Document created: 2 September 03
Air University Review, May-June 1975

Why should the military decision-maker be concerned about such esoteric subjects as foreign criminal jurisdiction and Status of Forces Agreements (commonly referred to as SOFA's) as they relate to foreign trials? Why not leave such complexities to diplomats and lawyers? There are at least two basic reasons why the military man needs to know about these matters. The first is a professional one; the second, a personal one.

First, as a member of the military community, the military man must be knowledgeable about various problems confronting the Air Force in its world-wide operations. This is necessary for him to be a well-rounded individual as well as an effective decision-maker. There are not enough specialists, diplomats or lawyers, to deal with every problem in this area. Many of the decisions will be his. Regardless of duty assignment, one’s understanding the fundamentals of foreign criminal jurisdiction and SOFA's can significantly enhance job performance and positively contribute to the accomplishment of the global Air Force mission.

Second, the military man should be aware of the extent to which he is subject to foreign criminal jurisdiction while he is stationed abroad. He should be familiar with the protection and services accorded him by the U.S. government in conformity with pertinent international agreements.

A word of caution is necessary from the outset. Although it goes without saying that Air Force personnel will have to deal with foreign criminal problems overseas,¹ it is sometimes forgotten that such problems can also arise within the United States and require a decision-making response. Normally this happens in one of two ways. In the first instance, the Air Defense Command is responsible for protecting, to the maximum extent possible, the rights of Air Force personnel who may be subject to criminal trial or imprisonment in Canada, while the Air Training Command is similarly responsible for cases arising in Mexico.² In the second instance, each installation in the United States which has foreign military personnel present, whether as students for training or as visitors, must be prepared to resolve potential status of forces problems. This is so because SOFA's are reciprocal agreements.³ The unique status enjoyed by American military personnel abroad as a result of SOFA's must be extended also to foreign military personnel in the United States. Consequently, foreign criminal jurisdiction and SOFA problems may confront the military decision-maker whether stationed at home or abroad.

So that the military decision-maker has a basic understanding of the problems that may confront him, several aspects of foreign criminal jurisdiction and SOFA's will be explored. The areas discussed represent an effort on the part of the U.S. government to provide protection and services to U.S. military personnel abroad in accordance with the resolution accompanying the Senate's ratification of the NATO SOFA.⁴

The first issue to be resolved when an alleged offense has been committed by a U.S. military man abroad is "Who has jurisdiction over the matter?" When a U.S. serviceman, for example, commits the offense of robbery in Germany, his single act violates both the law of the United States and that of the Federal Republic of Germany. The simultaneous application of both U.S. and German law results from the fact that a U.S. serviceman takes U.S. law with him when he travels abroad. The Uniform Code of Military Justice (UCMJ) "applies in all places."⁵ At the same time, of course, German law is applicable within the territorial limits of Germany. Because the law of both legal Systems has been violated, both can proceed.

Potential prosecution by more than one jurisdiction is highly undesirable for several reasons. First, it may provoke a serious dispute between allies as to which authority may properly proceed. Obviously it is not possible for both the United States and the foreign government concerned, at the same time, to arrest the suspected offender, hold him in pretrial confinement, try him, and, if he is found guilty, punish him. It would be wise, as a practical matter of good foreign policy, to minimize such situations. Second, for purposes of military efficiency and effectiveness, there are certain categories of cases over which the United States will always want to be guaranteed that it alone can exercise jurisdiction. These have been termed "official duty" cases and will be discussed at length later. Involvement of a foreign government in such matters could only adversely impact on the operation and management of the U.S. force. Third, and finally, there is the concept of fundamental fairness. Because an offense occurs abroad, an American serviceman may be twice punished--once by the United States and once by foreign authorities. Yet this result does not seem fair or just.

All these reasons--foreign policy, efficiency and effectiveness of the U.S. force, and concepts of fundamental fairness--suggest that a means of allocating jurisdiction is both necessary and essential. Allocation of jurisdiction would provide each government with a clearer picture of who possessed the primary right to proceed in a particular case to the exclusion of the other government. The term "primary right" is used is precluded from exercising jurisdiction in that case.⁶

The problem of allocating jurisdiction can be settled only in terms of rules and principles of international law. It is international law that governs the relationships among states. There are two basic sources of international law, either of which could provide guidelines for resolving the problem. They are international custom and international convention.⁷ International custom may be defined as the practice among states as to how to conduct their relations with one another which they have come to regard as legally binding in the absence of a formal written international agreement. International convention may be defined as a formally expressed agreement between two or more states regarding the establishment, amendment, or termination of their reciprocal rights and obligations.

