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OPERATION OF ARTICLE VII, NAM

STATUS OF FORCES TREATY

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HEARING

BEFORE A

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SUBCOMMITTEE OF THE

COMMITTEE ON ARMED SERVICES

-UNITED STATES SENATE

EIGHTY-EIGHTH CONGRESS

SECOND SESSION

TO REVIEW, FOR THE PERIOD DECEMBER 1, 1962, THROUGH

NOVEMBER 30, 1963, 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

KSU LIBRARIES 

AUGUST 7, 1964

Printed for the use of the Committee on Armed Services

U.S. GOVERNMENT PRINTING OFFICE

36-77 WASHINGTON : 1964

r
COMMITTEE ON ARMED SERVICES

RICHARD B. RUSSELL, Georgia, Chairman

JOHN STENNIS, Mississippi LEVERETT SALTONSTALL, Massachusetts

HARRY FLOOD BYRI),, Virginia MARGARET CHASE SMITH, Maine

STUART SYMINGTON, Missouri J. GLENN BEALL, Maryland

HENRY M. JACKSON, Washington BARRY, GOLDWATER, Arizona

SAM J. ERVIN, JR., North Carolina CLIFFORD P. CASE, New Jersey

STROM THURMOND, South Carolina

HOWARD W. CANNON, Nevada

ROBERT C. BYRD, West Virginia

STEPHEN M. YOUNG, Ohio

DANIEL K. INOUYE, Hawaii

CHARLES B. KIRBOW, Chief Clerk

SuscommiTTEE To REVIEW OPERATION OF ARTICLE VII OF THE NATO STATUS

OF FORCES TREATY

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

STROM THURMOND, South Carolina J. GLENN BEALL, Maryland

T. EDWARD BRASWELL, Professional Staff
CONTENTS

Statement of—

Benjamin Forman, Assistant General Counsel, Department of Page

Defense 2

Brig. Gen. Kenneth J. Hodson, Assistant Judge Advocate General

of the Army for Military Justice on Foreign Criminal Jurisdiction_ 7

UI

OPERATION OF ARTICLE VII NATO STATUS OF

FORCES TREATY

FRIDAY, AUGUST 7, 1964

U.S. SENATE,

STATUS OF FORCES SUBCOMMITTEE OF THE

COMMITTEE ON ARMED SERVICES,

Washington, D.C.

The Status of Forces Subcommittee (composed of Senators Ervin

(chairman), Thurmond, and Bea11), 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 10:40 a.m., in room 212, Old Senate Office Building,

Senator Sam J. Ervin, Jr., presiding.

Present: Senators Ervin (chairman of the subcommittee) and Thurmond.

Also present: Charles Kirbow, chief clerk; T. Edward Braswell,

Jr., of the committee staff; and Herbert Atkinson, assistant chief

clerk.

Senator ERVIN. The subcommittee will come to order.

The subcommittee will hold its annual meeting today to consider

the operation of article VII of the NATO Status of Forces Treaty,

together with the other jurisdictional arrangements which subject

American servicemen to the criminal jurisdiction of foreign courts.

The Department of Defense witnesses will cover the 1-year period

ending November 30, 1963.

As the subcommittee has previously stated on several occasions,

our function is limited to a review of the operation of these arrangements. We do not make a judgment on whether the treaty arrangements are wise or unwise, since the jurisdiction of treaties is

within the prerogative of the Committee on Foreign Relations, rather

than the Committee on Armed Services.

Our witnesses today are Benjamin Forman, Assistant General

Counsel of the Department of Defense, and Brig. Gen. Kenneth J.

Hodson, Assistant Judge Advocate General of the Department of

the Army.

Mr. Forman, you may proceed.

1
2 OPERATION OF ARTICLE VII, NATO STATUS OF FORCES TREATY

STATEMENT OF BENJAMIN FORMAN, ASSISTANT GENERAL

COUNSEL, DEPARTMENT OF DEFENSE, AND BRIG. GEN. KENNETH

J. HODSON, ASSISTANT JUDGE ADVOCATE GENERAL FOR

MILITARY JUSTICE, OFFICE OF THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF DEFENSE; ACCOMPANIED BY ALBERT

ESGAIN, CIVILIAN ATTORNEY, ADVISER TO THE JUDGE ADVOCATE GENERAL, ACTING CHIEF, INTERNATIONAL AFFAIRS

DIVISION, U.S. ARMY, JAGC ; CAPT. MURRAY GREASON, INTERNATIONAL AFFAIRS DIVISION, AND LT. ROBERT LETENDRE,

INTERNATIONAL AFFAIRS DIVISION, DEPARTMENT OF DEFENSE

Mr. FORMAN. Mr. Chairman, we appreciate the opportunity to

appear before you to report on the operation of the criminal jurisdictional provision of the NATO Status of Forces Agreement and

similar arrangements throughout the world. This presentation,

which is the 11th of an annual series, reviews the operation of these

jurisdictional arrangements for the period December 1, 1962, through

November 30, 1963.

