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GOVERNMEN1 

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HEARING

BEFORE A

SUBCOMMITTEE OF THE

COMMITTEE ONa MED SERVICES

UNITED STATES Lg_NATE

EIGHTY-SEVENTH CONGRESS

FIRST SESSION

TO REVIEW, FOR THE PERIOD DECEMBER 1, 1959, THROUGH

NOVEMBER 30, 1960, THE OPERATION OF ARTICLE VII OF THE

AGREEMENT BETWEEN THE PARTIES TO THE NORTH ATLANTIC TREATY, TOGETHER WITH THE OTHER CRIMINAL

JURISDICTIONAL ARRANGEMENTS THROUGHOUT

THE WORLD

JULY 19, 1961

Printed for the use of the Committee on Armed Services

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72812 WASHINGTON : 1961

A
COMMITTEE ON ARMED SERVICES

RICHARD B. RUSSELL, Georgia, Chairman

HARRY FLOOD BYRD, Virginia

JOHN STENNIS, Mississippi

STUART SYMINGTON, Missouri

HENRY M. JACKSON, Washington

SAM J. ERVIN, JR., North Carolina

STROM THURMOND, South Carolina

CLAIR ENGLE, California

E. L. BARTLETT, Alaska

HOWARD W. CANNON, Nevada

ROBERT C. BYRD, West Virginia

HARRY L. WINGATE, Jr., Chief Clerk

LEVERETT SALTONSTALL, Massachusetts

STYLES BRIDGES, New Hampshire

MARGARET CHASE SMITH, Maine

FRANCIS CASE, South Dakota

PRESCOTT BUSH, Connecticut

J. GLENN BEALL, Maryland

SUBCOMMITTEE TO REVIEW OPERATION OF ARTICLE VII OF THE NATO STATUS OF

FORCES TREATY

SAM J. ERVIN, JR., North Carolina, Chairman

STROM THURMOND, South Carolina PRESCOTT BUSH, Connecticut

T. EDWARD BRASWELL, Professional Staff

II
CONTENTS

Statements of—

Forman, Benjamin, Assistant General Counsel

Department of Defense 

Todd, Brig, Gen. Alan B., Assistant Judge

Military Justice, Department of the Army 

(International Affairs)

Advocate General for

Pate

1

12

OPERATION OF ARTICLE VII, NATO STATUS OF

FORCES TREATY

WEDNESDAY, JULY 19, 1961

U.S. SENATE,

SUBCOMMITTEE ON NATO STATUS OF FORCES

OF THE COMMrrTEE ON ARMED SERVICES,

Washington, D.C.

The Status of Forces Subcommittee (composed of Senators Ervin

(chairman), Thurmond, and Bush) 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 10:45 a.m., in room 212, Old Senate Office Building.

Present: Senators Ervin (presiding) , and Thurmond.

Also present: T. Edward Braswell, Jr., professional member;

Harry L. Wingate, Jr., chief clerk.

Senator ERVIN. The subcommittee is meeting today for the purpose of receiving the annual report from the Department of Defense

on the operation of our criminal jurisdictional arrangements through:-

out the world which subject U.S. servicemen to the jurisdiction of foreign courts. Today's report will cover the period December 1, 1959,.

through November 30, 1960.

The Chair would like to emphasize today, as in the past, that the

subcommittee makes no attempt to judge whether these arrangements.

are wise or unwise. Our purpose is to observe the operation of the

arrangements on the efficiency and morale of our forces overseas.

Following the opening meeting the departmental representatives

have a few remarks which will be made in executive session.

We welcome today Mr. Benjamin Forman, Assistant General

Counsel (International Affairs), Department of Defense, and Brig.

Gen. A. B. Todd, Assistant Judge Advocate General, Department of

the Army, for Military Justice.

We will first hear from Mr. Forman.

STATEMENT OF BENJAMIN FORMAN, ASSISTANT GENERAL

COUNSEL (INTERNATIONAL AFFAIRS), DEPARTMENT OF

DEFENSE

Mr. FORMAN. Thank you, Mr. Chairman.

Mr. Chairman, again we welcome this opportunity for representatives of the Department of Defense to appear before you and report

on the operation of the criminal jurisdictional provisions of the

NATO Status of Forces Treaty and similar agreements throughout

the world. This presentation, which is the eighth of an annual series,

1
2 ARTICLE VII NATO STATUS OF FORCES TREATY

reviews, for the period December 1, 1959, through November 30, 1960,

the operation of these jurisdictional arrangements.

I am pleased to report that the operation of these agreements continues to be satisfactory. As in prior years, there have been special

problems which have required the particular and continuing attention of officials of the Departments of State and Defense both here

and abroad, but none of these problems has impaired the accomplishment of our military missions in the various countries where our

forces are stationed.

The rate at which foreign authorities granted waivers of their

primary right to exercise jurisdiction remained fairly stable—showing a slight decrease over the preceding reporting period from 60.25

to 58.33 percent, insofar as military personnel are concerned. The

rate among the NATO countries, with respect to military personnel,

has increased slightly from 57.13 to 58.41 percent.

I might add at this point, departing from my statement, that the

base figures which I have given you are not the same base figures reported in the past, because those 'base figures in the past included civilians over whom we no longer have jurisdiction. So to make the

new figures meaningful, I have for this purpose recomputed the percentages.

General Todd will give you a detailed statistical account for this

reporting period. I would like, first, however, to mention a few aspects of our experience during the reporting period and to bring the

committee up to date on some problems previously discussed.

The committee was advised last year that officials of the Departments of Defense, Justice, and State were actively considering a number of possible alternative solutions to the jurisdictional problems

raised by the Supreme Court decisions in January 1960, in McElroy

v. Guagliardo, -Wilson v. Boh,lender, Grish,arn, v. Hagen and Kinsella

-v. Singleton. As you will recall, the Court held in those cases that

civilian employees and dependents are not amenable to trial by court

martial in time of peace. As a consequence of our studies, the Department of Defense narrowed the possible alternatives to the following three:

And I should add at this point once again that these are not necessarily in the disjunctive, they may be a combination of the three. As

you will recall, last year I mentioned 10 possibilities in my testimony.

First, a constitutional amendment, authorizing the exercise of courtmartial jurisdiction over persons serving with, employed by, or accompanying the Armed Forces outside the United States

Second, legislation subjecting persons owing allegiance to the

United States to the jurisdiction of U.S. district courts for crimes

committed outside the United States and the Canal Zone • and

Third, legislation providing for the apprehension, detention and

disposition of persons serving with, employed by, or accompanying

the Armed Forces outside of the United States and the Canal Zone.

Drafts of these proposals were recently completed in the Department of Defense and are now being considered by other interested

agencies of the executive branch of the Government. As the committee will appreciate, the technical sufficiency, feasibility, and appropriateness of these drafts will have to be determined before a decision is reached to include these items in the legislative program of

the executive branch.
ARTICLE VII NATO STATUS OF FORCES TREATY 3

Senator ERVIN. If it will not interfere too much with your presentation, I would like to ask you this question at this time: Since the

Supreme Court decision holding dependents not subject to trial by

military court-martial, have there been any offenses committed abroad

by dependents of civilians, and, if so, where have these offenses been

tried?

Mr. FORMAN. The answer to the first question is, "Yes, there have

been offenses." I am not sure whether General Todd has broken them

down in his presentation specifically by civilians, but the green statistical book which we have presented to you does show, of course, in

the tables a breakdown by military, civilian and dependents, both

worldwide and by country.

Now, as to where these have been tried, I cannot give you a short

answer. It depends on the seriousness of the offense.

In some cases where the offenses have been very minor, the country

concerned has permitted us to take administrative action.

In serious cases such as murder, manslaughter, the foreign countries

have taken jurisdiction.

For example we have a case pending in Greece involving the dependent wife Of an Air Force sergeant who was accused of killing

her three children and attempting suicide. We _provided counsel's

fees to her, and she is in the custody of the Greek authorities right

now awaiting trial. She was in a U.S. Air Force hospital for about

a month, recovering from her suicide attempt and undergoing psychiatric examination.

Similarly, to give you another example, the wife of an Army sergeant in Germany beat her 2-year-old son to death with a leather belt.

A warrant for her arrest was issued by the German authorities, she

was tried, sentenced to 9 months' confinement, and the confinement

was suspended for a period of 4 years.

And there are other similar cases.