If international custom contains satisfactory rules and principles for the allocation of jurisdiction, then an international convention to that effect would be unnecessary. What are the customary rules of international law relative to the exercise of jurisdiction by a foreign state over the visiting forces of another state within its territory? The question was considered by Chief Justice John Marshall in the Schooner Exchange case decided in 1812.⁸ According to the facts of that case, the schooner Exchange was plying the high seas when she was seized by the French, renamed the Balaou 5, and assigned to the French fleet. As chance would have it, a storm arose, damaging the vessel at sea and forcing her into the port of Philadelphia for repairs, where the original American owners recognized her. They brought suit to recover her, and the issue taken on appeal to the U.S. Supreme Court was whether U.S. courts had jurisdiction to decide the dispute. Marshall, speaking for the Court, decided in the negative. He stated that it was an established principle of customary international law that forces temporarily passing through the territory of a friendly state with its permission in time of peace were exempt from the host country’s jurisdiction. The Balaou 5 was exempt from U.S. jurisdiction; and if the American plaintiffs had a meritorious claim against the vessel, they would have to pursue it in the French courts.

Unfortunately, the principle of the Schooner Exchange case is not very helpful today. U.S. forces around the world are not temporarily passing through friendly foreign territory. They are, and many have been for more than 25 years, permanently stationed there. Although legal scholars are not entirely in accord, ⁹ and that in itself is troublesome, the generally accepted view is that forces permanently stationed abroad are, as far as customary law is concerned, subject to host government jurisdiction.¹⁰

The only remaining source of international law that may be relied on to resolve the problem of allocating jurisdiction is international convention. It is an accepted principle that states can voluntarily cede jurisdictional rights by agreement. This is precisely what the United States has asked foreign governments to do. In SOFA's, foreign governments agree that in certain cases they will forego exercising their jurisdiction (which in the absence of such an agreement they would have a sovereign right to do) and instead will permit the United States the primary right of jurisdiction. From this viewpoint it is clear that SOFA's do not decrease rights of U.S. servicemen but rather expand them by guaranteeing that in certain matters the foreign government will not act and that the United States alone will proceed.

The United States has successfully concluded SOFA's with all foreign governments where substantial U.S. forces are stationed, with the single exception of Thailand.¹¹ In each of these agreements the NATO SOFA formula for the allocation of jurisdiction has been adopted, with minor modifications, as the standard.¹² Although it was not originally intended that the provisions of the NATO SOFA should constitute a precedent for subsequent negotiations with other states, in actuality that is what happened.¹³ Consequently, by reviewing the NATO SOFA formula, one can gain a basic understanding of how the United States and its allies have undertaken to resolve this potential problem.

The NATO SOFA formula provides guidelines for both exclusive and concurrent jurisdiction situations. When the law of only one state, either U.S. or foreign, is violated, then the matter is considered as exclusively within the jurisdiction of the state whose laws were disregarded. The NATO SOFA describes exclusive jurisdiction from two vantage points: that of the sending state (the U.S. in the case of U.S. forces stationed abroad)¹⁴ and the receiving state (the foreign or host government).¹⁵ An example of an incident that would be within the exclusive jurisdiction of the United States as the sending state is AWOL. Absence without leave is a violation of Article 86 of the Uniform Code of Military Justice. Such an offense, however, would not be a violation of foreign law. What this means, then, is that all AWOL cases will be dealt with by the United States alone. An example of an incident within the exclusive jurisdiction of the foreign government as the receiving state would be the taking of photographs by a U.S. military man in a restricted area of the host state. Such an act would violate foreign law. In the absence of a U.S. service regulation (which is the usual case), it would not violate U.S. law. What this means, then, is that the foreign government alone will deal with incidents of this nature.

