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Conventions and the rules of warfare. Mr. Gearhart was not charged with any other specific crime. No evidence was presented that he had harmed anyone during the few days he was in Angola before his capture.

In carrying out the responsibility to assist United States citizens and nationals charged with crimes in foreign countries, we attempted as best we could to obtain a reconsideration of the death penalty for Mr. Gearhart. For reasons which are not clear to us, but appear to be largely political, Dr. Neto refused to listen to us or to any other of the appeals made to him . .

The Angolan authorities charged the defendants with being mercenaries and with being the agents of foreign interests and governments. The United States Government and the CIA [Central Intelligence Agency] were often mentioned but I wish to emphasize that no evidence of any sort, apart from undocumented and vague charges, was ever presented; that is, unless you consider that the claim that the mercenaries were paid in "crisp $100 bills"-a charge apparently made much of-constitutes proof of involvement by the United States Government.

Dept. of State Bulletin, Vol. LXXV, No. 1942, Sept. 13, 1976, pp. 341-342.

Robert L. Keuch, Deputy Assistant Attorney General, Criminal Division, Department of Justice, in a statement before the same Subcommittee on August 9, described U.S. law relative to enlistment or recruiting as follows:

The principal statute covering the matter of enlistment or recruiting within the United States is contained in Title 18, Chapter 45 (Foreign Relations), of the United States Code. Specifically, 18 U.S.C. 959(a) provides, in pertinent part, that:


Whoever, within the United States, . . . hires or retains another to enlist . . . in the service service of any foreign ... state, . . . as a soldier . . . shall be fined not more than $1,000 or imprisoned not more than three years, or both. Thus, section 959 prohibits the enlistment or recruitment within the United States of any person for service in the armed forces of a foreign country. Gayon v. McCarthy, 252 U.S. 171 (1920). In addition, section 958 prohibits a United States citizen from accepting and exercising a commission in a foreign service in a war against a foreign nation with which the United States is at peace. Section 960 prohibits the launching of a military or naval expedition from the United States against any nation with which the United States is at peace. With regard to the application of these statutes, it should be emphasized that, in general, it is not unlawful for a citizen or other person in the United States to leave the country with the intent to enlist abroad in a foreign military service. See Wiborg v. United States, 163 U.S. 632 (1896).

In addition to the statutes,... 8 U.S.C. 1481 (a) (3) provides that any citizen of the United States who enters the armed forces of a foreign state, without the written authorization of the Secretaries

of State and Defense, shall lose his citizenship. This provision. however, must be read in the light of the Supreme Court's decision in Afroyim v. Rusk, 387 U.S. 253 (1967), which held that an act of Congress could not divest a person of his United States citizenship absent voluntary abandonment thereof by the citizen himself. Thus, a declaration of intent clearer than mere enlistment in a foreign army is required for an effective renunciation of citizenship, notwithstanding the provisions of 8 U.S.C. 1481 (a)(3). Therefore, despite assertions to the contrary, service as a mercenary does not cause the loss of United States citizenship. In connection with the activities of any foreign agent who may be involved in enlistment or recruitment within the United States, the provisions of the Foreign Agents Registration Act (22 seq.) would apply. For example, a registered agent who willfully fails to report an activity such as recruiting would be liable to criminal penalties. 22 U.S.C. 618 (a) (2). Any individual who within the United States dispenses any money for or in the interest of a foreign principal also comes within the Act. 22 U.S.C. 611(c)(iii).

Hearings on Mercenaries in Africa, Special Subcommittee on Investigations. Committee on International Relations, House of Representatives, 94th Cong., 2d Sess.... Aug. 9, 1976, pp. 2-28.

