Our Status of Forces Agreements

On the afternoon of January 30, 1957, a U. S. serviceman in Japan fired a shot which soon echoed around the world. The incident, resulting in the death of a Japanese national engaged in gathering scrap on a practice firing range being used by American forces, became the celebrated Girard case. The ensuing dispute over who should try Girard created a wave of emotion both in this country and Japan. Other incidents involving servicemen in friendly foreign nations were publicized. The Taiwan riot, touched off by acquittal of a serviceman by a U. S. court martial for homicide of a Chinese national, broke like a bombshell on the international scene. In short, attention was sharply focused on our status of forces agreements.

But why all the fuss? Certainly this was not the first time a serviceman overseas accused of committing an offense against a foreign national would be tried in a foreign court—nor would it be the last; however, the timing was ripe in the present climate of international and national politics. On the international scene, a fierce nationalistic pride and a growing tendency to assert independence prevails in many of our allied nations. They are genuinely sensitive over issues involving their sovereign rights. And, of course, super-nationalistic and Communistic elements are alert to exploit any incidents and blandly fill the air with cries of “Yankee go home” and “Colonialism.” In this country, our status of forces agreements have been continually under fire for the past five years by certain legislators, veterans groups, and a revealing portion of Main Street. To them the Girard case was the last straw.

It must be recognized, however, that the motives behind the movement to denounce existing agreements are by no means identical. While many are opposed on principle to any exercise of foreign criminal jurisdiction over U. S. servicemen overseas, others are using the incident as a convenient vehicle to oppose the foreign “give away program,” “bring the boys home,” and, in effect, retreat to the fortress America concept. Then there is that currently popular theory that bases overseas are no longer really necessary in view of the technological advances in weapons. Add to all this the significant point that the alleged offense, according to all echelons in the Army, arose out of an act done in the performance of Girard’s official duty and you have a clamor on Capitol Hill, in the press, and among the general public—as well as among our allies.

In the Congress, the Girard incident renewed legislative concern and action in the field of the status of forces agreements. The House Foreign Affairs Committee on July 1, 1957, favorably reported the Bow resolution (H. J. Res. 16—Rep. Frank T. Bow), which had been tabled in previous years. This bill called upon the President either to renegotiate the various agreements so that “foreign countries will not have criminal jurisdiction over American military personnel stationed within their boundaries” or to denounce the agreements entirely. Subsequently, during the House debate on the foreign aid bill, a floor amendment was proposed that would have declared it the “sense of Congress” that U. S. military personnel should not be tried in foreign courts. This amendment was narrowly defeated by a rare tie vote.

On August 5, the House Armed Services Committee, after extensive hearings, favorably reported the Kilday bill (H.R. 8704— Rep. Paul J. Kilday). The proponents of this bill are more moderate in their approach than the Bow followers, who favor outright abrogation. Nevertheless, they strongly feel that some form of legislation is necessary “to prevent another Girard case.”¹ Thereafter, on August 12, a companion bill was introduced in the Senate (S. 2761—Sen. R. L. Hruska). Each of these legislative proposals was strongly opposed by high officials in the administration, both civilian and military, from the President on down, generally on the basis of the adverse effect on our system of collective security.² Although the bills were neither enacted into law nor considered by the interested committees of the Senate, the issue is not dormant. Not even the Supreme Court decision in the Girard case, which clarified a controversial question of international law, stemmed the tide. Rather it served only to convince the critics that legislation was necessary. Congressional concern remains strong, and it is obvious that the same or similar bills dealing with the status of forces agreements will be before the current Congress.

But what are these so-called “status of forces” agreements? Are they really as bad as some of their critics have claimed? Do they violate international law?³ How are they working out in practice? The answers to these questions are essential in order to evaluate the arguments pro and con the agreements.

