The Legal Status of Forces in Vietnam
In accordance with the Mutual Defense Assistance Act of 1949, the United States first sent military advisers to Vietnam to assist the French Union forces. The basic international agreement-Mutual Defense Assistance in Indochina-governing the legal status, rights, and obligations of U.S. personnel in Indochina was signed in Saigon on 23 December 1950 by the United States, France, Cambodia, Laos, and Vietnam. This agreement, known as the Pentalateral Agreement, was similar to other standard mutual defense assistance agreements that the United States had concluded with its allies. The agreement was short and its terms were broad and general. (See Appendix I.)
Under Article III of the agreement each government undertook to enter into necessary arrangements with the United States concerning all matters relative to the furnishing of materials, and to consult with the United States in establishing means for utilizing the assistance furnished. Under Article IV the governments agreed that all products, material, or equipment furnished by the United States in connection with the agreement would receive duty-free treatment, and would be exempt from taxation upon importation, exportation, or movement within Indochina. Clause 2 of Article IV stipulated that the states of Indochina were to receive within their territory those U.S. citizens who were necessary to carry out the agreement, and that the receiving states would accord to U.S. citizens thus engaged all facilities needed to carry out their responsibilities. U.S. citizens sent to Indochina to implement the agreement were to operate as part of the diplomatic mission of the United States.
Annex B to the basic agreement affirmed that U.S. citizens entering Indochina under the terms of the agreement were to operate as members of the diplomatic mission, and stated that such citizens were to be accorded the same legal status vis-A-vis the host country as were members of the diplomatic mission of corresponding rank. Annex B then divided U.S. personnel into three categories, and defined the legal status of each category. The first category consisted of the senior military members of the U.S. mission, and these were accorded full diplomatic status. Personnel in the second category,
which was not defined, were to enjoy certain diplomatic privileges and such immunities as being outside the civil and criminal jurisdiction of the host country, having the right of free egress, and being exempt from customs duties and restrictions, and various taxes. Personnel in the third category, also undefined, were to receive the same legal status as the clerical personnel of the diplomatic mission. In conclusion, Annex B stated that "it is understood among the five governments that the number of personnel in the three categories above will be kept as low as possible."
In 1958 the United States informed the government of Vietnam that it would consider top U.S. military commanders in the first category, having full diplomatic status, officers and warrant officers in the second, or exempt category, and enlisted men in the third category, a status equivalent to that of clerical employees of the diplomatic mission.
U.S. Troop Buildup
When the Pentalateral Agreement was signed in 1950, the signatory parties obviously meant the agreement to apply to the activities of the small U.S. Military Advisory Assistance Group staffs operating at the time in Cambodia, Laos, and Vietnam. During the early 1950s, there were 200 to 300 of these military advisers in Vietnam, and by the end of 1960 there were still only 685. As the tempo of Communist military activity increased, so did the size of the U.S. force in Vietnam. By the end of 1961 there were 3,000 U.S. troops in Vietnam. The U.S. Military Assistance Command, Vietnam, was activated in February 1962, and by the end of 1962 there were 11,000 U.S. troops in Vietnam. In 1965, when the first U.S. ground combat units were introduced, U.S. troop strength leaped from 23,000 early in the year to 184,000 by the end of the year. At the peak of the buildup, in 1969, there were 540,000 U.S. troops; 1,100 U.S. civilians hired directly by the Department of Defense; and 9,000 U.S. civilian employees of U.S. contractors in the Republic of Vietnam.
It is unlikely that the diplomats who signed the Pentalateral Agreement in 1950 ever imagined that its simple provisions would govern the legal status and activities of almost 600,000 Americans in Vietnam. Yet despite the size of the American force in Vietnam, the range of its activities, and the vast number of its facilities and installations, no more detailed agreement was ever negotiated, and the Pentalateral Agreement remained in effect as the governing document pertaining to the legal status of all U.S. material and personnel in Vietnam.
Initially, the U.S. military force in Vietnam consisted of a relatively small number of advisers engaged in essentially noncombatant
activities. These advisers were not organized in standard military units but were considered the military arm of the U.S. diplomatic mission. It was to this situation that the Pentalateral Agreement was meant to apply. As the war intensified, the U.S. military force increased enormously. Had the larger number of U.S. troops remained in a noncombatant role, a more detailed treaty, in the nature of a status of forces agreement such as those negotiated between the United States and the North Atlantic Treaty Organization allies, might have been appropriate. But since the regular Marine and Army units introduced from March 1965 on were soon engaged in major combat operations against main force Viet Cong and North Vietnamese Army units, a status of forces agreement, which is essentially a peacetime document, never became necessary.
