Justice & Law in Status-of-Forces Agreements

G.I.s IN FOREIGN COURTS

ONE of the most effective ways of breeding enmity among friendly nations is to station the troops of one country on the soil of another in peacetime. The problem is compounded when the foreign troops claim extraterritorial privileges and hold themselves not subject to local law. In the overall grand strategy of the cold war, the U.S. has sought to devise a new and workable solution to the old problems: a worldwide network of "status-of-forces agreements" designed to cover the bulk of 700,000 U.S. soldiers, sailors and airmen stationed in 49 friendly countries.

The status-of-forces agreements, in spite of the ruckus over Specialist Third Class Girard in Japan, are working out amazingly well. Status-of-forces agreements have contributed in six years of steady growth toward easing the tensions between allies, and have added up to a remarkable good-sense show of international justice from which the U.S. and its allies alike have benefited. One Girard case provides an uproar in the U.S. and Japan, for example, but 5,544 other U.S.-Japanese cases that came up last year worked out smoothly. Over a longer term, fewer than half a dozen out of 10,000 arrests of Americans in France since 1953 have caused the U.S. any concern.

Off Duty, Off Base. Since 1951, the U.S. has negotiated more than 40 status-of-forces agreements covering most of the world sectors where the U.S. force-in-being is deployed. The basic agreement is the NATO status-of-forces treaty signed in London in 1951 and ratified by the U.S. Senate in 1953. This NATO treaty grants the U.S. primary jurisdiction over G.I.s in a NATO country who get in trouble while on duty, or who commit offenses against other U.S. citizens. The treaty generally grants the "host" NATO country primary legal jurisdiction when G.I.s commit off-duty, off-base offenses that can range from running red lights to rape.

Even this agreed division of responsibility is far from final. A key point of the NATO status-of-forces treaty--the basic principles of which now apply by executive agreement to Japan--is that the host nation agrees to give "sympathetic consideration" to requests for waiver in cases which the U.S. deems to be of "particular importance." As this works out, U.S. authorities usually ask allied countries to waive primary jurisdiction and to return American offenders to the mercies of U.S. courts-martial; usually the allies comply. Out of all the 14,394 G.I. offenses subject to foreign jurisdiction last year, the allies turned back 9,614 cases to the U.S.

Where the host nation keeps jurisdiction, the status-of-forces agreement specifically guarantees each G.I. the essentials of U.S. justice: the right to a fair and speedy trial, to confront hostile witnesses and subpoena friendly witnesses, to choose defense counsel (which the U.S. pays for) and to communicate at all times with U.S. Government representatives. A Senate addendum to the NATO treaty further requires the commanding officer of any G.I. in a foreign court to notify the State Department and the Armed Services Committees of the Senate and House of Representatives if he considers that the G.I.'s rights are in jeopardy. Even if the G.I. is convicted and imprisoned, a Pentagon directive prescribes that U.S. representatives must visit him at least once a month to check on health, prison conditions and complaints.

Special Cases, Special Care. In practice, foreign courts have dealt so gently with G.I.s that the U.S. has rarely felt the need to intervene. Of 4,437 American servicemen, dependents and civilian auxiliaries brought to trial in foreign courts in a one-year period, 275 were acquitted, 3,876 got minor fines and reprimands, 178 drew sentences of imprisonment, which the foreign courts forthwith suspended. In all, 108 Americans were imprisoned--a year's total which, considering that it applies to 700,000 men, amounts to a remarkably low crime rate and one of the highest leniency rates in the world. Foreign court sentences are usually much lighter than U.S. sentences. Last year, for example, German newspapers hounded seven G.I.s accused of raping a 15-year-old girl, but they fell silent when a U.S. court-martial handed down four life sentences, three for 40 years; the maximum sentence under German law for first-offense rape is three years.

At last count there were 88 G.I.s serving prison terms in foreign jails--including 38 for robbery, larceny and related offenses, 18 for aggravated assault and related offenses, eight for murder and manslaughter. And in jail as well as in the courthouse, allied officials make a practice of going to extraordinary lengths to favor the U.S. In Japan's Yokosuka prison, for example, 36 Americans are serving Japanese sentences of from three to 15 years for robbery, rape, manslaughter or murder. They get special food, vocational training, athletic equipment, a 900-volume library, armed-forces network radio, etc.; even the two murderers stand an excellent chance, say the U.S. officers who watch over their prison conditions, of getting paroles for good behavior after five years.

Rights Conceded, Rights Gained. Argument over status of forces does not end, of course, with the pragmatic fact that it is working well. Ohio's Senator John Bricker takes a stand upon "150 years of national policy and international law" to argue that every sovereign government has exclusive jurisdiction over its own forces in all circumstances. The Justice and State Departments flatly deny this interpretation, hold that in law the host state has the last word; they add that status-of-forces agreements guarantee rights to the U.S. that it would not otherwise legally possess. Bricker adds that allied countries that want the protection of U.S. forces must in the final analysis accept U.S. military laws--or forego the protection. But this hard-boiled position neglects the fact that G.I.s are deployed in the interest of the U.S. as well as of the allies, at strategic land, sea and air bases around the non-Communist world.

Actually, under the status-of-forces agreements, the U.S. is dealing with the intricate problems in a positive way that is perhaps unique in the history of global powers; it is following the rule of law rather than of prideful chauvinism. In heeding the natural desire of its allies to uphold the integrity of their laws, the U.S. is contributing to allied self-respect and thereby to the strength of the coalition. By watching vigilantly over the lot of its men in foreign courts, the U.S. is extending around the world its concern for and its principles of justice and law. And under the status-of-forces agreements now operative, the U.S. conveys to the world that it is not in the empire-building business, that its concern for legal right is couched in its own example.

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