Senator ERVIN. I notice that in the Department of Defense statistics on the exercise of criminal jurisdiction by foreign tribunals over

U.S. personnel that you give the total number of civilians committing

offenses or charged with offenses within this period covered by this

report as 517, and the number of their dependents, 499, and you show

that in the majority of the cases, in the cases of civilians, and that

foreign jurisdiction are waived, the right to act in 399 cases, and in

the case of the dependents, they waived the right to act in 375, and that

they reserved jurisdiction in 118 cases over civilians, and 124 cases

over dependents.

Mr. FORMAN. That is correct.

Senator ERVIN. Which is a very illuminating statement in that

respect.

Mr. FORMAN. Continuing with my statement, last year I reported

that four servicemen were arrested by Turkish authorities and charged

with currency control law violations arising out of alleged illegal exchanges of United States and Turkish currency and that the trial of

these servicemen by Turkish courts was then in progress. I advised

further that several Turkish policemen, charged by two of the servicemen with brutal physical mistreatment of the servicemen after their

arrest, were tried and acquitted by a Turkish court of all charges

•
4 ARTICLE VII NATO STATUS OF FORCES TREATY

brought against them, but that an appeal had been filed by one of the

servicemen involved.

The trial of the American soldiers has since resulted in acquittal of

one of the defendants and the conviction of the other three—the longest

sentence imposed being 23 months. All sentences have been appealed.

The servicemen are being held in U.S. custody pending appeal. With

regard to the appeal of the acquittal of the Turkish policemen, no

final action has been taken and there is nothing further to report at

this time.

If you wish, sir, I can give you the exact sentences for each of the

servicemen.

Senator ERVIN. I think that would be very interesting and very

illuminating, I am sure, to the committee.

Mr. FORMAN. Staff Sergeant Recevuto was acquitted. Technical

Sergeant King was sentenced to 8 months and 5 days confinement and

fined approximately $137. Staff Sergeant Proietti was sentenced to 7

months and fined approximately $118, and Sergeant McCuistion, was

sentenced to 23 months, 10 days, and fined approximately $17,695.

The sentences, of course, indicate the judgment of the court as to the

relative degree of complicity in the operations that were being conducted.

We have several times reported to this committee the difficulties

which have arisen in Turkey with respect to the waiver provisions of

article VII of the NATO Status of Forces Agreement, which requires

a host state to give sympathetic consideration to requests by the

authorities of the sending state in cases of particular importance for

waivers of the host state's primary right to exercise jurisdiction.

To date, no Turkish official has been empowered under Turkish law

to waive Turkish jurisdiction over a criminal case. Although the

number of U.S. military personnel over whom the Turkish courts

exercise criminal jurisdiction continues to be small in number, we have

nevertheless been disturbed that the Turkish authorities have not

found it possible to take any action pursuant to this treaty provision.

Despite the fact that we can report very little progress during this

reporting period, we remain hopeful that a solution will be achieved.

We have also continued to be concerned over the length of trials of

American servicemen in Turkish courts, which, in some individual

case, are inconsistent with the purpose of paragraph 9(a), article VII,

of NATO SOFA and has resulted in the retention in Turkey of some

personnel after their normal rotation date. Despite repeated efforts

through the Department of State to speed up the judicial process

where American defendants are concerned, we can unhappily report

no concrete progress this past year. As stated previously in prior

years, however, there is no indication that the results of such trials are

other than just.

One other matter should be mentioned which presents a problem for

the Department of Defense in Turkey. Under Turkish law it is possible for a judge to hand down sentences of banishment in cases of

offenses calling for jail terms in excess of 6 months.

This is the case only with respect to certain crimes such as smuggling.

Such sentences have in a few cases been meted out to American

servicemen, although thus far these convictions have been reversed
ARTICLE VII NATO STATUS OF FORCES TREATY 5

on appeal. We are concerned, however, that in future cases such

sentences may be sustained and carried out. As this committee is

well aware, the U.S. Senate, in giving its advice and consent to ratification of the NATO SOFA, directs the commanding officer to request

the authorities of the receiving state to waive jurisdiction in accordance with paragraph 3(c) of article VII if in his opinion there is

danger that the accused will not be protected because of the absence

or denial of constitutional rights he would enjoy in the United

States.

One of the protections afforded the accused under the U.S. Constitution is that cruel and unusual punishments shall not be inflicted.

Whether or not banishment is cruel punishment, it is certainly unusual from the viewpoint of our jurisprudence. Such a punishment

also renders it difficult for U.S. authorities to visit the banished individual and to render to him the services normally afforded personnel imprisoned, such as bedding, clothing, health and comfort

supplies, hot meals, and pay. Accordingly, when the appropriate

opportunity arises, we shall request the assistance of the Department

of State in seeking Turkish accommodation on this point.

Senator ERVIN. Where are those men banished to?

Of course, no Americans have been punished in that way, but where

would they go?

Mr. FORMAN. Under Turkish law banishment is to a province or

village in a province which is approximately 200 miles from the place

where the victim and the accused reside and where the offense took

place. He. is perfectly free to do anything he pleases within that

area. He is not under any restraint, except that he cannot leave the

area. He can obtain employment. He is treated like any other member of the community. He is just temporarily removed from his

usual habitat.

As I stated, banishment is only for an offense such as smuggling

or narcotics, the thought being that this removes him from his normal

criminal contacts so that when he returns to his residence he will have

been out of touch with his underworld connections and will be unable to resume his criminal occupation.

Now, this isn't too harsh for a Turkish national.

It does present difficulties for our personnel, however. For one

thing the man probably doesn't know Turkish. Second, it makes

it difficult for us to supply him. I wouldn't say it is cruel, but it is

unusual.

If you wish, I have here a map you can look at showing an area to

which a person might be banished. I have it circled in red, and you

can see where that is as compared with Ankara, and other major

cities.

Senator ERVIN. This is an interesting question to me, the matter

of criminal punishment.

Do they have just certain areas of Turkey to which people are

banished?

General TODD. No; I don't think so, Senator. I believe they just

pick a place of legs than 2,000 population which they feel is far

enough removed from his usual criminal haunts.

72812-61---2
6 ARTICLE VII NATO STATUS OF FORCES TREATY

Mr. FORMAN. The area I have circled there is the place to which

one of our men has been sentenced to banishment, but that is pending appeal right now.

Senator ERVIN. I have seen a few American judges who resorted to

banishment, who would run persons out of one community by giving

them a suspended sentence on condition they leave, or who would release them and provide that a warrant for issue for their arrest at

a certain time, which gave them a chance to flee.

That always seemed to me a poor method of punishment, for a court

to banish to another a person that they didn't think fit to live in that

community.

General TODD. Apparently this is akin to our parole system, because

the man must report to the local police

'

and if he wants to go out of

this area he has to get permission, and so forth.

Senator ERVIN. I judge that whenever an effort is made to apply

this method of punishment to one of our servicemen in Turkey, that

the Defense Department would apply to the State Department in

connection with the matter to see that the punishment is not inflicted?

Mr. FORMAN. We intend so to do, sir.

Senator ERVIN. Because I can see that it would raise some real

problems, to take a man away from his organization.

General TODD. It wouldn't be so bad if the place of banishment

were near a military post, a U.S. military post, where the man could

have his contacts. But we have no assurance of this.

Senator ERVIN. Senator, do you have any questions with respect to

this particular matter?

Senator THURMOND. I don't think so in particular. I was just

thinking about that question of banishment. There may be some

instances possible in which it would be preferable for a man to leave

the surroundings in which he had been for a reasonable time. But I

think it is unusual when that is done. I think there ought to be unusual circumstances.

And if that could be pointed out, it might be helpful.

Mr. FORMAN. Last year I advised this committee of the case of Maj.

Donald Bourke, who was convicted of the involuntary manslaughter

of an Iranian national as a result of an automobile accident while

driving a Government vehicle on an authorized off-duty trip.

The Supreme Court of Iran granted an appeal on January 19,

1960, and returned the case to the appellate court where Bourke was

acquitted on June 11, 1960. The prosecution elected not to file an

appeal and the verdict of acquittal became final on June 20, 1960.

