Foreign Relations of the United States: Diplomatic Papers, 1943, The Near East and Africa, Volume IV

811.203/224: Telegram

The Minister in Egypt (Kirk) to the Secretary of State

Cairo, February 9, 1943—4 p.m.
[Received 5:29 p.m.]

313. My 252, February 3, 11 a.m. I have just been shown telegram received by our Military Headquarters from War Department stating in substance that while discussions with State Department are going on concerning this matter War Department (1) holds that under international law American Military Courts are entitled to exclusive jurisdiction our American soldiers in Egypt, (2) that War Department cannot agree to Mixed Commission, and (3) that Headquarters should not turn over in future to Egyptian authorities any military personnel although authority is given to keep any agreement made with me for turning over prisoner to Egyptian authorities “for trial”.

With regard to above quoted words I agreed with approval of local headquarters that prisoner would be handed over for inquiry or investigation without referring to a trial. If, however, soldier were turned over and no agreement reached on general question of jurisdiction, I fear that Egyptian authorities would not return him.

With regard to bearing on international law as interpreted by War Department I failed see if such were their view why they ever considered it necessary in so far as criminal jurisdiction is concerned to negotiate agreements with other countries where our troops are based or for War Department through General Maxwell¹⁵ here (see my 1704, September 25, 5 [4] p.m.,¹⁶) to have asked Legation to try to negotiate agreement limited in scope covering Egypt. In the absence of a treaty similar to Anglo-Egyptian treaty of 1936¹⁷ and with Egypt technically not at war the situation of our troops in Egypt in so far as the application of international law is concerned is anomalous as these troops are not here by invitation, by treaty, [or?] right of conquest (see my 1020, June 18, noon¹⁸).

I agree that it is unfortunate that Egyptian authorities injected claims question to negotiations but they have done so and were presumably prompted to do so because British and other Allied military authorities in Egypt have been dilatory and niggardly in approving and plying [paying] claims, authorities have been too prompt in this respect as the setting up of our Middle East Claims Commission here was not announced until January 6.

I am taking no further action pending receipt Department’s instruction which I hope will not be long delayed.

Kirk

15. Maj. Gen. R. L. Maxwell, Commanding General, Services of Supply, U. S. Army Forces in the Middle East.
16. Foreign Relations, 1942, vol. iv, p. 89.
17. Anglo-Egyptian treaty of friendship and alliance, signed at London, August 26, 1936, League of Nations Treaty Series, vol. clxxiii, p. 401.
18. Foreign Relations, 1942, vol. iv, p. 89.