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REAR ADMIRAL WILFRED A. HEARN, USN Judge Advocate General of the Navy

REAR ADMIRAL ROBERT H. HARE, USN Deputy and Assistant

Judge Advocate General of the Navy

LIEUTENANT COMMANDER GARDINER M. HAIGHT, USN Editor

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Most persons are familiar with the manufacturers excise tax (currently 6%) which is included in the price of new automobiles purchased in the United States. Many are not aware, however, that this tax may be applicable to a foreign-made automobile which is purchased overseas.

The Internal Revenue Service recently ruled on the applicability of the tax in the following situations:

a. A resident of the United States orders an automobile not previously sold in the United States from a dealer located outside the United States, and pays the purchase price directly to the foreign dealer. The automobile is shipped to the United States under consignment to the purchaser, who clears the automobile through customs for his personal use.

b. A resident of the United States orders an automobile not previously sold in the United States from a dealer or other person in the United States who does not in fact assume the typical risks or responsibilities of an importer purchasing the vehicle for resale, but acts as the purchaser's agent in purchasing the automobile from a foreign dealer. The purchaser pays

the purchase price to his agent who forwards the purchase order and payment to the foreign dealer. The automobile is shipped to the United States under consignment to the person in the United States acting in his capacity as agent for the purchaser. This person clears the automobile through customs as agent for the purchaser, and delivers the automobile to the purchaser for his personal use.

The position of IRS is contained in Revenue Ruling 65-317, I.R.B. 1965-52, 317, which held that the tax would be applicable in both described situations.

Under these circumstances the purchaser will be liable for both customs duties and the manufacturers excise tax. This may eliminate all or most of the price advantage supposedly gained by making a purchase in this fashion.

The foregoing should not affect the customs duty exemption (which includes an exemption from the excise tax) to which a person is entitled upon his return to the United States with his personal effects after extended duty abroad. To be eligible, the importer must have taken possession of the automobile while abroad. Neither should this ruling affect the importation of an automobile incidental to a trip overseas for some other significant purpose.

O

N AUGUST 23, 1953 the NATO Status of Forces Agreement became effective among the NATO nations, including the United States. The pattern of jurisdiction over visiting forces established by that Agreement was adopted in the U.S.-Japanese Status of Forces Agreement of 19 January 1960. Since that time the jurisdictional pattern of the NATO Agreement has been adopted or is in process of being adopted in virtually every nation in which U.S. forces are stationed.1

One provision of the criminal jurisdiction agreement has apparently been subject to some misunderstanding. This is the provision regarding official duty certificates. It is the purpose of this article to examine briefly the background of the negotiations leading to the adoption of the criminal jurisdiction provisions, some of our experiences under these provisions, and, hopefully, to furnish guidance for proper action under them in further dealings with host States.

It should be recalled that under the criminal jurisdiction provisions of the NATO SOFA and similar provisions of other agreements 2 United

*Captain Carlisle is currently the Director of the International Law Division of the Office of the Judge Advocate General. He is a 1939 graduate of Washburn University, Topeka, Kansas with the degrees of Bachelor of Arts and Bachelor of Law. He is a member of the Bar of the State of Kansas.

1. As of 30 November 1965, jurisdiction over United States forces in host countries is governed by the NATO Status of Forces Agreement in; Belgium, Canada (including Newfoundland), Denmark, France, Germany, Greece, Italy, Luxembourg, Netherlands, Norway, Portugal, Turkey, United Kingdom, and Greenland; by similar arrangements in Trinidad, Tobago, Antiqua Barbados, St. Lucia, Turks and Caicos Islands, Bahama Islands of Atlantic Undersea Test and Evaluation Center, Australia, Iceland, Japan, Pakistan, and the Republic of the Philippines; and negotiations were underway or completed for similar arrangements in Republic of China and Republic of Korea.

2. Throughout the balance of this article the term SOFA will be used to indicate Status of Forces Agreements with any and all of the countries mentioned in Footnote 1.

3

States commanders enjoy a rather limited degree of jurisdiction over members of their forces who violate local law. The degree of jurisdiction originally granted to the United States by the SOFAS has been further curtailed by the action of the United States Supreme Court in a number of cases wherein the Court decided that military authorities could not exercise jurisdiction over civilians in time of peace regardless of the provisions of the Uniform Code of Military Justice granting authority over persons serving with, employed by, or accompanying those forces in a foreign country.

