National Affairs: Justice & Law in Status-of-Forces Agreements

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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.