The operation of these arrangements continues to remain generally

satisfactory. As mentioned last year, trial delays in some countries

have had some adverse effects upon morale. Our efforts to alleviate

these situations are continuing and some progress has been made.

The rate at which foreign authorities granted waivers of their

primary right to exercise jurisdiction over U.S. military personnel

increased from that of the preceding reporting period—from 59.93

to 70.45 percent. The rate among NATO countries increased from

58.64 to 71.47 percent. A great portion—although not all—of these

percentage increases is due to the coming into force on July 1, 1963,

of the German Supplementary Agreement to the NATO Status of

Forces Agreement. The German agreement provides for an automatic waiver of jurisdiction in all cases, subject only to a recall in

cases of exceptional importance to the German Government.

In May 1963 a new status of forces agreement entered into force

with Australia. Its criminal jurisdictional provisions are similar to

those of the NATO Status of Forces Agreement.

Negotiations on a status of forces agreement with the Republic

of Korea are continuing. Negotiations are also in progress with

the Republic of China.

As you know, civilian employees and dependents overseas are

not amenable to trial by U.S. courts for most offenses. Some commanders have reported that this situation has produced adverse

effects upon morale and discipline. We do, of course, retain the

right to impose administrative and disciplinary sanctions upon

civilians. These include dismissal or suspension from employment,

withholding or denial of privileges, and return to the United States.

The fact that foreign authorities continue to grant waivers in many

cases involving civilians indicates that these sanctions are frequently

adequate. However, there is often a reluctance by foreign authorities to concern themselves with offenses in which only Americans

are involved.

Brigadier General Hodson will now present a more detailed account

for the reporting period.
• OPERATION OF ARTICLE VII, NATO STATUS OF FORCES TREATY 3

Senator ERVIN. Before the general does so, I note with much

interest the fact that the number of waivers in NATO countries has

increased by 12.83 percent and in all countries where we have jurisdictional agreements by over 10% percent, which is quite a remarkable

advance, I think.

General, will you proceed?

General HODSON. I will briefly summarize my report.

I refer to chart A, which includes worldwide figures including

NATO—SOF countries, as well as a separate breakout for NATO—SOF.

During the period December 1, 1962, through November 30, 1963,

19,017 U.S. military and civilian personnel and their dependents were

charged with offenses subject to the primary or exclusive jurisdiction

of foreign courts throughout the world (12,713, or more than 63 percent, were traffic offenses).

Of the 19,017 persons so charged, 17,861 were military persons.

In these military cases foreign authorities waived their right to exercise jurisdiction in 12,584 cases, for a worldwide waiver rate of 70.45

percent. This figure, as you have noted, is 14.94 percent greater

than that of the previous reporting period and is the highest waiver

rate ever obtained. The waiver percentages in this report pertain

solely to military personnel because, as a result of the 1960 Supreme

Court decisions concerning the lack of court-martial jurisdiction over

civilians in time of peace, we normally do not request waivers in cases

involving civilian personnel or dependents.

Chart A also reflects that of the 19,017 cases subject to foreign

jurisdiction, 4,652 were tried by foreign courts (3,068, or more than

65 percent, were traffic offenses). Foreign courts acquitted 196

accused, an overall acquittal rate of 4.21 percent. Reprimands or

fines were imposed in 4,138 cases and confinement in 306, of which 199

sentences were suspended and 107 were not suspended. Appeals

were pending in 104 cases at the end of the reporting period. These

figures include completed trials of cases which were pending at the

close of the previous reporting period.

Chart B indicates the number and types of offenses subject to

foreign jurisdiction for the current reporting period. The figures for

the previous reporting period are shown for the comparison purposes.

This chart shows that the number of offenses subject to foreign

jurisdiction increased from 12,291 in the preceding period to 19,017

for the current reporting period. This sharp increase resulted from

the inclusion for the first time of offenses committed by military

personnel in the Federal Republic of Germany, where the NATO—

SOFA, as modified by the German supplementary agreement, became

effective on July 1, 1963. Prior to this date the United States had

exclusive jurisdiction over military personnel in Germany.

Chart C discloses the number and length of unsuspended sentences

to confinement. Again, last year's figures are shown for comparison.

The longest unsuspended sentence to confinement reported during

the current period was a 10-year sentence adjudged by a Japanese

court against a marine for the offense of arson, robbery causing injury,

and larceny.

Chart D illustrates the number of individuals confined in foreign

prisons. The report of 63 individuals in confinement at the close of

the current reporting period is in line with previous years although
4 OPERATION ,OF ARTICLE VII, NATO STATUS OF FORCES TREATY

higher than the record low reported at the close of the previous

reporting period. Unlike the increase in number of offenses subject

to foreign jurisdiction, the increased number of persons confined was

not brought about by the assumption of jurisdiction by the Federal

Republic of Germany.