§ 5

United Nations and
Regional Peacekeeping

U.N. Peacekeeping Forces

U. N. Emergency Force (UNEF)

On October 22, 1976, the U.N. Security Council, by a vote of 13 to 0. with China and Libya not participating, adopted Resolution 396. extending the mandate of the U.N. Emergency Force (UNEF) in the Sinai for one year, that is, until October 24, 1977. In welcoming this action, Ambassador Albert W. Sherer, Jr., Deputy U.S. Representative on the Security Council, stated:

The Emergency Force has played an indispensable role in helping to maintain the ceasefire called for by this Council in Resolution 338 and reaffirmed in the Agreement between Egypt and Israel of September 4, 1975. Maintenance of the ceasefire, however, was only one element of the carefully balanced formulation contained in Resolution 338. In renewing UNEF for an additional year, we must remind ourselves in the most urgent terms that negotiation of a just and durable peace was the ultimate purpose of that resolution.

See Press Release USUN-123(76), Oct. 22, 1976. For the report of the SecretaryGeneral on UNEF for the preceding year, see U.N. Doc. S/12212.

U.N. Disengagement Force (UNDOF)

The U.N. Security Council, on May 28, 1976, adopted Resolution 390 (1976), extending for six months the mandate of the U.N. Disengagement Force (UNDOF) established in 1974 to help maintain the disengagement agreement and cease-fire between Israeli and Syrian armed forces on the Golan Heights. The vote, as in the past, was 13-0-0 (China and Iraq not participating). Ambassador William W. Scranton, U.S. Representative to the United Nations, made a statement in the Security Council calling the continuation of the peacekeeping forces in the Middle East "an essential element in maintaining a stable environment which allows efforts toward an overall peace settlement to proceed."

See Press Release USUN-60(76), May 28, 1976; Dept. of State Bulletin, Vol. LXXIV, No. 1930, June 21, 1976, P. 799. For the report of the Secretary-General for the period Nov. 25, 1975-May 24, 1976, see U.N. Doc. S/12083.

The Security Council on November 30, 1976, extended the UNDOF mandate for an additional six months, by a vote of 12-0-0 (China, Libya, and Benin not participating).

Res. 398 (1976). For U.S. statement in support of resolution, see Press Release USUN-169(76). For the report of the Secretary-General for the period May 25-Nov. 22, 1976, see U.N. Doc. S/12235.

U.N. Force in Cyprus (UNFICYP)

The mandate of the U.N. Peacekeeping Force in Cyprus was renewed for a further period ending December 15, 1976, by U.N. Security Council Resolution 391 (1976), adopted on June 15, 1976, by a vote of 13-0, with Benin and the People's Republic of China not participating. The resolution requested the Secretary-General to continue his mission of good offices and keep the Security Council informed of the progress made toward a final solution of the Cyprus situation. U.S. Representative Albert W. Sherer, Jr., reminded the Security Council that in the preceding two years the United States had doubled its annual contribution to UNFICYP from $4.8 million to $9.6 million a year “in order to maintain quiet on the island and insure conditions supportive of the intercommunal negotiations. He appealed to other governments, and in particular members of the Security Council, to donate a fair share.

See Press Release USUN-62, June 15, 1976; Dept. of State Bulletin, Vol. LXXV, No. 1933, July 12, 1976, pp. 63-65. For the report of the Secretary-General for the period Dec. 9, 1975, to June 5, 1976, see U.N. Doc. S/12093, June 5, 1976.

The Security Council voted on December 14, 1976, to extend the mandate of UNFICYP for another six-month period, that is, until June 15, 1977, and requested the Secretary-General to continue his

good offices mission. The vote again was 13-0-0, China and Benin not participating. Ambassador Albert W. Sherer, Jr., Deputy U.S. Representative on the Security Council, paid tribute to UNFICYP's performance, urged other nations which had not yet done so to lend their material support to UNFICYP, and voiced U.S. hope that the parties would make renewed efforts to negotiate a lasting settlement that would remove the necessity for continued presence of UNFICYP.

Sec. Council Res. 401 (1976). Press Release USUN-188(76), Dec. 15, 1976. For the report of the Secretary-General for the period June 6-Dec. 6, 1976, see U.N. Doc. S/12253.

