DEPARTMENT OF THE ARMY PAMPHLET 27-1 00-34 MILITARY LAW REVIEW VOl. 34 iI’ATO SOFA-ARTICLES VI.? &‘ATD VIII: AN IiMERICAXV’STRI.11, IN .A FOREIGN COURT: THE ROLE OF THE IIILITAARY’STRI.4L OBSERVER Captniii yack H. Williams THE 1NTERN.ATIOS.AL RESPONSIBI1,ITY OF -4 ST.1TE FOR TORTS OF ITS l.IILIT.1RY FORCES Major William R. ,\lullins *Ai’t i cI e s THE ,ACQL-ISITION OF THE RESOURCES OF THE BOTTOlI OF SE-1- -1 YLIY FROSTIER OF ISTERSL1TIOSALL.AW Lzeutenant Commander Riciinrd J. Grui2a;ialt 1966 .4SNU;1L INDEX HEADQUARTERS, DEPARTMENT OF THE ARMY OCTOBER 1966 PREFACE The Military Law Review is designed to provide a medium for those interested in the field of military law to share the product of their experience and research with their fellow lawyers. Arti- cles should be of direct concern and import in this area of scholar- ship, and preference will be given to those articles having lasting value as reference material for the military lawyer. The Military Law Review does not purport to promulgate De- partment of the Army policy or to be in any sense directory. The opinions reflected in each article are those of the author and do not necessarily reflect the views of The Judge Advocate General or the Department of the Army. Articles, comments, and notes should be submitted in duplicate, triple spaced, to the Editor, Military Law Review, The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia 22901. Footnotes should be triple spaced, set out on pages separate from the text and follow the manner of citation in the Harvurd Blue Book. This Review may be cited as 34 MIL. L. REV. (number of page) (1966) (DA Pam 27-100-34,1 October 1966). For sale by the Superintendent of Documents, United States Government Printing Office, Washington, D.C., 20402, Price: $.75 (single copy). Subscription price: $2.50 a year; $.75 addi- tional for foreign mailing. AGO 5806B i Pam 27-100-34 PAMPHLET HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-34 WASHINGTON, D.C., 1 October 1966 MILITARY LAW REVIEW-VOL. 34 Page Articles : An American’s Trial in a Foreign Court: The Role of the Military’s Trial Observer Captain Jack H. Williams 1 The International Responsibility of a State for Torts of Its Military Forces Major William R. Mullins ________________ ~ 59 The Acquisition of the Resources of the Bottom of the Sea-A New Frontier of International Law Lieutenant Commander Richard J. Grunawalt 101 The Settlement of Army Maritime Claims Captain Thomas J. Whalen _______________~ 135 1966 Annual Index: Table of Leading Articles and Comments-Authors __ 183 Table of Leading Articles and Comments-Titles 184 Subject Word Index 184 AGO 5306B iii AN AMERICAN’S TRIAL IN A FOREIGN COURT: THE ROLE OF THE MILITARY’S TRIAL OBSERVER By Captain Jack H. Williams** Little has been written in over ten years concerning the role of the US. trial observers which are required by Article VIZ, NATO-SOFA. This article reviews current policies and practices of the United States armed forces regarding trials of US.personnel in foreign courts and the role of U.S. tTial observers, frmthe standpoint of the requirements proposed by the Senate Resolution of 15 July 1953 and the NATO Status of Forces Agreement. PREFACE Since the landmark study by Snee and Pye of the actual opera- tion of article VI1 of the NATO Status of Forces Agreement first appeared in 1956, virtually nothing has been written concerning the work done by U.S. trial observers, either under NATO-SOFA or in other jurisdictions. This study is an attempt to update de- v,elopments in this area and to present, for the first time, the actual workings of the trial observer system as viewed by the observers themselves. To obtain the information contained in Parts IV and V of this article, I contacted over seventy persons who are presently serv- ing or have served as trial observers for the Army, Navy, and Air Force. Some of these individuals were contacted by questionnaire, others by interview. Forty-five letters and interviews were used for this study, and they are cited as Trial Observer Letters and Trial Observer Interviews, followed by a number, which merely indicates the order in which they were received. Collectively, the forty-five trial observers have observed 2,680 trials of U.S. per- sonnel (including 262 trials of dependents and 95 trials of U.S. civilian employees) before the tribunals of 3.8 foreign countries. * This article was adapted from a thesis presented to The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia, while the author was a member of the Fo-nth Career Course. The opinions and conclusions presented herein are those of the author and do