II

The term “status of forces agreements” refers to the whole complex of multilateral and bilateral arrangements (treaties, protocols, and executive agreements) between the United States and many of her allies, which define generally the rights and duties of U. S. servicemen, the civilian component, and their dependents while they are within the various foreign countries. The criminal jurisdiction provisions of these agreements are really the only parts of them that have received any attention from the public. But that is only one small part of them. These agreements deal with a host of other problems concerning the relationship of the visiting force with the local civil populace. Such details as customs and duties, local taxation, motor vehicle registration and operators’ licenses, foreign exchange, postal services, and visas are only a few of the details which are usually included. It must be emphasized, however, that the agreements are by no means identical. The NATO Status of Forces Agreement and the Japanese Administrative Agreement generally conform to the same pattern and implement the NATO pact and the Security Treaty, respectively. In other countries a section on status of forces is usually an integral part of the base rights agreement and in some cases is predicated on an entirely different theory. In addition, there are variations in coverage, both as to person and place. To a large measure, the differences in agreements are a result of the contrast in political realities which faced the negotiators in a particular country at a particular time.

Since the agreements are both complex and varied, the immediate question which arises is why they are necessary at all. The critics who favor abrogation state that as a matter of international law the members of the visiting force are automatically immune from the criminal jurisdiction of the host nation. Therefore, when the agreements were entered into, jurisdiction over U. S. servicemen was surrendered and Constitutional rights were sacrificed in the process. The proponents, on the other hand, have continually asserted that in the absence of an agreement the visiting forces have no immunity from foreign criminal jurisdiction whatever, unless the foreign sovereign consents in a particular case. Therefore, whatever jurisdiction we obtained in advance by agreement was pure gain. Ironically, both sides rely on the same celebrated case— The Schooner Exchange v. McFaddon, decided by the United States Supreme Court in 1812.⁴

To understand the significance of that case, it is appropriate to examine it in a little detail. The case involved a schooner, which, while owned by American citizens, had been seized by the French Government and placed in the public service of that nation. Subsequently, she sailed into a United States port. Her former owners brought an action against the vessel seeking her return. The question before the Supreme Court on appeal was the jurisdiction of a United States court over a public vessel of a foreign sovereign. In its opinion, the Supreme Court stated as the first principle of jurisdiction that:

“The jurisdiction of the nation, within its own territory, is necessarily exclusive and absolute; it is susceptible of no limitation, not imposed by itself. . . . All exceptions, therefore, to the full and complete power of a nation, within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source.”

The court then went on to discuss a number of cases in which there could be an implied waiver of jurisdiction by the territorial sovereign. Among them was the case of troops in transit. On this issue the court stated:

“A third case in which a sovereign is understood to cede a portion of his territorial jurisdiction is, where he allows the troops of a foreign prince to pass through his dominions. In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it, would certainly be considered as violating his faith. . . . The grant of free passage, therefore, implies a waiver of all jurisdiction over the troops, during their passage, and permits the foreign general to use that discipline, and to inflict those punishments which the government of his army may require.” [Emphasis supplied.]

This latter statement—called in the legal vernacular obiter dictum, which means that it is not necessary to the decision of the case and therefore has no binding effect as a legal precedent—forms the basis of the exclusive jurisdiction argument advanced by the critics of the status of forces agreements.

The same Court has recently cleared the air on this controversial point. In the Girard case,⁵ upholding the validity of the criminal jurisdiction provisions of the Japanese Administrative Agreement, that Court, in broad and sweeping terms, stated:

“A sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or implied consents to surrender its jurisdiction.”

Thus, the real holding in the Schooner Exchange case is that all exceptions to the full and complete power of a nation within its own territories must be traced to the consent of the nation itself. If a nation is unwilling that the admission of foreign forces within its own territories shall operate as an implied consent to exemption from local jurisdiction, then that nation may expressly state the terms under which its consent will be granted.

It can readily be seen that a nation might very well be content that a force briefly in transit through its territory should be exempt from its jurisdiction. Normally during such a march, the troops would be under the close control of their commanders at all times. The opportunity for contacts with the local populace would be few, and it would be expected that there would be few disciplinary problems. Implied or express waiver of jurisdiction by the territorial sovereign in such cases thus has a logical basis.