U.N. Command in Korea

On August 18, 1976, North Korean military personnel attacked U.N. Command (UNC) personnel in the Joint Security Area of the Korean Demilitarized Zone, killing two American officers and injuring four Americans and five Republic of Korea military personnel. The UNC personnel were trimming branches from a tree which the UNC considered to hinder observation between the two UNC checkpoints. The U.N. Commander promptly requested a meeting of the Military Armistice Commission (MAC), and U.N. forces in Korea were put on an increased state of alert. U.S. air units and a carrier task group were sent to the area. On August 21, the UNC sent 110 American and South Korean personnel into the Demilitarized Zone (DMZ) to cut down the disputed tree and remove two North Korean roadblocks. A few hours later North Korean President Kim Il-sung conveyed a message through the MAC to the Commander in Chief of the UNC, expressing regret that the August 18 incident had occurred, and urging that further incidents in the area be avoided.

No report to Congress under the terms of the War Powers Resolution (P.L. 93-148; 87 Stat. 555) was made in connection with the events in Korea and the augmentation of U.S. forces there. George H. Aldrich, Acting Legal Adviser of the Department of State, in a memorandum of August 21, 1976, stated the relevant considerations concerning that decision as follows:

The War Powers Resolution requires that "the President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances . . . ". Given what I know of the situation in Korea, I would not interpret this requirement as applicable to the strengthening of our armed forces there, even when accompanied by a heightened alert status. More difficult is the question whether the sending of reinforced patrols into the DMZ would qualify, but so long as they are engaging merely in acts which we are entitled to take under the Armistice Agreement and which we have con


sistently taken, then I do not think the prospect of increased North Korean aggressiveness triggers the consultation requirement. In any event, consultation is only required where "possible"; and, to the extent that it is possible, it is clearly desirable in any case.

The resolution requires reporting within 48 hours in three circumstances. The possibly relevant one with respect to the presently planned deployment is Sec. 4(a)(3)-"numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation." Whether the proposed additions are substantial enlargements depends upon an analysis of what is already there and what is being added.

I believe it would be an undesirable precedent to construe the resolution as requiring a report in a situation where a relative handful of people have been added to an existing force of some 41,000 men. Although in terms of tactical aircraft the increment is significant, I believe we should interpret 4(a)(3) as concerned primarily, if not entirely, with numbers of military personnel, rather than with items of equipment. Certainly the text speaks of "numbers," and the examples given in the legislative debates referred only to numbers of personnel. I am satisfied that this interpretation is reasonable and fully defensible and that a contrary interpretation would create a precedent that would haunt us in many future cases.

Dept. of State File No. P76 0149-2476.

On September 6, 1976, a supplementary agreement to the Military Armistice Commission Headquarters Agreement of October 19, 1953, was signed in the MAC by the Secretary of the UNC Delegation and the Secretary of the Delegation of the Korean People's Army and the Chinese People's Volunteers (KPA/CPV). It restricts security personnel to their respective sides of the military demarcation line within the Area and provides for removing the North Korean guard posts from the UNC side. The provision against movement across the military dividing line does not apply to MAC personnel, joint observer teams, or the personnel of the neutral nations supervisory commission.

The United States, on behalf of the UNC, transmitted a report of the Korean incident to the President of the Security Council (U.N. Doc. S/12181, Aug. 20, 1976). On Sept. 1, 1976, Ambassador Arthur W. Hummel, Jr., Assistant Secretary of State for East Asian and Pacific Affairs, testified on the incident and its aftermath before the Subcommittees on International Organizations and International Political and Military Affairs of the House Committee on International Relations. Dept. of State Bulletin, Vol. LXXV, No. 1944, Sept. 27, 1976, pp. 386-392. Ambassador William W. Scranton, U.S. Representative to the U.N., transmitted to the President of the Security Council, on Dec. 23, 1976, a report of the U.N. Command concerning the maintenance of the 1953 Armistice Agreement for the period Sept. 1, 1975-Dec. 20, 1976, including a report of the Aug. 18 incident and the text of the supplementary agreement of Sept. 6, 1976 (U.N. Doc. S/12263, Dec. 23, 1976).

Nineteen countries, including the United States, on August 20, 1976, submitted to the United Nations a draft resolution and

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