I also reported last year the case of M. Sgt. Raymond H. Peter, who 

was charged with the involuntary manslaughter of an Iranian national

as the result of an automobile accident while Sergeant Peter was driving a 34-ton truck on official duty. As you may recall, Sergeant Peter

was sentenced to 2 months confinement and fined 50,000 rials—about

$650. Although it was possible to satisfy this sentence of confinement

by the payment of an additional fine at the rate of 900 rials or $6.50

per day, the prosecution subsequently filed an appeal on the ground

that the sentence was too lenient. The supreme court on August 8,

1960, reversed the original judgment and ordered a new trial to be

held early in October. On October 30, 1960, Sergeant Peter was found

guilty of negligent homicide and given a sentence of 40,000 rial fine
ARTICLE VII NATO STATUS OF FORCES TREATY 7

and 60 days' confinement, which was purchasable by the payment of

30,000 rials, $397. Payment in full was made and Sergeant Peter was

returned to the United States.

Last year we reported to this committee that the United States had

announced its intention to enter into tripartite discussions with the

United Kingdom and the West Indies Federation to revise the 1941

Leased Bases Agreement.

These discussions were held from November through January of

this year. On February 10,1961, representatives of the United States

and the West Indies signed a new agreement relating to U.S. defense

areas in the West Indies. The previous agreement of 1941 contained

an "on base—off base" concurrent criminal jurisdiction provision;

the new provision is patterned after article VII of the NATO Status

of Forces Agreement as modified by the Netherlands formula on

waiver We consider the new agreement the best obtainable under

the circumstances and favorable from the U.S. point of view.

The German Supplementary Agreement, concluded in August 1959,

which is designed to supplement the NATO Status of Forces Agreement on the accession of Germany to it, was ratified on May 26, 1961,

by the Federal Republic Bundesrat.

The new agreement, together with the NATO Status of Forces

Agreement, will supersede the Bonn Forces Convention under which

we have been operating since the formal termination of the occupation regime. The criminal jurisdiction arrangements contained in

the new agreement supplement the provisions of article VII of the

NATO Status of Forces Agreement. and constitute something less

than the exclusive jurisdiction we have enjoyed under the Forces

Convention, but something more than is provided for in the NATO

Status of Forces Agreement. In an arrangement similar to our bilateral agreement with the Netherlands, the Federal Republic has

agreed to a general waiver of its primary right to exercise jurisdiction under article VII of the NATO Status of Forces Agreement but

retained the right to recapture such jurisdiction where major interest

of German administration of justice make imperative the exercise of

German jurisdiction.

In the Philippines, negotiations are continuing with respect to

modifications of certain aspects of the 1947 Military Bases Agreement. The United States is also still in the process of negotiating a

status-of-forces agreement with the Republic of China.

In April, the Department of State announced to the Government

of Korea, that the United States would be willing to open negotiations on a new status-of-forces agreement. Our current arrangements accord to the United States exclusive jurisdiction over members

of the U.S.. Armed Forces. These negotiations were suspended by

the revolution which took place in May and have not yet been

resumed.

In summary, overall, our operations under these agreements during

the reporting period continue to evidence the fact that the agreements

have provided a workable and fair framework for our activities

abroad.

Senator ERVIN. I would infer from the closing part of your written

statement, and also from our previous discussion, that in your opinion

It is correct to say that except for the problems which arise in Turkey,
-8 ARTICLE VII NATO STATUS OF FORCES TREATY

the Department of Defense is of the opinion that the arrangements

are operating satisfactorily throughout the world.

Mr. FORMAN. We, of course, have problems in other countries as

well, some of which I have mentioned in this statement, and some of

which we may mention in closed session, and others which we feel

are not important enough to bring to the committee's attention.

Overall, however, the agreements do work well.

The most important issues are, Do our operations under these agreements impair the mission of our forces, and do they adversely affect

the morale of our personnel?

And the answer to those questions is in the negative.

Indeed where we do not have agreements, the problems that we have

indicate quite strongly that we are much better off under the agreements.

I am thinking primarly of countries, for example, where personnel

may go on leave, where we have no troops stationed. We have difficult problems in those areas.

Senator ERVIN. Do you agree with the observations made by the

Department of Defense and the findings of the subcommittee in previous years, that as a general proposition the American servicemen

who are tried in foreign courts under these arrangements receive substantially less punishment than they would receive in American courts

for the same offenses?

Mr. FORMAN. I think that continues to hold true.

Would you confirm that, General Todd?

General TODD. Yes, I think that is true, Senator.

Senator ERVIN. The trouble is, I understand, one of the great

troubles in Turkey, as I recall from previous investigations, arises out

of the fact that the Turkish courts, unlike our courts, do not continue

the trial of a case until it is completed, but on the contrary they take a

part of the evidence on one day, perhaps, and then they adjourn for

a month or more before they resume the trial of the case.

Mr. FORMAN. That is correct, sir.

General TODD. At least several days; it may not be a month, or it

may be a month, but they do not have continuous daily sessions the

way we do.

Senator ERVIN. The subcommittee has been concerned with the

question of the adequacy of legal representation afforded our service

personnel on their trial in the courts of other nations under these

agreements. And I would like to inquire as to whether or not the

Department of Defense thinks that American servicemen being tried

in the Turkish courts, for example, are receiving adequately legal

representation.

Mr. FORMAN. Well, the personnel being tried are provided with

counsel of their own choice at the expense of the U.S. Government. I

have seen no indication from the trial observers' reports that these

counsel were other than adequate counsel.

We try to select the best people available, and maintain a list of

names selected by our personnel on the spot after discussions with

local bar associations as to who are the most, competent attorneys.

Would you like to add to that, General?

General TODD. I think that that is true. We can't, of course, judge

their representation by ours. But I think by and large they are getting good representation in the foreign courts.
ARTICLE VII NATO STATUS OF FORCES TREATY

Senator ERVIN. Do you have some observations, Mr. Forman, that

you would like to make in executive session later?

MT. FORMAN. Yes.

Senator ERVIN. Senator Thurmond, do you have any questions?

I might add at this point that as chairman of the subcommittee I

am delighted to have Senator Thurmond assigned as a member of

the subcommittee.

Senator Thurmond has rendered great service in a military way, and

now holds the rank of major general in the Reserves.

And he has likewise had a distinguished record in the judicial

field in his native State.

And so his assignment to the subcommittee is a great advantage.

And we are delighted to have him with us.

Senator THURMOND. Thank you very much, Mr. Chairman. It is

a pleasure to join you and aid the chairman of this committee in this

important way.

I just have a question or two here.

I think the chairman has brought out some important points, and

some that I had in my mind.

As I understood you to say a few moments ago, it is your opinion

that the the sentences received by the military personnel have been

smaller or lesser sentences than you feel they would have received in

a court-martial or in an American civilian court for the same offenses,

is that correct?

General TODD. Yes, sir.

Now, I will get into that, Senator Thurmond, in my presentation

a little more. But I think we can generalize and say that pretty

nearly always their sentences are less than what we feel they would

receive in our own courts.

Senator THURMOND. Have you had any complaint especially because

of the arrangements under which we now operate from the military

personnel?

General TODD. You mean with respect to being tried in foreign

courts?

Senator THURMOND. In other words, the average military personnel,

would they still prefer a court-martial, or would they prefer to be

tried under the court of the foreign country in which they are 

located?

General TODD. We have had no actual complaints, and so far as I

know we have had no requests for trial in our courts where they would

be normally tried in the foreign court.

Senator THURMOND. Have you heard any expressions of the men

as to which they would prefer to be tried under when they are

charged with a crime ?

General TODD. I have not, sir. We have had none of record either,

Senator Thurmond.

Senator THURMOND. Have you found any instances in which the.

punishment. meted out by the foreign courts has been unreasonable?

General TODD. No, sir, we have not.

Senator THURMOND. YoU don't recall of any instance in which that

is the case?

General TODD. No; unreasonable in severity, I think you are referring to, Senator Thurmond?
10 ARTICLE VII NATO STATUS OF FORCES TREATY

Senator THURMOND. That is correct.

General TODD. No, I do not believe we have had any.

As I say, sometimes it appears that their sentences are a good deal

less than they would get under our own courts.

Senator THURMOND. Have you gotten cooperation from the foreign courts when you ask a waiver of foreign jurisdiction in order

that they might be tried by a court-martial?

General TODD. We have had cooperation.

Now, we have not always been successful in obtaining a waiver

when we requested it. But they have their position to maintain, and

their own public to satisfy, and I suppose when they have refused a

request for a waiver, they have felt that it was more important to them

in the local scene to have the man tried in their courts.

Senator THURMOND. What is the criterion that prompts the military to request jurisdiction rather than permit the foreign courts to

try them?