Under title 10, United States Code, section 1037, appropriated funds

may be used to pay certain expenses incurred in the defense of qualified

U.S. personnel before foreign courts, i.e., those amenable to courtmartial jurisdiction under the Uniform Code of Military Justice.

During the current period, a total of $59,266.84 was expanded in 296

cases as compared with $63,769.47 in 284 cases during the previous

reporting period. The average cost per case decreased from $224.54

to $200.22.

It has been previously reported to the committee that the Kinsella

v. Singleton series of Supreme Court decisions had the effect of removing civilian employees and dependents from the category of per3onnel

who may benefit under title 10, United States Code, section 1037, and

that legislation to broaden the scope of existing law to reinstate the

coverage for such persons has not yet been enacted by Congress.

In conclusion no U.S. commander has reported that jurisdictional

arrangements have measurably affected the accomplishment of his

mission. Accordingly, the Department of Defense considers present

status-of-forces arrangements to be workable and satisfactory.

Senator ERVIN. General, that is a most illuminating report, and I

am agreeably surprised to learn that you have such a small number

in confinement out of such a tremendous number. The chart indicates a little over 100 cases of confinement out of a total number of

cases of 19,000. That shows a great deal of forbearance, does it not,

plus the fact that most of these offenses are traffic or minor offenses?

General HODSON. Approximately, as I indicated, about 65 percent

are traffic offenses.

Senator ERVIN. And the cases would indicate that still the foreign

tribunals if anything, are leaning a little backward in their punishment. In other words, making the punishment lighter than the

punishment would probably be for similar offenses in the criminal

courts of the United States.

Don't you feel that is a fair inference to be drawn from the figures?

General HODSON. I believe that is a fair inference to be drawn as

a conclusion.

Senator ERVIN. Mr. Forman, you made a statement about the

problems we have been confronted with ever since the Supreme Court

held that the military courts could not have jurisdiction over civilians

accompanying the Armed Forces. You spoke of resort being had to

administrative and disciplinary action in respect to civilians abroad

with our Armed Forces.

I just wondered if you could indicate something as to the nature of

the administrative and disciplinary actions taken.

Mr. FORMAN. Those include, Mr. Chairman, a case of civilian employees, dismissal or suspension of employment, withholding or denial

of certain privileges on the base, such as PX privileges, the right to

drive an automobile, and so forth.
OPERATION OF ARTICLE VII, NATO STATUS OF FORCES TREATY 5

In the case of dependents to some extent there may be some withholding or denial of privileges or possibly the sending of the serviceman involved—or rather the serviceman of the dependent involved

home with his dependent.

Senator ERVIN. Maybe the general should answer this question.

General HODSON. I might add that in the case of dependents some

oversea commanders have a policy that if a dependent becomes

involved in difficulties of the type we are discussing, the commander

has a policy of returning the dependents to the United States while

requiring the serviceman to complete his tour unaccompanied by his

dependents.

This has a rather salutary effect when the command knows that

this is what will happen if the dependents become involved in difficulty.

Senator ERVIN. I would think that that would perhaps be the most

effective thing that can be done in the absence of jurisdiction to fix

some kind of criminal punishment.

General HODSON. This is particularly true in the case of juveniles.

Mr. FORMAN. Mr. Chairman, I think I might point out that incidents of offenses by employees and dependents has not really changed

very much since the cases involved. Perhaps I should put these

figures in the record.

First let me recall for the record that the date of the first Supreme

Court decision, Reid v. Covert, was June 10, 1957, the case holding

that civilians could not be tried for capital offenses by court-martial.

The other four cases, the Kinsella v. Singleton, McElroy v. Guagliardo, Grisham v. Hagen, and Wilson v. Bohlender, were decided on

January 18, 1960.

So the critical dates are 1957 and 1960, with respect to changes

in our jurisdiction.

Let me read into the record the annual figures for offenses by

civilians and dependents beginning in 1956 and going through the

current reporting period. I will first give them for the civilian

employees, and then the dependents.

In 1959: 707, 731, 769, and 838.

In 1960, 517, which is the first year after the decision.

Then 524, 433, and 507.

If anything, the figures for employees are much lower than they

were prior to the decision.

Senator ERVIN. Yes; they are.

Mr. FORMAN. Now, for dependents the figures are 417, 526, 666,

650, in 1959, the last year prior to the 4 decisions.

Then beginning in 1960, 499, 498, 572, and 649.

So, for the current year we are back up to where we were on dependents prior to the Supreme Court's decisions. So certainly the indications are that we are not having any more offenses committed by

civilian employees or dependents after the Supreme Court's decision

than were committed before the decisions. It has not encouraged

such offenses to be committed.

Senator ERVIN. That sustains the theory I have always had: It is

not criminal sanctions that restrain people so much as the people

themselves.

36-778-64-2
6 OPERATION OF ARTICLE VII, NATO STATUS OF FORCES TREATY

Would I be correct in assuming that a substantial percentage

of the offenses against employees and dependents would be traffic

violations, as in the case of servicemen?

