OPERATION OF ARTICLE VII OF THE NATO STATUS OF FORCES TREATY FRIDAY, DECEMBER 5, 1969 U.S. SENATE, SUBCOMMITTEE ON NATO STATUS OF FORCES, Washington, D.C. The subcommittee, composed of Senators Ervin (chairman), McIntyre, Byrd, Murphy, and Schweiker, appointed to maintain familiarity with the operation of article VII of the NATO Status of Forces Treaty to the extent that it relates to criminal jurisdiction not waived by host countries in which U.S. Forces are stationed, met, pursuant to notice, at 10:35 a.m., in room 212, Old Senate Office Building. Present: Senators Ervin (presiding), McIntyre, Byrd, Murphy, and Schweiker. Also present: T. Edward Braswell, Jr., chief of staff; Labre R. Garcia, professional staff member; and Herbert S. Atkinson, acting chief clerk. Senator ERVIN. The subcommittee will come to order. The Status of Forces Subcommittee meets today to consider the operation of article VII of the NATO Status of Forces Treaty and the other arrangements worldwide regarding the criminal jurisdiction of foreign countries over the off-duty offenses committed by American servicemen stationed in those locations. The period to be covered is the year December 1, 1967 through November 30, 1968. We are glad to have with us Mr. Benjamin Forman, Assistant General Counsel for International Affairs, Department of Defense, and Brig. Gen. Harold E. Parker, Assistant Judge Advocate General for Military Law, U.S. Army. Following the open session the committee will have a brief executive meeting to discuss any classified matters which the departmental witnesses wish to present. Mr. Forman, we are delighted to have you with us and you may proceed as you wish. STATEMENT OF BENJAMIN FORMAN, ASSISTANT GENERAL COUNSEL FOR INTERNATIONAL AFFAIRS, DEPARTMENT OF DEFENSE Mr. FORMAN. Mr. Chairman, this presentation, the 16th of an annual series, reviews the operation of our criminal jurisdiction arrangements in NATO countries and throughout the world for the period Decem ber 1, 1967, through November 30, 1968. We appreciate the opportunity to appear before you for this purpose. The operation of our criminal jurisdiction arrangements continues to be generally satisfactory, and our commanders in the field advise that the accomplishment of their missions during the reporting period has not been adversely affected. With the exception of the same two countries referred to in the past two presentations, the commanders also report that morale has not been adversely affected. In those two countries, there again is a division of opinion among the Army, Navy, and Air Force commanders as to the effect on morale. The rate at which foreign authorities granted waivers of their primary right to exercise jurisdiction over U.S. military personnel remained high. The waiver rate worldwide for the reporting period was 83.5 percent as compared to 84.4 percent for the prior reporting period. The waiver rate of the NATO countries was 94.8 percent as compared to 93.4 percent for the preceding period. During the course of the reporting period, a serious problem arose with respect to our status of forces agreement with the Philippines, which is still unresolved. In July, 1968, a Marine corporal on guard duty shot to death a Philippine national. In accordance with the amendments made in 1965 to the 1947 Military Bases Agreement with the Philippines, we have the primary right to exercise jurisdiction where the offense arises out of any act or omission done in the performance of official duty. As was the situation in Japan some 12 years ago in the Girard case, a dispute occurred between the Philippine and United States Governments as to whether the corporal's action had been such a substantial departure from his sentry orders as to be a nonduty case. After a full investigation, a duty certificate was issued. The 1965 agreement provides that a duty certificate will be honored by the Philippine authorities but that it may be made the subject of diplomatic discussions if the Philippine authorities disagree with the certificate. In this case, the Philippine Secretary of Justice adopted the unexpected position that the 1965 amendments could not be applied since they had not been ratified by the Philippine Senate. Accordingly, it was his view that the 1947 agreement governed; the United States hence had jurisdiction because, under the 1947 agreement, jurisdiction over onbase offenses was vested in the United States. The Marine corporal involved was subsequently court-martialed and found innocent, but the larger problem of the legal status of the 1965 amendments is still open and is the subject of discussions with the Philippine Government. Our position is that, from an international law point of view, the 1965 amendments are valid and binding. During our last appearance before this committee, we advised of two lawsuits of interest to the committee which were pending decision in the U.S. Court of Appeals for the District of Columbia Circuit. One was the litigation initiated by Sp4c. H. K. Smallwood, Jr. to enjoin the Secretary of Defense from releasing him to the authorities of the Republic of Korea for trial for murder and arson. Smallwood contended that the status of forces agreement with Korea was unconstitutional and that he could not get a fair trial in Korean courts. While his case was pending before the U.S. courts, he was convicted of murder and arson by the Korean trial court. That conviction was subsequently reversed on appeal by the Korean High Criminal Court on January 13, 1969, which found him not guilty of all charges, based on lack of evidence. In the circumstances, the U.S. Court of Appeals on May 14, 1969 remanded the case to the district court and directed that the case be dismissed as moot. The other lawsuit, as you may recall, was brought by a merchant seaman, James H. Latney, who was convicted of homicide by a courtmartial in Vietnam. The district court rejected Mr. Latney's contentions that article 2(10) of the Uniform Code of Military Justice, which is the basis for the exercise of court-martial jurisdiction over civilians in time of war, does not apply in the circumstances of his case and is in any event unconstitutional. The Court of Appeals for the District of Columbia Circuit reversed the district court on June 30, 1969. The court held that article 2(10) may not be interpreted as covering a civilian seaman, employed by a private shipping company, and in no closer physical proximity or duration to the Armed Forces than a seaman in port for a short period, living on his ship and under the discipline of a civilian captain while waiting for it to turn around, not assimilated to military personnel in terms of living quarters or conditions, who had been arrested for a crime committed in a bar frequented by civilians in port. In this connection, I should note that the U.S. Government statement of policy on the court-martial of civilians in Vietnam was placed in the record during the hearings before this committee 2 years ago. Since that time, it became apparent that that policy, which preferred trials by the Vietnamese courts over court-martials, needed modification to deal more effectively with the problem of illegal currency transactions. Accordingly, in March of this year, the State Department informed the Embassy in Saigon that requests for waiver of Vietnamese jurisdiction should be made of the Government of Vietnam in serious cases involving large illegal currency transactions where that Government declined prosecution. Finally, I would like to alert the committee to the possible implications of the case of O'Callahan v. Parker, which was decided by the Supreme Court on June 2, 1969. The Court held in that case that a member of the Armed Forces could not constitutionally be courtmartialed for attempted rape offbase in peacetime within the United States, on the ground that a court-martial for non-service-connected offense deprives him of his constitutional rights to indictment by grand jury and trial by petit jury in a civilian court. We do not read the opinion as necessarily extending to military personnel overseas who commit what are basically civilian offenses. However, it may be foreseen that a test case will be brought by a member of the Armed Forces court-martialed overseas for a civilian offense. Parenthetically, it should be noted that the Latney case, the court of appeals relied on what it called the spirit of O'Callahan. If the Supreme Court applies the O'Callahan precedent to the overseas cases, the exercise of U.S. jurisdiction under status-of-forces agreements would be constitutionally limited to military offenses and the host countries would have exclusive jurisdiction over civilian crimes. If so, the number of foreign trials would increase many fold. |