General TODD. We generally request a waiver in all cases, Senator

Thurmond.

Senator THURMOND. It is a policy in every instance, in every case

to request a waiver in order that the individual in the military may be

tried by courts-martial?

General TODD. Yes, it is.

Mr. FORMAN. May I modify that, General?

I don't want to have the committee get the erroneous impression

that in all countries there may be a specific oral or written request made

in each case. In some countries we operate under a standing arrangement under which it is understood that we have a general request for

waivers without making it in specific cases.

Senator THURMOND. In other words, just a blanket request is made?

Mr. FORMAN. A blanket request is made.

Senator THURMOND. Of the foreign courts, with which they are

familiar.

Mr. FORMAN. That is correct.

Senator THURMOND. And if they assume jurisdiction, it means that

they are doing that in spite of the blanket request?

Mr. FORMAN. That is correct.

Now, this varies from country to country. In some cases we may

request a waiver specifically in every case. In other countries it may

be pursuant to a blanket general request. In other countries it may

be pursuant to a general blanket request with the modification that in

specific cases which we think important we will reinforce the general

request with a. specific request.

For example, we may, where there is a general waiver request outstanding, specifically ask them to waive a minor traffic accident. We

will rely on a general request in certain countries.

Senator THURMOND. The nature and the type of the request, then,

is determined in each country?

Mr. FORMAN. Yes.

Senator THURMOND. And the circumstances may differ in each

country?
ARTICLE VII NATO STATUS OF FORCES TREATY 11

Mr. FORMAN. As to what may be most productive in getting the

highest number of waivers, depending on the country and the circumstances of the offenses and the personalities we have to deal

with.

Senator THURMOND. I believe our able chairman brought out the

figures here that in the military those subject to foreign jurisdiction

aggregated 10,500, and a waiver of foreign jurisdiction was obtained

in 6,125 cases. And of the civilians subject to foreign jurisdiction, it

was 517, and in 399 cases a waiver was granted by the foreign country. And of the dependents, there were 499 subject to foreign jurisdiction, and a waiver was granted of foreign jurisdiction in 375 cases.

General TODD. That is correct.

Senator THURMOND. Now, those figures cover the period, as I understand it, from December 1, 1959 to November 31, 1960.

General TODD. That is right.

Senator THURMOND. That 1-year period.

How did you arrive at this particular period, having at the end

December 1 of the year? Is there any particular reason?

Senator ERVIN. I think that that is a practical matter, when the

subcommittee was first set up to study the operation of the Status of

Forces Treaty, that they found it convenient to bring it up at that

time, because of the fact that the figures were available. And I think

that is the only reason.

General TODD. When we started back 5 or 6 years ago this was the

reporting period selected.

Mr. FORMAN. Originally we prepared these figures on a semiannual basis. In prior years hearings have been held at an earlier

date, but we have slipped somewhat in the past couple of years and

the hearings are held later in the session.

Senator THURMOND. I just wonder, since that is not the calendar

year or fiscal year, how it was determined.

Senator ERVIN. When the committee originally started all the figures were available up through that time, but they were not for the

following month.

Mr. FORMAN. If I may add a little here to the earlier reply to the

questions that were asked about Turkey, both as to the problems we

have had and your question about adequacy of legal representation.

It should be noted for the record that of the 50 cases involving U.S.

personnel that arose during the reporting period, there were 41 cases

tried.

Of that 41, there were 23 acquittals, 1 sentence of a fine, and 17 sentences to confinement, of which 15 were suspended.

One of the two not suspended was not served because of a general

amnesty decree.

As to the other, 3 months was served prior to release under the

amnesty decree.

Accordingly, the rate of acquittals in Turkey has been pretty good,

and the sentences light.

In regard to sentences, Senator Thurmond, the worldwide page indicates the nature of the sentence by offense, and the sentences are
12 • ARTICLE VII NATO STATUS OF FORCES TREATY

fairly light. If you look at 

murder, 

for example, there was one murder, and the sentence was from 3 to 6 years. There were several rape

cases; there was one sentence of 1 to 5 years, and one sentence of 4

years, and one sentence of 10 days. And so on through.

The sentences are certainly not severe by any standards.

Senator THURMOND. I was in Turkey in December 1960, and I heard

you refer to some of the difficulties there, I gained the impression from

talking with the judge advocate officer there Colonel Belser, who is

an able officer, that he was receiving very good cooperation even in that

country in these cases.

General TODD. That is true.

Senator ERVIN. That is, of course, necessarily a very delicate field.

And regardless of what one may think about the wisdom or the unwisdom of the General Status of Forces Treaty theory, I think that

I am impressed that, overall, the foreign courts tend to lean backward

in their judgments of Americans.

I have come to the conclusion that when I was practicing criminal

law, if I could have gotten my guilty clients off with the sentences

which .the average Americans received in these courts, that my clients

would have risen up and called me blessed.

General TODD. I think this probably accounts for our having no

complaints. From our people that are being tried in these courts and

why they are not coming out and saying, "I want to be tried by an

American court."

I think they all realize that these sentences are lenient.

Senator THURMOND. It just occurred to me that the members of the

military might prefer trial by these foreign courts rather than by

court-martial.

That is all the questions I have.

And thank you, Mr. Chairman.

Senator ERVIN. We will postpone Mr. Forman's statements which

he desires to make in executive session, and hear from Genera). Todd

at this time.

General, the committee will leave it up to you; you can either read

your entire statement, or you can highlight your statement. In the

latter event, the entire statement will be put in the record.

But we will leave it up to you which method you prefer to follow.

STATEMENT OF BRIG. GEN. ALAN B. TODD, ASSISTANT JUDGE

ADVOCATE GENERAL FOR MILITARY JUSTICE

General TODD. All right, Mr. Chairman. I think perhaps, inasmuch as my presentation deals mostly with statistics, it might be a

little better for me to summarize it and give you the highlights.
ARTICLE VII NATO STATUS OF FORCES TREATY 13

Senator THURMOND. Before you begin, I had made an appointment

at 11:30, and I am going to have to be away a few minutes. I hope

to get back before you finish, but if I do not, I will certainly read your

statement.

Senator ERVIN. At this point the entire statement of General Todd

will be placed in the record.

(The statement referred to follows:)

STATEMENT OF BRIG. GEN. ALAN B. TODD, ASSISTANT JUDGE ADVOCATE FOR

MILITARY JuSTICE

FOREIGN CRIMINAL JURISDICTION

Mr. Chairman, before reporting the specific statistics on the operation of

status-of-forces arrangements, I will present a brief general statement. Representatives of the three services, pursuant to a Department of Defense directive,

are conducting monthly visits to all U.S. personnel confined in foreign penal

institutions. A detailed report of these visits is forwarded to the headquarters

of the appropriate service for evaluation. I am happy to report that we receive

the full cooperation of foreign authorities in this program and, as a result, we

have been able to effect close liaison with individuals in confinement. These

frequent visits give the prisoner an opportunity to raise personal problems with

service representatives. Those problems which relate to treatment and conditions of confinement are, in most instances, corrected through informal conferences with prison officials.

As reported to the committee last year, all possible corrective measures were

taken to prevent a recurrence of black-market activity in Turkey and elsewhere

in the world. U.S. commanders in Turkey report that policies, directives, and

controls are adequate and are being strictly enforced. The effectiveness of

this program is illustrated by a drop in the number of offenses against the economic control laws of Turkey from 23 for the last period to 9 for the current

period. Military commanders are fully aware that close supervision is required

to combat potential black-market activity which will exist as long as there is

a significant difference between official and free market rates of exchange.

As reported to the committee last year, the Supreme Court decisions discussed by Mr. Forman also had the effect of removing civilian employees and

dependents from the category of personnel who may benefit under the statute

which authorizes the use of appropriated funds to pay expenses incident to the

defense of U.S. personnel subject to foreign jurisdiction. Legislation to broaden

the scope of the existing law to provide such coverage once more to Department

of Defense civilian employees and dependents overseas is now before Congress.

72812-61--3
14 ARTICLE VII NATO STATUS OF FORCES TREATY

Before presenting specific statistics concerning the jurisdictional operations

under the status-of-forces agreements, I will refer to chart A showing the number of offenses subject to foreign jurisdiction and the number of waivers obtained

for the past 7 years. You will note that the difference between the number of

waivers and the number of offenses has remained quite constant during the

period. These statistics certainly should allay the fears expressed by some that

the high waiver rate would be drastically reduced after the novelty of the

agreements had worn off.

