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Under the new U.S. – Poland enhanced defense cooperation agreement, Poland commits itself to providing military infrastructure capable of hosting some 12.000 soldiers. Additionally, American troops will be granted privileges like tax exemptions, but won’t be given the kind of legal immunity enjoyed by diplomats that Washington was hoping for.

Last Saturday (August 15), on the centennial of the Battle of Warsaw, U.S. Secretary of State Mike Pompeo and the Polish Minister of Foreign Affairs Mariusz Błaszczak signed an enhanced defense cooperation agreement. The 64 pages long document was made available on the Ministry’s website on Monday (August 17). Its content directly refers to and supplements the Status of Forces (SOFA) agreement signed by all NATO allies.

In view of the many questions surrounding the deployment of American forces to Poland and the scope of their activity, perhaps the most interesting and revealing information can be found in the amendments to the document. Accordingly, in order to enable the deployment of some 12.000 troops, Poland commits itself to building and providing infrastructure in accordance with the specific requirements of U.S. forces. This doesn’t mean that 12.000 American soldiers will indeed be stationed in Poland; the agreement only requires the country to provide the necessary capacity to do so. Currently, Poland is hosting around 4,500 U.S. troops on a rotating basis, but the new agreement foresees a deployment of an additional 1000 soldiers on top of that. The US army will also be given access to additional bases and airports in sites around the country, further expanding the range of Polish military installations and facilities it can use already. What’s important, in the document there’s no mention of Poland hosting forward elements of the U.S. Army’s V Corps headquarters- a topic receiving much media attention, and something the Polish negotiators liked to boast about. It could be that the US still hasn’t decided on the appropriate location for the headquarter. The forward division command initially planned to be housed in Poznan would likely include about 700 officers (such were the capacities specified by the US forces).

Part of the military installations and infrastructure mentioned in the agreement is yet to be built. Most of it is supposed to be available to both Polish and American forces. Those built exclusively to serve the needs of the US army, however, will be entirely funded by the American side. While using the facilities, American forces will be given the same rights as the Polish ones. The Polish Ministry of National Defence estimates the annual cost of hosting American troops at PLN 500 million (around $135 million), but the expenses only include routine activities, leaving out future investments. As for property ownership, the agreement mentions that all agreed facilities and areas including buildings, non-relocatable structures and assemblies connected to the soil remain the property of the Republic of Poland, and that Polish authorities have the right to inspect the facilities (thus, concerns about the US being able to claim extraterritorial jurisdiction over its bases in Poland remain unsubstantiated).

Legal liability of the US army personnel

Prior to signing the deal, there have been critical voices warning of granting American soldiers the kind of legal immunity enjoyed by diplomats. While the topic of legal liability and criminal jurisdiction is certainly a complex one, article 14 of the agreement states that Poland, recognizing the importance of US forces authorities’ disciplinary control over members of the US forces and the effect that such control has on operational readiness, waives its primary right to exercise criminal jurisdiction over members of the US forces while on duty. In cases of particular importance, an exemption from that principle in the form of Poland being able to withdraw its waiver necessitates a written statement to the competent US forces authorities not later than 30 days after the case has been reported. In practice, it is a fulfilment of the so-called “law of the flag” principle. The US generally considers its soldiers as not being subject to the jurisdiction of the host country while in service, carrying out orders and, most importantly: while wearing a military uniform. In such cases, the commanding officer or, less frequently, soldiers are answering to US military courts.

Members of the US army personnel will even be exempt from paying fines and penalties concerning matters arising from the performance of official duty (a topic of great debate in most countries where US troops are stationed). US forces are also obliged to respect the Polish law concerning environmental protection (if needed, Polish authorities retain the right to inspections).

With regards to off-duty soldiers and civilian personnel, the situation looks somewhat different. In this case, Poland retains its primary right to exercise criminal jurisdiction and has full disciplining authority. Article 15 of the defense agreement directly refers to article VII, Paragraph 3(a)(ii), of the NATO SOFA agreement – “in those cases where the authorities of the Republic of Poland believe the circumstances of the case require review of the determination, the authorities of the United States and the Republic of Poland will consult immediately”. Moreover, paragraph 3 of article 16 states that “the authorities of the Republic of Poland shall notify U.S. forces authorities immediately when a member of the force or the civilian component, or a dependent, is arrested or detained by such authorities. U.S. authorities shall have prompt access to any such individual, upon the request of U.S. forces,” while paragraph 4 says that a U.S. forces’ representative shall be permitted to be present during all proceedings, including interrogations, of such member or dependent by authorities of the Republic of Poland”. Upon mutually agreement, the parties can determine whether the case is reviewed by an American or Polish court and whether the person serves his/her penalty in an American or Polish institution. In case of the latter, "U.S. forces representatives and family members shall be permitted to provide persons confined in a penal institution of the Republic of Poland with assistance, including for their legal support, health, welfare, and morale, such as clothing, food, bedding, medical and dental care, and religious counselling”.

Tax exemptions and other fiscal privileges

The agreement gives US troops and military personnel multiple privileges. It obliges Poland to provide 75% of the cost of fuels, including aviation and ground transportation fuels. Members of US personnel don’t have to obtain any vehicle documents and an additional driver’s license. They are exempt from paying income tax, Value Added Tax (VAT), excise tax, or any similar or successor tax, and don’t even have to pay fees on the possession of television or radio broadcast receiving devices. American troops are free to import US currency and financial instruments denominated in dollars. Goods imported by or for US forces are except from taxation, too. Recognizing that this may lead to some abuses, both signatories add that: “U.S. forces authorities, in cooperation with the authorities of the Republic of Poland, shall adopt appropriate measures to prevent the sale of goods and property imported into or acquired in the territory of the Republic of Poland to persons who are not authorized to patronize such military service support activities. Limitations on the purchase by individual patrons of goods imported or acquired with exemption from taxes and customs duties may be established. Goods subject to these limitations may include alcohol products, tobacco products, gasoline, and items of significant value”.

US troops withdrawal from Germany

The deployment of additional forces to Poland comes amid a controversial decision of the Trump administration to substantially reduce the number of American troops in Germany. Last month, specifying the details of the plan, the US Defense Secretary Mark Esper announced that almost 12.000 American soldiers will be pulled from Germany, some 5.500 of which will be re-deployed elsewhere around Europe and stationed in other NATO member countries. The decision includes moving the US European Command and Special Operations Command Europe headquarters from the German area of Stuttgart to Belgium. Yet, even after such drastic reductions, with an active US military personnel of 24.000, Germany still remains the number one host country for American troops in Europe.

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