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Pam 27-161-1

(3) Members of the "Civilian Component" of the States and Japanese, who are brought to Japan by the
-,
Sending State. United States shall be considered as United States Na-
Article I (b): "Civilian component" means the civilian perso~elac- tionals." 41 Another potential problem area is the result of
companying a force of a Contracting Party who is in the employ of an the exclusion of persons "ordinarily resident" in the
armed service of that Contracting Party, and who are not stateless per- receiving State from the definition of civilian component.
sons, nor nationals of any State which is not a Party to the North Atlan- The reasons for such exclusion are apparent in &es in-
tic Treaty, nor nationals of, nor ordinarily resident in, the State in which
the force is located; . . . volving resident aliens generally, but some difficulty could
be presented by the fact that no exception is made for
(a) Definition. This definition does not include those resident aliens who are nationals of the sen-
stapless persons, nationals of a state not a party to the State. In Germany, for example, command policy
NATO, nationals of the receiving State, and persons or- precludes the appointment to appropriated or nonap-
dinarily resident in the receiving State. It also does not in- propriated fund positions of American nationals who are
clude Red Cross personnel, and technical representatives normally resident in Germany. The treaty protection
of contractors. This deficiency has been overcome in afforded members of the civilian component, as far as
Turkey where, by bilateral agreement with the United criminaljurisdiction isconcemed, has been affected by re-
States, 37 such personnel are expressly included as mem- cent pronouncements of the United States Supreme
bers of the civilian component. Further, in this connec- Court. 42 These opinions settle the law somewhat but at
tion, the agreement with Japan includes within the defini- the same time challenge the jurisdictional assumptions ac-
tion of the civilian component United States nationals who cepted as valid when the NATO SOFA was negotiated.
are ". . .in the employ of, serving with, or accompanying (6) U.S.Military Jurisdiction Over U.S. Civilian
the United States armed forces in Japan, . . ." 38 In Ger- Employees Abroad.
many, the Supplementary Agreement s~~cally extends
to certain personnel (e.g., Red Cross and technical ex- McElroy v. Guagliardo (No. 21) and
Wilson v. Bohlender (No. 37)43
perts) the privilege of members of the civilian component Mr. Justice Clark delivered the opinion of the Court.
(Arts. 71, 72, and 73). The exclusion of stateless persons These are companion cases to No. 22,Kinsella v. Singleton, supra, p.
and persons who are nationals of a state which is not a 234,and No. 58,Grisham v. Hagan, supra, p. 278,both decided today.
member of NATO would seem to present few practical AU the cases involved the application of Article 2(11) of the Uniform
daculties. Fist, aside from labor groups formed of state- Code of Military Justice. Here its application to noncapital offenses com-
mitted by civilian employees of the armed forces while stationed over-
less persons, 39 there are probably very few civilian seas is tested.
employees who fall into either class of persons. Second, In No. 21 the respondent, a civilian employee of the Air Force per-
the exclusion of these two classes of persons seems to forming the duties of an electrical Lineman, was convicted by court-m~-
of
have been the result of a desire to prevent them from en- tial a! the Nouasseur Air Depot near Casablanca, MOROCCO, larceny
tering the receiving State. 40 If such persons are admitted, and conspiracy to commit larceny from the supply house at the Depot.
Beforebeing transferred to the United States Disciplinary Ekmacks, New
there would seem to be no compelling reason why they Cumberland, Pennsylvania, respondent fded a petition for a writ of
should be excluded from the operation of the agreement. habeas corpus in the District Court for the District of Columbia alleging
Where a sending State employs resident nationals of the that the military authorities had no jurisdiction to try him by court-mar-
receiving State, it is obviously in the special interests of the tial. . . .
In No. 37,petitioner, a civilianauditor employed by the United States
receiving State to insure that such persons remain fully Army and stationed in Berlin, was convicted by a general court-martial
under its jurisdiction and protection. To this extent the ex- on a plea of guilty to three acts of sodomy. .. .
clusion of nationals of the receiving State from the defini- We believe that these casesinvolving the applicabiity of Article 2(11)
tion of a civilian component is based on sound reasons of to employees of the armed services while serving outside the United
public policy. However, the special interests of the receiv- States are controlled by our opinion in Kinsella v. Singleton, 80 S.Ct.
297, and Grisham v. Hagan, 80 S.Ct. 310, announced today. In
ing State weaken when the nations in question had emi-
Singleton we refused, in the light of Reid v. Covert, 1957, 354 U.S. 1,
grated and were returned to their native country as 77 S.Q. 1222,1 L.Ed.2d 1148,to apply the provisions of the article to
employees of the sending State, and completely disappear noncapital offenses committed by dependents of soldiers in the armed
in cases where the person has also acquired the nationality serviceswhile overseas; in Grishamwe held that there was no constitu-
of the sending State. A more realistic approach to the tional distinction for p- of court-martial jurisdiction between
problem of the dual national is contained in the status of dependents and employees insofar as application of the death penalty is
concemed. The rationale of those cases applies here.
forces agreement with Japan, where it is stated: "For the Although it is true that there are materials supporting prosecution of
purposes of this Agreement only, dual nationals, United sutlers and other civilians by courts-martial, these materials are "too
episodic, too meager, to form a solid basii in history, preceding and con-
37. [I9541 5 U.S.T. 1465,T.I.A.S. No. 3020.
38. [I960111 U.S.T. 1652,T.I.A.S. No. 4510,art. I@). 41. [I960111 U.S.T. 1652,T.I.A.S. No. 4510,art. I@). A similar
39. Personnel of Labor Service and Civilian Labor Guard units in provision is contained in the Korean Stcrtus of Forces Agreement, [I9661
Germany, composed primarily of Polish and other Eastern European 17 U.S.T. 1677,T.I.A.S. No. 6127.
stateless persons, are also not included. 42. See McElroy v. Guagliardo and Wilson v. Bohlender, 361 U.S.
40. J. Snee& A. Pye,S~tadls CrfForces Agreement Crimi~IJurisdic- 281 (1960).
tion 17 (1957). 43. Id.'