837.30/98

The Ambassador in Cuba (Braden) to the Secretary of State

No. 7204

Sir: I have the honor to refer to the Department’s instruction No. 1754, June 5, 1943,17 and my despatch No. 4432, September 8, 1943,18 in regard to military jurisdiction over members of the armed forces of the United States in Cuba. The Department will recall that the draft supplementary agreement for military and naval cooperation which was under discussion with the Cuban Government at the time that my despatch was written was never signed and that therefore the then existing informal procedure, whereby United States military and naval delinquents in Cuba were handed over to our jurisdiction, was continued by default.

Under date of May 24, 1944, I addressed a letter to the Minister of State, Dr. Mañach, inviting his attention to several summonses which had been issued by the Correctional Judge of the Seventh Section of the City of Habana, ordering members of the armed forces formerly stationed at the United States Air Base at San Antonio de los Baños to appear in court to answer charges entered against them arising out of incidents which occurred in Habana on December 5, 1943. In this letter, I informed the Minister of State that these men had left Batista Airport but that before their departure they were tried by court-martial for the violation of the 61st and 96th Articles of War and, being found guilty, that severe disciplinary measures had been taken against them. I requested the Minister of [Page 897] State to inform the Correctional Judge of this action and of the departure of the guilty parties from Cuba. I closed my letter to the Minister of State with the following paragraphs:

“The general subject of jurisdiction over United States military personnel in Cuba was the subject of a circular sent by the Fiscal of the Supreme Court to the Fiscales throughout Cuba and published in the local press of October 9, 1942. This circular was a copy of one issued by the Supreme Court on April 3, 1918. A copy, as published in El Mundo of October 9, 1942, is enclosed for your ready reference.

“It has been the accepted practice during the present war for certain Cuban authorities to turn over to the competent United States military authorities for trial and, if found guilty, punishment members of the United States armed forces who have been charged with offenses committed outside United States military zones. I hope you will agree that this practice has worked out reasonably satisfactorily and I may assure you that it is the earnest intention of the United States military authorities to impose adequate disciplinary measures on all offenders.”

Under date of June 2, 1944, I received a reply from the Minister of State informing me that he had advised the Correctional Judge of the action taken by the United States military authorities against the guilty parties. The Minister of State closed his letter with the following statement:

“In relation to the last paragraph of your letter, I wish to inform you that the Government of Cuba retains the full right to its jurisdiction over the delinquencies and infractions of the law which occur within the national territory”.

In order that the record might be clear, I replied to the Minister of State on June 15, 1944, in the following terms:

“I have noted the observations contained in the last paragraph of your letter. You will recall that in my letter of May 24, 1944, I referred to the satisfactory practice which has been followed up to the present time with regard to jurisdiction over United States armed forces in Cuba. This matter was the subject of a conversation which I had early in September 1943 with Dr. Zaydín19 and Dr. Santovenia.20 I read to Dr. Zaydín and Dr. Santovenia an instruction which I had received from the Department of State, setting forth that jurisdiction of the military forces of the country stationed in another country with its consent is well established by international practice and that the United States Government recognizes the right of the military authorities of a foreign government to exclusive jurisdiction over members of their forces on the territory of the United States with its consent. The instruction went on to say that the governments of other countries on whose territory United States forces are stationed recognize a similar jurisdiction by the United States over such forces.

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“As a result of these discussions and in view of the contents of the Department’s instruction, it was then decided by the Prime Minister and the Minister of State not to disturb the existing practice whereby Cuban courts had turned over to United States military authorities any United States military personnel charged with delinquency. It was pointed out at the time that the conclusions reached in the Ministry of State’s note No. 1001 of November 13, 1942, were in accord with this generally accepted practice. This note referred to a specific case involving persons employed in the construction of Batista Airport, but the principle therein set forth would appear to be applicable to similar cases involving personnel attached to other United States military or naval contingents in Cuba. I quote, for your convenience, the following extract from the Minister of State’s note no. 1001:

[Here follows a quotation in Spanish stating that all punishable acts committed in Cuba, regardless of the place of commission and the nationality of the culprit, are subject to Cuban judicial action, with the single exception of crimes committed by American citizens in the Armed Forces of the United States.]”

I handed this letter to the Minister of State on June 15. Dr. Mañach said that he was merely adopting the stand which his predecessor, Dr. Santovenia, had taken. (In fact, the stand had actually been adopted in the first instance by Dr. Martinez, predecessor to Dr. Santovenia as Minister of State.) I said to Dr. Mañach that the matter was fundamental and that he would find hundreds of precedents to support our stand. He said that he had observed the agreement which we have with England, but that Cuba is a small country and should therefore be treated differently. I observed that with both small and large countries the principle is basic and a part of international practice.

The Minister then said that he would like to have it remain a part of the record that Cuba is opposed to this principle but that actually in practice we would have no difficulty. However, if some major crime were to come to his attention, they would, the Minister said, wish to be free to revert to their policy in order not to be subject to criticism from some succeeding Cuban Government. I told him that I was willing to submit the matter to Washington, meanwhile letting the question rest; but I wanted him to know that, in the unfortunate event that a major crime should occur, we certainly would stand on the principle enunciated in my communication.

It is my recommendation that no further action be taken until we see what policy is in fact followed by the Cuban Government in specific cases which may arise hereafter. In the event of a major crime, as mentioned by the Minister of State, I would certainly insist that the delinquent, if a member of our military or naval forces, be turned over to us for judgment and punishment.…

Respectfully yours,

Spruille Braden
  1. Not printed.
  2. Foreign Relations, 1943, vol. vi, p. 146.
  3. Ramón Zaydín, Prime Minister of Cuba.
  4. Emeterio Santovenia, then Cuban Minister of State.