The great majority of cases that arise are concurrent, however. When the law of both the sending and the receiving state is violated, then the matter is concurrent. If a U.S. serviceman stationed abroad commits a robbery, then both U.S. and foreign law have been violated, and the matter is one of concurrent jurisdiction. Which government will have the primary right to proceed? The NATO SOFA begins with the premise that the authorities of the receiving state will have the primary right.¹⁶ But two basic exceptions to this premise are recognized. They are the "inter Se" and "official duty" exceptions. If a case can be characterized as either "inter se" or "official duty," then it will be a matter for the United States as the sending state. The U.S. will have the primary right, and the foreign government will be excluded from proceeding. It is extremely important that military decision-makers thoroughly understand the concepts of "inter se" and "official duty" because it is they who must determine if incidents involving their personnel can be characterized as such. It is also they who must make the official representations to the foreign government in order to preserve the U.S. primary right. Misunderstanding by military decision-makers may not only impair the rights secured to U.S. military personnel by the SOFA but may also lead to serious international disputes at the highest levels of government.

For a case to be "inter se," it must be one in which the alleged offense was committed by a member of the U.S. force or a member of the U.S. civilian component solely against the property or security of the United States or the property or person of another member of the U.S. force, civilian component, or dependent.¹⁷ Although "inter se" cases may be broadly categorized as cases between Americans, this is not entirely accurate. It is important to note who is excluded and who is included by this legal test. First, the phrase "members of the U.S. force" has been interpreted to include Reserve or National Guard units. So, if a National Guardsman steals from another while stationed in England, the case may be characterized as "inter se. Second, the phrase "civilian component," by the terms of the NATO SOFA, specifically excludes individuals who are stateless (i.e., nationals of no state), nationals of the host country, nationals of a non-NATO country, or those ordinarily resident in the foreign state where the force is located.¹⁸ Thus, if a Spanish national employed at a U.S. military installation in Spain commits a theft or is himself the victim of a theft, he cannot be considered as a member of the U.S. "civilian component," and the case cannot be characterized as "inter se." Likewise, if a U.S. national has been living in Italy since the end of World War II and is hired to work at a U.S. military installation in that country and thereafter he commits a crime or is the victim of an offense, he cannot be considered a member of the U.S. "civilian component," and the case cannot be characterized as "inter se." Finally, if a dependent is involved, the case can be characterized as "inter se" only if he is the victim. If he is the wrongdoer the case cannot be "inter se" because the legal test permits only two classes of wrongdoers: members of the U.S. force or members of the U.S. component.

Incidents will arise which will not fit clearly into the legal test of "inter se," and military decision-makers in conjunction with their staff especially the JAG, will be confronted with the task of reaching an understanding with foreign authorities. This is done by ad hoc negotiation. Past decisions reached through ad hoc negotiations can be relied on as guideposts to assist in settlement of future disputes. The precedential value of past decisions highlights the importance of positions agreed to in current negotiations, as they will become the basis on which future decisions may rest.

The second exception to the general premise that the receiving state has the primary right to exercise jurisdiction in concurrent situations is "official duty." A case may be characterized as "official duty" if the alleged offense is committed by a member of the U.S force or member of the U.S. civilian component and arises out of any act or omission done while in the performance of official duty.¹⁹ In order for the United States to be able to carry out its military mission and, supplemental thereto, maintain good order and discipline, it is necessary, if not imperative, that the foreign government be excluded from interfering in the daily operations of the force. In the absence of an "official duty" exception, that is precisely what could happen.

The application of the "official duty" concept to actual situations can be difficult. Two examples may serve to give a better feel. The first involves a guard on sentry duty. He has been ordered to protect a firing range. In the process of doing so, he uses excessive force and kills a foreign national.²⁰ This incident can be characterized as "official duty" because the guard's use of excessive force occurred in the performance of his duty. This is a prime example of an "official duty" type of situation. The issue is not whether the guard exercised bad judgment but rather which sovereign, the United States or the foreign government, will have the primary right to proceed. The second example also involves a guard on sentry duty assigned to protect a firing range. This time, because of his enmity for local nationals of the country where he is stationed, he decides to fire his automatic weapon into a passing passenger train. A passenger is killed. This is clearly not an "official duty" case because the train represented no threat to the firing range. The guard acted beyond his orders.

