-person Joint Interagency Coordination Group
(JIACG) (now known as the Command Interagency Engagement
Group or CIEG) at EUCOM, which consists of personnel from
State, Treasury and Justice. The diplomat in residence at
the George C. Marshall Center for Security Studies in
Garmisch is also covered in this way, as is the USAID
representative and a handful of Department of Veterans
Affairs and General Services Administration personnel at
EUCOM.


6. (C) But in response to our initial request in December to
extend this same SOFA treatment to all AFRICOM non-DOD
civilians (refs C and D),the Foreign Office, in consultation
with the ministries of Justice and Interior, concluded that
this approach was no longer viable. We have been told flatly
not to expect any further non-DOD civilians at EUCOM to be
covered through an exchange of notes. A request, for
example, that we submitted to the Foreign Office in February
to extend SOFA coverage to a new Department of Agriculture
liaison position at EUCOM is unlikely to be acted upon. That
said, the Foreign Office has made no moves to invalidate the
previous exchanges of notes extending SOFA status to certain
non-DOD civilians at EUCOM. Our recommendation is that we
proceed on the assumption that these agreements remain fully
valid until expressly told otherwise. Since the status was
extended by the Foreign Office on the basis of positions,
rather than individuals, the SOFA status for these particular
positions should remain valid indefinitely.


7. (C) It is important to note, however, that there has never
been an exchange of notes covering certain long-time non-DOD
USG civilian positions at EUCOM, most notably the foreign
policy advisor (filled by the State Department). Given that
the Germans have now made clear their view regarding non-DOD
civilians without dual appointments, this is another issue we
will have to address urgently, along with the relatively new
non-DOD civilian positions at AFRICOM, EUCOM and other
subordinate U.S. military commands not already covered
through an exchange of notes.

Way Ahead


8. (C) As the Foreign Office itself suggests, one way to
resolve the SOFA status issue for non-DOD civilian employees
at AFRICOM or EUCOM not already covered through an exchange
of notes is simply to dual appoint all of them to DOD. We
defer to Washington agencies on the viability of this way
forward, but would point out that German authorities seem
relatively relaxed on how dual appointments are carried out
and what the detailed provisions might be in each case.
There appears to be some flexibility, for example, for DOD to
do non-reimbursed dual appointments in certain cases, i.e.,
where DOD would not reimburse the home agency for the salary
and other costs associated with the employee. The U.S.
issues its own SOFA credentials for its personnel in Germany;
applications are not reviewed by German authorities. The
German government has shown no interest in knowing the
details of how dual-appointed employee are compensated or
performance-rated. The Federal Office seems prepared to
acknowledge that non-DOD employees have SOFA status based
solely on our certification that they have dual appointments
at DOD.


9. (C) Another way forward is to seek to negotiate a
supplementary agreement with Germany that would cover non-DOD
civilian positions whose incumbents lack dual appointments.
Although Witschel indicates a willingness to explore this
avenue, such a negotiation would be a lengthy process, which
could be complicated by a number of domestic factors,
including expected German parliamentary elections in
September 2009. We cannot count on addressing the immediate
problem with currently uncovered non-DOD civilians through a
negotiated agreement. By the Embassy's reckoning, there are
at least five non-DOD USG civilians currently serving at


AFRICOM, EUCOM or one of their component commands who lack
SOFA coverage based on the current German legal position.
There may be others:

-- the AFRICOM Foreign Policy Advisor,
-- the EUCOM Foreign Policy Advisor,
-- the SOCEUR Foreign Policy Advisor,
-- the EUCOM Department of Agriculture (USDA) liaison
officer, and
-- the EUCOM Diplomatic Security (DS) liaison officer.

In the case of the USDA and DS liaison officer positions,
failure to obtain SOFA status for recently-arrived employees
will likely result in the termination of their assignments.



10. (C) ACTION REQUEST: Please advise on the Department's
preferred way forward in providing SOFA coverage for non-DOD
USG civilians working at U.S. military commands in Germany.
Even if dual appointments are ultimately judged as not being
the ideal long-term solution, we strongly recommend effecting
dual appointments for all non-DOD USG civilians in the short
term until an permanent agreement can be negotiated with the
Germans. END ACTION REQUEST.


11. (U) Unofficial Embassy Translation of German Letter
(received August 22):

Dr. Georg Witschel
Advisor on International Law
Head of the Legal Division
Ministry of Foreign Affairs
11013 Berlin

To the
Minister of the Embassy of the United States of America
Mr. John Koenig
Pariser Platz 2
10117 Berlin

Berlin, August 15, 2008

Reference: Regional Command of the U.S. Forces for Africa
(AFRICOM)
File No.: 503-554.60 USAFRICOM (Please reference in reply)

Dear Minister, Dear Mr. Koenig,

Thank you very much for your letter of 6 August 2008.

The Federal Government welcomes and supports emphatically
that the United States of America has continued to station
armed forces in Germany. In particular, it welcomes the
establishment in Stuttgart of the U.S. Regional Command for
Africa, which pursues an innovative approach, based on the
concept of "vernetze Sicherheit" ("networked security") that
combines military and civilian resources to resolve conflict
and promote stabilization.

At the same time, I ask you to understand that the Federal
Government is bound by existing multilateral provisions of
the NATO Status of Forces Agreement as well as domestic
German law with regard to the issue of legal status for
civilian employees working at AFRICOM.

The Federal Government shares the position of your government
that civilian employees of other departments, who through the
dual appointment process are detailed to the U.S. Department
of Defense, comprise part of the civilian component of the
U.S. Forces. To the extent that a numerical limitation was
applied to them in the past, this was primarily the result
of Diplomatic Note Number 2266 of the US Embassy, dated 25
January 2008, that informed the Federal Government of the
limited personnel requirements of AFRICOM. Nevertheless, the
Federal Government is prepared to react in a flexible manner
to accommodate the human resource requirements incumbent in
manning AFRICOM.

As was already discussed during your meeting with State
Secretary Dr. Ammon, the legal status of civilian employees
at AFRICOM is governed fundamentally by the NATO Status of


Forces Agreement and the Supplementary Agreement. Neither
these agreements nor applicable German legislation provide a
legal basis for civilian employees, who lack even a dual
appointment detailing them to the U.S. Department of Defense,
to comprise part of the civilian component of the U.S.
Forces.

Furthermore, the Federal Government is of the opinion that
civilian component means the civilian personnel accompanying
a force of a Contracting Party who are in the employ of an
armed service of that Contracting Party, and who are not
stateless persons, nor nationals of any State which is not a
Party to the North Atlantic Treaty, nor nationals of, nor
ordinarily resident in, the State in which the force is
located (Art. I sub-para b, NATO SOFA). Whether this test is
met depends on the facts in each individual case. Mere
"assignment" to a military organization will normally be
insufficient evidence to establish that this test has been
met. I do not share your interpretation that even civilian
employees, who are not detailed to the Department of Defense
by way of appointment, may be considered "in the employ of an
armed service."

From our perspective, the simplest and quickest solution
regarding the legal status of civilian employees at AFRICOM
should be found on the US side by assigning the personnel to
the Defense Department. However, I would like to emphasize
that we continue to be receptive to a possible arrangement
under public international law and we offer you further
discussions in this regard.

The Federal Government wishes your government continued
success in the establishment of AFRICOM and will support you
as much as we can.

Yours sincerely,

Georg Witschel
TIMKEN JR