The United States has never relinquished jurisdiction over its armed forces during combat; to do so in Vietnam would have been as unprecedented as it would have been impractical. During World War II, for example, the United States kept jurisdiction over U.S. troops in the United Kingdom. There were approximately one million U.S. servicemen in Great Britain preparatory to the Normandy invasion. The English legal system is quite similar to that of the United States; the British courts functioned efficiently; there were innumerable contacts between the U.S. and British governments and between U.S. troops and British citizens; and U.S. troops were not engaged in combat operations in Britain. The United States nevertheless retained exclusive jurisdiction over its armed forces, as it has in every other case where U.S. troops have been sent in a combat status.
When American combat units were gradually phased out of Vietnam, advisory duties once again became paramount. But Vietnam was still a combat zone, and U.S. troops were directly engaged in the hostilities until the end of U.S. participation in the war. By the time of the major U.S. troop withdrawals in 1970-71, solutions for most of the problems with which a status of forces type of agreement is designed to cope had already been worked out by the Republic of Vietnam and its allies, to their mutual satisfaction.
In addition to the political reasons for keeping the Pentalateral Agreement in effect, there were also practical factors operating against the negotiation of a more detailed treaty. The negotiation of a status of forces type of agreement requires a major effort on the part of the participating governments. Hugh investments of man-hours are usually involved; volumes have been filled with the minutes of working meetings alone. The more detailed the treaty, the more prolonged the negotiations; yet, regardless of how detailed and specific the agreement may be, problems of interpretation and administration are unavoidable. The bulk of U.S. and allied forces
were sent to Vietnam on short notice during a period when the Vietnamese government was undergoing a grave military crisis, accompanied by political turbulence that rendered uncertain the performance of many governmental services. The Vietnamese government did not seek to enter into a major, and probably protracted, series of diplomatic negotiations, and the U.S. diplomatic mission and other allied military and diplomatic missions determined that their own energies were better expended in the prosecution of the war.
It was consistently the position of the U.S. command that U.S. interests would not be served by the negotiation of a status of forces type of treaty during hostilities. The Pentalateral Agreement provided a minimal but adequate framework for the job at hand, and the very paucity of its provisions allowed a flexible approach to solving problems, an advantage of considerable value in coping with the myriad complications that arose.
Given the size of the American force in Vietnam, it was inevitable that problems involving relationships between the U.S. command and tile Vietnamese government and citizenry would develop. The practical effect of working with the agreement as the basic controlling document was that difficulties had to be dealt with on a case-by-case basis as they arose. The emphasis, at least on the U.S. side, was on practical conciliation to keep things going rather than on detailed, legalistic agreements to resolve every point of friction between the U.S. command and Vietnamese government agencies. As a result of this pragmatic approach, many differences of opinion were not settled in a clear-cut, binding fashion, but neither were they allowed to become stumbling blocks in the war effort.
A prompt, liberal, and efficient foreign claims program by the U.S. forces, as well as the other Free World forces, dealt with many of the cases that might otherwise have led to demands for some form of status of forces agreement by the host government. The success of this program kept friction between the U.S. and other Free World forces and the Vietnamese at a minimum.
Application of the Pentalateral Agreement to U.S. Personnel
United States policy concerning the immunity from Vietnamese legal processes granted the U.S. military force under the terms of the Pentalateral Agreement was set forth in a MACV directive, Legal Services and Legal Obligations in Vietnam, dated 16 June 1965, and was intended to minimize legal problems in the command. This directive informed the U.S. troops that they were under the jurisdiction of the U.S. Uniform Code of Military justice and that
the Code of Conduct applied to all military personnel. It explained to the troops that although the Vietnamese police and courts did not exercise civil or criminal jurisdiction over U.S. military personnel and Department of Defense civilians, Americans were to comply with Vietnamese laws, including traffic laws and laws pertaining to curfew, off-limits areas, and currency. If Vietnamese authorities apprehended U.S. citizens for suspected offenses, the suspects were to comply and co-operate, and were to notify U.S. military police or their own unit commanders as soon as possible. A U.S. soldier who received a Vietnamese traffic citation, a summons to a Vietnamese court, or other Vietnamese notice of legal process was to report the fact to his unit commander and seek advice from the staff judge advocate serving his command. Soldiers involved in traffic accidents were to furnish identification to U.S. and Vietnamese authorities and to injured parties, if requested. Unless their military duties required them to proceed elsewhere immediately, U.S. troops were to remain at the scene of an accident or, if requested, accompany Vietnamese policemen to a police station. If restrained by Vietnamese police, U.S. troops were to inform their unit command, provost marshal or staff judge advocate as soon as possible. Under no circumstances were U.S. troops to resist by force Vietnamese policemen acting in the performance of their duty.