Contrast that situation, however, with the situation existing throughout the world today. In many communities there are large numbers of United States armed forces personnel residing on a semi-permanent basis. Not only do they have extensive encampments for the performance of their duties, but in many cases they are accompanied by large bodies of civilian personnel making up the civilian component as well as their families. In many cases these service and civilian families reside in the local communities, and in their off- duty periods are indistinguishable from any other group of aliens who may be residing in that particular country. It is only natural that the host nation should insist that the rights and duties of such a substantial body of resident personnel be spelled out in detail in a government to government agreement. Further, the government sending such personnel abroad might very well want an advance understanding of the rights and duties of its personnel. That is exactly what a status of forces agreement accomplishes.

Without such an understanding, what would happen? Suppose, for example, that a U. S. serviceman stationed in France commits an offense while on liberty in Paris. Under the principle of the Schooner Exchange and Girard cases that offense is subject to the exclusive jurisdiction of France. In order for U. S. authorities to exercise jurisdiction, the consent of the French authorities must be obtained. Even if France were willing to give such consent, it would be necessary to work out a solution in each particular case. While this manner of operation might be entirely satisfactory in areas where only a handful of U. S. servicemen are stationed,⁶ it does not provide an adequate framework for predictable and orderly procedures so desirable in foreign areas where large numbers of military personnel are based. Between 1952 and 1956, over 38,000 offenses subject to foreign jurisdiction were committed by U. S. personnel in foreign countries. The enormity of the problem, in the absence of an agreement providing such a framework, would be staggering.

From both a legal and administrative standpoint, therefore, it is apparent that some sort of status of forces agreement is necessary. The only portion of existing agreements which has been criticized is that dealing with the exercise of criminal jurisdiction. Let us now examine this portion of one of the more important arrangements.

NATO Status of Forces Agreement (NATO SOF)

NATO SOF is a multilateral agreement concluded in 1951 and now effective in the United States, Belgium, France, Norway, Canada, The Netherlands, Luxembourg, Turkey, United Kingdom, Greece, Denmark, Portugal, and Italy. Of the several status of forces arrangements, this agreement exerts an impact on the greatest number of U. S. servicemen overseas; it is effective in all NATO nations except Germany and Iceland. In addition, by its terms it is fully reciprocal in that it generally applies to foreign servicemen from NATO nations in any other NATO country in connection with their official duties. Furthermore, it served as a pattern for the criminal jurisdiction provisions of the Japanese agreement which governs the status of U. S. forces in Japan.

Article VII of NATO SOF governs the exercise of criminal jurisdiction. It gives the sending state exclusive jurisdiction in cases of offenses against its military law which are not offenses under the local law of the receiving state. This would include all the purely military offenses such as absence without leave, missing movement, insubordination, and the like. It gives the host nation (receiving state) exclusive jurisdiction in cases of offenses against its law which are not offenses against the military law of the sending state. (In view of Article 134 UCMJ—the general article—few offenses would be exclusively within the jurisdiction of the foreign receiving state.)

In all other cases, the jurisdiction of both the sending and receiving states is concurrent; that is, the agreement states that each is entitled to exercise all the jurisdiction given it by its law. This means that for practical purposes, all offenses, except those purely military in nature, committed by members of the U. S. force, the civilian component, and their dependents may be tried by either the military authorities of this country or the authorities of the host nation.⁷

In this area of concurrent jurisdiction the article lays down certain ground rules which spell out who has the primary right to exercise jurisdiction in certain types of offenses.⁸ The theory of the provision is that each nation is given the first right to try those cases which would ordinarily be of primary concern to that nation. Insofar as a sending state is concerned, it is vested with the primary right over offenses against its security or property, offenses against the members of its own force or civilian component, or offenses committed by a member of the force or civilian component while in the performance of an official duty. All other offenses in this area of concurrent jurisdiction are within the primary jurisdiction of the receiving state. Such offenses normally include crimes against the local citizens or their property committed while the member of the force or civilian component is in a “liberty” status. The primary concern of the receiving state in maintaining law and order in the community is self-evident and justifies the retention of primary jurisdiction over this class of offenses. The article further provides that the state having the primary right to exercise jurisdiction is required to give sympathetic consideration to requests for waiver of its primary right by the other party in cases considered by it to be of particular importance. The purpose of this portion is to introduce a certain amount of flexibility into what might otherwise be a rigid formula. It recognizes that in a particular case, a state not having the primary right may nonetheless wish to exercise jurisdiction for various reasons of policy or otherwise.

