Cablegate: Mfa Response to Usg Request for Assistance On Pfc

This record is a partial extract of the original cable. The full text of the original cable is not available.




E.O. 12958: N/A

REF: A. A) STATE 299494
B. B) ANKARA 6392

1. The Embassy recently received a diplomatic note, number
2003/ALGY/442572 from the Ministry of Foreign Affairs
regarding Henry Oran Smith (reftels), the dual (American and
Turkish) citizen US Marine who deserted while at Incirlik AB
on September 29. As anticipated in ref B, the note denies
our request for Smith's arrest and return to the US.

2. Following is the text of the diplomatic note:

The Ministry of Foreign Affairs of the Republic of Turkey
presents its compliments to the Embassy of the United States
of America, and referring to its Note No: 1627, dated 23
October 2003 concerning Henry Oran Smith, has the honor to
communicate the following:

Henry Oran Smith is a Turkish citizen, registered in
Izmir/Seferihisar. Therefore, he is under the protection of
the Turkish Constitution and is subject to the Turkish
jurisdiction within the territory of the Republic of Turkey.
In this regard, in the case of Henry Oran Smith, Turkish
authorities have responsibility to apply Article 38 of the
Constitution of the Republic of Turkey, which state "
citizen shall be extradited to a foreign country on account
of an offense".

On the other hand, "Treaty on Extradition and Mutual
Assistance in Criminal Matter between the Republic of Turkey
and the USA" does not provide grounds for extradition of a
Turkish Citizen as Article 4(1) of this Treaty clearly states
that "neither of the contracting Parties shall be bound to
extradite its own nationals....".

Finally, Article VII of the NATO Status of the Forces
Agreement (NATO/SOFA) stipulates the rights of the sending
State to exercise jurisdiction over persons subject to the
military law of that state. Article VII(4) is as follows:
"The foregoing provisions of this Article shall not imply any
right for the military authorities of the sending State to
exercise jurisdiction over persons who are nationals of or
ordinarily resident in the receiving State, unless they are
members of the force of the sending State". "Force" is
defined by Article I (a) of NATO/SOFA, which reads: "force
means the personnel belonging to the land, sea or air armed
services of one Contacting Party when in the territory of
another Contracting Party in the North Atlantic Treaty area
in connection with their official duties, ....".

Since the NATO/SOFA concerns only the foreign "forces"
stationed in Turkey within the framework of a NATO duty,
contrary to the views of the esteemed Embassy states in its
referred Note, Turkish authorities consider that Article VII
of the NATO/SOFA cannot be applied in the case of Henry Oran

The Ministry would like to inform the esteemed Embassy that
in the light of these legal considerations, Turkish
authorities arrived at the conclusion that it is not possible
to provide assistance in returning Henry Oran Smith to the
control of U.S. authorities.

The Ministry of Foreign Affairs of the Republic of Turkey
avails itself of this opportunity to renew to the Embassy of
the United States of America the assurances of its highest

October 30, 2003

End text.

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