811.24523/8–2446: Telegram

The Ambassador in Peru (Cooper) to the Secretary of State

us urgent

922. Remytel 920 August 23, 7 p.m. I received following note from FonMin respecting Talara incident.

“I have honor to address Your Excellency to inform you that Ministry of Justice has transmitted to this Chancery cable graphic report from the President of Superior Court of Piura, dated yesterday, with reference to judicial proceedings instituted in connection with incident which occured at Talara early in the morning of July 28 last in which it is stated that Judge of Criminal Court has encountered difficulties in effecting arrest of indictees who are members of El Pato Base, because commander of that base states that he cannot comply with that order unless it is given by Embassy of US or by Caribbean Defense Command located at Panama. That information appears to indicate that North American Govt is maintaining same criterion with regard to jurisdiction which Your Excellency expressed in conversations held with Dr Ismael Bielich who was in charge of office of FonAffairs and with the undersigned.

I believe it necessary to recall that in those conversations we both stated to Your Excellency that North American soldiers responsible for incident should submit themselves to Peruvian jurisdiction for their trial, an opinion confirmed in my note of 17th [7th?] of this month. I maintain in that note that in the agreement April 24, 1942 no exception to Peruvian jurisdiction was stipulated and that on the contrary the North American authorities assumed the commitment to see that Peruvian laws are respected by personnel of base outside of station area. This appears to be clearly set forth in clause 2, section F of agreement of April 24, 1942, the original of which in English reads as follows:

‘2. US agrees (…).

F. It will caution its personnel to respect all political laws and traffic regulations of Govt of Peru in areas outside of base and which are subject to laws of the country.’

Jurisdiction is one of the forms of expression of the sovereignty of states which would be a mockery without it. No exception can be made to this jurisdiction, nor waiver of this or of any other right except in an explicit, clear and definite form. In the agreement entered into between the Govt of Peru and that of Your Excellency of April 24, 1942, there is not even the most remote reference to a waiver of jurisdiction, but on the contrary, an express assertion of the latter.

The present case does not concern an internal act susceptible of being considered within the sphere of disciplinary regulations of a military character applicable to members of an organization having similar rank. Neither is this a crime which may be tried according to special jurisdiction. It is a common crime, committed outside of the base area of the North American forces, provoked and carried out in violation of the norms of social intercourse, and of the respect for human beings.

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When the Govt of Peru authorized the stationing of North American forces by the agreement of April 24, 1942, it did so without detriment to its own sovereignty and only for purposes of cooperation with the policy of continental defense. Therefore, the Govt of Peru and its judicial authorities maintain the right to require the chiefs of the base to deliver the persons indicated for ordinary crimes such as that which has caused this incident.

In view of the reasons given to Your Excellency by my office, with the desire of continuing the good neighbor policy which the Govt of Peru so sincerely follows, and in accordance with the spirit of cordial understanding which inspires the good and long established relations between our two countries, for which appreciation was expressed by Your Excellency’s note of the 7th of this month, I request that Your Excellency be kind enough to ask your Govt that the necessary instructions be issued so that North American soldiers who are subject to proceedings instituted by Judge of Paita may appear before that judicial authority.”

Suggest no action on above pending outcome of Sgt Eiland’s critical condition which should be known early next week.

Above note somewhat out of line my conference with President Bustamante (mytel 920, Aug 23) who stated incident must not be allowed to interfere larger issues. As previously advised much support exists in Peruvian Govt to minimize incident.

My comment re clause 2 F English text of which FonMin quotes in above note is that words “which are subject to the laws of the country” only impose obligation of cautioning Army personnel to respect Peruvian traffic and political laws outside of base areas and neither inherent US courtmartial jurisdiction is ceded nor is there constituted agreement that Peru shall exercise exclusive jurisdiction. Possible interpretation of 2 F is that concurrent jurisdiction is recognized. However, inasmuch as US courtmartial jurisdiction has already attached and court now sitting at Talara base, the courtmartial has prior jurisdiction and is entitled to proceed with trial. If accused soldiers are convicted, assertion such prior jurisdiction includes right to carry sentence into execution.