The remainder of Article VII deals with arrest and custody of offenders, investigation and collection of evidence, prevention of double jeopardy and, most importantly, with the observance by the host state of specific fair trial guarantees in the event the accused is tried by that state.⁹

III

Although it is not the purpose of this article to examine in detail all the day-to-day problems in connection with the administration of the agreements, it is nevertheless important that the general workability be evaluated. The impact of these arrangements upon the efficiency and morale of the command is a crucial factor.

From a strictly administrative standpoint, the agreements are complex and inconvenient. A commanding officer is directly charged with the welfare and conduct of his men. From his point of view it would be desirable if he could be assured at all times of exercising disciplinary control over his charges whenever they commit offenses against the UCMJ. Only under this exclusive jurisdiction system can he be reasonably assured that prompt and appropriate disciplinary action will be instituted with a minimum of outside interference which might adversely affect the mission of the command. Only then can he be assured that his men will receive all the guarantees of due process provided by the Code, plus the normal review processes and clemency procedures. But vesting him with such exclusive jurisdiction ignores political realities. And, as has been stated, the receiving state has a legitimate interest in maintaining law and order within its territory. Nevertheless, in assessing the impact upon the morale and efficiency of the command, an important factor is the proportion of cases occurring in a foreign country in which the U. S. military authorities are permitted to act.

With the possible exception of the Girard case, the U. S. military authorities have in every case within their primary jurisdiction been permitted to proceed with disciplinary action under the procedures of the Uniform Code. Even as to offenses within the primary jurisdiction of foreign governments, the United States has been permitted to act in a surprisingly large percentage of cases. Over the years the foreign governments have generally displayed a sympathetic attitude in the handling of offenses within their primary jurisdiction. For example, on a world-wide basis, during the 3§ year period 1952-1956, 38,314 offenses were committed by U. S. servicemen in foreign countries and in which the foreign government had the primary right of jurisdiction. Nevertheless, in over 65% of these cases, the foreign government waived its primary right and allowed the U. S. military authorities to proceed. The attitude of the Japanese Government was particularly sympathetic. That Government waived its primary right in over 96% of the cases occurring there.

Not only are these statistics important in the over-all picture. There still remains the question of what kind of treatment was received by the remaining personnel who were tried by foreign authorities. One of the most significant safeguards afforded a serviceman is the right of the United States to have an official observer at his trial. Defense Department regulations require that this observer shall be a lawyer in all except the most minor cases. His duty is to observe the trial closely to determine whether the accused serviceman received all the rights guaranteed him by the status of forces agreement as well as any other right of due process of law which he would have if he were tried in a state court of the United States. It is significant to note that in only one case to date has it been reported that a serviceman did not receive procedural safeguards to which he was entitled.

A serviceman who is to be tried in a foreign court has one significant advantage over his fellow serviceman who might run afoul of the civilian authorities in the United States. Congress has passed legislation which allows the services to foot the bill for his attorney’s fees and court costs as well as provide bail in appropriate cases. This statute has been liberally implemented by the Department of Defense, and large numbers of servicemen have taken advantage of its provisions.

The punishments which have been meted out to American service personnel by foreign courts have been, in general, very light. During a one year period ending in November 1956, American personnel (military, civilian and dependent) were convicted by local tribunals of 4,162 offenses. Of these 257 were serious offenses.¹⁰ In only 286 cases of the 4,162 offenses was a sentence to confinement imposed. Of these, confinement was suspended in all but 108 cases. In the remainder of cases, the sentence of the court consisted of a fine, at most. In no instances have foreign courts imposed a cruel or unusual punishment upon an American serviceman.

