811.203/392
The Secretary of State to the Ambassador in Canada ( Atherton )
Sir: The Department refers to the Embassy’s despatch no. 481 of December 29, 19438 enclosing a copy of note no. 160 of December 27, 1943 from the Secretary of State for External Affairs and a copy of its enclosure, Order-in-Council PC 9694, of December 20, 1943 concerning jurisdiction of offenses committed by members of the armed forces of the United States in Canada.
This Government appreciates the cooperation of the Canadian Government in the matter referred to and in general considers the Order-in-Council satisfactory. However, in view of certain comments in the note under reference, the following observations are considered necessary to clarify this Government’s position.
Paragraph 6 of the Canadian Government’s note states that the Canadian Government feels justified in assuming that the authorities [Page 127] of the United States will, in all cases, submit any person who may be surrendered under the provisions of regulation 6, to trial before a United States Military Court.
As the Canadian Government is aware, this Government considers that under international law members of its armed forces in Canada are immune from the local jurisdiction in criminal matters. Whether a member of such forces, accused of an offense, should be brought to trial before a service court of the United States and if so, the nature of the charge which should be made against him, can only be determined by the authorities of this Government in accordance with its laws. However, as a matter of courtesy this Government does not object to the procedure laid down in regulations 6 and 7, subject to the following understandings:
Under the Articles of War (the act of Congress concerning courts-martial of the United States Army, 10 U.S. Code 1471–1593), no case can be tried by court-martial except after reference of the charges by the appropriate commanding officer to the court for trial. The 70th Article provides that no charge will be referred to a general court-martial until after a thorough and impartial investigation, at which the accused soldier has a right to be present, to cross-examine witnesses against him if they are available, and to offer evidence in his own behalf. All charges of felonies or other grave offenses against our soldiers must be so investigated before they may be tried by court-martial. Less serious charges may be informally investigated in a similar manner. It may be anticipated that, in the majority of cases with which we are concerned, a prima facie case will be shown to exist, and the officer exercising court-martial jurisdiction will forthwith refer the charges for trial; but there will undoubtedly be some in which, on the ground of mistaken identity, self-defense, lack of evidence or its unconvincing character, or other good and sufficient reason, that officer will be of opinion that a prima facie case does not exist and that a trial is not justified. In such a case it is proposed that the appropriate military officer confer with the local Canadian prosecuting officer and endeavor to reach an agreement as to the proper disposition of the case. If such an agreement cannot be reached, it is suggested that the Canadian prosecuting officer refer the matter to the Attorney General of Canada for his opinion as to whether a trial should be held. Should the Attorney General, after considering the reasons why the United States military authorities think a trial should not be held, nevertheless conclude that a trial is necessary, the appropriate commanding officer will order that the trial proceed.
With reference to paragraph 7 of the Canadian Government’s note, it may be stated that while concurrent jurisdiction would ordinarily be understood in the United States to mean that the authority first taking jurisdiction of the case would continue to exercise it, this Government has no objection to the procedure set forth in the Canadian Government’s note and will issue appropriate instruction to its military commanders in Canada.
[Page 128]Concerning the comments in paragraph 9 of its note, the Canadian Government is informed that the legislation introduced in the Congress to implement the jurisdiction enjoyed by service courts of friendly foreign forces under the law of the United States, has the Department’s active support and it is hoped that the legislation will be enacted in the near future.9
This Government appreciates the suggestions contained in paragraph 10 of the note and appropriate instructions will be issued to assure the cooperation of the service authorities of the United States in the matters referred to therein.
Section 2(1) of the regulations defining “member” contains a proviso that in paragraphs 5 and 6 of the regulations the word “member” means a member of the military or naval forces of the United States of America stationed in Canada or in Canada on military or naval duty, who when detained as mentioned therein, is wearing a uniform of such forces. This proviso was probably intended to remove from the operation of paragraphs 5 and 6 of the regulations, civilians attached to the armed forces of the United States in Canada. As worded, however, a member of the military personnel of the United States who is not wearing his uniform when detained appears to be excluded from the provisions of paragraphs 5 and 6 of the regulations. Although it may be improbable that a case of this kind will occur, the possibility exists and this Government could not agree that the status of a member of its armed forces is governed by whether he is in uniform.
You are requested to bring these views to the attention of the Secretary of State for External Affairs by appropriate communication.
The War Department has expressed its appreciation of the assistance of the Embassy in the negotiations concerning jurisdiction over our forces in Canada. The Department adds its commendation, particularly to Mr. Lewis Clark.10
Very truly yours,