Mr. FORMAN. That is correct. For the current year of the 507

cases of civilian employees, 467 were traffic offenses.

Of the 649 of dependents in the current year, 479 were traffic

offenses.

I might add that combining the two, we have a total of about a

little over 1,100, and this is a very low percentage when one considers

the total number of civilian dependents and employees overseas, which

I assume is about the same level now as it was at about the time of the

Supreme Court cases, and the record in those cases shows that at that

time there were about 400,000.

Senator ERVIN. Do the foreign courts show a reluctance to try cases

against employees and dependents where they do not involve crimes

against their nationals?

Mr. FORMAN. I think this is basically true in the case of juveniles,

and to some extent in the case of adults. The basic problem is on

juveniles, but we have the same situation here in this country as to how

you handle juveniles.

Would you care to amplify on that?

General HODSON. I would concur with Mr. Forman there, that

the problem of juveniles is a difficult one, because of the manner

in which you handle juveniles. You normally put them on probation,

or you assign them to a home, something of that nature.

Well, with foreign language being involved, this is just not appropriate for a U.S. juvenile to be assigned, say, to a home in Japan,

because of the language barrier. So it makes it difficult to know what

to do with juveniles.

Senator ERVIN. Do we have any cases that you know of where

there have been rather aggravated offenses committed by civilians

that Foreign courts have not dealt with, during this reporting period.

General HODSON. I couldn't cite you an instance where I felt that

they were extraordinarily lenient, or that they did not exercise jurisdiction where we felt that they probably should. I think that during

the last reporting period we have had no untoward incidents in this

respect.

Senator ERVIN. I introduced a bill to try to do something about

the civilian problem. I am frank to state that it was introduced

more as a blueprint for discussion than with any conviction that it

ought to pass in the form in which it was introduced, because I have

difficulty on account of being trained to practice law in a common

law jurisdiction with the old common law conception that jurisdiction

ought to be based on jurisdiction over the place where a crime is

committed, plus the fact that we have some serious constitutional

questions involved in addition. It is a very interesting problem to a

lawyer, but one for which I can find no ready solution.

You may proceed, General, with the other section.

'General HODSON. Mr. Chairman, I would like to attach the complete statement, together with various other charts and data, to the

record.
OPERATION OF ARTICLE VII, NATO STATUS OF FORCES TREATY 7

Senator ERVIN. We will insert in the record at this point the complete statement of General Hodson, and any other data which he

may care to submit.

(The documents referred to follow:)

STATEMENT OF BRIG. GEN. KENNETH J. HODSON, ASSISTANT JUDGE

ADVOCATE GENERAL FOR MILITARY JUSTICE

EXERCISE OF CRIMINAL JURISDICTION—WORLD

Mr. Chairman, before I discuss specific statistics pertaining to the exercise

of criminal jurisdiction over U.S. personnel by foreign tribunals throughout the

world, I wish to call your attention to the fact that the percentage of military

waivers obtained both worldwide and in NATO countries has increased from an

average of 59 percent in the previous four reporting periods to 70.45 percent for

the current period. In other words, in more than 7 out of every 10 incidents,

foreign authorities deferred their primary right of jurisdiction to the exercise of

jurisdiction by U.S. military authorities. The majority of cases which were

tried by foreign tribunals involved traffic offenses.

My remarks concerning the exercise of jurisdiction over U.S. personnel in each

individual country will, for the most part, consist of tables reflecting the statistical

highlights for that country. These highlights have been extracted from the

detailed, country-by-country, statistical analysis of the exercise of foreign jurisdiction which is appended to the Department of Defense report.

I now refer to chart A. Note that the NATO—SOF figures shown in the righthand columns are included in the worldwide figures shown on the left. During

the period December 1, 1962, through November 30, 1963, 19,017 U.S. military

and civilian personnel and their dependents were charged with offenses subject

to the primary or exclusive jurisdiction of foreign courts throughout the world

(12,713 of these offenses were traffic offenses).

Of the 19,017 persons so charged, 17,861 were military persons. In the military

cases foreign authorities waived their primary right to exercise jurisdiction in

12,584 cases for a worldwide waiver rate of 70.45 percent. Throughout this

report the waiver percentages given pertain solely to military personnel because,

as a result of the 1960 Supreme Court decisions concerning the lack of courtmartial jurisdiction over civilians in time of peace, we no longer request waivers

in cases involving civilian personnel or dependents. However, in the 1,156 cases

in which civilians and dependents were charged with offenses, 742 accused were

released to the United States for disposition.

In addition to the 5,277 cases involving military personnel and 414 cases involving civilian personnel (including dependents) in which jurisdiction was

reserved by foreign governments, there were 581 military and 58 civilian cases

pending trial at the end of the previous reporting period. In these 6,330 reserved

cases charges were dropped in 716 military and 65 civilian cases (total 781), trial

remained pending at the close of the current reporting period in 823 military and

72 civilian cases (total 895), and in 1 civilian case, bond was forfeited and no

trial was held. Waiver of jurisdiction was obtained in one case which has been

pending trial at the close of the previous reporting period.

