Abstract
The criminal jurisdictional arrangements of the 1965 agreement were aimed at eliminating one of the most serious irritants in United States-Philippine relations.1 United States Ambassador Blair called it “a fair and equitable arrangement,”2 and the Manila Times reported that it “appears so logical an arrangement that one wonders why it took so long to negotiate.”3 Perhaps the twelve years of intermittent negotiations are the best testimony to the serious and sensitive nature of the conflicts involved. Although many of these problems still exist, the new agreement provides a better basis for handling them. At the same time, however, as is the case with any new arrangement, the 1965 agreement poses potential operational problems of its own.
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Agreement Relating to Criminal Jurisdiction Arrangement, Amending the Agreement of March 14, 1947, as Amended. Exchange of notes at Manila August 10, 1965; entered into force August 10, 1965. 16 UST 1090; TIAS 5851. Offenses committed before the provisions of the revised agreement came into effect will be governed by the provisions of the original Article XIII (Agreed Official Minute Number 8). For the instructions to the military authorities in the Philippines putting the revised agreement into effect, see GINGPAG Representative Philippines and Commander, U.S. Naval Forces Philippines, CINCPACREP PHILj COMNAVPHIL Instruction 5820.1B, dated September 7, 1965.
As quoted in Free Press, August 21, 1965, p. 91.
Maximo V. Soliven, Manila Times, August 12, 1965, p. 5-A.
As Baldwin has pointed out, it is important to note that status of forces agreements concern the “right to exercise” criminal jurisdiction and not the existence of jurisdiction. Baldwin, p. 61. Thus under both the original and revised versions of Article XIII, it is not the existence of the United States military authorities’ jurisdiction over persons subject to the military law of the United States that is recognized, but rather the right of the United States authorities to exercise this jurisdiction in the Philippines. Without such an agreement, as Baldwin noted, a United States court-martial could not sit in the host country without infringing on the rights ofthat country. Ibid. See also The S.S. “Lotus”; (France v. Turkey), PCIJ 1927, Ser. A., No. 10, 2 Hudson, WorldCourt Reports 20 (1935), and Schooner Exchange v. McFaddon, 7 Cranch (U.S.) 116, 136 (1812), as cited in William W. Bishop, Jr., International Law (2d ed. rev.; Boston: Little, Brown, and Co., 1962), pp. 443, 448.
See 64 Stat. 107 (1950); 10 U.S.C. 801, Article 2, paragraphs 10 and 11. As Rouse and Baldwin have noted: “This has been construed to confer military jurisdiction over civilian employees of United States nationality of both appropriated [citing U.S. v. Monker, 1 U.S.C.M.A. 393, 3 C.M.R. 127] and non-appropriated fund activities (such as officer’s clubs, post exchanges and Armed Forces Picture Service) [citing U.S. v. Biagini 10 C.M.R. 682, 690], certain merchant seamen [citing U.S. v. Garcia, 5 U.S.C.M.A. 88; 17 C.M.R. 88], aliens brought within a receiving state as employees [citing U.S. v. Weiman, 3 U.S.C.M.A. 216, 11 C.M.R. 216], technical representatives of contractors serving with the forces [citing Periston v. U.S., 151 F. 2d 167 (3rd Cir., 1945); cert, dismissed, 328 U.S. 822 (1946); In re Di Bartalo, 50 F. Supp. 929 (SDNY, 1943)]...” Joseph H. Rouse and Gordon B. Baldwin, “The Exercise of Criminal Jurisdiction Under the NATO Status of Forces Agreement,” 51 AJIL 29, 33 (1957). Article 2 has also been applied to dependents of members of the armed forces and of the civilian component accompanying them by military authorization. See Lewis Mayers, The American Legal System (rev. ed.; New York: Harper and Brothers, 1964), p. 511.
On rehearing Reidv. Covert and a companion case, Kinsella v. Kruger, 354 U.S. 1 (1957), the Court reversed its original ruling (Reidv. Covert, 351 U.S. 487, 1956; Kinsella v. Kruger 351 U.S. 470, 1956) and ordered released two military dependents charged with murder. In both cases the alleged crimes had been committed overseas, and the women had been tried by courts-martial under Article 2, section 11 of the U.C.M.J. In the Covert ruling, however, no explicit statement was made as to whether it applied to non-capital cases. In January 1960 the questions unanswered in the Covert case were handled in four Supreme Court cases. The Court held that courts-martial “cannot constitutionally exercise jurisdiction over persons who do not have a ‘status’ as members of the armed forces.” Robert D. Duke and Howard S. Vogel, “The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction,” 13 Vanderbilt Law Review 435, 437 (I960). See also Operation Hearings 1960, pp. 2–3. For civilian dependents accused of non-capital offenses, see Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960). For civilian employees charged with capital offenses, see Grisham v. Hagen, 361 U.S. 278 (1960). For civilian employees accused of non-capital offenses, see McElroy v. United States ex rel. Guagliardo and Wilson v. Bohlender 361 U.S. 281 (1960). It should be pointed out that these decisions did not involve “petty offenses.” Thus, as a Defense Department official has noted, it is not clear whether the’ Supreme Court decisions “really applied to [court-martial jurisdiction over] petty offenses.” The same official stated, however, that the military has not tried any such case since the Supreme Court rulings. Operation Hearings 1965, p. 15.