A brief review of these criminal jurisdiction provisions follows:

Four types of jurisdiction are established by the SOFA. Exclusive jurisdiction-which means that one party to the agreement has the exclusive right to exercise jurisdiction over an offender. Concurrent jurisdiction-which means that either party has the authority to exercise jurisdiction over an offender. Primary jurisdiction-which means that with regard to an incident subject to concurrent jurisdiction one party has the first or initial right to exercise jurisdiction over an offender. Secondary jurisdiction-which means that in a concurrent jurisdictional situation, the second party has a secondary right to exercise jurisdiction if the other party does not choose to exercise its primary right of jurisdiction.

It is important to note that the State having the primary right to exercise jurisdiction may waive that right in favor of the State having a secondary right to exercise jurisdiction. It was expected that waiver of primary jurisdiction would occur in many cases and provision was made for such waiver. In the words of NATO

3. Kinsella v. Singleton, 361 U.S. 234 (1960); Reid v. Covert, 354 U.S. 1 (1957); McElroy v. Guagliardo, 361 U.S. 281 (1960).

SOFA

The authorities of the State having the primary right (to exercise jurisdiction) shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its rights in cases when that other State considers such waiver to be of particular importance. (Parenthetical expression supplied.)

It has been the continuing policy of the United States to consider exercise of jurisdiction by military authorities over personnel who violate local law as a matter of "particular importance" to maintenance of military discipline. Under this policy requests are regularly made to the host State to waive its primary jurisdiction and such waiver is secured in a large majority of cases. In 1964 the host countries in NATO waived their primary jurisdiction in 67.72 percent of the cases. World wide, the waiver rate was more than 70.0 percent.

The criminal jurisdiction provisions of the SOFAS generally provide the following:

a. The right of both sending and receiving States to jurisdiction over the members of the force, in accordance with their respective laws, is confirmed.

b. Military authorities of the sending State have exclusive jurisdiction over persons subject to its military law for offenses punishable by its law and not by the law of the receiving State.

c. Authorities of the receiving State have exclusive jurisdiction over offenses punishable by its laws but not by the laws of the sending State.

d. In all other cases the right of jurisdiction is concurrent.

(1) Primary jurisdiction in all of these cases is in the receiving State (subject to waiver as stated earlier) except with regard to those offenses:

(a) Solely against the property or security of the sending State.

(b) Solely against the property or security of another member of the force or civilian component (including all dependents) of the sending State.

(c) And those arising out of any act or omission done in the performance of official duty." This article is concerned with the last class of offenses listed, those offenses committed in the performance of or incident to official duty. To reemphasize, with regard to these offenses, primary jurisdiction rests with the sending State, the United States. In order to preserve this right of primary jurisdiction against assaults by public opinion and requests for waiver

4. TIAS 2846, Article VII 3 (c), 4 U.S.T. 1800.

5. Hearing before a Subcommittee of the Senate Armed Forces Committee on Operation of Article VII NATO Status of Forces Treaty, 89th Cong., 1st Sess. 2 (1965). Testimony of Benjamin Forman, Assistant General Counsel, Department of Defense.

6. For a full statement of the Criminal Jurisdiction provisions see Article VII NATO SOFA, TIAS 2846, 4 U.S.T. 1799.

by the host country we must ensure that it is exercised properly.

cases.

The NATO SOFA negotiating history shows that the Working Group recognized that differences of opinion might arise as to what constitutes "performance of official duty" in specific The Group felt that these differences should not be permitted to reach deadlocks regarding the exercise of primary jurisdiction which would militate against an offender's right to the speedy trial guaranteed by the Agreement. At the same time the Group recognized that if a grave difference of opinion arose between sending and receiving State authorities with respect to the concept of official duty, the matter should be discussed between the two Governments.

On the basis of the negotiating history, it would appear that the Working Group contemplated: (a) that because of the need for speedy trials the authorities of the receiving State would accept the determination of performance of official duty by the sending State authorities in specific cases for immediate disposition of justice; but (b) that if there was an area of grave difference between these authorities as to what constituted performance of official duty in these cases, difference of concepts would be a matter for diplomatic resolution.

