When discussing the status of military forces a distinction must be drawn between the legal status of foreign forces in Germany and the legal status of the German armed forces abroad.
The status of foreign forces in Germany
The presence of foreign forces on German territory requires a special legal basis. A distinction must be drawn between the right of presence and the law governing such presence. The right of presence derives from the required formal consent given by the Federal Republic of Germany to the presence of foreign armed forces within its territory. The law of residence governing their presence includes all legal provisions to which foreign forces are subject while present on German soil.
Right of presence
After the end of World War II, the presence of foreign armed forces in Germany was initially based on the law imposed by the occupying powers. This regime ended on 5 May 1955 with the entry into force of the Convention on Relations between the Three Powers and the Federal Republic of Germany of 26 May 1952 (Federal Law Gazette 1955 II p.303). On 23 October 1954, the Convention on the Presence of Foreign Forces in the Federal Republic of Germany (Federal Law Gazette 1955 II p.253) between Germany and eight partners (Belgium, Canada, Denmark, France, Luxembourg, the Netherlands, the United Kingdom of Great Britain and Northern Ireland, and the United States of America) created a treaty basis for the presence of forces stationed in Germany. This open-ended Convention remains effective following the conclusion of the Two plus Four Treaty (Treaty on the Final Settlement with respect to Germany of 12 September 1990, Federal Law Gazette 1990 II p.1317), but can now be terminated by giving two years' notice (Exchange of Notes of 25 September 1990, Federal Law Gazette 1990 II p.1390 and of 16 November 1990, Federal Law Gazette 1990 II p.1696). In principle, it still does not apply to Berlin, Brandenburg, Mecklenburg-Western Pomerania, Saxony, Saxony-Anhalt and Thuringia (the former GDR). However, an Exchange of Notes (of 25 September 1990, see Federal Law Gazette 1990 II p.1251, Federal Law Gazette 1994 II p.29, and 12 September 1994, see Federal Law Gazette 1994 II p.3716) granted the armed forces of France, the United Kingdom of Great Britain and Northern Ireland, the United States of America, Belgium, Canada and the Netherlands the right of temporary presence in these new Bundesländer, including the reunified Berlin, if the German authorities consent.
The right of some other NATO partners to station troops in Germany derives from an Exchange of Notes concluded on 29 April 1998 with the Governments of Denmark, Greece, Italy, Luxembourg, Norway, Portugal, Spain and Turkey, which gives troops the right of temporary presence anywhere in the Federal Republic of Germany with the approval of the Federal Government.
The temporary stationing in Germany of armed forces of Partnership for Peace (PfP) states and other third states requires the conclusion of an agreement under the Visiting Forces Act of 20 July 1995 (Federal Law Gazette 1995 II p.554, Federal Law Gazette 2002 II p.2482). Pursuant to Article 1 of this Act, the Federal Government can give effect by statutory instrument to such agreements with foreign states on the entry and short-term presence in Germany of their forces for the purpose of exercises, transit by land and training. The Federal Government has to date concluded such agreements with Poland (Agreement of 23 August 2000) and the Czech Republic (Agreement of 31 July 2003).
The right of presence of the former Soviet armed forces on the territory of the former German Democratic Republic (GDR) was governed by the Treaty on Relations between the GDR and the Soviet Union of 20 September 1955. The subsequent withdrawal of Soviet forces was governed by two treaties concluded with the former Soviet Union in 1990 (Treaty on Conditions for the Temporary Stay in and Modalities for the Phased Withdrawal of Soviet Forces from the Territory of the Federal Republic of Germany of 12 October 1990 (Federal Law Gazette 1991 II p.256) and the Agreement on Certain Interim Measures of 9 October 1990 (Federal Law Gazette 1990 II p.1653, 1991 II p.447). The complete withdrawal of the former Soviet armed forces from Germany was accomplished in 1994.
The law governing the presence of forces
The presence of forces from NATO states stationed in Germany on the basis of a special agreement is governed by the NATO Status of Forces Agreement (SOFA) of 19 June 1951 (Agreement between the Parties to the North Atlantic Treaty Regarding the Status of their Forces, Federal Law Gazette 1961 II p.1190), and the SOFA Supplementary Agreement of 3 August 1959 (Agreement to Supplement the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces with respect to Foreign Forces stationed in the Federal Republic of Germany, Federal Law Gazette 1961 II p.1218). The Supplementary Agreement contains detailed provisions on all questions regarding troops stationed in Germany. Following German unification, it was thoroughly revised by the Agreement of 18 March 1993 (Federal Law Gazette 1994 II p.2594).
The NATO SOFA and SOFA Supplementary Agreement conferred numerous privileges and immunities on the relevant forces. These include, for example, immunity as regards civil, administrative and criminal jurisdiction, and privileges with respect to social insurance, customs and taxation and motor vehicles. In addition, they – especially the SOFA Supplementary Agreement – include provisions on the use of premises and the employment of local German staff by forces stationed in the country.
The status of NATO headquarters and their personnel is governed by the Protocol on the Status of International Military Headquarters set up pursuant to the North Atlantic Treaty of 28 August 1952 (Federal Law Gazette 1969 II p.2000). The Supplementing Agreement to the Headquarters Protocol of 13 March 1967 also applies in Germany (Agreement between the Federal Republic of Germany and the Supreme Headquarters Allied Powers Europe on the special conditions applicable to the establishment and operation of International Military Headquarters in the Federal Republic of Germany, Federal Law Gazette 1969 II p.2009).
The legal status of forces from PfP states who are legitimately temporarily present in Germany is in principle regulated by Article 1 of the PfP Status of Forces Agreement of 19 June 1995 (Agreement among the States Parties to the North Atlantic Treaty and the other States participating in the Partnership for Peace regarding the status of their Forces, Federal Law Gazette 1998 II p.1340), and by the NATO Status of Forces Agreement in all other respects where the PfP SOFA does not contain divergent provisions. The Visiting Forces Agreements concluded pursuant to the Visiting Forces Act contain some divergent provisions that apply to forces from other countries; in other respects they too refer to the NATO Status of Forces Agreement.
Status of the German armed forces abroad
For every mission abroad, the status of the German armed forces is governed by a bilateral or multilateral agreement with the receiving country.
The most important multilateral agreement is the NATO Status of Forces Agreement, which is applicable between the NATO partners for operations within the territory of other NATO states. The states participating in NATO's Partnership for Peace (PfP) may accede to the PfP Status of Forces Agreement of 19 June 1995 (Federal Law Gazette 1998 II p.1340). This Agreement extends the scope of application of the NATO Status of Forces Agreement to cover operations in the PfP partner states. Military operations undertaken under the auspices of the European Union will in future be governed by the EU Status of Forces Agreement, which was signed by representatives of the member states in Brussels on 17 November 2003 and ratified by Germany in June 2005.
A recent example of a bilateral agreement on the status of the German armed forces abroad is the German-Russian Transit Agreement of 9 October 2003 (Agreement between the Government of the Federal Republic of Germany and the Government of the Russian Federation concerning the Transit of Defence Materiel and Personnel through the Territory of the Russian Federation in connection with Bundeswehr Contributions to the Stabilization and Reconstruction of Afghanistan, Federal Law Gazette 2003 II p.1620). The German-Russian Transit Agreement is the first agreement under which the Russian Federation has granted a NATO state the right of transit for its troops.