I now refer to chart B. During the period December 1, 1959, through November 30, 1960, 11,516 U.S. personnel were charged with offenses subject to the

primary or exclusive jurisdiction of foreign courts throughout the world ( 8,604

of these offenses were traffic offenses). Foreign authorities waived jurisdiction

in 6,125, or 58.33 percent of these cases, and tried 4,163 cases (2,693 of which

were traffic violations). Throughout the report the waiver percentages given

pertain solely to military personnel because, as a result of the Supreme Court

decisions, we no longer request waivers in all cases involving civilian personnel.

In the remaining cases the charges were dropped or remained pending at the

end of the reporting period. Foreign courts acquitted 241 individuals, an overall acquittal rate of 5.78 percent, imposed reprimands or fines only in 3,623

cases, and adjudged confinement in 299.

Chart C shows that there were only 117 cases where a sentence to confinement was not suspended, but I should point out that no sentence, including

those which were indeterminate, exceeded 7 years.

In comparing the current report with the annual report submitted to the committee last year some significant facts should be noted.

Chart D. The number of alleged offenses subject to foreign jurisdiction has

declined from 12,909 in the preceding year to 11,516 in the current period. A

breakdown of the offenses shows this to be a general decrease as to nearly all

types of crimes and not in just one or two categories. Slight numerical increases

are shown only in murder, arson, and burglary. This overall decrease is particularly gratifying in view of the fact that the increase of over 200 cases reported

from Mexico is largely the result of a more effective reporting system and not an

actual increase in cases. We feel that reporting procedures in Mexico now reflect accurately the number of offenses occurring within that country.

As to the severity of sentences, the statistics would seem to indicate that foreign courts are much more lenient than our domestic courts. For example, in

1960, sentences to confinement by Federal courts in assault cases averaged 36.7

months while the average length of confinement adjudged for the offense of

aggravated assault by foreign courts was 3 months. It is most difficult, of

course, to make a valid comparison of this type because of the many factors

involved, but it may be used in the general sense, at least, to show more of

a disposition toward lenity on the part of foreign courts.

Chart E, U.S. personnel in confinement pursuant to sentences of foreign courts

illustrates that the number of individuals confined in foreign prisons continues

to remain quite stable.
ARTICLE VII NATO STATUS OF FORCES TREATY
CHART 13

H516 ,

1 015

EXERCISE OF CRIMINAL JURISDICTION BY

FOREIGN TRIBUNALS OYER UNITED STATES

PERSONNEL • 1 DEC 1959 --- 30 NOV 1960

6 125

4 4163

2.136

241 143

ULU

StAACI OOMMit, CASIS 'MID $1

iO7UCA 14.33,18<fliAt AtirdAt fi:40/E,A TRAVA45

WORLD

NATO SOF

i'ISCIS1361 S....1OAA A 4. I

3 623

411

MI OP keltiAJAII :At

ORO,

125 117 IL

• Ltd NI. HA OIVN f11VLS 30 VflLLSaallOa 
ARTICLE VII NATO STATUS OF FORCES TREATY
ARTICLE VII NATO STATUS OF FORCES TREATY
ARTICLE VII NATO STATUS OF FORCES TREATY

.:14;;.:.4-,:t:,•-,,.,.4,t,fk,!.4: -.,,'4:,'
20 ARTICLE VII NATO STATUS OF FORCES TREATY

NATO STATUS OF FORCES COUNTRIES

(See p. 16 for chart B)

During the period December 1, 1959, through November 30, 1960, 7,015

U.S. personnel were accused of offenses subject to the primary or exclusive

jurisdiction of courts operating under the NATO Status of Forces Agreement

(5,609 of these were traffic violations). NATO countries waived jurisdiction in

3,934 or 58.41 percent of the military eases. The 2,736 trials of U.S. personnel

resulted in 143 acquittals, 2,411 sentences to fine or reprimand only, 125 suspended sentences to confinement, and 57 unsuspended sentences to confinement.

There were no sentences to confinement in excess of 5 years.

The number of alleged offenses subject to the jurisdiction of NATO Status

of Forces countries decreased from 7,745 for the prior period to 7,015 for the

current period.

The percentage of waivers of local jurisdiction granted by NATO countries

increased from 58.38 percent to 58.41 percent.

There were 57 sentences to confinement not suspended as compared to 51 for

the last reporting period.

In order to give a more complete picture, I should like to insert in the record

at this point two cumulative charts on the exercise of criminal jurisdiction

in NATO countries and worldwide since 1953:
CHART F

EXERCISE OF CRIMINAL JURI,DICTION HT TRIBUNALS OF NATO COUNTRIES SINCE Ilth VARIOUS PJTECTIth

DATES OF THE NATO STATUS OF FORCES *000 1312119 (THROUGH NOVIDIBER fX), 1960)

da se:: SUBJirT TO rota. JURISDICTION CASES TRIED CONFINEhth7 NOT SUSPENDED

Belgium

(•ffective

666 25, 1953)

Ira

1

au

20

39.29

70624127 129

aa au au au au

42

30 260

6

aa aye aa aa au aa

0

au 2.219 15899 au 1.253 au

0

aa au aa ILI 9.227 30158

i

Caiuda

(•f3ec31re

sop 27. 1953)

312 505 528 477 493 312 358 2987 0 249 426 406 372 453 293 529 252B 0 6 0 0 5 1 2 3 17

benuark

(•ffective

June 27, 1955)

0 0

Prance

(e33e8018e

Au( 25, 1953)

267 2600 5172 5981 3829 4323 4236 4133 26541 283 439 471 445 479 423 539 5100 15 31284220301426214

Oree0e

( effec,re

July 26, 1954)

122 0

2

Italy

(•ffect1ve

Jan 21, 1956)

374 586 432 235 1713 126 101 515 20

Luxembourg

(effective

July 25, 1954)

237 013100 5

Netherland:.

(•(.27.8)18:129

Aug 23, /953)

111 171 602 0 1 0 2 0 000201001

Norway

( ef feat..

Aug 29, 19533

0 1 2 5 1 0 6 72000171 6 0, 0 31 0 0 0 0 0 2 3 5 10

Tortuga 1

(•ffective

Deo 22, 1955)

-..

0 0

Turkey

(effective

3.,... 17, 1954)

278 22 1 19

001 Led Kingdom

(•11e0018e

2.8 13. 1954)

492 1235 2735 2703 2410 2365 1946 13966 271 122522002124 1961 1043 1668 11300 31 35 30, 12 21 18 157

TOTAL 232 5442 4977 1490 7704 8197 7745 7015 46642 22 812 2111 3194 3139 3089 2740 2736 171543 15 44 60 89 75 55.51 57 446

10TR, Figur,. for 1954 through 1960 ru from December 1 of

preceding peer through November 30 of the .90110 7291.
22 ARTICLE VII NATO STATUS OF FORCES TREATY

A

A

4

;

A 'IR

Z.

A

•°.

k

A

A I

;
ARTICLE VII NATO STATUS OF FORCES TREATY 23

I would also like to place in the record a statement detailing the worldwide

expenditures in implementation of section 1037 of title 10, United States Code,

during the reporting year. Under this statute, the United States may provide

the funds to pay expenses incident to the defense of U.S. personnel subject

to foreign jurisdiction within the limitations specified in service regulations.

