Foreign Relations of the United States: Diplomatic Papers, 1945, The Near East and Africa, Volume VIII

890D.05/10–1745

The British Embassy to the Department of State

Aide-Mémoire

On the 22nd August, His Majesty’s Chargé d’Affaires presented to the State Department a memorandum inviting the Department’s views on the subject of the Mixed Courts in Syria and expressing the hope that the representations of His Majesty’s Minister at Beirut to the Syrian Government for an assurance that no modification of the Mixed Court system would be effected without the consent of all interested powers might be accorded the support of Mr. Shone’s United States colleague.

2. It is understood that the matter is still under consideration by the Department’s legal experts. It appears, however, that this complicated question has now become one of some urgency in Syria and His Majesty’s Embassy has been instructed to put before the Department the following development of the various points involved.

3. In Syria the two chief considerations of importance would now appear to be, firstly, the expressed desire of the Syrian Prime Minister⁸ to obtain the complete abolition of these courts, and, secondly, the problem of finding a modus vivendi, to enable their work to be carried on pending a final agreement upon them.

4. The Syrian Prime Minister, as the State Department is aware, has expressed the view that the French Mandate over Syria has been finally liquidated with the adhesion of Syria to the United. Nations’ Charter;⁹ and that the Mixed Courts, which were set up in pursuance of Article 6 of that Mandate, have therefore lost their legal basis. He repeated this view in reply to a question in the Chamber on August 29th. In conversation with His Majesty’s Minister at Beirut, he has admitted that, if his view is correct, the United Kingdom and the other capitulatory powers would, under Article 5 of the Mandate Charter, be entitled to resume capitulatory privileges (which presumably include Consular Courts); though he also expressed the hope that such powers would not insist on doing so, having abandoned similar privileges in all other parts of the world, and that they, and the other powers concerned, would be prepared to make separate agreements with Syria, admitting the sole jurisdiction of the Syrian Courts. His Majesty’s Minister was naturally unable to give an assurance on these points, and the Prime Minister is known to have since admitted in conversation that one way to attract the foreign capital which Syria so badly needs might be to give foreigners some guarantee of a special juridical status. But he and his Government are under constant pressure from the Chamber to secure the complete abolition of the Mixed Courts, which have become a particular object of attack in view of their exclusively French admixture, and cannot even if he would, abandon attempts to obtain at least some modification of their status.

5. With regard to the legal principles involved in the Prime Minister’s contention, it may be relevant to point out that General Catroux,¹⁰ by his Arrêté No. 97/FL of August 18th, 1941, which rules that a majority of French judges is no longer obligatory, substantially whittled down the privileges enjoyed by the capitulatory powers. This Arrêté remains in force unless and until it is modified or cancelled by Syrian legislation.

6. The Prime Minister’s other argument, that the French extended the jurisdiction of the Mixed Courts to cover many types of case in which no privileged foreign interest is involved, is regarded by His Majesty’s Government as unconvincing, for the Lebanese, in October 1944, showed the remedy by themselves passing legislation which removed all such types of case from the jurisdiction of these Courts.

7. Apart from these theoretical considerations, the practical question of a modus vivendi is both important and urgent. At present the Syrian Mixed Courts are in a state of suspended animation. Preliminary processes of justice which can be performed by Syrian juges d’instruction and procureurs-généraux are going on, and it would not be surprising if the Courts were hearing cases which do not involve British or United States interests, although the Syrians have assured both His Majesty’s Minister and the United States Minister that their Courts will not deliver judgments in any case involving British and American interests. They point out, however, that this state of affairs cannot possibly continue much longer and are asking for views as to what they should do.

8. The provisional views of a British legal expert, who has been consulted, are contained in the attached note.¹¹ It will be seen that this authority feels that since French judges cannot possibly return to Syria, and as the Mixed Courts must be enabled to resume their functions, the only possible alternative is to agree to the Syrians amending their law in such a way as to enable them to appoint foreign judges in place of French. For obvious reasons His Majesty’s Government cannot encourage the Syrians to ask for British judges and it doubts whether the United States Government would welcome a proposal to appoint United States judges. The best course would probably be for the Syrians to apply to some European country or countries (e.g. Switzerland or the Netherlands), whose legal system is formed, like their own, on the continental model. It would naturally be represented to the Syrian Government that this was regarded as a temporary measure pending a final settlement and without prejudice to it.

9. This course appears to His Majesty’s Government to be the only practical one in the present situation. It is true that in general it is highly desirable that the Mixed Courts question should be decided as part of the general settlement between France and Syria; but this settlement may well be long delayed, in which case the work of the Courts obviously could not be held up so long. The Syrians, despite their wish to abolish the Courts altogether, appear ready to listen to any positive and constructive suggestion.

10. It might be argued that the Syrians and Lebanese might be able to make a case for the total abolition of the Mixed Courts. The discretion given to the French under Article 6 of the Mandate Charter might have entitled them to abolish the Mixed Courts themselves, if they had been prepared to take the responsibility of convincing the Mandate’s Commission that foreign rights would still be safeguarded thereafter; and that the Syrian and Lebanese Governments, as successors to the Mandatory Power, might be entitled to take the same line. If however the Levant Governments take this view, His Majesty’s Government are prepared to reply that they could not agree to the abolition of the Mixed Courts except as part of a general settlement, indicating at the same time the possibility of a temporary solution on the lines of paragraph 8 above.

11. His Majesty’s Embassy would be glad to learn the views of the State Department upon the above proposals. If these commend themselves to the United States Government, it will clearly be advantageous that the United States and His Majesty’s Ministers at Beirut should approach the Syrian Government in the same sense. It would doubtless also be advisable to inform the French of the suggestions put forward, with the observation that this temporary measure appeared to be in their interests, since they presumably prefer to have a leavening of impartial foreign judges in courts trying cases in which their interests are involved, than to run the risk of these cases being tried by purely Syrian courts (or alternatively being indefinitely adjourned).

Washington , October 17, 1945.

8. Saadalah Jabri.
9. Signed at San Francisco, June 26, 1945; for text, see Department of State Treaty Series 993, or 59 Stat. (pt. 2) 1031. The formal instrument of ratification of the Charter of the United Nations was deposited with the Department of State on October 19 by the Syrian Minister (Koudsi).
10. Gen. Georges Catroux, French Delegate General and Plenipotentiary in Syria and Lebanon, 1941–43.
11. Not printed.