381.8121 El 6/2

The Ambassador in France ( Wallace ) to the Secretary of State

No. 2127

Sir: Referring to the Department’s instruction No. 713 of January 3, 1921, concerning the case of the American Semsar, Allal Weld El [Page 740] Hadj Boaza Ben El-Mamoon, I have the honor to enclose herewith copy and translation of a note dated February 5, 1921, from the Ministry for Foreign Affairs, in reply to the communication addressed by me under date of January 18, 1921 to Mr. Briand in accordance with the instruction referred to above.

I also have the honor to enclose, for the records, a copy of my note of January 18, 192117 to the Minister for Foreign Affairs.

I have [etc.]

Hugh C. Wallace
[Enclosure—Translation18]

The Secretary General of the French Ministry for Foreign Affairs ( Berthelot ) to the American Ambassador ( Wallace )

Mr. Ambassador: By a note of January 18 last, Your Excellency was good enough to write to me in regard to the arrest of the American protégé, Allal Ould el Hadj Bouazza Ben El Mamoun, and his trial and condemnation by courtmartial at Rabat (Morocco). Confirming the representations of the American Diplomatic Agency at Tangier, the Department of State protests against an action which it considers a violation of the treaties and requests the immediate release of its protégé and his surrender to the American consular authorities in Morocco, inasmuch as the proclamation of martial law by the French authorities cannot, in the absence of the assent of the Government of the United States, confer upon French military tribunals jurisdiction over American protégés who, under the treaties in force and the existing usage, are liable to judicial proceedings only in the American consular courts.

I have the honor to submit to Your Excellency that it does not seem possible for me to adhere to this view. Indeed, one of the principles of the law of nations is that any army of occupation must provide for its own security, both by extending its jurisdiction over every person within the occupied territory and by the issuance through the general-in-chief of special orders and regulations which none may evade without risking prosecution by that jurisdiction. When capitulatory jurisdiction thus gives way to military jurisdiction in the event of occupation, the same must obtain in the event of proclamation of a state of siege, especially when, as in the case of Morocco, the military occupation under the treaty of protectorate (treaty of March 30, 1912, art. 2) is combined with a subsequent proclamation of martial law (order of the general of division commander in chief of the troops of occupation, of August 2, 1914).

[Page 741]

The absence of agreement on the part of the American Government cannot prevent the application of martial law. By recognizing the French protectorate in Morocco, the Federal Government has, in advance, acquiesced in all military measures necessary for the maintenance of order for which the Government of the Republic is responsible. Likewise, the French Government having recognized the protectorate of England in Egypt and the British Government having recognized the protectorate of France in Morocco, the two powers have mutually admitted, one in Egypt and the other in Morocco, that, as an effect of martial law, capitulatory justice is waived in favor of military jurisdictions. The law was thus established without any previous agreement in this respect between France and Great Britain, as the Federal Government would seem to believe.

I venture to believe that the preceding explanations will give full satisfaction to the Department of State and will convince it that Allal bel Hadj Bouazza, guilty of an offence against public order and peace in Morocco is, in accordance with the terms of the treaties and the law in force, liable to the French courtmartial at Rabat; the sovereign rights of the United States over their protégés in a country where they still enjoy capitulatory privileges are, however, in nowise affected thereby.

Kindly accept [etc.]

Berthelot

  1. Not printed.
  2. File translation revised.