711.32/7–1944
Memorandum by the Consul at Pará (Braddock) to the Ambassador in Brazil (Caffery)33
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The Question of Jurisdiction Over Members of Our Armed Forces
The American View
The Judge Advocate of USAFSA,34 Recife, wrote an opinion for General Wooten holding that under United States law and War Department policy the United States reserved exclusive jurisdiction over members of its armed forces in foreign countries. Law and precedents were cited. The opinion stated that this principle was recognized in international law as well, and made the point that the United States reciprocally granted to foreign authorities the jurisdiction over their military personnel in the United States.
In conversation with me the Judge Advocate expressed the view that jurisdiction of this character was not regarded as extrA–territoriality, to which he admitted we had no right in Brazil. He also pointed out that legal considerations were only one element used in shaping military policy, and conceded that in the question of jurisdiction over members of our forces in Brazil another element, the importance [Page 602] of maintaining smooth relations, should perhaps take precedence over the law.
Other Army officers with whom I talked, including General Kroner36 and General Wooten, indicated that there was no doubt in their mind regarding our legal right to jurisdiction over our own forces.
The State Department in a strictly confidential instruction to the Vice Consul at Pará, dated June 7, 1944,37 stated:
“It is the view of this Government that under international law members of its armed forces on foreign territory with the consent of the local sovereign are subject to the jurisdiction of their own military authorities in criminal matters. While there is at present no agreement between the United States and Brazil recognizing this principle, it is understood that such jurisdiction has usually been recognized in practice.
“In any case which may arise in Brazil in which a member of the armed forces of the United States is charged with an offense against the local laws you will please be guided by the views stated above.”
The Brazilian View
That the American view of jurisdiction over its armed forces in Brazil is not uniformly shared by the Brazilian authorities is evident.
The First Auxiliary Delegate in Belem contested with Major Hall of the Judge Advocate’s office this right of jurisdiction in the well-known theater incident, and made this the basis of his report on the incident, which finally reached the Embassy via his superiors and the Foreign Office. Had the higher Brazilian authorities taken a different view on the jurisdictional question from that taken by the Delegate, it is hardly likely that they would have sustained his report to the point of transmitting a copy of it to the American Embassy. This is only a surmise, to be sure, but there is no doubt that the Delegate’s immediate superior, the Chief of Police of Pará,38 considers members of the American armed forces as legally subject to the penalties of the Brazilian law for any criminal infraction of it.
The former Commanding Officer of the Eighth Military Region, General Francisco de Paula Cidade, as has been noted, while discussing practical procedures with the Deputy Provost Marshal39 for disposing of police cases involving American servicemen, made specific reservation on the jurisdictional question, and indicated clearly that in his opinion jurisdiction in these cases legally lay with the Brazilian authorities.
Moreover, the Deputy Provost Marshal, as observed in the preceding section on police relations, has heard reports of the existence of [Page 603] a secret instruction by the Brazilian Ministry of the Interior, issued with the knowledge and approval of the American Embassy, to the effect that Brazil reserves the right of jurisdiction over members of foreign armed forces on Brazilian soil who are charged with criminal offenses in violation of the local laws.
Regardless of the legal question, the Brazilian authorities in Pará seem disposed to yield, as a courtesy and a matter of practical convenience, whatever right of jurisdiction they may have over members of our armed forces in this country.
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