Certain principles can be distilled from these two examples that can assist the military decision-maker in determining whether a factual situation qualifies as "official duty." In the first instance, the duty status must be identified. Was the duty or service required or authorized to be done by statute, regulation, or order (whether written or verbal) of a superior or by military custom? In addition to the duty status, the act done must also be identified. Was the act related to the duty status? If both questions are answered affirmatively, then the incident may be characterized as "official duty." But, to repeat. not all acts done while on duty are "official duty" (as in the second or passing train example). Likewise, the commission of a wrongful act per se does not remove a case from the "official duty" category (as in the first example). To hold otherwise would make the "official duty" exception meaningless. The issue is never whether there was a wrongful act but whether the alleged wrongful act was done in the performance of "official duty."²¹

Once it is decided that an "official duty" situation exists, then a duty certificate must be issued by proper U.S. military authorities. The duty certificate is an official communication with a foreign sovereign regarding a foreign criminal jurisdiction matter that the U.S. has characterized as "official duty." Of course, the foreign government may dispute the U.S. view, and negotiations may be necessary. Since the duty certificate is an official communication with foreign authorities, it should be prepared so as to avoid offending the foreign government. A few recommendations may prove helpful. A duty certificate should never be a form letter with blanks filled in. It should always be written so as to contain a clear statement of the facts of the case and the U.S. reasoning as to why it is believed that the incident is one of "official duty." The tone of the certificate should be deferential yet firm, never offensive. Finally, it should never be signed by a junior officer; the most senior officer available should be encouraged to sign such a communication.

Even if the foreign government has jurisdiction, the United States may request that the foreign sovereign relinquish its jurisdiction and permit the United States to proceed with the matter. U.S. government has a policy of maximizing jurisdiction, but it does not have a policy of requesting a waiver in every case.²² This means that certain conditions must be met before the United States will request a waiver. For military personnel a waiver may be requested if it appears probable that the United States will not obtain jurisdiction under the SOFA allocation formula and, further, that the accused may not receive a fair trial.²³ The military decision-maker is cautioned not to conclude that a trial will be unfair merely because it does not conform to trials held in the United States. A more sophisticated approach is required to determine if, on the whole, the foreign trial will be unfair. For civilian personnel and dependents, the same conditions necessary for request of waiver for military personnel apply, and in addition a waiver may be requested if the local commander determines, after careful consideration of all the circumstances, "that he can take suitable corrective action under existing administrative regulations."²⁴ Then he may request the local authorities to refrain from exercising their criminal jurisdiction.

If a waiver is requested, the NATO SOFA provides that the foreign government "shall give sympathetic consideration."²⁵ Experience shows that a very high percentage of U.S. requests for waiver are granted. For the period 1 December 1970 through 30 November 1971, 94.4 percent of all U.S. requests under the NATO SOFA were granted, and 88.4 percent of all U.S. requests under all SOFA's were granted.²⁶

Many NATO countries have agreed, in supplemental arrangements to the SOFA, to procedures for handling waivers. In the German supplemental, for example, the U.S. is granted a blanket waiver in all cases, and the Federal Republic reserves the right of recall "where competent German authorities hold the view that, by reason of special circumstances in a specific case, major interests of German administration of justice make imperative the exercise of German jurisdiction."²⁷ According to this arrangement, a case that would normally belong to the Germans is automatically waived to the United States unless the German authorities undertake affirmative action to recall the case. In the absence of recall, the matter will belong to the United States. Thus, in addition to the SOFA it is extremely important that military decision-makers become familiar with any supplemental arrangements that may have been agreed to between the United States and the foreign government concerned.

On the other hand, it must be acknowledged that a foreign government may request that the United States waive its jurisdiction and permit foreign authorities to deal with a matter. The United States, like the foreign government, is required to give "sympathetic consideration" to such requests. Admittedly, cases will arise in which waiver of U.S. jurisdiction may be advisable, a prime example being one in which a husband and wife are both charged with an offense that should be litigated in one trial but the wife is not subject to the UCMJ.²⁸ A single trial can be achieved by waiver of U.S. jurisdiction over the husband so that the foreign government can try them both. It is important that the local military decision-maker realize that he lacks the authority to make this decision. U.S. jurisdiction can be waived only by the Office of the Secretary of Defense,²⁹ and in cases of request for waiver in "official duty" matters, the approval of the White House must be sought. Local commanders do have a great responsibility, however, in setting forth the facts of a case so that decision-making authorities can do their job well.

Up to this point the focus has been on methods and means by which the United States may obtain jurisdiction over a case from foreign authorities. Focus now shifts to a consideration of the nature and kind of protection which the U.S. government is obligated to provide military personnel abroad should the foreign government retain jurisdiction.

The term "protection" does not mean that the United States will interpose itself between the foreign government and the accused, frustrating the foreign criminal process. Rather, it means the assistance and services rendered by the United States.