Duke and Vogel, p. 437. See also John C. Reis and Owen S. Nibley, “Justice, Juries, and Military Dependents,” 15 Western Political Quarterly 438, 440–441 (1962).
See John C. Reis and Owen S. Nibley, “Justice, Juries, and Military Dependents,” 15 Western Political Quarterly 438, ibid., pp. 438–448; and Operation Hearings 1956, p. 12. Reis and Nibley, two officers in the United States Air Force, maintain that “there is simply no solution [to the problem] short of re-establishing court-martial jurisdiction.” Reis and Nibley, p. 444.
For the courses of action possible to regain military jurisdiction over civilians, see John C. Reis and Owen S. Nibley, “Justice, Juries, and Military Dependents,” 15 Western Political Quarterly 438,ibid., pp. 438–448; Operation Hearings 1960; Operation Hearings 1961;
Thomas B. Moorhead, “Rrid v. Covert and Its Progeny: The Practical Problem of Punishment,” 12 Syracuse Law Review 18, 18–25 (1960).
See Operation Hearings 1964, p. 5. From data available to the author it appears that there-have been only three trials of civilians by the Philippine courts from 1954 through 1964. One trial of a member of the civilian component occurred in 1959. Two trials of dependents occurred in 1964, but the lack of any such cases from 1960 through 1963 seems to indicate that the Supreme Court rulings are not the determining variable. Drawn from OCS Form 782, Philippines (1954–1955) and JAGForm 66 [replaces OCSForm 782], Philippines (1956–1964).
Operation Hearings 1962, pp. 2, 22. See also Operation Hearings 1960, p. 3.
See above, pp. 64–65, and Operation Hearings 1964, p. 4.
Valeros, p. 25.
It would be extremely difficult for the Philippines to claim exclusive jurisdiction over persons subject to the military law of the United States under paragraph 2(a) because of the fact that Article 134 of the U.C.M.J. prohibits “all conduct of a nature which may bring discredit upon the armed forces.” Rouse and Baldwin, p. 38. See also Note, 70 Harvard Law Review 1043, 1056 (1957); and de Gastro, p. 936. For the vagueness of Article 134, see Robert O. Everett, “Article 134, Uniform Code of Military Justice—A Study in Vagueness,” 37 North Carolina Law Review 142, 142–161 (1958).
See 52 AJIL 212, 217–218, 224 (1958).
For the Japanese provision, see Article I, paragraph a, Agreement of January 19, 1960, TIAS 4510.
Other arrangements which include waiver provisions similar to those of the United States-Philippine agreement include Greece (Agreement of September 7, 1956; 7 UST 2555; TIAS 3649), Nicaragua (Agreement of September 5, 1958; 9 UST 1206; TIAS 4106), the Federation of the West Indies (Agreement of February 10, 1961; TIAS 4734), the Netherlands (Agreement of August 13, 1954; entered into force November 16, 1954; 6 UST 103; TIAS 3174), and Libya (Agreement of February 24, 1955; applicable from October 30, 1954; 7 UST 2051; TIAS 3607). The Libya agreement specifies cases in which Libya might be particularly concerned as “an offense against the safety of the Libyan State, an offense against the sovereignty or honor of the Libyan State, or an offense which the Libyan State considers to be of serious public concern, including sexual offenses which cause serious public concern.” Even in such cases, however, Libya agrees to give “sympathetic consideration” to a United States request for waiver, TIAS 3607, provision d.
Baldwin, pp. 83–84, citing Agreed View No. 40, annexed to the Protocol to Amend Article XVII of the Administrative Agreement, September 29, 1953; 4 UST 1846; TIAS 2848. This provision remains in the agreement of January 19, 1960; 11 UST 1652; TIAS 4510.
In spite of the usage of “on” in the corresponding provision of the United States-Japanese agreement, the addition of an Agreed Minute creates the same situation as exists in the Philippine Agreement of 1965. See Agreed Minute for Article XVII, re paragraph
(a) and 10(b), Agreement of January 19, 1960, TIAS 4510.
