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cate as conclusive. Another article provides, however, answers this question as far as France is concerned. 62 In
that in exceptional cases the certificate may be made the November, 1953, Major Whitley, an Air Force officer
subject of review at the request of the German court or stationed in France with a NATO headquarters suffered a
authority, through the medium of discussions between blowout while driving to his home from Paris where he
the Federal Republic and the United States Embassy. The had attended a social function. The car crashed into a tree
Korean Status of Forces Agreement provides that a cer- and a passenger, a Canadian officer, attached to the same
tif~cate of official duty by competent U.S. authorities is NATO headquarters, was killed. The cause of the blowout
sufficient. Where the Chief Prosecutor disagrees with the was never established. Pursuant to a request of Air Force
certificate, it will be made the subject of review by the authorities the public prosecutor agreed to waive French
Government of the Republic of Korea and the U.S. Em- jurisdiction over the incident. An informal Air Force in-
bassy. vestigation, not conducted under Article 32 of the
(4 Waiver of Primary Right. 1. Waiver by Uniform Code of Military Justice, concluded that evi-
Failure to Prosecute. What conduct on the part of the State dence was insufficient to warrant court-martial charges
having the primary right amounts to a decision not to ex- against Major Whitley for the death of the Canadian of-
ercise jurisdiction is not altogether clear. For example, ficer. Whitley's insurance company refused the demand of
suppose the sending State has primary jurisdiction and, the Canadian officer's widow for compensation on the
after an Article 32 investigation, decides that a trial by ground that civil liability was not established. The widow,
court-martial is not warranted. Is such an investigation who under Canadian law could receive no pension if the
and determination an exercise of jurisdiction or a decision husband was not killed while on duty, therefore initiated a
not to exercise jurisdiction? There is no definitive answer mixed civil-criminal action against Major Whitley in the
to the question. It is important because a determination French criminal court relying upon a provision of the
that any action short of a trial is a decision not to exercise French Code permitting such mixed actions. 63 Among
jurisdiction will force the State with the primary right into the hues considered by the French Court was the effect
choosing the alternative of trial or waiver. It may for good of the French prosecutor's initial waiver of jurisdiction. It
reason wish to do neither. was agrued on behalf of Major Whitley that a waiver
2. Waiver at the Request of the Other Contract- divested the criminaljurisdiction of the French courts.
ing Party. The U.S. Forces' policy is to request waivers in The Tribunal Correctionnel of Corbeil rejected this argu-
all cases subject to concurrent jurisdiction. Current mili- ment holding that a waiver is not irrevocable, and that
tary directives 61 require the designated commanding of- since the United States did not try Major Whitley for his
ficer, in each foreign country in which United States mili- alleged offense the French court could try him without
tary units are regularly stationed, to assure that effective securing a waiver from the United States. The Tribunal
liaison is developed and maintained with appropriate ofi- Correctionnelin the Whitleycase, moreover, took a more
cials of the foreign country concerned to the end that extreme position. It held that a waiver of jurisdiction
never affects the right of a civil party to initiate a mixed
through the use of local procedures a maximum number
of waivers of jurisdiction can be obtained. Constant effort civil-criminal action. The decision of the Tribunal Correc-
tionnel, as affumed by the Cour d2ppel of Paris, was one
is therefore made to establish relationships and methods
month's imprisonment (suspended) and a 50,000 franc
of operations which, in the light of local judicial fine. Major Whitley appealed to the Cour de Cassation.
procedures, will most likely result in waivers. In practice, The Cour de Cassation annulled the judgment against
these directives make the submission of informal requests Major Whitley. The basis of the decision of the Cour de
for waivers at the local level a matter of routine. The Cassation was the irrevocability of waivers granted pur-
response to these routine waivers has varied from country suant to Article W 3(c) of the NATO SOFA holding to
to country. It should be noted that the request for waiver the effect that a waiver so granted was binding on all tri-
need not be and in most casesis not predicated on the fact bunals of the waiving state regardless of whether the ac-
that there is a danger the accused will not receive the tion was brought by the public prosecutor or the partie civile.
safeguards accorded him under the U.S. Constitution. The court stated, in substance, that where the authorities
Therefore, a denial of a waiver request is seldom the occa- of the state which has the primary right to exercise juris-
sion for intervention by the Department of State. diction under the NATO SOFA has waived that right at
the request of the other state, the decision is final and
3. The Wfect of a Waiver of Primary Right
(The Whitley Case). Suppose a waiver is granted by the precludes the criminalcourts of the former state from tak-
State with the primary right. Must the requesting State try ing cognizance of the facts on which the decision to waive
the individual in order to prevent the State with the pri-
mary right for reasserting its right? The Whitley case 62. See JALS 250 19/58, "A Chronicle of Recent Developments
in Military Law of Immediate Importance to Army Judge Advocates," a
letter setting forth the facts of the Whitley case.
63. See appendix A, irlfm.