The directive also cited, and instructed military personnel to study, other MACV directives pertaining to motor vehicles, weapons, personal conduct, the purchasing and disposition of tax free items, and the importation and disposition of personal property. While all MACV directives were updated periodically, MACV policy in regard to Vietnamese legal authorities remained the same—U.S. troops were to comply with Vietnamese laws, be courteous and co-operative toward Vietnamese officials, report all incidents to U.S. authorities, and seek advice from the unit judge advocate. (See Appendix J.)
Legal relations between U.S. troops and Vietnamese authorities did not prove to be a major irritant to U.S.-Vietnamese relations because U.S. troops were subject to military discipline. Many offenses against Vietnamese law, such as larceny and crimes against persons, were also offenses under the Uniform Code of Military justice. Other acts detrimental to Vietnamese society, such as black market activities and currency manipulation, were proscribed by various MACV directives and other military general regulations, and thus were also punishable under the Uniform Code of Military justice. U.S. soldiers who committed illegal acts detrimental to Vietnamese society were tried and convicted by courts-martial, and this enforcement of the law by the U.S. command had an understandably beneficial effect on U.S.-Vietnamese relations.
The legal status of U.S. civilians in Vietnam was not as clear.
Members of the diplomatic mission and direct hire employees of the Department of Defense and other U.S. agencies were immune from Vietnamese civil and criminal legal process. Other U.S. civilians, such as contractor employees, merchant seamen, newsmen, independent businessmen, and tourists did not fall under the terms of the Pentalateral Agreement and were subject to Vietnamese jurisdiction. The Vietnamese, however, were not eager to try U.S. civilians in cases where no serious bodily harm was inflicted on Vietnamese citizens, or where legal proof might be difficult to obtain as in black market activities or currency manipulation cases, or where the major harm caused by the offense was to the United States, as in cases of theft of U.S. property. Efforts to subject U.S. civilians to military discipline were generally not effective. As a result, the illegal activities of U.S. civilians became a cause for major concern to the U.S. command.
Application of the Pentalateral Agreement to U.S. Matériel
According to the U.S. interpretation of the Pentalateral Agreement, all products, supplies, and equipment brought into Vietnam under the Military Assistance Program were to receive tariff and tax free treatment. This included all matériel brought in by the U.S. armed forces, their agencies and instrumentalities, including items brought in by contractors in furtherance of U.S. government contracts, and items brought in by the military exchange system and its concessionaires. While there were problems concerning Vietnamese attempts to exercise authority over matériel that was clearly military in nature, most friction between the U.S. command and Vietnamese administrative agencies arose over matériel imported by the exchanges and exchange concessionaires, the commissary, officer and enlisted men's club, messes, military banking facilities, and contractors.
When the massive U.S. buildup began in 1965, it soon became apparent that the Vietnamese port facilities were not capable of dealing in a satisfactory manner with the quantity of U.S. matériel being poured into the country. Hampered by inadequate docking and warehouse facilities, the unloading, transporting, and storage of freight was in itself a task of staggering proportions. The situation was further aggravated by the attitude of some customs officials who functioned in a business as usual manner, even to the extent of attempting to require the registration of all U.S. military vehicles in accordance with Vietnamese law. The upshot was that the United
States operated its own port facilities, using land and other real and personal properties provided by the government of Vietnam through an interministerial real estate commission (part of the Vietnamese joint General Staff), and utilizing U.S. troops and civilians to carry out operation and control procedures. Vietnamese customs officials made sporadic attempts to re-establish authority over port operations, but jurisdiction remained in the U.S. command and no import duties were paid.
