360h.117 Nikolich, Peter/7
The Minister in Yugoslavia ( Prince ) to the Secretary of State
[Received February 11.]
Sir: I have the honor to refer to the Department’s Instruction No. 244 of September 3, 1930, File No. 360h.117-Nikolich, Peter/2,1 directing the Legation to take up with the appropriate Yugoslav authorities the question of the release from Yugoslav military service of the naturalized American citizen of Yugoslav origin, Mr. Peter Nikolich, and to the Legation’s Despatch No. 925 of November 12, 1930,1 reporting the surrender of Mr. Nikolich’s passport by the Yugoslav Foreign Office. The Legation is in receipt of a note from the Foreign Office, a copy and translation of which are enclosed,1 stating that Mr. Nikolich is still regarded as a Yugoslav subject according to local laws, since he did not request and obtain an authorization for naturalization in a foreign country, and that accordingly there exists no legal reason for his release from the army prior to the expiration of the term prescribed by military law. Mr. Nikolich’s case presents a difference as to date of birth, which the Department’s instruction shows to be July 5, 1903, whereas the note of the Foreign Office gives the year as 1901. In an informal registration at the Consulate in Belgrade, Mr. Nikolich himself indicates the date of his birth as June 19, 1901, which coincides as to year with the information furnished by the Foreign Office. It would thus appear that Mr. Nikolich, who emigrated to the United States on or about January 23, 1921, according to the Department’s instruction, or on December 18, 1919, according to the registration form, left this country at the age of eighteen [nineteen] and one-half years, at least.
As reported in the despatch above referred to, the Legation took up the matter of Mr. Nikolich’s release from the army prior to the receipt of the Department’s instruction to that effect, although, judging from previous experience it appeared quite unlikely that the local [Page 1051] government would release one of our citizens who had abandoned without authorization his Yugoslav citizenship and left this country when of military age.
The uncompromising attitude, in this connection, of the Yugoslav government, has on several occasions been reported to the Department and the Legation feels it necessary to recall now, that in the absence of a convention covering such matters the Yugoslavs insist and will insist upon the strict application of the “Law on the Organization of the Army and Navy”, fully reported on in Despatch No. 662 of October 5, 1929.2 The main provisions of that law as affecting our naturalized citizens read as follows:
Article 45, paragraph 2 and following: “Persons permanently residing abroad for the purpose of earning their livelihood, whether in Europe (except in neighboring countries) or in transoceanic countries, as immigrants or who have become naturalized in such countries, or who reside there temporarily but departed from this Kingdom five years or more prior to recruitment, shall not be considered as avoiding service if they report to our military or civil representatives in the country of their residence when the military obligation falls due and not later than the attainment of twenty-five years of age, and settle their obligation. All such persons not returning to this Kingdom for permanent or temporary residence before the age of twenty-five shall be exempted from active service in time of peace, unless special circumstances require their performance of active service earlier, subject to decision of the Minister of War and Marine in agreement with the Prime Minister, In the event of mobilization and war it shall be the duty of such persons to return immediately and report to their military commands, if under obligations to serve and capable of active service. Those persons failing to comply with these conditions or to settle their military obligations with our military or civil representatives in the country of their residence, before the age of twenty-five, shall be regarded as deserters.
“All persons referred to in the second paragraph of this Article shall be permitted to visit their native land for private business during the period of their liability for military service, every third year, and to remain not more than three months, hut shall be required thereafter to return to the country of their foreign residence or whence they came. Those failing to depart again within the prescribed delay, as well as those returning to their native land for permanent or temporary residence, shall serve if capable, as follows:
- “1. Persons returning before the age of twenty-seven shall serve the full period of their liability under the provisions of this law.
- “2. Persons returning after the age of twenty-seven but before the age of thirty-two shall serve nine months, if liable during that period, according to their family status.
- “3. Persons returning after the age of thirty-two shall not serve in the active army but shall be inscribed in the reserve ranks as liable for military service.
“Emigrants, as in paragraph two of the present Article, not returning for permanent residence to their native land before the age of thirty-two, shall likewise be inscribed in the reserve ranks as liable for military service.”