The first concern is to assist the accused in avoiding pretrial confinement. In many foreign countries pretrial confinement can last several months or even years. Foreign prisons are not pleasant places. Moreover, in terms of the military mission, it is desirable to have the accused at his job until trial rather than languishing in foreign pretrial confinement.

One purpose of pretrial confinement is to insure that the accused will be present at his trial. The "administrative hold" process is designed to provide such assurances to foreign authorities so that the military man need not be placed my pretrial confinement.³⁰ When the military becomes aware that charges have been filed against an individual or that he is under investigation, the individual is placed on administrative hold. He cannot be transferred out of the country until the charges against him are disposed of.³¹ This permits the U.S. government to make a representation to foreign authorities, in the form of a guarantee, that the accused will be produced at trial. In short, the United States assumes responsibility for the accused, and the foreign government no longer needs to place him in pretrial confinement.

As a result of administrative hold procedures, most servicemen abroad avoid pretrial confinement. In cases where assurances of administrative hold prove inadequate, military decision-makers are authorized to make use of appropriated funds to post bail.³² Bail plus administrative hold generally proves adequate.

The military decision-maker, as well as the accused, ought to be aware of a number of implications of the administrative hold policy. First, one of the best ways to create an international incident is to give assurances to a foreign government that an accused will be available at trial and then be unable to produce him. When such assurances are given, the military decision-maker must make certain that the individual is present. Failure to honor such an assurance will have very adverse effects on later cases--credibility will be lost, and the foreign government will almost surely insist that future military personnel under charges be placed in pretrial confinement. Second, administrative hold action creates hardships both for the accused and for the military. The accused may be placed on hold for a long time, which can be especially difficult if the accused is on an unaccompanied tour or is required to remain abroad beyond his date of return. It can be difficult (and expensive) for the military service concerned because it cannot freely transfer personnel where needed. However, the purpose of administrative hold is to keep the accused out of a foreign prison while awaiting trial. If that is a desirable end, then the hardships must be endured. Of course, by far the most desirable situation is the avoidance of foreign involvement in the first place. Every military decision-maker should have a preventive law program to minimize these kinds of problems.

Another purpose of pretrial confinement is to restrain an accused suspected of a serious or violent crime, especially if he is likely to commit the offense again. The decision may be made by the foreign government that such an individual should be left in pretrial confinement. Whether the accused is left in pretrial confinement as a result of a decision to leave him there or because the United States failed to achieve his release through the administrative hold procedure or through offers of bail, the U.S. government has a duty to him: ". . . insofar as practicable and subject to the laws and regulations of the country concerned and the provisions of any agreement between that country and the United States," the United States is obligated to see that he is fairly treated at all times and "when confined in a foreign penal institution," to see that he is "accorded the treatment and" all the rights, privileges, and protections of personnel confined in US military facilities."³³ This requires that military personnel in foreign prisons be "visited at least every 30 days, at which time the conditions of confinement as well as other matters relating to their health and welfare will be observed and reported."³⁴ The individual's commanding officer or his representative is encouraged to make such visits. Chaplains and medical officers should make periodic visits. Also U.S. military personnel confined in foreign penal institutions are to be "provided with medical and dental treatment, medicines, health and comfort items, clothing, and supplemental food stocks, all to an extent not to exceed the type and quantity furnished prisoners in US military confinement facilities."³⁵

The parties to the NATO SOFA have agreed that whenever U.S. military personnel, members of the civilian component, or dependents are prosecuted by foreign authorities, such persons will be entitled to a number of trial safeguards. These include having a prompt and speedy trial; being informed, in advance of trial, of the specific charges against them; being confronted by witnesses against them; having compulsory process for obtaining witnesses in their favor; having legal representation of their own choice or havng free or assisted legal representation under the prevailing conditions in the foreign state; having the services of an interpreter, if the accused considers it necessary; communicating with a representative of the U.S. government and, when the rules of the court permit, having such representative present at trial.³⁶ These are significant rights, especially since martial law prevails in many countries.