As might be expected, a point of considerable sensitivity was the importation of nonmilitary goods by the military exchange system and the exchange concessionaires. The military exchange system began operations in Vietnam under the control of the Navy in 1956. The small number of military men and their dependents were served by eight exchanges, most of them in the Saigon area. With the introduction of ground combat units in 1965, exchange operations were assumed by the Army and Air Force exchange system. By the end of 1966 there were 146 U.S. retail exchange outlets in Vietnam, with a net income of $160 million. By the end of 1967 there were 304 retail outlets with gross sales of $333 million. In addition to such basic items as soap, toothpaste, shoe polish, stationery, and cigarettes, the exchanges also sold liquor, radios, television sets, expensive stereo equipment, diamonds, and furs. Exchange concessionaires who sold diamonds, furs, silks, watches, leather goods, and other luxury items had virtually unlimited duty free import privileges.
In 1967 the Vietnamese Minister of Economy and Finance complained to the U.S. command of widespread misuse of exchange goods. It was the Vietnamese position that goods imported without tax under the terms of the Pentalateral Agreement were being sold in illegitimate private business deals, and that many exchange items were diverted into the black market. Such abuses violated Vietnamese customs and commerce laws, fueled inflation in the Vietnamese economy, and injured Vietnamese businessmen.
In order to verify the validity of Vietnamese charges and ascertain appropriate corrective action, the Military Assistance Command established the Irregular Practices Committee to investigate abuses in the exchange system, and allied problems of black market activities and currency offenses. The committee was composed of representatives of the U.S. Overseas Mission and officers from MACV staff sections, including the Staff judge Advocate. The committee verified that there were indeed serious problems in the handling of such a volume of imported goods in the exchange system. The theft loss for the Mekong Delta region, which had the fewest U.S. troops in the country, was $240,000 for the first eight months of 1967. The Military Assistance Command, Vietnam, also investigated an
apparent loss of $8 million which occurred between December 1965 and January 1967.
After studying the situation, the committee's chief recommendation was that existing laws and regulations be vigorously enforced, and that new controls be imposed on the importation, distribution, and sale of exchange merchandise. The committee also noted that there was a lack of co-operation by Vietnamese police in returning stolen merchandise, and there was evidence to indicate that some Vietnamese police officials were involved in the black market. The committee recommended that the Vietnamese government crack down on black market wholesalers and eliminate corruption in the police department.
Basing his decision on the committee's recommendations, the U.S. Ambassador ordered an Across-the-board tightening up of exchange policies and procedures. The Irregular Practices Committee was made permanent and ordered to report to the U.S. Deputy Chief of Mission at frequent, regular intervals. Efforts to curb abuses in the exchange system and to curtail black market activity continued through 1969 and 1970, by which time the MACV Staff judge Advocate was meeting weekly with the Vietnamese Minister of Finance, the Director of Customs, the Minister of Economy, and representatives of the U.S. Agency for International Development and the , U.S. Embassy. In order to give emphasis and continuity to this work a new MACV staff position, Assistant Chief of Staff for Economic Affairs, was created; it was to be filled by a general officer. Additional controls placed on exchange procedures were somewhat successful in curbing abuses, but U.S. policy regarding the duty free importation of luxury exchange items remained unchanged.
It was consistently the position of the United States that goods brought into Vietnam that qualified under the terms of the Pentalateral Agreement were to be duty free at port of entry and were to be exempt from payment of all taxes within Vietnam. U.S. citizens and those U.S. activities conducted in furtherance of the Agreement were also exempt from payment of all taxes. The U.S. position was simply stated, and allowed no exceptions. Unfortunately, the tax structure of Vietnam was not centralized nor organized in a fashion easy to comprehend. In Vietnam the power to tax was ill-defined and often regarded as a prerogative of office holders. As a result there were taxes imposed by local authorities, municipal taxes, taxes levied by autonomous governmental entities such as the port of Da Nang, and national taxes. There were excise taxes, surtaxes, use taxes,
transportation taxes, and taxes paid for practicing a profession or trade. Even at the national level there was confusion, since cabinet ministers exercised a considerable degree of independence and there was little co-ordination between ministries.
The continual effort to uphold the rights of the United States and to secure compliance with the terms of the Pentalateral Agreement from the many Vietnamese taxing authorities was a source of frustration to U.S. military attorneys. By 1968 the MACV Staff judge Advocate's Office had discovered fifty taxes known to be imposed by the government of Vietnam. All were applicable to the Vietnamese, and there had been attempts to levy some on the United States, its agencies, or instrumentalities.