not necessarily represent the views of The Judge Advocate General’s School or any uther governmental **JAW, U.S. Army; Headquarters, VI1 Corps, Germany; B.A., 1956, agency. Pennsylvania State University; LL.B., 1959, George Washington University ; LL.M., 1960, Georgetown University; admitted to practice before the bars of the State of Maryland, the U.S. Court of Military Appeals, and the U.S. Supreme Court. AGO 6306B 1 34 MILITARY LAW REVIEW I. INTRODUCTION Such is the patriot’s boast where’er we roam, His first, best country, ever is at home. And yet, perhaps, if countries we compare, And estimate the blessings which they share, Though patriots flatter, still shall wisdom find An equal portion dealt to all mankind.’ The lieutenant slowly trudged up the wide marble steps of the Palace of Justice. He had been here many times before, and the thought of another day in the humid courtroom was not an appeal- ing one. After pushing past the mammoth bronze doors, the lieutenant turned down the corridor to the left, retracing the now familiar route to courtroom number three. Entering, he scanned the room for the interpreter from his office, and seeing him in the third row, he slipped into the bench beside him. They exchanged a few words, and waited for the magistrates to enter. As the pro- ceedings began, the lieutenant caught the eye of the young private first class who was on trial today, charged with vehicular homi- cide. Obviously nervous and uncomfortable, the PFC faintly smiled as he recognized the lieutenant who had talked with him several weeks before at the prison. Perhaps it was a small feeling of comfort to him as the trial began, and he realized that besides himself, the lieutenant was the only other American in the court- room. From time to time the interpreter whispered a few wxds to the lieutenant, commenting on a point of law or perhaps an unfa- miliar procedure. The court recessed several times that day, and during each recess the lieutenant and the interpreter discussed the events which had transpired during the previous proceedings. Several days later, the trial was finally concluded. The lieu- tenant collected his notes and those of the interpreter and began to prepare his final report. The PFC had been found guilty and sentenced to six months’ imprisonment and $500 fine. During the trial, statements had been read from witnesses who were not in attendance, and a considerable amount of hearsay had been elicited from the witnesses who were questioned by the court, rather than by the PFC’s attorney or the prosecutor. Unusual practices? Yes, by American standards, but quite in accord with the laws of this particular country. If anything, one would have to say that the laws and procedures of this state could not prop- erly be compared with the laws and procedures in the United * GOLDSMITH, THE TRAVELLER. 2 AGO 5306B NATO SOFA: ARTICLE VI1 States; it was a completely different system, and a far older one than our Anglo-Saxon tradition. Although unlike our system of jurisprudence, it could not in itself be termed as unjust.2 After summarizing the events of the trial, the lieutenant con- cluded his report with the following statement: “The accused received a fair trial. He was not denied any of the rights guaran- teed under article VI1 of the Status of Forces Agreement.” A typical case, a typical trial, a typical trial observer, a typical report-only the trial observer could know or report whether this serviceman had received the fair trial guaranteed by treaty, and perhaps even he would not be sure. Since the NATO Status of Forces Agreement3 went into effect some thirteen years ago, nearly 60,000 4 U.S. service personnel, dependents, and civilian employees of the U.S. have been tried in the courts of more than 41 foreign countries. This is a large number of cases, to be sure, even though a considerable number of these are minor offenses, such as traffic violations, resulting in fines rather than imprisonment. Nevertheless, the thought of standing trial for anything in any court, let alone the court of a foreign country, can be a frightening one. a For example, Schwenck compares the criminal procedures of NATO coun- tries with criminal procedure under the Fourteenth Amendment, and concludes that even though there are great differences, such differences in themselves do not necessarily amount to a lack of due process. See Schwenck, Comparative Study of the Law of Criminal Procedure in NATO Countries Under the NATO Status of FoTces Agreement, 35 N.C.L. REV. 358, 378 (1957). Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, 19 June 1951 [1953] 2 U.S.T. & O.I.A.