881.203/6

The Diplomatic Agent and Consul General at Tangier (White) to the Secretary of State

No. 17

Sir: I have the honor to refer to the Legation’s despatches no. 1547 of July 12, 1940, 1551 of July 30, and 5 of August 6, 1940, and to telegram from the Department no. 32 of July 25, 5 p.m., all of which concern the prosecution of the American protégé, Rahamin Azoulay, by a French court martial at Fez, on the charge of concealing stocks.

It occurred to me that in as much as the American and French Governments appeared to have taken diametrically opposite views as to the competence of Military Tribunals in regard to American protégés, and as the attitude of the American Government has been formally and clearly set forth in writing in the note of August 1, 1940 addressed by my predecessor to the Resident General, a copy of which was enclosed with my despatch no. 5 above referred to, the best method of reaching a settlement would be to prevent any further action in this case prejudicial to American interests.

With this object, while I was in Fez, I interviewed Azoulay’s attorney, Maitre Jacob, with a view to seeing whether, from the point of view of French jurisprudence, there was any flaw in the decision of the court which would afford the Resident General a convenient means of retreat from his position. The lawyer, however, said that the question [Page 816]of jurisdiction was the only point upon which the decision could be impugned.

In the meantime, Azoulay informed me that he had received a notice to pay the fine within ten days of August 15. I, therefore, telephoned the Cabinet Diplomatique asking them to postpone the execution of the sentence until I could talk the matter over.

When I reached Casablanca, I endeavored, with the assistance of Messrs. Goold and El Khazen,56 to trace the decrees on the basis of which Azoulay had been brought before the court martial. The results of our investigation are to be found in enclosure 1).57 I enclose the text, in original and translation, of the letter of May 1, 194057 from the Chef du Service du Commerce et de l’Industrie, to which allusion is made in enclosure 1). The gentleman who wrote this letter appeared to be a relatively junior employee of the Service of Commerce and Industry. Exactly how this letter figured in the proceedings, I do not know. Azoulay’s lawyer forwarded it to the Consulate at Casablanca without comment. Apparently the proceedings of French Military Tribunals are surrounded with a certain secrecy.

With this information, when I reached Rabat in the course of my return to Tangier, I approached M. Broustra, the Chief of the Diplomatic Cabinet. I began by reminding him that my Government definitely did not recognize the authority of the Military Tribunal; and then endeavored to demonstrate to him, on the basis of the enclosures 1) and 2), that even on the basis of the French-Moroccan legislation, the French did not have a particularly good case. In this connection I pointed out that a Frenchman or a Moor who had concealed stocks would be tried by their own civil courts and not by court martial. I also called attention to the inaccuracy of the statement in the letter of the Chief of the Service of Commerce and Industry, to the effect that the States which enjoyed extraterritoriality in Morocco, had never disputed the competence of the Military Tribunals in regard to their own “ressortissants”.

In this connnection, I should state that there had just arrived and that I therefore had to hand the invaluable memorandum of July 24, 194057 prepared by the Division of Near Eastern Affairs, entitled “Conflict between Extraterritorial and Military Jurisdiction”, addressed to the Tangier and Casablanca offices as of date July 30, 1940. I was therefore able to make specific mention of the cases of Mohammad El Filaly in 1912,58 and of El Mamoun in 1920,59 pointing out that, in both instances, the action of the protégés was more likely to be a military menace than the non-reporting of stocks by Azoulay; yet [Page 817]that, in the first case, the Military Tribunal appeared to have dropped the prosecution and, in the second case, the President of the French Republic had given a pardon.

I also pointed out, in connection with the last paragraph of the letter from the Chief of the Service of Commerce and Industry, that the decision of the Tribunal had been made after the armistice had been signed and, although I was aware that a state of war still existed, in law, yet this might be a circumstance to be considered. M. Broustra replied, in this connection, that the economic situation was more difficult now than ever.

M. Broustra then suggested that the decision of the court martial should be left in suspense indefinitely, without execution, and the fine not be collected.60 He also requested me to inform Azoulay that he should not conceal stocks.

As this was the first case that I had taken up with the French authorities, as it seemed to me most unlikely that they would reverse their position so as to cover the principle involved, and as the non-collection of the fine should, if anything, strengthen the American contention in regard to the non-competence of courts martial to try American protégés, I replied that personally my aim was to avoid incidents and that, on that basis, this solution seemed satisfactory, though I also intimated that my Government would probably be better pleased were the sentence itself quashed.

As of possible interest, I might mention that in the course of my conversation with M. Broustra, he asked how it was possible to maintain the economic regime of the country if all American “ressortissants” could disregard the French regulations. I accordingly reminded him that in his letter of August 1 to the Residency, above mentioned, my predecessor had expressed his willingness to cooperate with the Residency, and that I and the Consulate at Casablanca were always at his disposal for that purpose.

I may mention that La Depêche Marocaine of August 30, 1940 quotes the following despatch from Vichy:

“Suppression of Military Tribunals”

“Vichy, August 30.—The permanent Military Tribunals of the Military Division of Fez, and the permanent Military Tribunal of Cassation at Rabat are suppressed.

“Algiers, the territories of the South, Tunisia, and the French Zone of Morocco, shall be within the jurisdiction of the permanent Military Tribunal of Cassation at Algiers.”

Respectfully yours,

J. C. White
  1. Interpreter at the Consulate General at Casablanca.
  2. Not printed.
  3. Not printed.
  4. Not printed.
  5. See Foreign Relations, 1912, pp. 987 ff.
  6. See ibid., 1922, vol. ii, pp. 736 ff.
  7. In despatch No. 46, October 5, 1940, the Diplomatic Agent and Consul General at Tangier informed the Department that the French Resident General in a note of September 30 confirmed in writing that the execution of the judgment was suspended (881.203/8).