Foreign courts tried 4,652 offenses (3,068 were traffic offenses) and acquitted

196 accused, an overall acquittal rate of 4.21 percent compared to 4.57 percent

for the previous reporting period. Of the 4,652 cases, 334 trials were of civilians

or dependents and resulted in 311 final convictions, 27 acquittals, and 12 appeals

from conviction or acquittal. (These figures also include the final disposition of

appeals pending at the end of the previous reporting period.) Fines were adjudged

in 259 of these 311 cases (214 traffic offenses). In 16 cases the punishment involved only a reprimand. Suspended sentences to confinement were given 27

civilian offenders while 9 received unsuspended sentences to confinement.

Military personnel were tried in 4,318 cases with 4,133 resulting in conviction

and 169 in acquittal. Appeals were pending in 92 cases at the close of the current

reporting period. Fines were adjudged in 3,837 cases (2,658 traffic offenses)

while in 26 offenses only a reprimand was imposed. Suspended sentences to

confinement were given 172 offenders while 98 received unsuspended sentences

ranging in length from 1 day to 10 years. It should be noted that these figures

reflect results of trials during the period and include cases in which appeals were

pending at the close of the previous period.
8 OPERATION OF ARTICLE VII, NATO STATUS OF FORCES TREATY

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OPERATION OF ARTICLE VII, NATO STATUS OF FORCES TREATY 9
10 OPERATION OF ARTICLE VII, NATO STATUS OF FORCES TREATY

Chart B shows that the total number of alleged offenses subject to foreign jurisdiction increased from 12,291 in the preceding period to 19,017 for the current

reporting period. This sharp increase is the result of the inclusion for the first

time of offenses committed by military personnel in the Federal Republic of

Germany, where the jurisdictional provisions of NATO-SOFA, as modified by

the German supplementary agreement, became effective on July 1, 1963. Prior

to this date the United States had retained exclusive jurisdiction over military

personnel in Germany.

Chart C shows that there were 107 cases in which a sentence to confinement

was not suspended, compared to 98 such cases in the previous reporting period.

There were 114 such cases in the 1961 report. The longest unsuspended sentence

to confinement reported during the current period was a 10-year sentence adjudged by a Japanese court against a marine for the offense of arson, robbery

causing injury, and larceny. The longest unsuspended sentence given a civilian

(dependent) was 4 years' confinement for murder, also adjudged by a Japanese

court.

Chart D illustrates the number of individuals confined in foreign prisons.

The total of 63 individuals in confinement at the close of the reporting period is

in line with previous figures reported although higher than the record low of

36 reported at the close of the last reporting period. Three civilians (dependents)

were among those in confinement at the close of the reporting period.

EXERCISE OF CRIMINAL JURISDICTION IN NATO STATUS OF FORCES COUNTRIES

I will now discuss various statistics pertaining to the exercise of criminal jurisdiction over U.S. personnel by countries signatory to the North Atlantic Treaty

Organization Status of Forces Agreement. (See chart A.)

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

increased from 7,532 during the previous period to 13,641 in the current period

(9,428 of which were traffic offenses). As I have indicated, this sharp increase was

due to the inclusion of 5,993 alleged committed in Germany by military personnel

since July 1, 1963, the date when the NATO-SOFA, as modified by the German

supplementary agreement, entered into force governing the jurisdictional status

of U.S. military personnel in Germany.

NATO countries waived their right to exercise jurisdiction in 9,471 or 71.47

percent of the military cases (compared to 58.64 percent in the previous reporting

period). In addition, a total of 90 civilians and dependents were released to the

United States for disposition. Charges were dropped in 610 cases and trial remained pending in 766 at the close of the current reporting period. The 3,230

trials of U.S. personnel resulted in 166 acquittals, 2,831 sentences to fines or reprimands, 163 suspended sentences to confinement, and 68 unsuspended sentences

to confinment (compared to 71 unsuspended sentences for the previous period).

These sentence figures include cases in which appeals were pending at the close

of the previous period. There were 77 appeals pending at the close of the 1962-63

reporting period.

I should like to insert in the record at this point two cumulative tables on the

exercise of criminal jurisdiction in NATO countries and worldwide since 1953.

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

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

during the current reporting period. Under this statute, the United States may

pay certain expenses incident to the defense of qualified U.S. personnel tried by

foreign courts (i.e., those amenable to court-martial jurisdiction under the Uniform

Code of Military Justice).
OPERATION OF ARTICLE VII, NATO STATUS OF FORCES TREATY 11

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12 OPERATION OF ARTICLE VII, NATO STATUS OF FORCES TREATY 
OPERATION OF ARTICLE VII, NATO STATUS OF FORCES TREATY 13

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TABLE II

SUMMARY OF EXERCISE Ok CRIMINAL JURISDICTION WORLDWIDE BY FOW....IG, TRIBUNALS OVER UNITED STATES PERSONNEL

DECEMBER 1, 1953 THROUGH NOVEMBER 30, 1963

CASES SUBJECT TO FOREIGN JURISDICTION CASES TRIED CONFINEMENT NOT SUSPENDED

Worldwide

1954 

7416

An

10249

12.51,

14394

1957 

13971

1958 

13659

1959 

12909

1.21.2

11516

1911

11707

1.91?..