The purpose of the trial safeguards is to provide the accused with a fair trial. In addition to the provisions of the NATO SOFA, a triservice regulation sets forth guidelines that can be used to determine if a local proceeding is fundamentally fair:³⁷

• the criminal statute alleged to be violated must set forth specific and definite standards of guilt

• the accused shall not be prosecuted under an ex post facto law or a bill of attainder

• the accused must be informed of the charges against him and have a reasonable time to prepare a defense

• the accused is entitled to be represented by counsel

• the accused is entitled to be present at his trial

• the accused is entitled to confront witnesses against him

• the accused is entitled to compulsory process for obtaining witness on his behalf

• evidence obtained by unreasonable search and seizure is prohibited

• the burden of proof is on the government

• the accused is entitled to be tried by an impartial court

• the accused may not be compelled to testify against himself

• the accused shall not be subject to cruel and unusual punishment

• the accused is entitled to be tried without unreasonable or prejudicial delay

• the accused is entitled to have an interpreter when he does not understand the native language in which trial is conducted

• the accused is entitled to public trial

• the accused is entitled to protection against double jeopardy.

In applying these guidelines one must recognize the critically important fact that they are only guidelines. They not requirements that must be fulfilled word for word or line for line. The spirit is what is important. Foreign criminal procedure is foreign and cannot be expected to be identical to that found the United States. But difference does not mean unfairness. The guidelines must be applied in the context of the foreign environment to see that, all factors considered, the trial is fundamentally fair.

U. S. funded participants and observers at 
foreign trials

A U.S. serviceman under charges in a foreign criminal proceeding is entitled, if he so desires, to have a local defense counsel hired to represent him. The services of the local defense counsel are to be retained and paid for by the U.S. government out of appropriated funds.³⁸ Air Force commanders should be aware that such funds are chargeable to the base for operation and maintenance purposes (O&M or R&D, as applicable).³⁹ These expenses can be extensive while at the same time they cannot be accurately budgeted for since the number and kind of foreign criminal jurisdiction cases cannot be foreseen.

The local defense counsel is a member of the foreign bar admitted to practice before the local courts. He is responsible for the case of the accused and is charged with preparing the defense before the foreign tribunal. No judge advocate or other military officer is to preempt him. If the accused does not understand the native language, and if he so desires, an interpreter will also be hired and paid for by the U.S. out of appropriated funds.⁴⁰

In addition to the local defense counsel, a U.S. trial observer will be present at the foreign criminal proceeding. The trial observer must be a military man of mature judgment; in cases involving other than minor offenses, he must be a judge advocate. An offense cannot be considered minor if there has been serious personal injury or extensive property damage or if the punishment upon conviction is normally confinement, whether suspended or not. In these cases the trial observer must be a judge advocate.⁴¹

The trial observer is a representative of the United States. He is neither prosecutor nor counsel to the accused. The local defense counsel functions as counsel to the accused. The trial observer, therefore, may not enter into a confidential relationship with the accused. He is not considered a member of the defense team nor is he to attempt to interject himself into the trial proceedings. If the occasion necessitates and circumstances permit, he should take appropriate measures to advise the local defense counsel of the rights of the accused under applicable SOFA and supplemental agreements. On request of the court and the local defense counsel, he will obtain witnesses and evidence available from the U.S. government. But his basic function is to see, hear, and report all proceedings associated with the trial. He is to note the progress of the trial and report any violations of trial safeguards. He is there principally to insure that the accused receives a fair trial as guaranteed to him under the SOFA.⁴²

After the trial is over, the trial observer is to file his report. This report may be regarded as the "key" to supervising the entire foreign criminal process. The report is to contain the factual description or summary of the trial proceedings. The trial observer should set forth specific instances, if any, of denials of trial safeguards secured by the SOFA. He should not, however, draw the general conclusion as to whether the accused received a fair trial under the circumstances. This decision is usually left to higher reviewing authorities.⁴³ In Pacific Air Forces (PACAF), trial observers have been assigned this additional task of drawing the general conclusion as well.

Because of extensive, firsthand experience, trial observers can provide another service in addition to their reports. They can make management recommendations to higher U.S. authorities for improving procedures or avoiding problem areas. Perhaps the trial observer’s recommendations can be implemented by the U.S. government unilaterally. Perhaps they will require negotiations between the two governments. In any case, improvement of relations can only inure to the benefit of all.

The Task Force on the Administration of Military Justice suggested that "a military adviser be provided to the accused in all cases in which foreign governments exercise their jurisdiction to try a military serviceman in their courts."⁴⁴ The Task Force based its recommendation on the belief that such an adviser would provide the accused serviceman with someone who speaks his own language and who has a direct and immediate interest in his specific case. The Task Force was of the opinion that neither the local defense counsel nor the U.S. trial observer could assume that role.