Vietnamese taxes fell into five categories. First, there were import and export taxes imposed by customs officials. Under the terms of the Pentalateral Agreement, the United States was clearly exempt from such taxes. Second, there were port taxes imposed on ships using the port facilities of Da Nang and Cam Ranh Bay. The port of Da Nang imposed loading, unloading, and circulation taxes, a surtax, commercial office taxes, port labor taxes, mooring anchorage, and pier taxes, merchandise taxes, and warehouse fees. At Cam Ranh Bay ships were subject to a customs tax. The third type of tax was a consumption tax levied on consumable products, primarily meat and ice. The Vietnamese government imposed the tax on the Vietnamese vendor, who in turn raised the price of goods he sold to the United States. The Military Assistance Command, Vietnam, viewed this as a direct tax on the United States and therefore a violation of the Pentalateral Agreement. There were other excise taxes, but they were not levied on goods imported from the United States. The fourth type of tax was an annual licensing fee for exercising a trade or carrying on an industry, or business in Vietnam. The fee varied depending on the size and importance of the firm. The U.S. position was that such fees could not be imposed on businesses that were contractors or agents for the United States because the payment of such fees would increase the price of the services rendered to the United States and thus be a tax on the United States. The final category was the tax on imported products, designed to equalize the market price of all similar products sold in Vietnam. The United States was not concerned with the imposition of such taxes on goods intended for sale to Vietnamese nationals for the goods would enter the Vietnamese market in competition with Vietnamese goods. The United States did object to the imposition of such taxes on discarded or surplus U.S. military property which was "sold" in Vietnam in the sense that title passed there, but which was intended for export out of Vietnam, and thus would not be competing on the Vietnamese market. Tax on such sales would lower the price the United States
could get for its property and would therefore be a tax on the United States-in effect, an export tax.
The problem of dealing with the many and varied Vietnamese tax laws was greatly alleviated in 1968 when the MACV Staff Judge Advocate's office published an English language, cross-indexed, annotated compendium of Vietnamese tax laws. This work was fully co-ordinated with the U.S. Embassy and the U.S. Agency for International Development, and the official U.S. position as to the applicability of each tax was published in the compendium. Publication of the compendium did not eliminate tax problems, but it did make them considerable easier to deal with.
Pursuant to Department of Defense policy, many support functions which might have been performed by the military in Vietnam were delegated to U.S. civilians and Vietnamese and other nationals employed by U.S. contractors. One of the results of this policy was to make the contractor a major economic force in Vietnam, both in terms of the dollar value of work performed and the number of people employed. Some of the larger contractors took it upon themselves to approach the Vietnamese government directly in order to secure tax concessions and other business advantages. A number of the concessions gained by the contractors and some of the obligations they agreed to incur were in conflict with the terms of the Pentalateral Agreement as interpreted by the U.S. government. This independent action on the part of the contractors resulted in considerable confusion.
In 1967 the Vietnamese government promulgated a law to establish "Fiscal Measures in Favor of U.S. Contractor." The title of this document is misleading. The measures prescribed were not favorable to the United States, and the document attempted to define the rights and obligations of departments of the U.S. Agency for International Development and the U.S. military, in addition to those of private contractors. Some of the measures proposed were severe, with potentially far-reaching consequences. For example, Vietnamese officials took the position that since U.S. servicemen could obtain their basic living needs from the exchanges, they had no need for personal importations, and none would be allowed unless duty was paid on the goods brought into the country. Similarly, the Vietnamese government attempted to bar entry of all club and mess supplies, reasoning that the clubs and messes could also fill their needs through the exchange system. When the United States pointed out that these measures violated the terms of the Pentalateral Agreement, some Vietnamese officials responded that the fiscal
measures law superseded the agreement. The U.S. representatives declined to accept this unilateral abrogation of the treaty by the Vietnamese government, and the goods continued to be imported through U.S. facilities as before. The fiscal measures law remained in effect but was not enforced. The United States agreed to furnish Vietnamese authorities with documents describing incoming cargo, for information purposes only. The legal situation remained clouded, but the supply system continued to function.
The utilization of the sparse provisions of the Pentalateral Agreement as a means for managing U.S. forces in Vietnam entailed a demanding and sometimes exasperating effort on the part of the lawyers involved. This is not to imply, however, that the interests of the United States would have been better served by the conclusion of a more detailed agreement. In Vietnam the United States was engaged in large-scale combat operations and a massive political, economic, and social effort to support a government and save a nation. Conditions in Vietnam were complex, confusing, and constantly changing. Detailed, long-range plans of any kind were subject to almost instant obsolescence. The Pentalateral Agreement left many legal questions to be settled on a case-by-case basis, but, on balance, the terms of the agreement were favorable to prosecuting the war and accomplishing the mission of the Free World forces in Vietnam.