793.003/1059a: Telegram
The Secretary of State to the Ambassador in China (Gauss)
18. In connection with the forthcoming abolition of American extraterritorial rights in China,1 there arises the question of the exercise of jurisdiction over American military personnel stationed in that country at the invitation of the Chinese Government.
As you may be aware this Government has entered into arrangements with a number of other countries whereby American military authorities in those countries exercise criminal (but not civil) jurisdiction over military personnel under their command. In an exchange of notes between the United States and Great Britain of July 27, 1942,2 for example, agreement was reached that the Service courts and authorities of the United States forces should “exercise exclusive jurisdiction in respect of criminal offenses which may be committed in the United Kingdom by members of those forces.”
We have refrained heretofore from bringing this question to the attention of the Chinese Government because we have desired to avoid the possibility that such action might be misinterpreted as having relationship to or bearing upon the negotiations concerning the treaty on extraterritoriality and because it has been our desire that the treaty should make it clear that we have no intention of retaining any vestiges of the old system.
The question presented is a practical one. It arose during the last World War whenever troops of one country operated in the territory of another country at the invitation of the latter country, and numerous agreements on the subject were concluded between various countries. In our view, we have the right under international law to exercise such jurisdiction without specific agreement. In order, however, [Page 692] to avoid possible misunderstandings, arrangements were entered into by this country with a number of countries during the last World War and are being entered into during the present war.
It is requested that, in your discretion, you raise this question orally and informally with Dr. Soong3 and ask that he indicate his opinion as to the most feasible way of proceeding in the matter. You may say that it has been our thought here that it would be preferable to await the signing of the treaty on extraterritoriality before approaching the Chinese Government formally in the matter. It has also been our thought that it would be desirable, in order to avoid possible misunderstandings in the future, not to rely solely upon international law as a basis upon which to assume that our military authorities in China would continue to exercise criminal jurisdiction over American military personnel in that country. We suggest that an appropriate arrangement might be effected by an informal exchange of notes; and that the notes need not necessarily be published, depending upon the wishes of the Chinese Government. Our note would read somewhat as follows:
It is the desire of the Government of the United States that the Service courts and authorities of its military and naval forces shall during the continuance of the present conflict against our common enemies exercise exclusive jurisdiction over criminal offenses which may be committed in China by members of such forces.
If cases arise in which for special reasons the Service authorities of this Government may prefer not to exercise the above jurisdiction, it is proposed that in any such case a written statement to that effect shall be sent to the Chinese Government through diplomatic channels, in which event it would be open to the Chinese authorities to assume jurisdiction.
Assurance is given that the Service courts and authorities of the United States forces in China will be willing and able to try and on conviction to punish all criminal offenses which members of the United States forces may be alleged on sufficient evidence to have committed in China and that the United States authorities will be willing in principle to investigate and deal appropriately with any alleged criminal offenses committed by such forces in China which may be brought to their attention by the competent Chinese authorities or which the United States authorities may find have taken place.
In so far as may be compatible with military security, the Service authorities of the United States will conduct the trial of any member of the United States forces for an offense against a member of the civilian population promptly in open court and within a reasonable distance from the place where the offense is alleged to have been committed [Page 693] so that witnesses may not be required to travel great distances to attend the trial.
The competent American authorities will be prepared to cooperate with the authorities of China in setting up a satisfactory procedure for affording such mutual assistance as may be required in making investigations and collecting evidence with respect to offenses alleged to have been committed by members of the armed forces of the United States. As a general rule it would probably be desirable that preliminary action should be taken by the Chinese authorities on behalf of the American authorities where the witnesses or other persons from whom it is desired to obtain testimony are not members of the United States forces. In prosecutions in Chinese courts of persons who are not members of the United States forces but where members of such forces are in any way concerned the Service authorities of the United States will be glad to render such assistance as is possible in obtaining testimony of members of such forces or in making appropriate investigations.
It is proposed that the foregoing arrangement shall be in effect during the present war and for a period of six months thereafter.
If the above arrangement is acceptable to the Chinese Government this note and the reply thereto accepting the provisions outlined shall be regarded as placing on record the understanding between our two Governments. (End proposed note.)
The principal consideration in our mind is, of course, to provide for the exercise of exclusive jurisdiction in criminal matters by American military authorities over American military personnel, and the particular form of the agreement to be reached would be a matter of lesser importance.
It is suggested that you inform General Stilwell4 that you are taking up this matter informally with Dr. Soong and that you discuss with him any pertinent phases of the matter.
- See bracketed note, p. 690.↩
- Military Service Agreement effected by exchanges of notes signed or dated at Washington, March 30, April 29, June 9, and September 30, 1942, Department of State Executive Agreement Series No. 307, or 56 Stat. 1906.↩
- T. V. Soong, Chinese Minister for Foreign Affairs.↩
- Gen. Joseph W. Stilwell, Commanding General, United States Army Forces in China, Burma, and India.↩