CHART H

EXPENDITURES IN IMPLEMENTATION OF 10 U.S.C. 1037, DEC. 1, 1959-

NOV. 30, 1960

Country

Number

of cases

Counsel

fees Bail

Court

costs

Other

expenses

Net total

paid during

period

Belgium: Air Force 3 $735.29 $156.62 $891.91

Bermuda:

Navy 2 169. 20 169. 20

Air Force 1 199.05 199.05

Finland: Air Force 2 280.00 280. 00

France:

Army 60 3. 673. 77 187.92 3,861. 69

Air Force 4 561. 23 561.23

Greece: Air Force 2 1, 000. 00 100. 00 1, 100. 00

Iran:

Army 3 1, S60.00 1, 860.00

Air Force 2 1, 197. 37 1 8(8, 552.68) 3, 171.05

Italy:

Army 61 5, 838. 68 5, 838. 68

Navy 9 1, 220.35 $32.37 1, 252. 72

Air Force 1 3 314.01 314. 01

Japan:

Army 14 1, 850. 00 281.35 2, 131. 35

Navy 21 6.020. 00 1, 180.68 7, 200. 68

Air Force 30 6, 598.00 307. 16 6,905. 16

Luxembourg: Air Force 1 22.00 22.00

Mexico: Army 8 1, 800. 00 3(400.00) 2, 106. 71

Morocco: Air Force 5 489. 09 489. 09

Panama:

Army 6 725. 00 (8, 500 00) 204. 52 929. 52

Navy 2 300.00 (I, 000.00) 300.00

Air Force 1 300. 00 (1, 000.00 300.00

Philippines:

Army 2 722.29 722.29

Air Force 14 2, 513.24 2, 513.24

Spain: Air Force 1 4 (417.71) 417. 71

Sweden: Navy 2 611.00 65. 00 676. 00

Turkey:

Army 6 I, 400. 00 6 (222.22) 1, 400. 00

Navy 1 461.10 461.10

Air Force 22 7, 645. 00 (222.22) 7, 811. 67

United Kingdom:

Army 1 198.11 198.11

Air Force 20 7, 647. 57 7,647. 57

Total 307 56. 351. 35 6(20, 314.83) 2. 483. 25 32.37 6 61, 731. 74

'$1,973.68 bail forfeited.

2 Expended for a purely civil case.

3$306.71 bail forfeited.

4 Bail forfeited.

$166.67 bail forfeited.

6 Includes bail forfeited.

A comparison of the expenditures under this program with comparable figures in the previous annual report shows a definite increase; $61,731.74 was

expended in 307 cases during the current period as compared with $54,458.20

for 224 cases during the previous reporting period. This increase is the result

of such funds being used in more cases rather than because of higher costs per

case. The average cost per case has in fact shown a decrease from $243.11 to

$201.08.

I shall now continue my survey of the exercise of jurisdiction under the

status of forces agreements with a review of the individual countries in which

the NATO Status of Forces Agreement is in effect.

Belgium

There were 42 cases subject to Belgian jurisdiction during the reporting

period as compared to 129 cases, of which 30 were carried over, for the last

reporting period. Waivers were obtained in 28 cases, charges were dropped in

28 other cases and 9 cases remain pending. Only seven individuals were
24 ARTICLE VII NATO STATUS OF FORCES TREATY

tried by the Belgian courts. Of the seven cases actually tried, a fine was

imposed in four cases, confinement was suspended in two cases, and the remaining ease resulted in a sentence to confinement of 3 months and 23 days.

Service representatives in Belgium report that the jurisdictional arrangements in that country have had no adverse effect upon the accomplishment of

their mission or upon the morale or discipline of their forces.

Canada

During the reporting period, 358 U.S. personnel were involved in incidents

primarily subject to the jurisdiction of Canadian courts. Jurisdiction was

waived to the United States in only 25 cases. The 329 cases tried resulted in

14 acquittals, 312 fines, and 3 sentences to confiement not suspended. Thirty

days' confinement was the maximum unsuspended sentence adjudged.

U.S. commanders report that the jurisdiction arrangements in effect in Canada

have not adversely affected the accomplishment of their mission or the discipline or morale of their forces.

Denmark

There was only one case (larceny), subject to local jurisdiction, reported in

Denmark. The accused was convicted and given a suspended sentence of 4

months' confinement.

Service representatives in Denmark report that the jurisdictional arrangements in that country have had no adverse effect upon the accomplishment of

their mission or upon the morale or discipline of their forces.

France

During the reporting period, France continued to waive jurisdiction as it has

in the past, in most of the cases in which it had the primary right to exercise

jurisdiction. There were 4,133 cases subject to French jurisdiction. Waivers

of local jurisdiction were obtained in 3,358 military cases, or 85.25 percent of

the 3,939 military cases subject to French jurisdiction. Of the 539 persons

tried, 27 were acquitted, 417 sentenced to pay fines or reprimanded, 26 were

sentenced to confinement not suspended, and 69 sentences to confinement were

suspended.

U.S. commanders in France report that the jurisdictional arrangements in

that country have had no adverse effect upon the accomplishment of assigned

missions or upon the morale and discipline of their commands.

Greece

In Greece, we operate under an agreement supplementary to the NATO Status

of Forces Agreement in which the Greek Government has agreed to waive its

primary right to exercise jurisdiction at U.S. request, except in cases of particular importance to Greece. As a result of this agreement, the waiver rate in

Greece remained exceptionally high. Only 3 cases were reserved for trial by

the Greek authorities out of the 34 cases over which Greece had the primary

right to exercise jurisdiction, a military waiver rate of 90 percent.

It is reported by the senior commander in Greece that the existing arrangements have had no adverse effect upon the accomplishment of the mission of the

U.S. forces or upon the morale or discipline of U.S. personnel.

Italy

During the current period, there was a substantial reduction in the number

of cases reported from Italy: 235, as compared to 432 in the last reporting

period. Waivers were obtained in 75 cases, while charges were dropped in 77

cases, some of which were pending from the previous period. Of the 101 accused

actually tried, 29 were acquitted, sentences included 40 fines only, 30 were sentenced to confinement suspended, and 2 to confinement not suspended. One

year and four months' confinement was the maximum sentence to confinement not

suspended. The percentage of waivers has continued to rise sharply. Based only

on military cases, the percentage has risen from 29.73 percent for the last reporting period to 34.4 percent for the present period.

The Army commander in Italy again reports that the policy of restraint in

requesting waivers has been favorably received by the Italian Government, and

he credits this policy with having a substantial effect upon the increase in the

percentage of waivers granted.

U.S. commanders in Italy report that current agreements have had no adverse impact on the accomplishment of their missions or upon the morale or

discipline of their forces.
ARTICLE VII NATO STATUS OF FORCES TREATY 25

Lu.Tembourg

Service commanders in Luxembourg report that excellent relations continue

to exist between U.S. forces personnel and the authorities of the Luxembourg

Government.

During the reporting period, 38 U.S. personnel as against 71 for the previous

reporting period were alleged to have committed offenses subject to the jurisdiction of Luxembourg. Twenty-eight cases were carried over from the previous

report. Primary jurisdiction was waived in 8 cases, 7 cases were dropped, 8

cases remain pending, and 43 cases reached trial. Of the 43 cases tried, 5

resulted in acquittals, 33 in sentences to fines only, and 5 to confinement suspended.

Netherlands

Our agreement with the Netherlands is the same as that which is in effect in

Greece. Under this agreement, you will recall, the host country agrees to waive

its primary right to exercise jurisdiction in all cases except those of particular

importance to it. Waivers of jurisdiction were obtained in all of the 171 cases

which arose in the Netherlands during the reporting period.

Service representatives in the Netherlands report that the jurisdictional arrangements in that country have had no adverse effect upon the accomplishment

of their missions or upon the morale or discipline of their forces.

Norway

Seven cases arose in Norway during the reporting period. One waiver was

granted. The six cases tried resulted in convictions with one sentence to confinement suspended, and five sentences to confinement not suspended. The

maximum sentence adjudged was 24 days.

The Norwegians regard driving while under the influence of alcohol as an

offense to be dealt with rigorously, and a conviction of drunken driving in that

country results in a mandatory sentence to confinement. As a result, such a

sentence does not necessarily mean that an accused committed an aggravated

offense.

The service representative in Norway reports that the jurisdictional arrangements in that country have not interfered materially in the accomplishment

of his mission.

Portugal

No cases subject to local jurisdiction arose in Portugal during the reporting

period.

Turkey

U.S. authorities continue to experience problems in Turkey in the excessive

length of trials and in the refusal of Turkish authorities to grant waivers of

their primary right to exercise jurisdiction. The Turkish Ministry of Justice

has assured U.S. authorities that all public prosecutors would be instructed by

the Ministry to comply with paragraph 9a, Article VII, NATO Status of Forces

Agreement, concerning lengthy trials. Nevertheless trials of U.S. servicemen

continue to extend over long periods of time.

Fifty cases involving U.S. personnel arose during the reporting period. Of

the 41 cases tried, there were 23 acquittals, 1 fine, and 17 sentences to confinement, including 2 not suspended. One of these two was not served because of

the amnesty law, and in the other, 3 months were served prior to release pursuant to the amnesty law.

U.S. commanders report that the relatively few cases and the high percentage

of dismissals and acquittals in Turkish courts reduce the impact of these problems so that they do not seriously interfere with the accomplishment of the

mission of the U.S. forces in Turkey.

