US embassy cable - 03ANKARA7033

UNCLAS ANKARA 007033 
 
SIPDIS 
 
 
DEPT PLEASE PASS TO EUR/SE, CA AND LEGAL 
 
 
E.O. 12958: N/A 
TAGS: PREL, MARR, CASC, CPAS, TU, US 
SUBJECT: MFA RESPONSE TO USG REQUEST FOR ASSISTANCE ON PFC 
SMITH 
 
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 "...no 
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 
Smith. 
 
 
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 
consideration. 
 
 
October 30, 2003 
 
 
End text. 
EDELMAN