12291

likl

19017

Total

127129

125it

1475

7955

3142

.25i

4437-

1957 

4980

1.25E

4263

125.2

4070

12226

4163

12k1

4254

1585

4375

1581

4652

Tota1 

59611

15.58

77

1255

120

1251,

108

1251

124

1252

96

1959 

100

1912

117

1..t.1

114

1582

98

115./

107

Total 

1061

14 OPERATION OF ARTICLE VII, NATO STATUS OF FORCES TREATY 
OPERATION OF ARTICLE VII, NATO STATUS OF FORCES TREATY 15

TABLE III.-Expenditures in implementation of 10 U.S.C. 1087, Dec. I, 1962, to

Nov. 80, 1968

Country

Number of

cases Counsel fees Bail

Court costs

and other

expenses

Net total

paid during

period

Bermuda: Air Force 2 $6, 655.32 $6, 655.32

Canada: Air Force 1 231.97 $10.52 242.49

Ecuador: Army 1 100.00 10.00 110.00

France:

Army 66 5,863.96 659.66 6, 523. 62

Air Force 4 915. 94 915. 94

Germany: Army 2 554. 16 554. 16

Greece: Air Force 1 250. 00 50. 00 300. 00

Hong Kong: Navy 1 175.25 ($87.63) 175.25

Iceland: Navy 1 145.00 145. 00

Iran: Army 1 664.00 664.00

Italy:

Army 27 2, 680. 63 2, 680. 63

Navy 5 '811. 19 811. 19

Air Force 1 40. 26 40. 26

Japan:

Army 6 600.00 295.22 895.22

Navy 19 4, 838. 89 1, 100.51 5, 939. 40

Air Force 54 8, 300. 00 283.22 8, 583. 22

Mexico: Army 5 2, 000. 00 40.00 2, 040. 00

Panama: Army 27 500.00 (9, 400. 00) 762.36 1, 262. 36

Philippines:

Navy 2 567. 01 567. 01

Air Force 5 713.96 414.40 1, 128. 30

Spain: Army 3 272.17 272. 17

Switzerland: Army 2 115.90 115.96

Turkey:

Army 17 5, 166. 67 267.28 5, 433. 95

Navy 1 1, 333. 33 1, 333. 33

Air Force 28 7, 365. 43 (333. 33) 171. 57 7, 537. 00

United Kingdom: Air Force 14 4,341. 12 4,341. 12

Total 296 55, 086.20 2 (9,820. 96) 4, 180. 64 59,266. 84

I Includes expenditure in 1 civil case.

2 No bail forfeited during reporting period.

During the current period, $59,266.84 was expended in 296 cases, compared to

$63,769.47 in 284 cases during the previous reporting period. The average cost

per case decreased from $224.54 to $200.22.

In previous years it has been reported to the committee that the Kinsella v.

Singleton series of Supreme Court decisions had the effect of removing civilian

employees and dependents from the category of personnel who may benefit under

title 10, United States Code, section 1037, and that legislation to broaden the

scope of existing law to reinstate the coverage for such persons was before the

Congress. This legislation has not been enacted. At the present time such

legislation is not included in the Department of Defense legislative program.

To demonstrate our experience in each of the countries in which the NATO

Status of Forces Agreement is in effect, I shall place in the record a table (table IV)

which contains statistical highlights.

TABLE IV.-Statistical highlights for NATO-SOFA countries

Country

Cases subject

to local

jurisdiction

Cases

waived or

dropped

Cases pending from previous year

Cases tried Acquittals

Belgium 56 (42) 56 (20) 9 (6) 7 (2) 0 (2)

Canada 401 (415) 19 (21) 0 (3) 382 (397) 0 (2)

Denmark 5 (2) 3 (1) 0 (0) 2 (1) 0 (0)

France 4,625 (4,454) 3,928 (3,841) 134 (138) 733 (617) 39 (19)

Germany 1 6,188 5,512 14 349 9

Greece 45 (36) 36 (35) 1 (3) 5 (3) 4 (1)

Italy 271 (305) 163 (100) 203 (122) 103 (124) 37 (33)

Luxembourg 43 (26) 10 (3) 16 (7) 41 (14) 5 (2)

Netherlands 247 (119) 247 (119) 0 (0) 0 (0) 0 (0)

Norway 4 (1) 0 (1) 0 (3) 2 (3) 0 (0)

Portugal o (o) o (o) 0 (0) 0 (0) 0 (0)

Turkey 116 (95) 54 (6) 39 (46) 87 (96) 41 (47)

United Kingdom 1,640 (2,037) 144 (345) 110 (90) 1,519 (1,672) 31 (55)

1 Became a party to NATO-SOFA on July 1,1963.
16 OPERATION OF ARTICLE VII, NATO STATUS OF FORCES TREATY

For comparison, the figures in parenthesis are for the reporting period, December 1, 1961, to November 30, 1962.