In the Philippine agreement no reference is made from Arrangement No. 2 (a) back to a specific paragraph of the Article itself. However, in the Japanese agreement a provision similar to Arrangement 2(a) in the Philippine agreement specifically refers to paragraph 10(a) and 10(b) of Article XVII of the Japanese agreement. See above, note 21.
Although no statement appears in the new Philippine agreement pertaining to the term “vicinity,” such a statement is included in the Japanese agreement. In that agreement vicinity is to be interpreted to mean “a place so near to facilities or areas as to make possible the commission or attempted commission of security offenses.” Gho, “Jurisdiction over Foreign Forces in Japan, 1945–1960,” p. 62, citing Agreed View No. 24, adopted by the Committee on Jurisdiction on July 30, 1952. This interpretation, however, is only slightly more specific than the term it is trying to interpret.
See Operation Hearings 1959, p. 25.
It should also be pointed out in connection with this provision that the United States Congress has authorized the military, through Public Law 777 (70 Stat. 630, 1906), to employ counsel and pay fees, court costs, bail, and other expenses incidental to representation, before foreign courts of persons subject to the U.C.M.J. Under this law the military authorities have usually spent from $50,000 to $65,000 per year in defending United States military personnel abroad. This law offers valuable added protection for American military personnel in the Philippines. See Operation Hearings 1957-Operation Hearings 1965. As one report stated, the United States military personnel appearing in criminal proceedings are far better off than most Filipinos, primarily because they usually have the services of the better attorneys in the Philippines. Interview with Governor Sering in New Orleans, May 29, 1966.
For Japan, see Agreement of January 19, 1960, TIAS 4510, Article I, paragraph b. For the NATO countries, see Article I, paragraph 1(b), Agreement of June 19, 1951, TIAS 2846.
New York Times, September 4, 1956, p. 10.
Personal letter from Captain Hackett, dated June 15, 1966.
Stambuk, p. 89. See also the excellent study of the Girard case by Baldwin, pp. 52–106.
Applicable at the time was paragraph 3(a) (ii), Agreement of September 29, 1953, TIAS 2848. The same provision is included at Agreed Minute for Article XVII, re paragraph 3(a) (ii), in the Agreement of January 19, 1960, TIAS 4510.
See Baldwin, pp. 62–63, citing Agreed View No. 43 of the Subcommittee on Jurisdiction, Administrative Agreement Matters, Far Eastern Command, Pamphlet 27–1 (January 1956).
In the United States the Girard case revived the isolationist attack against the status of forces agreements and became the occasion for a special session of the Senate Committee on Armed Services. See U.S., Congress, Senate, Committee on Armed Services, Hearings, On the Case of United States Army Specialist Third Class William S. Girard...;, 85th Cong., 1st Sess., 1957. In addition it became the subject of a constitutional test as to whether a member of the United States military could be turned over to foreign authorities by the United States military authorities under a status of forces agreement. The right to do so was upheld by the Supreme Court. Wilson v. Girard, 354 U.S. 524 (1957).
Baldwin, p. 82. For general discussions of the possible criteria for determining the meaning of official duty, see ibid., pp. 52–106 passim; Snee and Pye, pp. 46–54, and Appendix III, pp. 144–167; and Stambuk, pp. 84–96.
Aitchison c. Whitley, Tribunal correctionel de Corbeil, 5 avril 1954, 43 Revue critique de droit international privé; 602–612 (1954), Annuaire français de droit international 579 (1955); Whitley c. Aitchison, Cours d’appeal de Paris, 16 mai 1956, 46 Revue critique...; 100 (1957), 3 Annuaire...; 721 (1957); reversed, Cours de Cassation, Chambre Criminelle, 1958, 43 Revue generale de droit international public, 17–18 (1959); and Operation Hearings 1958, p. 43. The best analysis of the Whitley case is found in Stambuk, pp. 96–106. See also Snee and Pye, pp. 63–72; and Edwin G. Schuck, “Concurrent Jurisdiction Under the NATO Status of Forces Agreement,” 57 Columbia Law Review 355, 355–371 (1957).
In France as in the Philippines the civil and criminal aspects of a case may be combined.
Stambuk, pp. 105–106.
Rouse and Baldwin, p. 49.
Provision d, Memorandum of Understanding Relating to Jurisdiction over United States Armed Forces under the Agreement of September 9, 1954 [5 UST 2449; TIAS 3107]. Signed at Tripoli February 24, 1955; entered into force February 24, 1955; applicable from October 30, 1954. 7 UST 2051; TIAS 3607.
See above, pp. 4–5, 13, 55–59.
See above, chap. I, note 49.
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© 1968 Martinus Nijhoff, The Hague, Netherlands
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Dodd, J.W. (1968). Criminal Jurisdictional Arrangements under the 1965 Agreement. In: Criminal Jurisdiction under the United States-Philippine Military Bases Agreement. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-0518-5_6
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