Experience has proven that the apprehensions of the Working Group were well founded and that recourse to Government discussion has been required on many occasions. Experience has shown that differences of viewpoint can easily arise in many commonly-occurring situations. Initially these problems are mostly caused by the determination of the cognizant authorities that an offense was committed as a matter of official duty. Some of these determinations have been clearly erroneous but understandable against the background of United States policy which requires the exercise of jurisdiction by United States military authority whenever possible. The question has also been confused by a rather normal inclination by military officers to consider the term "in the performance of official duty" as being synonymous with the term "in line of duty."

The term "in line of duty", as most commonly used by military authorities, is applied to investigations of injuries to personnel and is normally used conjunctively with the phrase "not as the result of his own misconduct." When so used it is a determination that the injury occurred "in line of duty and not as the result of misconduct" and determines that the person injured is entitled to draw pay and allowances

while recovering from his injury. The construction of this phrase adopted by all military JAGS is highly beneficial to injured personnel and as a result "line of duty" is a very loose phrase which covers many doubtful borderline situations.

Under such usage it cannot be synonymous with "in the performance of official duty" as used in Status of Forces Agreements. So using it entraps a commander into thinking that an official duty certificate is appropriate in virtually all cases merely because he considers the offense appropriate for a certificate. In other words such liberality of interpretation may lead a commander to think that the determination of whether an "act or omission was done in the performance of or incident to official duty" is a command decision that may be made without proper regard to the factual situation surrounding it. This conclusion is wrong and inevitably leads to undesirable consequences, the most important of which is an erosion of the faith of the host country in official duty certificates. When the host country begins to question the local commander's determinations in this field the entire fabric of local good will tends to be torn and administrative problems immeasurably increase. The significance of this is indicated by remembering that the local commander's ability to secure waiver of the host country's primary jurisdiction depends almost entirely on good will. When that good will is eroded by irresponsible official duty determinations, the host country will inevitably begin to question whether or not an offense is one of particular importance to the sending State and may well increase the number of cases in which it refuses to waive its primary jurisdiction. The administrative burden placed on a local commander by trials of U.S. personnel in receiving State courts, and incident to their confinement in receiving State prisons, is too well known to require additional emphasis here. Like so many other situations, the effective implementation of these agreements is preponderantly dependent upon the relations which a U.S. commander is able to establish with local authorities. If those relations deteriorate his burdens are immeasurably increased.

It should also be noted that in many countries the issuance of an "official duty certificate" does not finally determine that an act was committed as a matter of official duty. In many receiving States the certificate is only considered to be sufficient evidence of the fact unless the contrary is proved. This means that official duty certificates may be subject to question. In fact, they frequently are.

The problem of what is and what is not an act or omission suitable for an official duty certification is not always easy to resolve. One case which most clearly illustrated the problem of making this determination was the Girard case."

This case involved a sentry on duty guarding a firing range in Japan. While so on duty Girard fired an expended cartridge case from his grenade launcher which killed a Japanese woman engaged in taking expended brass from the range. The United States took the position that his act was a matter of official duty. The Japanese did not agree. Eventually this matter was terminated by a U.S. waiver and trial in a Japanese court.

The administrative details of this particular incident are not important except to show the difficulties which may arise when a questionable official duty determination is made. The problems generated were, of course, enormous. The importance of the case for purposes of the present article comes from the disputed facts of the incident.

It is clear that a sentry on guard duty may exercise such force as is necessary to carry out his orders. It was the position of the United States that Girard's action was in accordance with his basic orders and had to be a matter of official duty. This placed it within the primary jurisdiction in the United States. If Girard exceeded his authority he should be punished by the U.S. Based on the basic situation of a guard on duty, this conclusion was reasonable. However, there was evidence that Girard acted outside of his assigned duties. There was evidence that Girard enticed the woman into a dangerous position and then fired in order to frighten her away. This horseplay, said the Japanese, took the incident out of the official duty category. As was noted above, there was never an actual agreement between the U.S. and Japan as to whether or not this was official duty. The U.S. waived its claimed primary jurisdiction and the Japanese took Girard for trial.

It appears clear to me that if Girard did engage in the horseplay attributed to him, his acts were beyond those normally considered as official duty and that the U.S. should not have issued an official duty certificate. Obviously this was a borderline case but it clearly stands for the proposition that just because a man is assigned to duties and supposedly carrying out those duties does not prove that all of his acts or omissions are, in fact, matters of official duty.

7. Girard v. Wilson (D.C., D.C., H.C. 47-57, June 1957).