any information about the alleged crimes which could lead to their public identification.

Dept. of State Press Release No. 39, Jan. 29, 1976. See ante, Ch. 3, § 3, p. 100, with reference to hearings on Nov. 15, 1976, before an immigration judge, regarding three resident aliens, two of whom were Latvians and one a Lithuanian.

Relocation of Japanese-Americans in
World War II

In a proclamation issued on February 19, 1976, President Ford declared that all the authority conferred by Executive Order No. 9066 of February 19, 1942, under which over 1,000 persons of Japanese ancestry were removed from their homes, detained in special camps, and eventually relocated during World War II, terminated upon the issuance of Proclamation No. 2714, which formally proclaimed the cessation of the hostilities of World War II on December 31, 1946. He stated in his proclamation that the evacuation of the Japanese-Americans had been "wrong" and "a setback to fundamental American principles." He added:

The Executive order that was issued on February 19, 1942, was for the sole purpose of prosecuting the war with the Axis Powers, and ceased to be effective with the end of those hostilities. Because there was no formal statement of its termination, however, there is concern among many Japanese-Americans that there may yet be some life in that obsolete document. I think it appropriate, in this our Bicentennial Year, to remove all doubt on that matter, and to make clear our commitment in the future.

Proclamation No. 4417, Feb. 19, 1976, Fed. Reg., Vol. 41, No. 35, Feb. 20, 1976, p. 7741. For E.O. 9066, Feb. 19, 1972, see 3 CFR Cum. Supp. 1092. For Proclamation No. 2714, Dec. 31, 1946, see 50 U.S.C. app., note prec. § 1.

83 Civil War

84

Neutrality and Nonbelligerency
Mercenaries

Daniel Gearhart, an American convicted of being a mercenary by a tribunal in Angola, was executed on July 10, 1976, after President Agostinho Neto of Angola refused to commute the death sentence, despite numerous pleas for clemency made by the United States, other governments, international organizations, and individuals. At a press conference in the Department of State that day, Secretary of State Kissinger stated:

[T]here is absolutely no basis in national or international law for the action now taken by the Angolan authorities. The "law" under which Mr. Gearhart was executed was nothing more than an internal ordinance of the MPLA [Popular Movement for the Liberation of Angola] issued in 1966, when the MPLA was only one of many guerrilla groups operating in Angola. Furthermore, no evidence whatsoever was produced during the trial of Mr. Gearhart in Luanda that he had even fired a shot during the few days he was in Angola before his capture.

The decision by President Neto to ignore both the law and the facts can only be regarded by the United States as a deliberately hostile act toward this country and its people. As such, it cannot help but affect adversely the development of relations between the United States and Angola.

Dept. of State Bulletin, Vol. LXXV, No. 1936, Aug. 2, 1976, p. 163.

In testimony on August 9, 1976, before the House International Relations Committee Special Subcommittee on Investigations, Assistant Secretary of State William E. Schaufele, Jr., said:

The recruitment of mercenaries within the territory of the United States to serve in the armed forces of a foreign country is an offense under our Neutrality Laws ..

[N]o Americans were recruited directly or indirectly by the U.S. Government to fight in Angola. Those men were there on their own, without our advance knowledge or approval. We attempted to discourage Americans from going to Angola as mercenaries. Anyone who called us was given that message clearly and distinctly

.. [A] legally accepted definition of what constitutes a mercenary does not exist in international law. Nor is the act of serving as a mercenary a crime in international law, not to mention Angolan law where the Angolan authorities were forced to use a set of guidelines for their combatants the MPLA issued in 1966. The general international practice appears to consider mercenaries in the same status as other combatants and therefore to be treated as such under the terms of the Geneva Convention of 1949. This has certainly been American practice back to the Revolutionary War and was reflected in our treatment of captured Hessian troops. This was also the case in the Civil War when there were combatants on both sides who fought for hire, adventure, or beliefs and who could be considered by some as mercenaries.

We had been skeptical about the quality of the justice administered, and were appalled by the severity of the sentence given to Mr. Gearhart. . . . [T]he act of being a mercenary is not a crime in international law and mercenaries were entitled to the same status and protection as other combatants under the 1949 Geneva

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 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 U.S.C.611, et 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.

85

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