DEPARTMENT OF THE ARMY PAMPHLET 27- 100-20 MILITARY LAW REVIEW Articles THE SOVIET STATUS OF FORCES AGREEMENTS: LEGAL LIMITATIONS OR POLITICAL DEVICES? *--- Lieutenant Colonel George S. Prugh THE LAW OF OBSCENITY AND MILITARY PRACTICE Captain Harvey L. Zuckman COURT-MARTIAL APPEALS IN ENGLAND Delmar Karlen MILITARY JUSTICE IN BELGIUM John Gilissen Survey of the Law ANNUAL SUPPLEMENT TO THE SURVEY OF MILITARY JUSTICE: THE OCTOBER 1961 TERM OF THE U. S. COURT OF MILITARY APPEALS Comments RELIANCE UPON INTERNATIONAL CUSTOM AND GENERAL PRINCIPLES IN THE GROWTH OF SPACE LAW TRAVEL ORDERS: A MOVE TOO SOON CAN BE COSTLY HEADQUARTERS, DEPARTMENT OF THE ARMY APRIL 1963 AGO 8082B PREFACE The MilitanJ 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. Articles should be of direct concern and import in this area of scholarship, 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 to the Editor, Military Law Review, The Judge Advocate General's School, U. S. Army, Charlottesville, Virginia. Footnotes should be set out on pages separate from the text and follow the manner of citation in the Harvard Blue Book. This Review may be cited as Mil. L. Rev., April 1963 (DA Pam 27-100-20, 1 April 63) (number of page). For sale by the Superintendent of Documents, United States Government Printing Office, Washington 25, D.C., Price : $.75 (single copy). Subscription price : $2.50 a year; $75 additional for foreign mailing. AGO 8062B i Pam 27-100-20 PAMPHLET HEADQUARTERS, DEPARTMENT OF THE ARMY NO. 27-100-20 i WASHIKCTON25, D.C., 1 April 1963 MILITARY LAW REVIEW Page Art ic 1es : The Soviet Status of Forces Agreements: Legal Limitations or Political Devices? Lieutenant Colonel George S. Prugh _____________ 1 The Law of Obscenity and Military Practice Captain Harvey L. Zuckman ___________________ 43 Court-Martial Appeals in England Delmar Karlen ............................... 65 Military Justice in Belgium .. John Gilissen ________________________________ 83 Survey of the Law: A Supplement to the Survey of Military Justice Captain Robert N. Mittelstaedt and First Lieuten- ant Micheal F. Barrett, Jr..................... 107 Comments : Reliance Upon International Custom and General Principles in the Growth of Space Law (Lieutenant Colonel Morton S. Jaffe) ____-_______ 167 Travel Orders: A Move Too Soon Can Be Costly (Major Wallace S. Murphy) ____________________ 181 AGO 8062B iii THE SOVIET STATIJS OF FORCES AGREEMENTS: LEGAL LIMITATIONS OR POLITICAL DEVICES? * BY LIEUTENANT COLONEL GEORGE S. PRUGH”* I. INTRODUCTIOX In the late months of 1956 and during 1957 the USSR negotiated agreements with four other Communist states,’ agreements which at first blush describe a new relationship 2 between the Communist bloc leadership and those bloc states where Soviet troops are stationed and which have oblications of mutual defense and col- lective security. Taken together and lvith their supplemental agreements those pacts weave a neat pattern of legal formality, a tightly wrapped ball of clearly stated principles with a con- sistency disturbed by only a few visibly loose ends. These agree- ments, the Soviet status of forces documents, or more accurately called base rights treaties, remain in comparative obscurity, pos- sibly belying their true importance. It is the purpose of this study to endeaver to unravel the loose ends, to search out whatever substance the documents may contain, and to put in proper per- spective the agreements and what they represent. Ten years after the end of fighting in World War 11, the USSR had troops stationed in four foreign states-Poland, Hungary, Rumania, and East Germany (the “German Democratic Republic” or GDR). With the exception of East Germany, the several * Th:s article was adapted from a thesis presented to the U.S. Army War College, Carlisle Barracks, Pennsylvania, n hile the author was a mcniber of the 1962 War College class and is published with the permission of the Army War College. The opinions and conclusions presented herein are those of the author and do not necessarily represent the views of the War College, The Judge Advocate General’s School, or any other governmental agency. *’$ JAGC, U.S. Army; Chief, Military Personnel Division, Office of the Judge Advocate General ; LL.B., 1948, University of California; Graduate, 1957, U.S. Army Command and General Staff College; Graduate, 19G2, U.S. Army War College; Member of the California State Bar and the Bars of the 1J.S. Supreme Court and U.S. Court of Military Appeals. 1 Agreement on the Legal Status of Soviet Troops Temporarily Stationed in Poland, Dec. 17, 1956, 266 U.N.T.S. 179; Agreement Concerning Quistions Connected With the Presence of Soviet Forces in the Territory of the German Democratic Republic, March 12, 1957, 285 U.N.T.S. 105; Legal Status of Soviet Forces Temporarily Stationed in the Territory of Romania, April 15, 1957, 274 U.N.T.S. 143; Agreement on the Legal Status of the Soviet Forces Temporarily Present on the Territory of The Hungarian People’s Republic, May 27, 1957, in 52 Am. J. Int’l L. 215 (1958). 