It is a settled principle of International Law that a foreign army allowed to march through a friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place. In applying this rule in the case of Raquiza vs. Bradford (75 Phil., 50), this Court held that "if a foreign army permitted to be stationed in a friendly country, "by permission of its government or sovereign," is exempt from the civil and criminal jurisdiction of the place, with much more reason should the Army of the United States which is not only permitted by the Commonwealth Government to be stationed here but has come to the islands and stayed in them for the express purpose of liberating them, and further prosecuting the war to a successful conclusion, be exempt from the civil and criminal jurisdiction of this place, at least for the time covered by said agreement of the two Governments. By analogy, an attempt of our civil courts to exercise jurisdiction over the United States Army before such period expires, would be considered as a violation of this country's faith, which this Court should not be the last to keep and uphold. By exercising it, paraphrasing the foregoing quotation, the purpose for which the stationing of the army in the islands was requested or agreed upon may be hampered or prejudiced, and a portion of said military force would be withdrawn from the control of the sovereign to whom they belong. And, again, by analogy, the agreement for the stationing of the United States Army or a part of its forces in the Philippines implies a waiver of all jurisdiction over their troops during the time covered by such agreement, and permits the allied general or commander-in-chief to retain that exclusive control and discipline which the government of his army may require."

The basis of this ruling is the leading case of The Schooner Exchange vs. McFadden (7 Cranch, 116) in which the United States Supreme Court speaking through Chief Justice Marshall, held that "a third case in which a sovereign is understood to cede a portion of his territorial jurisdiction is, where he allows the troops of a foreign prince to pass through his dominions. In such case, without any express declaration waving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith. By exercising it, the purpose for which the free passage was granted would be defeated, and a portion of the military force of a foreign independent nation would be diverted from those national objects and duties to which it was applicable, and would be withdrawn from the control of the sovereign whose power and whose safety might greatly depend on retaining the exclusive command and disposition of this force. The grant of a free passage therefore implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments which the government of his army may require."

Since then, this principle has been consistently embodied in treaties of military character among friendly nations and has been accepted by all the countries of the world. The most authoritative writers on International Law firmly concur in this rule. To quote —

Wheaton. — A foreign army or fleet, marching through, sailing over or stationed in the territory of another State, with whom the foreign sovereign to whom they belong is in amity, are also, in like manner, exempt from the civil and criminal jurisdiction of the place. (Elements of International Law, section 95.)

Hall. — Military forces enter the territory of a state in amity with that to which they belong, either when crossing to and fro between the main part of their country and an isolated piece of it, or as allies passing through for the purposes of a campaign, or furnishing garrisons for protection. In cases of the former kind, the passage of soldiers being frequent, it is usual to conclude conventions, specifying the line of road to be followed by them, and regulating their transit so as to make it as little onerous as possible to the population among whom they are. Under such conventions offenses committed by soldiers against the inhabitants are dealt with by the military authorities of the state to which the former belong; and as their general object in other respects is simply regulatory of details, it is not necessary to look upon them as intended in any respect to modify the rights of jurisdiction possessed by the parties to them respectively. There can be no question that the concession of jurisdiction over passing troops to the local authorities would be extremely inconvenient; and it is believed that the commanders, not only of forces in transit through a friendly country with which no convention exists, but also of forces stationed there, assert exclusive jurisdiction in principle in respect of offenses committed by persons under their command, though they may be willing as a matter of concession to hand over culprits to the civil power when they have confidence in the courts, and when their stay is likely to be long enough to allow of the case being watched. The existence of a double jurisdiction in a foreign country being scarcely compatible with the discipline of an army, it is evident that there would be some difficulty in carrying out any other arrangement. (Emphasis supplied; International Law, 7th ed., section 56.)

Lawrence. — The universally recognized rule of modern time is that a state must obtain express permission before its troops can pass through the territory of another state .. . Permissions may be given as a permanent privilege by treaty for such a purpose as sending relief to garrisons, or it may be granted as a special favor for the special occasion on which it is asked. The agreement for passage generally contains provisions for the maintenance of order in the force by its own officers, and makes them, and the state in whose service they are, responsible for the good behavior of the soldiers towards the inhabitants. In the absence of special agreement the troops would not be amenable to the local law, but would be under the jurisdiction and control of their own commanders, as long as they remained within their own lines or were away on duty, but not otherwise. (Principles of International Law, 6th ed., section 107, p. 246.)

Oppenhein. — Whenever armed forces are on foreign territory in the service of their home State, they are considered exterritorial and remain, therefore, under its jurisdiction. A crime committed on foreign territory by a member of these forces cannot be punished by the local civil or military authorities, but only by the commanding officer of the forces or by another authorities of their home State. This rule, however, applies only in case the crime is committed, either within the place where the force is stationed, or in some place where the criminal was on duty; it does not apply, if, for example, soldiers belonging to a foreign garrison of a fortress leave the rayon of the fortress not on duty but for recreational and pleasure, and then and there commit a crime. The local authorities are in that case competent to punish them. (International Law, 4th ed., Vol. I, section 445.)

Westlake affirmed Wheaton's view.

Hyde. — Strong grounds of convenience and necessity prevent the exercise of jurisdiction over a foreign organized military force which, with the consent of the territorial sovereign, enters its domain. Members of the force who there commit offenses are dealt with by the military or other authorities of the State to whose service they belong, unless the offenders are voluntarily given up. (I International Law, section 247.)

McNair and Lauterpacht. — It is a principle of international law that the armed forces of one State, when crossing the territory of another friendly country, with the acquiescence of the latter, is not subject to the jurisdiction of the territorial sovereign, but to that of the officers and superior authorities of its own command. (Annual of Digest, 1927-1928, Case No. 114.)

Vattel. — . . . the grant of passage includes that of every particular thing connected with the passage of troops, and of things without which it would not be practicable; such as the liberty of carrying whatever may be necessary to an army; that of exercising military discipline on the officers and soldiers . . .. (III, 8, section 130, as quoted in Woolsey's International Law, 6th ed., section 68.)

Without applying the recent treaty on military bases concluded between the governments of the Philippines and the United States, it having reference to base sites not involved in this case, and considering that a part of the United States Army is stationed in the Philippines with permission of our government, and that petitioners who belong to the military personnel of that army are charged with violations of Articles of War for offenses committed in areas under the control of the United States Army, thereby giving said army jurisdiction over their person and the offenses charged, petition is dismissed, without costs.

G.R. No. L-1325 April 7, 1947

GEORGE L. TUBB and WESLEY TEDROW, petitioners,
vs.
THOMAS E. GRIESS, respondent.