The Secretary of State to the Minister in Egypt (Kirk)
Washington, February 9, 1943—midnight.
233. Your 238 February 2 and 252 February 3. In view of situation which has developed you are instructed as follows:
- Department considers that presence of armed forces of the United States in Egypt is obviously of advantage to Egypt as well as the United States and therefore sees no reason why there should be hesitation regarding the conclusion of an arrangement concerning jurisdiction over such forces.
- This Government considers that it has the right under international law to exclusive jurisdiction in criminal matters over its armed forces in Egypt. It must insist upon the exercise of this right. The proposal for an agreement on the subject was made out of deference to the Egyptian Government and recognition of this Government’s rights in the matter can not be regarded as a concession.
- The Department does not consider that the question of claims for damages to persons or property has any bearing on the question of this Government’s right to exclusive jurisdiction in criminal matters over its armed forces or that that question has any place in an agreement relating to jurisdiction. The jurisdiction referred to has been recognized by other Governments on whose territories American forces are stationed and it has not been the practice to make provision in such agreements for the settlement of claims such as are here in question.
- This Government can not agree to the Egyptian proposals for a mixed claims commission. The military authorities are authorized by an Act of Congress to set up military commissions in foreign countries to settle claims for damages caused by members of our armed forces. The awards of such military commissions have met with general approval in the countries where they have functioned. In addition to the fact that there is no legal authority for establishing a mixed commission such as the Egyptians suggest or for paying its awards the practice of the War and Navy Departments in these matters must be uniform and, as you will appreciate, the granting of concessions to one country would only give rise to demands for like concessions by others. Aside from these considerations it would probably be greatly to the advantage of the Egyptians to have their claims adjudicated by military commissions. Not only would such cases be disposed of more expeditiously but under the law and regulations these military commissions are authorized to make awards in practically all cases of damage except those resulting from negligence of the injured party. Thus, many claims are allowed in which there is no legal liability under the laws of the United States or under international law. While authority to pay awards of military commissions under the Act of January 2, 1942 is at present limited to claims of $1,000 or less the War Department is seeking legislation to increase the limit to $5,000, and to authorize it to certify to Congress claims above $5,000.
- You will please communicate with the Egyptian Government in the sense of the foregoing and endeavor to conclude at the earliest possible moment an agreement recognizing the right of the United States to exclusive jurisdiction in criminal matters over members of its armed forces in Egypt.
- Department cannot approve your commitment to place the American soldier (Frank V. Meider) at the disposal of the Mixed Courts and you should take no steps to carry out the commitment without instructions from the Department.