To implement the Task Force recommendation, provision was made for the assignment of another judge advocate as military legal adviser (MLA) when the occasion warranted and circumstances permitted.⁴⁵ This American military lawyer, unlike the trial observer, may enter into a confidential relationship with the accused. His primary responsibility is to insure that the accused is aware of his rights and obligations under applicable agreements and regulations. He may also render assistance to the local defense counsel or to the accused directly. But he is not to pre-empt the local defense counsel. Like the trial observer, the MLA is not a member of the local bar. In rendering assistance directly to the accused, the MLA may represent him or defend him in related U.S. criminal or administrative proceedings growing out of the offense before the foreign tribunal. He is also responsible for looking after the totality of interests of the accused vis-à-vis the military, such as pay matters and the like.

Since the roles of the trial observer and the military legal adviser are inconsistent (the trial observer's duty is to protect the interests of the United States; the military legal adviser's duty is to the accused), the same individual cannot be detailed to both.⁴⁶ Nor can the same person be appointed trial counsel in a related court-martial proceeding growing out of the incident and also be named as military legal adviser.

There are several other services that the U.S. government may provide to servicemen facing charges in foreign courts. The government is authorized to expend appropriated funds to pay the court costs of the accused.⁴⁷ This may remove a financial burden from the shoulders of the accused that could be significant. The United States may offer settlement assistance of outstanding claims against the accused.⁴⁸ In many countries the settlement of an outstanding claim may have the result of terminating the case; against the accused. The military decision-maker must always remember that claims funds can facilitate a rapid disposition of the entire affair.

The U.S. government can offer investigative assistance. The NATO SOFA recognizes that "the authorities of the receiving State and the sending State shall assist each other in the carrying out of all necessary investigations into offenses and in the collection and production of evidence, including the seizure and, in proper cases, the handing over of objects connected with an offense. …"⁴⁹ word of caution is necessary. If military decision-maker plans to send U.S. investigators into the foreign civilian community to assist the accused, or the foreign court for that matter, he should advise the local police authorities of his contemplated action. Foreign nations are extremely sensitive about having U.S. "agents" roaming about their country. Serious incidents have arisen in the past because local police were not informed. By informing them we can avoid such incidents, and in most cases the local police will welcome whatever assistance U.S. investigators can provide.

Finally, the U.S. government can use diplomatic channels. This option is available, for example, to protest inadequate treatment given an accused held in pretrial confinement or the absence of a fair trial as judged by the trial safeguards. The latter protest will be based on the trial observers report and the facts contained therein. Diplomatic channels may prove helpful in achieving action that other channels were unable to accomplish.

During World War II a B-17 crew was asked to test a new engine. The plane climbed to something over 16,000 feet, and the pilot feathered the three regular engines to determine if the new one would work. Then, for a laugh, he feathered the fourth engine. When all four propellers had stopped, the plane soared downward. Then, the exhilarating moment having passed, the pilot pushed the button to unfeather the engines. At that precise instant he realized that he could not unfeather an engine without power and that there is no power unless one engine is going. As the plane glided quietly toward the Newfoundland mountains, the copilot chuckled, turned to the pilot, and said, "Boy, you sure got a problem!"

It's clear that the pilot in this story is not the only person who's "got a problem." The entire crew has a problem. So, too, with foreign criminal jurisdiction matters and SOFA's. These are problem areas that are not solely the responsibility of the diplomat or the international lawyer. The military decision-maker is involved on a day-to-day basis. How well he performs can have a direct impact on the military mission and the foreign policy of the United States.

1. Not so obvious, however, may be the number of criminal jurisdiction cases.

Compiled from the Department of Defense Statistics on the Exercise of Criminal Jurisdiction by Foreign Tribunals over United States Personnel, prepared by the Office of The Judge Advocate General of the Army in accord with AFR 110-12, paragraph 4-4.

2. DOD Directive 5525.1 dated 20 January 1966 and changes 1 and 2; AFR 110-12 dated 5 September 1974, paragraph 1-2(c) and (d).

3. See generally, for example, Agreement between the parties to the North Atlantic Treaty Regarding the Status of Forces (4 UST 1792; TIAS 2846; 19 UNTS 67), referred to hereafter as the NATO SOFA. Reprinted in AFP 110-20 at 4-1.

4. The full text of the Resolution is reprinted I Appendix A, AFR 110-12. "Although the Senate Resolution applies only in countries in which the NATO Status of Forces Agreement is currently in effect, the same procedure for safeguarding the interests of U.S. personnel subject to foreign jurisdiction will be applied, insofar as practicable, in all overseas areas." AFR 110-12, paragraph 1-1.