United Kingdom.

During the reporting period, 1,946 U.S. personnel were charged with offenses

subject to British jurisdiction as compared to 2,365 during the previous reporting period, a decrease of over 300 offenses (1,714 were traffic offenses). Of

the 1,668 cases actually tried by British courts, 44 resulted in acquittals, 1,604

received sentences to reprimands or fines only, 2 to confinement suspended, and

18 were sentenced to confinement not suspended.
26 ARTICLE VII NATO STATUS OF FORCES TREATY

U.S. commanders report that our jurisdictional arrangements with the United

Kingdom have had no adverse effect upon the accomplishment of their assigned

missions, and that they have not been detrimental to the morale or discipline

of their commands.

NATO COUNTRIES IN WHICH THE NATO STATUS OF FORCES AGREEMENT IS NOT IN

EFFECT

Federal Republic of Germany

The Germant Bundesrat ratified the NATO Status of Forces Agreement on

May 26, 1961. It will come into force and effect 30 days subsequent to the date

on which the Federal Republic of Germany deposits the instrument of ratification. Until this period, the U.S. operations in the Federal Republic of Germany will continue to be governed by the Bonn Conventions. The Bonn Conventions, in practice, give the United States exclusive criminal jurisdiction over

its personnel.

When the new agreement goes into effect, Article VII of the NATO Status of

Forces Agreement will be supplemented in Germany by a simple waiver arrangement. In any case where concurrent jurisdiction exists, Germany has

agreed to an automatic waiver of its primary right. This waiver is subject

to recall if German authorities, within a 3-week period, decide that, by reason

of the circumstances of the case, "major considerations of German administration of justice makes imperative the exercise of German jurisdiction."

Although no cases were tried by German courts during the reporting period,

two incidents involving dependents arose which were investigated for possible

trial in German courts. One, involving a juvenile who was charged with rape,

was tried in January of this year. In this case a sentence to confinement for 7

months, suspended, was imposed. The other case is still under investigation.

The Army commander has reported that German officials continue to be most

cooperative and that the present jurisdictional arrangement has not produced any

unfavorable impact upon the mission of the command or upon morale and

discipline.

Iceland

During the reporting period 268 offenses were charged against U.S. personnel.

Three waivers were granted by Icelandic authorities, and charges were dropped

in 52 cases. In the 234 cases tried (including those pending as of the last report)

there was 1 acquittal, 228 sentences to fines or reprimands, 1 sentence to 10 days

confinement not suspended, and 4 sentences to confinement suspended. There

were 130 offenses involving violations of economic control laws. As reported

to the committee last year these statistics are indicative of the very strict enforcement by Icelandic authorities of their customs laws and not a sign of

extensive blackmarket activity.

The service commanders in Iceland report that jurisdictional arrangements

have had no substantial adverse effect upon the morale and discipline of the

members of their commands nor have they had an appreciable effect upon the

accomplishment of the mission of the U.S. forces in Iceland.

EXERCISE OF CRIMINAL JURISDICTION IN NON-NATO COUNTRIES

Azores

Jurisdiction was waived in all but 1 of the 78 cases arising during the reporting period. This one case is still pending. Commanders report that jurisdictional arrangements have not had an adverse effect upon the morale, discipline,

or mission of U.S. forces in the Azores.

Japan

Our jurisdictional arrangements with Japan continue to operate very effectively. The waiver rate remains exceptionally high, waivers having been granted

in 2,094 (74.86 percent) of the 2,797 offenses subject to the jurisdiction of the

Japanese courts. Of the 137 cases actually tried 90 resulted in sentences to fines,

30 to confinement suspended, and 17 to confinement not suspended. The longest

sentence was 7 years. The number of sentences to confinement not suspended

has been reduced 50 percent from the last reporting period.

All three service commanders report that the jurisdictional arrangements have

had no adverse impact upon the mission, morale, or discipline of the U.S. forces.
ARTICLE VII NATO STATUS OF FORCES TREATY 27

Morocco

There were 36 alleged offenses subject to Moroccan jurisdiction during the

reporting period. In three of these cases, the United States obtained waivers of

jurisdiction. Of the 30 cases tried in Moroccan courts 8 resulted in acquittals, 21

cases were settled by the payment of fines, and the remaining case resulted in a

sentence to confinement suspended.

Our commanders report that jurisdictional arrangements in Morocco have not

had an adverse effect upon the accomplishment of the mission of their commands.

Philippines

The Philippines has continued to refuse to grant waivers of its right to exercise

primary jurisdiction. The number of cases which finally go to trial in the

Philippines, however, is very small. During the reporting period, of the 71

cases in which jurisdiction was reserved by Philippine authorities, only 2 actually reached the trial stage. In these two cases, one accused was acquitted

and the other charged with a traffic offense was convicted and given a suspended

sentence.

Spain

During the reporting period 37 cases involving U.S. personnel occurred. There

were nine trials resulting in six acquittals and three convictions. Two convictions resulted in sentences to fines only and one to confinement not suspended

for a period of 5 days (simple assault). The balance of cases consist of four

waivers, two cases dropped, and the remainder pending.

West Indies—Bermuda, Trinidad, Antigua, and the Bahamas

In the West Indies 305 offenses subject to local jurisdiction arose during the

reporting period. Waivers were granted in 15 instances and 291 cases (262

were traffic offenses) involving U.S. personnel were tried in the local courts.

Acquittals resulted in 12 cases, there were 257 sentences to reprimands or fines

only, 5 suspended sentences to confinement and 17 unsuspended sentences to

confinement. There was a marked increase in the number of sentences to confinement not suspended. Fifteen of the sentences, however, involved confinement for less than 2 months. These short sentences are the reason for the

increase in the number of sentences to confinement not suspended during the

reporting period. The more severe cases involved one sentence in a rape case

which included confinement for 4 years and a 1-year sentence to confinement

in an aggravated assault case.

It is reported by U.S. commanders in these areas that jurisdictional arrangements have not had an adverse effect upon the accomplishment of the mission

of the U.S. forces in these areas.

In February 1961 a status-of-forces agreement patterned after the NATO

Status of Forces Agreement went into force between the United States and the

West Indies Federation.

NON-NATO COUNTRIES WHERE WE DO NOT HAVE A JURISDICTIONAL AGREEMENT

Austria

Seven cases involving U.S. personnel arose in Austria during the reporting

period. All were tried and convicted. Three were fined, three were sentenced

to confinement suspended, and one sentenced to 1 day's confinement not suspended. All accused persons were in Austria in a leave status.

Brazil

During the reporting period there were two cases involving U.S. personnel in

Brazil. Waivers were obtained in both cases.

Dominican Republic

In the Dominican Republic two incidents arose involving U.S. personnel.

Charges were dropped in one case and are still pending in the other.

Finland

Two traffic cases arose in Finland resulting in convictions with one sentence

including a fine and the other a sentence to confinement suspended.
28 ARTICLE VII NATO STATUS OF FORCES TREATY

Hong Song

There were five incidents in Hong Kong subject to local jurisdiction during

the reporting period. Six cases (one holdover case) reached the trial stage and

resulted in three sentences to confinement not suspended and three sentences to

fine only. The longest sentence to confinement was for 2 months.

No. 'U.S. forces are regularly stationed in Hong Kong. Personnel involved in

incidents here are generally in a leave status.

Iran

There were 16 cases subject to the jurisdiction of Iranian courts during the

reporting period. This was an increase of eight cases over the previous period

ending November 30, 1959. Four trials have been held, four are pending, and

eight charges were dropped. Of those tried one was acquitted, one received a

reprimand, and two received suspended sentences by purchasing their confinement. Such a precedence is authorized in Iran if the sentence falls within

specified limits. No waivers were granted. Two cases held over from the previous reporting period resulted in charges being dropped and an acquittal.

Mexico

The number of reported offenses committed by U.S. personnel in Mexico has

shown a marked increase from 434 cases during the preceding period to 699

for the current period. Charges were dropped in 147 of these cases. As already explained, the increase in the number of incidents reported does not indicate an increase in the crime rate in Mexico but, instead, an improvement in reporting procedures. Almost all of these incidents occurred in the border towns.

Of the 552 cases tried, 41 were acquited and 511 resulted in convictions. There

were 2 sentences to confinement suspended and 12 cases with sentences including confinement not suspended. There were 497 cases of fines only. The maximum sentence to confinement adjudged was a sentence of 1 year and 2 months.

