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was based. The court further held that it is immaterial Department of Defense. 66 The implementing Department
whether the state in whose favor the right is waived of Defense Directive provides:
thereafter institutes criminal proceedings in its own courts ....
against the individual involved, and that an exception to C. Designated Commanding Officer
the principle of the irrevocability of waivers can ariseonly Formal invocation of the Senate Resolution procedure shall be the
if the state in whose favor the waiver was granted ex- responsibility of a single military commander in each foreign country in
which United States military forces are regularly stationed (attach6 per-
pressly states that it waives back the right to exercise juris- sonnel and other military personnel serving under the direction of a
diction and returns it to the authorities of the other state. chief of a diplomatic mission will not be considered United States mili-
In Germany, intermediate appellate courts have held that, tary forces for this purpose), i.e.,
once the German authorities have failed to withdraw the 1. In the geographic areas for which a unified command exists, the
general waiver of jurisdiction following notification under commander thereof will designate within each country, the "Com-
manding Officer" referred to in the Senate Resolution.
the provisions of Article 19 of the Supplementary Agree- 2. In other areas for which a command does not exist, a
ment, they may not subsequently exercise jurisdiction in commanding officer in each country shall be nominated by the military
the event that the sending State determines not to try the departments whose recommendations shall be forwarded by the Judge
accused by court-martial. Advocate General of the h y to the Secretary of Defense, for imple-
(e) Trial in the Courts of the Receiving mentation through the Office of the Assistant Secretary of Defense (In-
State. 1. Treaty safeguards. Article W, 9 of the NATO ternational Security Affairs). In designating the commanding officer to
act for all the military departments, consideration should be given to the
SOFA contains the following fair trial guarantees: availability of legal officers and readiness of access to the seat of the
9. Whenever a member of a force or civilian component or a depen- foreign government. Such an officer may also be appointed by the mili-
dent is prosecuted under the jurisdiction of a receiving State he shall be tary departments for countries where no military forces are regularly sta-
entitled- tioned.
(a) to a prompt and speedy trial; ....
(b) to be informed, in advance of trial, of the spe&c charge or D. Country Law Studies
charges made against him; For each foreign country in which United States military forces are
(c) to be confronted with the witnesses against him; subject to the criminal jurisdiction of foreign authorities, the designated
(d) to have compulsory process for obtaining witnesses in his commanding officer for such country shall make and maintain a current
favor, if they are within the jurisdiction of the receiving State; study of the laws and legal procedures in effect. Studies of the laws of
(e) to have legal representation of his own choice for his defence other countries shall be made as directed. This study shall be a general
or to have free or assisted legal representation under the conditions pre- examination of the substantive and procedural criminal law of the
vailing for the time being in the receiving State; foreign country, and shall contain a comparison thereof with the
(f) if he considers it necessary, to have the services of a competent procedural safeguards of a fair trial in the State courts of the United
interpreter; and States. Copies of these studies should be forwarded to each of the Judge
(g) to communicate with a representative of the Government of Advocates General of the Se~ces. Principal emphasis is to be placed on
the sending State and, when the rules of the court permit, to have such those safeguards which are of such a fundamental nature as to be
a representative present at his trial. guaranteed by the Constitution of the United States in all criminal trials
in State courts of the United States. (See Appendix B for enumeration of
2. The Safeguards in United States Senate safeguards deemed particularly important.) These country law studies
Resolution. If the receiving State has exclusive jurisdiction shall be subject to a continuing review, and whenever in any country
or refuses to waive its primary right and proceeds to trial, there is a signifmnt change in its criminal law, the change shall be for-
the Senate Resolution of July 15, 1953,64 which accom- [warded by the designated commanding officer to each of the Service
panied its advice and consent to ratification of the NATO 'Judge Advocates General.
E. Waivers of Local Jurisdiction -Military Personnel
SOFA comes into operation. It requires that the criminal 1. In cases where it appears probable that (a) release of jurisdiction
laws of a country where U.S. servicemen are tried by such over United States military personnel will not be obtained and (b) that
foreign courts be examined with reference to the the accused may not obtain a fair trial, the commander exercising
procedural safeguards contained in the U.S. Constitu- general court-martial jurisdiction over the accused will communicate
directly with the designated commanding officer, reporting the full facts
tion. 65 If there is danger that the accused will not be pro-
of the alse and supplying his recommendation.
tected because of a denial of or absence of such a constitu- 2. The designated commanding officer will determine, in the light
tional right the Department of State shall be requested to of legal procedures in effect in that country, whether there is danger that
pr,ess for a waiver of jurisdiction. In addition, an observer the accused will not receive a fair trial. A trial shall not be deemed unfair
will attend the trial of all servicemen in foreign courts in solely for the reason that it may not be identical with trials held in the
order to see that the treaty safeguards set forth in Article United States. Due regard, however, should be had to those United
States trial rights listed in Appendix B which are relevant to the particu-
W, subparagraph 9, are observed.
lar facts and circumstances of the trial in question.
(3) Implementation of the Senate Resolution by the 3. If he determines that there is such danger, he will then decide, .
after consultation with the Chief of the Diplomatic Mission, whether to
press a request for waiver of jurisdiction through diplomatic channels. If
64. [I9531 4 U.S.T. 1828.
6s. For a listing of procedural safeguards contained in the Constitu-
tion, see Memorandum of 17 November 1953 prepared by the Inter- 66. Stotus of Forces Policies and Idormation, DoD Duective
Service Legal Committee, reproduced in Heorings on Status of Forces 5525.1, Jan. 22, 1966. This directive has been implemented by a tri-ser-
Agreements wore the House Comm. on Foreign .4ffoirs. 84th Cong., 1st vice regulation, AR 27-50/SECNAWNST 5820.4D/AFR 110-12, Sept.
Sess., part 1, 249 et seq. (1956). 5, 1974.