The two NATO countries where the largest number of offenses occurred were

France and the Federal Republic of Germany.

FRANCE

During the reporting period France continued to waive jurisdiction in most of

the cases involving military personnel. There were 4,625 cases subject to French

jurisdiction (3,818 traffic offenses) compared to 4,454 cases during the last reporting period. There were also 134 cases carried over for the previous reporting

period. Waivers of jurisdiction were obtained in 3,869 or 85.84 percent of the 4,507

military cases subject to French jurisdiction. Of the 733 persons tried, 39 were

acquitted, 576 were fined or reprimanded, 91 received suspended sentences to

confinement, and 33 received unsuspended sentences to confinement, ranging

from 15 days to 1 sentence of 3 years. There were 20 appeals pending at the end

of the current reporting period.

GERMA NY

Until July 1, 1963, when the NATO—SOFA, as modified by the German supplementary agreement, became effective between the United States and Germany,

U.S. military presence in the Federal Republic of Germany was governed by the

Bonn conventions. The Bonn conventions gave the United States exclusive

criminal jurisdiction over its military personnel. When the new agreement came

into effect, article VII of the NATO Status of Forces Agreement, supplemented

by an automatic waiver arrangement, became the controlling agreement. In all

concurrent jurisdiction cases in which Germany has the primary right to exercise

jurisdiction, Germany has granted an automatic waiver of that 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 make imperative the exercise of German jurisdiction." During the period July 1, to November 30, 1963, 6,188 offenses were

subject to German jurisdiction (3,530 were traffic offenses). German authorities

recalled their waiver of jurisdiction in 20 of the 5,105 cases involving concurrent

jurisdiction offenses. No waivers were received in 888 other cases involving

military personnel as these cases consisted for the most part of minor traffic

offenses over which Germany has exclusive jurisdiction; e.g., parking offenses.

These latter cases resulted in charges being dropped in 366 cases, while 208

convictions resulted in the same number of fines. There were 312 of these minor

offense cases awaiting trial at the close of the reporting period.

GREECE AND THE NETHERLANDS

In Greece and the N etherlands the United States operates under supplemental

agreements to the NATO Status of Forces Agreement whereby both countries

have agreed to waive their primary right to exercise jurisdiction at the request of

the United States except in cases of particular importance to the host country.

The Netherlands did not reserve jurisdiction in any of 247 cases which arose during

the reporting period; Greece reserved jurisdiction in 10 of 45 cases in which they

had primary jurisdiction. In other NATO countries, the waiver of jurisdiction

is governed by the NATO Status of Forces Agreement under which requests for

waiver are given "sympathetic consideration."

ICELAND

The NATO Status of Forces Agreement does not control the jurisdictional status

of U.S. personnel stationed in Iceland; however, a bilateral treaty with Iceland

(TIAS 2295, signed May 8, 1950) contains similar provisions. During the current

reporting period U.S. personnel were charged with 105 offenses (44 traffic violations). No waivers of jurisdiction were granted. Charges were dropped in nine

cases. All of the cases tried resulted in fines or reprimands only.

EXERCISE OF CRIMINAL JURISDICTION IN Now-NATO COUNTRIES WHERE WE

HAVE A JURISDICTION AL AGREEMENT

To relate to you our experiences in each of the non-NATO countries where we

have a jurisdictional agreement, I shall place in the record a table (table V) which

contains statistical highlights.
OPERATION OF ARTICLE VII, NATO STATUS OF FORCES TREATY 17

TABLE V.—Summary of data on the exercise of criminal jurisdiction by foreign

tribunals in non-NATO countries where a jurisdictional agreement exists, for period

Dec. 1, 1962, to Nov. 30, 1963

Country

Cases subject

to local

jurisdiction

Cases

waived or

dropped

Cases pending from previous year

Cases tried Acquittals

Australia ., 1 (0) 0 (0) 0 (0) 1 (0) 0 (0)

Azores 74 (97) 73 (98) 0 (4) 1 (3) 0 (1)

Ecuador 1 1 (0) 1 (0) 0 (0) 0 (0) 0 (0)

Greenland 0 (1) 0 (0) 1 (0) 0 (0) 0 (0)

Iceland 2 105 (0) 9 (0) 11 (0) 97 (0) 0 (0)

Japan 3,433 (3,191) 3,090 (2,906) 48 (46) 340 (283) 0 (1)

Morocco 42 (33) 20 (18) 11 (14) 17 (18) 4 (5)

New Zealand 29 (23) 28 (22) 0 (0) 1 (1) 0 (0)

Nicaragua o (1) o (o) 0 (0) 0 (1) 0 (1)

Philippines 67 (85) 52 (77) 20 (16) 13 (4) 7 (2)

Spain 122 (16) 99 (38) 5 (34) 13 (7) 1 (0)

West Indies (Antigua, Bermuda, Eleuthera, and the

Bahama Islands) 227 (172) 7 (4) 2 (2) 219 (170) 9 (6)

West Pakistan 1 (0) 1 (0) 0 (0) 0 (0) 0 (0)

1 MAAG and mission agreement, not of general application.

2 While Iceland is signatory to NATO-SOFA, the effective agreement governing the status of U.S. forces

in Iceland is TIAS 2295.

