Page 206 - Law of Peace, Volume ,

he so decides, he shall submit his recommendation through the unified counsel at government expense of United States military
commander, if any, and The Judge Advocate General of the accused's personnel tried in foreign criminal courts is furnished in
service to the Office of the Secretary of Defense. The objective in each accordance with 10 U.S.C. 1037 when such action is
case is to see that United States military personnel obtain a fair trial in
the receiving state under all the circumstances. deemed to be in the best interests of the United States. 67
.... Implementation of this statute is subject to service regula-
G. Trial Observers and Trial Observer Reports tions. 68 The tri-service regulation provides that any per-
1. The designated commanding officer shall submit to the Chief of son subject to court-martial jurisdiction who is cited to ap-
Diplomatic Miion a list of persons qualified to serve as United States pear before a foreign tribunal, civil or criminal, is eligible
observers at trials before courts of the receiving state. Nominees will be
lawyers, and shall be selected for maturity of judgment. The list will in- to submit a request for the appointment of counsel. For
clude, where possible, representatives of all Services whose personnel Army personnel, the request is to be submitted to the of-
are stationed in that country, to enable the Chief of Diplomatic Miion ficer exercising general court-martial jurisdiction over
to appoint an observer from the same Service as the accused. The re- him. That officer may approve the request: (1) if it is an
quirement that nominees will be lawyers may be waived in cases of offical duty offense; (2) where the sentence which is nor-
minor offenses. Incidents which result in serious personal injury or ex-
tensive property damage, or which would normally result in sentences mally imposed included confinement-whether or not
to confiement, whether or not suspended, will not be considered suspended; (3) in capital cases; (4) in appeals from
minor offenses. proceedings which apparently denied some substantial
2. Trial observers shall attend and shall prepare formal reports in all right of the accused, and (5) where conviction of the
cases of trials of United States personnel by foreign courts or tribunals offense alleged could later form the basis for administra-
except minor offenses. In cases of minor offenses, the observer shall at-
tend the trial, if any, at the dietion of the designated commanding of- tive discharge proceedings for misconduct as a result of
ficer, but shall not be required to make a formal report. These reports civil court disposition (e.g., eliminations actions pursuant
need not be classified, but shall be treated asdocuments for OFFICIAL to AR 635-120 and AR 635-206.) With respect to cases
USE ONLY, and shall be forwarded intact to the designated command- not meeting any of the five criteria, he may approve the
ing officer through such agencies as the designated commanding officer request if he considers the case to have a significant impact
may prescribe, for transmission to the Judge Advocate General of the
accused's Service commander. These reports will be forwarded im- upon our relations with the foreign country, or if he con-
mediately upon the completion of the trial in the lower court, and will siders the case to involve a particular United States in-
not be delayed because of the possibility of a new trial, rehearing, or ap- terest.
peal, reports of which will be forwarded in the same manner. Copies (b.) Civil Cases. In civil cases, the criteria for ap-
shall also be forwarded to the unified commander, if any, and to the proval of requests are two: (1) where the suit is based on
Chief of Diplomatic Miion.
3. The Trial Observer Report shall contain a factual description or an act which occurred in the performance of official duty,
summary of the trial proceedings. It should be prepared keeping in mind or (2) where the suit has a significant impact on United
that its main purpose is to permit an informed judgment to be made States relations with the foreign country, or involves a
regarding (1) whether there was any failure to comply with the particular United States interest.
procedural safeguards secured by a pertinent status of forces agreement, (c.) Procedures. Once his request has been ap-
and (2) whether the accused received a fair trial under all the circum-
stances. The report shall specify the conclusions of the Trial Observer proved, the individual is free to select his counsel from a
with respect to (I), and shall state in detail the basis for his conclusions. list furnished him of those civilian attorneys who are
Unless the designated commanding officer directs otherwise, the Report qualified and admitted to practice before the courts of the
shall not contain conclusions with respect to (2). foreign country involved. After he has selected his at-
4. The dekignated commanding officer, upon receipt of a Trial Ob- torney, the attorney is asked to sign a contract of employ-
server Report, shall have the responsibility for determining (1) whether
there was any failure to comply with the procedural safeguards secured ment with the United States in which he agrees to repre-
by the pertinent status of forces agreement, and (2) whether the ac- sent the individual diligently and to pay all necessary costs
cused received a fair trial under all the circumstances. Due regard should and expenses, and in which the United States agrees to
be had to those fair trial rights listed in Appendix B hereto which are pay him for his services and to reimburse him for those
relevant to the particular facts and circumstances of the trial in question. necessary out-of-pocket costs and expenses. If a convic-
However, a trial shall not be deemed unfair for the sole reason that the
conduct thereof was not identical with trials held in the United States. If tion with confinement results from the trial, the service-
the designated commanding officer is of the opinion that the procedural
safeguards spe&ed in pertinent agreements were denied or that the trial 67. 10 U.S.C. 1037 is in part as follows:
was otherwise unjust, he shall submit to the off~ce of the Secretary of (a) Under regulations to be prescribed by him, the Secretary con'-
Defense, through the unified commander and the Judge Advocate
General of the service concerned, his recommendations as to appropri- cerned may employ counsel, and pay counsel fees, court costs, bail,
and other expenses incident to the representation, before the judicial
ate action to rectify the trial deficiencies and otherwise to protect the tribunals and administrative agencies of any foreign nation, of persons
rights or interests of the accused. This shall include a statement of subject to the Uniform Code of Military Justice. So far as practicable,
efforts taken or to be taken at the local level to protect the rights of the these regulations shall be uniform for all armed forces.
accused. An information copy of the recommendation of the designated (b) The person on whose behalf a payment is made under the section
commanding officer shall be forwarded by him to the diplomatic or con- is not liable to reimburse the United States for that payment, unless
sular mission in the country concemed.
he is responsible for forfeiture of bail under subsection (a).
of
(4) ~m~lo~mentLocal Attorney for Ac- 6s. Chapter 2, AR 27/50/SECNAVINST 5820.4D/AFR 110-12,
cused. (a.) . Criminal Cases. Representation by civilian Sept. 5, 1974.