5. 10 USC 805.

6. The phrase "primary right" is standard terminology in al1 SOFAs. Note, for example, Article VII, paragraph 3(a), NATO SOFA, See also, Aitchinson v. Whitley, 43 Revue Critique de Droit International Prive 602 (1954).

7. Article 38, Statue of the International Court of Justice.

8. The Schooner Exchange v. McFadden, 11 US 116 (1812).

9. There are those scholars who believe that customary international law exempts, "official duty" cases from foreign-host government jurisdiction. See Vincent A. Jordan, "Creation of Customary International Law by Way of Treaty, "USAF JAG Law Review, vol. 9 (September-October 1967), p. 38.

10. See dictum in Reid v. Covert, 354 US 1, 77 S Ct 1222; 1 L Ed 2d 1148 (1957); Kinsella v. Kruger, 354 US 1, 77 S Ct 1222; 1 L Ed 2d 1148 (1957); and Wilson v. Girard, 354 US 1, 77 S Ct 1409; 1 L Ed 2d 1544 (1957).

11. Thailand, not colonized by any country, has a very long history of independence. As such, Thailand is extremely sensitive about her national sovereignty. Since a Status of Forces Agreement would require, in effect, a yielding of sovereignty, Thailand has not been willing to enter into such an arrangement. However, as a result of informal ad hoc procedures that have evolved between the United States and Thailand, a virtual allocation of jurisdiction has been accomplished.

12. The NATO SOFA formula for allocation of jurisdiction is set forth in Article VII of that agreement.

13. See paragraph 1, Resolution of Ratification, with Reservation, as Agreed to by the Senate on July 15, 1953 (respecting the NATO SOFA), as reprinted in Appendix A, AFR 110-12.

14. Article VII, paragraph 2 (a), NATO SOFA.

15. Article VII, paragraph 2 (b), NATO SOFA.

16. Article VII, paragraph 3, NATO SOFA.

17. Article VII, paragraph 3 (a), NATO SOFA.

18. Article I, paragraph 1(b), read in conjunction with Article VIII, paragraph 3 (a), NATO SOFA.

19. Article VII, paragraph 3 (a), NATO SOFA.

20. The facts in this example are essentially the same as those in Wilson v. Girard, supra, note 10.

21. See Will H. Carroll, "Official Duty Cases under Status of Forces Agreements: Modest Guidelines toward a Definition," USAF JAG Law Review, vol. 12 (Fall 1970), pp. 284-89.

22. AFR 110-12, paragraph 1-4 (a).

23. AFR 110-12, paragraph 1-4 (a)1.

24. AFR 110-12, paragraph 1-4 (b)1.

25. Article V11, paragraph 3 (c), NATO SOFA.

26. Report of the Committee on Armed Forces of the United States Senate," Operation of Article VII, NATO Status of Forces Treaty," 93^rd Congress, 1^st Session (March 27, 1973), Report No. 93-90.

27. Article XIX, Agreement between the parties to the NATO SOFA and Germany of 3 August 1959, 14 UST 531; TIAS 5351; 481 UNTS 262.

28. Kinsella v. Singleton, 361 US 234; 80 S Ct 297; 4 L Ed 2d 268 (1960).

29. AFR 110-12, paragraph 1-4 (c).

30. AFR 110-25.

31. AFR 110-25, paragraph 4.

32. 10 USC 1037.

33. AFR 110-12, paragraph 3-1.

34. AFR 110-12, paragraph 3-4.

35. AFR 110-12, paragraph 3-5.

36. Article VII, paragraph 9, NATO SOFA.

37. AFR 110-12, Appendix C.

38. 10 USC 1037.

39. AFR 110-12, paragraph 2-9(a).

40.10 USC 1037.

41. AFR 110-12, paragraph 1-5(a).

42. AFR 110-12, paragraph 1-5(b).

43. AFR 110-12, paragraph 1-5 (d).

44. Report of the Task Force, vol. 1, p. 126.

45. AFR 110-12, paragraph 1-6, and TIG Brief, no. 8 (1973), p. 16.

46. AFR 110-12, paragraph 1-6.

47. 10 USC 1037.

48. AFM 112-1 dated 1 December 1972, chapters 8 and 9; Article VII, NATO SOFA.

49. Article VII, paragraph 6, NATO SOFA.

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