For comparison, the figures in parenthesis are for the prior reporting period,

December 1, 1961, to November 30, 1962. A Status of Forces Agreement with

Australia went into effect on May 9, 1963. Its criminal jurisdiction provisions

are similar to the criminal jurisdiction provisions of the NATO—SOFA. Only

one case, a traffic offense, was reported from Australia where U.S. military presence

involves relatively small forces.

JAPAN

Of the non-NATO countries, the largest number of cases arose in Japan. There

were 3,433 cases subject to Japanese jurisdiction of which 2,775 were traffic

offenses.

Our jurisdictional arrangements with Japan continue to operate effectively.

The waiver rate remains exceptionally high, waivers having been granted in

2,448 (89.11 percent) of the 2,747 alleged offenses by military personnel subject

to Japanese jurisdiction. Of the total of 340 cases tried, 274 trials resulted in

fines, 29 resulted in suspended sentences to confinement, and 29 resulted in

unsuspended sentences to confinement.

SPAIN

During the reporting period, 122 cases involving U.S. personnel occurred in

Spain, and there were 5 pending from the previous period. Waiver of jurisdiction

was asked and granted in 94 cases. There were 13 trials which resulted in 1

acquittal and 12 fines.

Last year it was reported that U.S. Army Private James B. Wagner,

RA12588064, had confessed to the murder and robbery of a Spanish national in

November 1962. Because he was not stationed in Spain a waiver request was

denied. At the close of the reporting period no trial had taken place because of

delays obtained by defense counsel.

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

To show you our experience in countries where we do not have a jurisdictional

agreement, I shall place in the record a table (table VI) which contains statistical

highlights.
18 OPERATION OF ARTICLE VII, NATO STATUS OF FORCES TREATY

TABLE VI.—Summary of data on the exercise of criminal jurisdiction by foreign

tribunals in countries where no jurisdictional agreement exists, for period Dec. 1,

1962, to Nov. 30, 1963

Country Cases subject to local jurisdiction

Cases waived or dropped

Cases pend- ing from pre- vious year

Cases tried Acquittals

Ascension Hong Kong 

Iran Mexico Panama South Africa Switzerland 

1

131

1, 213460

0

(0) (12) (4) (772) (140) (2) (3)

0

2

3

5492

0

0

(0) (0) (9) (143) (22) (0) (0)

0

0

3

3

6

0

3

(0) (0) (11) (3) (6) (0) (0)

1

111

665390

3

(0) (12) (3) (628) (118) (2) (0)

0

0

1

6

1

1

0

(0) (0) (0) (0) (12) (0) (0)

For comparison, the figures in parentheses are for the prior reporting period

December 1, 1961, to November 30, 1962.

MEXICO AND PANAMA

In the countries where we have no jurisdictional agreements, the largest number

of offenses were committed in Mexico and Panama. Of the 665 trials in Mexico

all but 26 were for such minor offenses as drunk and disorderly, breach of the

peace, and traffic violations. In Panama, of the 39 cases tried, 1 resulted in

acquittal, 31 resulted in fines, 2 resulted in suspended sentences to confinement,

and 4 resulted in unsuspended sentences to confinement, 1 for 8 months and the

others for 6 months each.

CONCLUSION

In conclusion, no U.S. commander has reported that jurisdictional arrangements

have measurably affected the accomplishment of his mission. Accordingly, the

Department of Defense considers present status of forces arrangements to be

workable and satisfactory.

Senator ERVIN. It may be, General, that you would prefer to go

into a country-by-country discussion in executive session rather than

going into it now, since we have put your general statement into the

record.

General HOD$ON. That is all I have, Mr. Chairman.

Senator ERVIN. I would just like to ask one other general question,

which results from your statement, Mr. Forman, about there still

being some trouble with the impact upon the morale of servicemen

charged with crimes in foreign courts by reason of delay in the trial.

I recall from previous reporting that the main country in this field

has been Turkey, which sort of tries cases over a considerable period

of time. Has the situation been bettered in that respect there?

Mr. FORMAN. The situation has improved, sir, in that country,

and I will be happy to expand upon that answer in executive session.

(Discussion off the record.)

Senator ERVIN. Gentlemen, as a man who abhors governmental

secrecy of all kinds, I feel constrained at this time to ask everybody

who is not entitled to remain for executive session, which will be

classified, to retire.

(Whereupon, at 11:05 a.m., the subcommittee recessed, to reconvene

in executive session.)