2 For a current review of the bloc organization, see Brzezinski, The Organi- zation of the Communist Camp, 13 World Politics 1, 175-209 (1961). TAG0 8062B-Mar 1 MILITARY LAW REVIEW People’s Republic were bound together with the USSR in a tight network of bilateral treaties of “friendship, cooperation, and mutual assistance,” providing in general for mutual security and varying from each other in only slight degree.3 In reality, the concept of mutual security was hinged upon the right and obliga- tion of the Soviet Army to enter the territories of the People’s Republics and to remain there in case of war or threat of In 1955 there was superimposed over these bilateral treaties a multilateral one, popularly called the Warsaw Pact,5 a counterpart to the North Atlantic Treaty Organization. The Warsaw Pact contained no provision concerning the ex- ercise of jurisdiction, that is, the right to try and determine legal issues arising from the stationing of troops of one state in the territory of another. In truth, no need for such an agreement appeared necessary. The bloc nations, each being under Com- munist Party domination, following a philosophy of law similar to that of the Soviet Union, and actively courting Soviet friend- ship, simply exercised no jurisdiction over the Soviet forces stationed there. Instead, the Soviets applied to their own troops abroad the principle of extraterritoriality, which is to say that Soviet law followed the troops wherever they were stationed so that they continually remained subject to that law, and only that law was permitted to be applicable to them. Almost a year and a half passed after the signing of the Warsaw Pact, during which no publicity concerning any need for a base rights or status of forces agreement disturbed the apparent calm of relations between the USSR and its satellite states. Then, rapidly, within less than six months, four bilateral nonreciprocal status of forces agreements were signed by plenipotentiaries of -- 3 E g., Treaty of Friendship, Mutual Aid and Post-War Co-operation Be- tween Poland and U.S.S.R., April 21, 1915, 12 U.N.T.S. 391; Treaty of Friendship, Co-operation and Mutual Assistance Between Romania and U.S.S.R..Feb. 4. 1948. 48 U.N.T.S. 189; Treaty of Friendship, Co-operation and Mutual Assistance Between Hungary and U.S.S.R., Feb. 18, 1948, 48 U.N.T.S. 163; Treaty of Friendship, Co-operation and Mutual Aid Between Poland and Hungary, June 18, 1948, 25 U.N.T.S. 319; Treaty of Friendship, Co-operation and Mutual Assistance Between Poland and Romania, Jan. 26, 1949, 85 U.N.T.S. 21. 4 Brakas, Legal Status of Soviet Troops in Central and Eastern Europe 6 (1959) (Draft, Legal Committee, Assembly of Captive European Nations). 5 Treaty of Friendship, Co-operation and Mutual Assistance, May 14, 1955, 219 U.N.T.S. 3. This treaty was signed by Albania, Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary, Poland, Romania, and the U.S.S.R. See Gavrilovic, The Warsaw Treaty Organization: Brief Data on Its S ‘gnificance, Status, Constitution, Purposes, and Operations (1960) (Un- published manuscript, Dickiason College). 2 AGO 8062B SOVIET SOF AGREEMENTS the USSR each with a bloc state where Soviet troops were stationed.6 There instantly arises a question as to why the agreements were entered into to begin with and what purposes they were expected to serve. Do these agreements in fact establish a formula for the exercise of jurisdiction to resolve military related legal questions arising between the nations concerned, thus creating at least some degree of legal limitation upon the CSSR? Or are these agreements merely political tools, performing political tasks under cover of a treaty of apparent binding force? Are these treaties intended to be realistic statements of effective law? Or do they accomplish some symbolic purpose far more useful to the Soviets than mere regularization of previously established legal relationships ? 11. BACKGROUND TO THE TREATIES A. THE DEVELOPMENT OF THE MODERN STATUS OF FORCES TREATIES The stationing of troops of one sovereign nation, usually called in modern terms the “sending state,” on the territory of another, the “host state” or the “receiving state,” for substantial periods of peacetime, presents a galaxy of problems which inevitably find their way, in one form or another, into courts of law.7 The under- lying question in the legal solutions to these problems is the choice of law to apply, for there is far less difficulty in determining whether a particular act or omission is legal within the laws of a certain state.