Panama

The number of offenses involving U.S. personnel in Panama increased to 171

cases, as compared to 167 during the preceding period. Of the 150 cases tried,

27 resulted in acquittals, 109 in sentences to reprimands or fines only, 8 to suspended sentences to confinement and 6 individuals receiving unsuspended sentences to confinement, the longest being for 8 months. The United States does

not have a jurisdictional agreement with the Republic of Panama.

Sweden

Two servicemen, while on shore leave in Sweden, robbed a Swedish national

of his watch and paycheck. They were tried for robbery, convicted, and sentenced to serve 1 year at hard labor to be followed by deportation.

General TODD. We prepared charts, Mr. Chairman, which you may

see over here, and Major Ellert will point to significant matters.

The first one is chart A. It shows that the number of offenses subject to foreign jurisdiction and the number of waivers obtained for

the past 7 years have remained about constant.

As the United States is primarily a sending state, the retention of

a high waiver rate is very important to us.

Senator ERVIN. In other words, the relationship between offenses

and waivers remains virtually the same?

General TODD. Yes, sir quite constant.

Now, these figures are in the thousands, Mr. Chairman.

The blue line shows the cases subject to foreign jurisdiction worldwide. And the lower blue line shows the waivers obtained on those

cases.

The green line shows the cases subject to foreign jurisdiction under

the NATO agreements.

And the lower green line shows the waivers obtained on those cases.

Let us have chart B, please.

I refer now to chart B. During the period December 1, 1959,

through November 30, 1960, 11,516 U.S. personnel were charged with
ARTICLE VII NATO STATUS OF FORCES TREATY 29

offenses subject to the primary or exclusive jurisdiction of foreign

courts throughout the world. Eight thousand six hundred and four

of those offenses were traffic offenses. Foreign authorities waived

jurisdiction in 6,125, or 58.33 percent of those cases, and tried 4,163

cases, 2,693 of which were traffic violations.

These waiver percentages pertain solely to military personnel, because as a result of the Supreme Court decisions which Mr. Forman

previously discussed, we no longer request waivers in all cases involving civilian personnel.

In the remaining cases, the charges were dropped or were still

pending at the end of the reporting period.

Foreign courts acquitted 241 individuals, an overall acquittal rate

of 5.78 percent, imposed reprimands or fines in 3,623 cases and adjudged confinement in 299.

With respect to this acquittal rate, this is favorable as a, comparison with our own district courts.

We have a figure for 86 U.S. district courts for the fiscal year 1960,

and the acquittal rate in those courts was 3.89 percent.

Senator ERVIN. Do you think it would be fair to infer, General,

that there is more of a tendency on the part of the foreign courts to

waive jurisdiction in the cases where it is uncertain than it is where

the aunt is certain?

General TODD. Well, it is pretty hard to make such a conclusion,

Mr. Chairman.

Mr. FORMAN. I would think, Mr. Chairman that it really depends

on the nature of the case and the extent to Which public opinion in

the country or the area may be impassioned.

For example, we have a case pending in Turkey now where one of

our men is charged with tearing down the Turkish flag. You can't

expect a waiver in that kind of a case.

Senator ERWIN. I notice from the statistics that there is also a

tendency to refuse waiver in cases affecting their economic life, such

as smuggling, than there is in the general run of cases.

General TODD. That is probably true; yes, sir.

I will refer now to chart C.

This shows that there were only 117 cases where a sentence to confinement was not suspended. No sentence, including those which

were indeterminate, exceeded 7 years, and the offenses committed

included such crimes as murder, rape, manslaughter, arson, and robbery, for which the penalty received in the U.S. courts generally far

exceeds this.

And this will bear out our previous discussion on this matter,

Mr. Chairman.

Will you turn to chart D, please?

Senator ERVIN. Do you have any figures that would disclose how

many of the persons whose trial in foreign courts are waived are

actually tried in our military courts?

General TODD. We do not; no, sir.

Senator ERVIN. It is a right interesting question. Of course, it

doesn't strictly come within the purview of our annual examination,

because we are concerned with what happens to them in the foreign

courts.
30 ARTICLE VII NATO STATUS OF FORCES TREATY

General TODD. I think it may be generally said, though, that we

certainly do prosecute offenses very vigorously, and if the evidence

is there and there is a waiver, he would be prosecuted in our own

courts.

Senator ERVIN. Of course, in the days when I was in active service, and also when I was in the National Guard, I was personally.a

very great believer in what we used to call company punishment in

petty cases, and we thought it was conducive to the good morale, in

that the man who took company punishment for relatively small

offenses had no record made on his service record about it.

General TODD. Yes, that is true. There is no conviction by the

court when the commanding officer gives the punishment himself.

And that is a very good influence on discipline within the forces.

May I turn now to chart D, Mr. Chairman?

This illustrates that the number of alleged offenses subject to

foreign jurisdiction has declined from 12,909 in the preceding year

to 11,516 for the year reported here.

The breakdown of the offenses shows this to be a general decrease

as to nearly all types of crimes, and not just in one or two categories.

This decrease is particularly gratifying in view of the fact that an

increase of over 200 cases reported from Mexico is largely the result

of a more effective reporting system and not actually an increase in

crimes.

May I say with respect to this, too, Mr. Chairman, that our personnel has remained just about constant there is no significant change in

the numbers of our personnel overseas.

As to the severity of sentences, the statistics would seem to indicate

that foreign courts are much more lenient than our domestic courts.

For example, in 1960, sentences to confinements by Federal courts in

assault cases averaged 36.7 months, while the average length of confinement adjudged for the offense of aggravated assault by foreign

courts was only 3 months.

And it is most difficult, of course, to make a valid comparison

because of the many factors involved.

But in the general sense, at least, these figures show a disposition

toward lenity on the part of foreign courts.

May we turn to chart E, please?

Senator ERVIN. I note we had a fewer number in confinement at the

end of the last year which we are presently reviewing, that is, on November 30, 1960, than any of the previous years.

General TODD. I think my next chart will show that, Mr. Chairman.

This chart concerns itself with the number of U.S. personnel in

confinement pursuant to sentences of foreign courts, and illustrates

that the number of individuals confined in foreign prisons continues

to remain quite stable, although, as you point out, Mr. Chairman, it is

fewer in number than it has been for those comparative years.

Mr. FORMAN. May I add at this point, to bring this up to date

beyond the reporting period which we are using for the presentation,

as of May 31, 1961, it has dropped to 44.

General TODD. Representatives of the three services pursuant to a

Department of Defense directive, are conducting monthly visits to all

U.S. personnel confined in foreign penal institutions. A detailed
ARTICLE VII NATO STATUS OF FORCES TREATY 31

report of these visits is forwarded to the headquarters of the appropriate service for evaluation.

The full cooperation of foreign authorities in this visiting program

has been received.

And, as a result, we have been able to keep in close touch with

individuals in confinement.

Those problems which relate to treatment and conditions of confinement are in most cases corrected through informal conferences

with prison vfficials. We believe that these visits are very beneficial

to the morale of the confined personnel.

Under section 1037, title 10, United States Code, the United States

may provide the funds to pay expenses incident to the defense of

U.S. personnel subject to foreign jurisdiction within the limitations

specified in the service regulations. Expenditures for counsel's fees

and court costs for this reporting period show a definite increase.

$61,731.74 expended in 307 cases for this reporting period, as compared with $54,458.20 for 224 cases during the previous reporting

period. Although there has been an increase in the overall cost, the

average cost per case has shown a decrease from $243.11 to $201.08.

As you may recall, a side effect of the Supreme Court decisions

was to remove civilian employees and dependents from the category

of personnel who may benefit under this statute. Legislation to restore

this coverage to such personnel in oversea areas is now before the

Congress.

In conclusion? Mr. Chairman, this year U.S. commanders uniformly

report that jurisdictional arrangements have not adversely affected

the accomplishment of their missions. Accordingly, the Department

of Defense considers that the present status of forces arrangements

are workable and satisfactory.

That concludes my summary.

Senator ERVIN. Thank you, General.

I think I have asked you previously about all of the questions that

have occurred to me.

I assume that you may have some observations you would like to

make in executive session.

General TODD. I have, sir.

Senator ERVIN. Then the Chair will have to request everyone who

is not authorized to remain, to retire at this time.

(Whereupon, at 11:45 a.m., the committee proceeded in executive

session.)

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