“Article 333: “The provisions of Article 45 of the Law shall be enforced with respect to all our subjects resident abroad in Europe (except in neighboring states) or in transoceanic countries before the date of publication of this Law, and who have not fulfilled their military obligations, provided, however, that:
“1) They report and settle this obligation as follows: Persons residing in Europe (except in neighboring states), within one year, and persons residing outside of Europe, in transoceanic countries, within two years from the date of enforcement of this Law. Those failing to take advantage of this provision, provided the periods mentioned in paragraph two of Article 45 have elapsed … shall suffer the consequences provided in the same Article. …”
It will be observed from the foregoing that this law does not provide exemption from military service for such naturalized American citizens, as, under the laws of this kingdom are still regarded as Yugoslav subjects, but only grants facilities to such naturalized citizens of Yugoslav origin as have complied with certain conditions, the principal of which is a registration with representatives of the Yugoslav government abroad. The Legation is not informed as to the exact nature of this registration, but it appears probable that, under our laws, it could be effected by Yugoslav immigrants only prior to the acquisition of American citizenship. Thus any American citizen of Yugoslav origin who has not complied with the above provisions prior to the acquisition of American citizenship runs the heavy risk of being inducted into the Army upon entering this country even on a short visit.
The Legation believes that cases of induction of naturalized American citizens into the Yugoslav army occur much more frequently than is known to our authorities. For instance, the Legation recently intervened with the Yugoslav Foreign Office for the return to two naturalized citizens drafted into the army, of their American passports, which were irregularly seized about a year and a half ago and could not be found after their owners had completed their military service. But for the fact that the passports had been lost, the Legation would probably never have heard of these two cases of passport seizure and military service. Furthermore, the Legation has observed that the great majority of such cases occur to persons who have just been naturalized and are apparently aware of the fact that their military status in Yugoslavia is not settled, but who believe that an American passport will save them from any trouble in this connection during a visit to Yugoslavia.[Page 1053]
The Department directed the Legation, in its Instruction No. 74  of May 20, 1927,3 as follows:
“The Department feels, however, that in all cases where the naturalized citizen concerned emigrated to the United States prior to the date when liability for the performance of military service accrued, and when it appears that he has not abandoned his domicile in the United States, you should exert every effort to obtain the release of such person from service in the Yugoslav army.”
The Legation ventures to express its opinion that under existing conditions it is highly improbable that the Yugoslav Government would agree to the release from military service of naturalized American citizens who left this country “prior to the date when liability for the performance of military service accrued”, in case that date was construed, as apparently was the Department’s design, to mean the date of actual entry into the army.
The Law regarding the Organization of the Army and Navy provides, as regards the date of recruitment, that: “Are subject to recruitment all young men in the calendar year of their twentieth birthday”. Furthermore, the last paragraph of Article 45 of that Law (see Despatch No. 662) provides as follows:
“Permits to leave this country shall not be delivered to young men in the calendar year of their eighteenth birthday, and such permits may only be delivered after the completion of their active service or settlement of their military obligation.”
The Legation wishes further to report, on the basis of numerous exchanges of views on this subject with the Foreign Minister and the Minister of War, that the Yugoslav Government considers that the modus vivendi agreed upon verbally in 1923 between the former Minister at Belgrade, Mr. Dodge, and the then Yugoslav Minister, and referred to in the Department’s Instruction No. 77 of May 20, 1927, will by no means be re-established by the Yugoslav Government, since the question to which the modus vivendi applied is now settled by law. Furthermore, the military authorities attach no importance to the fact that the persons, enrolled upon their return to Yugoslavia, may, on originally emigrating, have been in possession of regular documents, entitling them to leave the country (but not to relinquish Yugoslav citizenship), as before the proclamation of the Law on the “Organization of the Army and Navy” emigrant passports were frequently delivered, because of abuses of local officials, to young men, regardless of military obligations due or about to fall due.
The Department’s Instruction No. 74 , above quoted, refers, as the Legation now understands it, both to cases where the intervention [Page 1054] of the Legation might be expected to bring about release from military service of a naturalized American citizen and to cases where its efforts can only meet with a categorical refusal on the part of the Yugoslav Government. But, as intervention in obviously desperate cases may conceivably result in weakening the force of the Legation’s protests in other cases, this office would be grateful for instruction as to whether (1) action should be taken in all cases coming directly to its knowledge, of induction into the Yugoslav Army of naturalized American citizens, or whether (2) the Department would prefer to make a distinction between cases arising from a strict application of Yugoslav nationality laws and cases where American citizens who have just acquired their American citizenship are inducted into the army on their return on a temporary visit, under the “Law on the Organization of the Army and Navy”. In the former case (1) the Legation believes that it would be advisable for the Department to state its point of view in such a way as to enable the Legation to communicate it verbatim to the local Government.
At the same time the Legation respectfully renews its request, expressed in Despatch No. 272 of August 12, 1927,4 that each naturalized citizen of Yugoslav origin, applying for a passport to visit this country, be carefully cautioned of the risk of being inducted into the army, and that his attention be drawn in each case to the “Notice to Bearers of Passports”.