With regard to confinement and custody of U. S. personnel, the foreign governments have been especially lenient. Most agreements, or the implementing arrangements which have been worked out locally, provide that U. S. military authorities may retain custody of an accused serviceman until all judicial proceedings, including appeal, have been completed. In the event that a man is eventually confined in a foreign penal institution as a result of the sentence of a court, American authorities are permitted to visit him at frequent intervals to insure that he is being well- treated. In addition, they are usually permitted to furnish him with health and comfort items and supplementary food items which would not normally be a part of ordinary prison fare but which the usual American would consider as a necessary part of his diet.

The foregoing factors and statistics have led those who have examined the agreements in detail to conclude that they work well in practice. Military commanders,¹¹ Congressional committees,¹² and impartial observers¹³ have agreed in this conclusion. The criminal jurisdictional arrangements regarding U. S. forces overseas have not adversely affected the morale and discipline of the command nor have they had a detrimental effect on the accomplishment of the military mission.

Of course, the agreements will continue to work only as well as the parties intend them to. If they are strictly and technically interpreted with a hostile approach, they will fast become vehicles of obstruction. From time to time, it may be anticipated that attitudes and policies will change and the agreements will not operate as smoothly as desired. However, in practice thus far, it seems clear that they represent the best solution to the difficult and touchy problem of criminal jurisdiction in foreign areas where large numbers of servicemen are permanently stationed. Certainly, in practice as well as in theory, the agreements secure more U. S. military jurisdiction over our own offenders than would ordinarily be enjoyed without any agreement.

IV

Notwithstanding the favorable reports on the operation of the status of forces agreements, the critics who favor abrogation further contend that more favorable terms could have been secured. The argument runs something like this: United States forces are deployed abroad for the sole protection of the foreign country involved. Both economic and military aid have been abundantly furnished. Therefore, our superior bargaining position could have forced acceptance of exclusive U. S. jurisdiction. In fact, the foreign governments concerned should have been more than willing to agree to whatever terms we proposed .

In addition to ignoring political realities, such an argument strikes at the heart of our collective security system. That certain countries could have been “forced” to accept our terms is doubtful. While conceivably some might have been persuaded, others would in all probability have suggested that we seek our bases elsewhere. But a more important question is presented. Is it a wise policy to ignore the legitimate and sovereign interests of friendly nations who in fact possess established judicial procedures for administering substantial justice?

U. S. defense policy and strategy are based on collective security. The Rio Pact, ANZUS, NATO, SEATO, and numerous bilateral agreements link this country with the majority of the Free World. It is important that the coalition be formed by a partnership of sovereign nations and not by a network of satellites. The situations created by Communist propaganda and rising nationalism are perplexing enough without providing additional ammunition to be used against us. Our allies are just as proud as we of national sovereignty and judicial traditions, and certainly we would not wish them to be less so. U. S. forces are deployed overseas not only because of their contribution to the security of our allies, but more basically because of the role they play in the protection of the physical security of the United States. It should be remembered that our forces are neither occupiers nor protectors, conquerors or liberators. They are guests in the country in which they reside.

It is doubtful that we would be willing to extend the reciprocal immunity the critics desire to foreign forces in this country. Thousands come every year for training under the Mutual Security Program, and countless others are here as members of NATO staffs or in similar capacities. In this connection, it is interesting to note that one of the listed complaints in the Declaration of Independence involved the issue of exclusive jurisdiction:

“He [Geo. III] has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their acts of pretended legislation:

For protecting them, by a mock Trial, from Punishment for any Murders which they should commit on the Inhabitants of these States.”

To disregard entirely the sovereign interests of our allies in this matter of criminal jurisdiction would severely jeopardize any framework for harmonious long-term relations. It smacks of colonialism in its worst form.

Continued adherence to the terms and spirit of the status of forces agreements will greatly increase the prestige of the United States in the world community. Denouncing them will encourage distrust among our friends and weaken the framework of collective security.