PSPD in English Archive 2003-01-31   2896

The Status of Forces Agreement (SOFA) in Korea

Reasons for Revision

I. Preface

After the Status of Forces Agreement was concluded in 1966, it long remained unnoticed until it became mired in one controversy after another. The candlelight rallies demanding a revision of SOFA swept the country last year. They were lit even in the far distance, in overseas cities. Recently, however, the Korean government is focusing its energies on its publicity activities, saying that SOFA that was renewed in 2000 is not an unequal treaty and is comparable to the US-Japan SOFA and the US-Germany Supplementary Agreement.

Considering that the government is the central body of the agreement and in consideration of the application of SOFA, it should have thought seriously about the problems of the treaty. For example, although SOFA does not rule out the application of Korean laws to US military bases, the Ministry of Environment could not take any legal actions on the soil contamination perpetrated by US military facilities. This was possible because of Article 3 of the agreement, which says that US authorities have rights of management in their facilities and areas. Another case showing the powerlessness of Korean laws in regard to US forces has to do with the interpretation of the Ministry of Foreign Affairs and Trade which concluded that Korean building laws cannot be applied to the hotel-building program in the US military base in Seoul.

More glaringly, Korean authorities do not fully have jurisdiction over crimes that occur on act of duty. Even in the case of off-duty crimes, the only actions the Korean police can take are to identify suspects and hand them over to US authorities. Not a single case of preliminary investigation before handover, albeit stipulated in the amendment of December 28, 2000, has been so far reported. And not a single case of joint field inspection has been conducted since it was agreed to.

It is amazing that the Korean government refers to similar agreements in other countries to say that everything is okay. However, foreign agreements cannot be a criterion to evaluate the egalitarianism of SOFA in Korea, although they can be helpful for comparison. Because active debates and arguments are taking place in those countries as well, it is obvious that they cannot serve as the perfect model for amending SOFA.

The Korean government takes the Iaejima case in Japan, 1974, as an example to argue that the US-Japan SOFA, which includes a certificate of official duty as a crucial part of judgment, is by no means superior and, thus, that ours can stand tall in comparison with others. What the Korean government is ignoring is that, at that time, the Japanese government contested the contents of the certificate but failed to reverse the judgment and indict the suspects due to the text of minutes which stipulated that the certificate can be used as ample proof as long as there is no contrary evidence. It is very unfair that when there is a dispute on whether a suspect was on duty or not, US authorities can make a final decision on it and conclude which side rules the first trial. So both Korea and Japan are basically under unequal treaties. Nevertheless, the items in the US-Korea SOFA strengthened the US footing even more by adding a provision which says that “[t]he certificate of official duty is decisive so long as a revision is not agreed to,” which we cannot see in the US-Japan SOFA. As it is well known, large numbers of Koreans are demanding that any inequality should be eliminated from the agreement. And the government’s duty lies in coming up with ways to remove inequality, not in telling its people that foreign agreements are no better than ours and that we should be patient.

II. SOFA: Modification or Revision?

Recently, regarding the people’s demand for the revision of SOFA, the governments of both Korea and the US have kept raising issues of modification, not of revision. As a result, on December 30, 2002, the Joint Committee of Korea and the US agreed to “A Strengthened Cooperation Program for the Early Stage of Investigation.” Its contents include cooperation on field access and joint investigation at an early stage, within-an-hour attendance of the US representative, constructive cooperation with Korean investigative authorities’ summons after handover, protection of a suspect’s portrait right so as to secure a smooth and cooperative investigation, and interchange of related documents if it is necessary for investigation. The Korean government said that the substantial operation of the criminal jurisdiction laws would be improved due to these agreed items.

For more cooperative investigation between Korea and the US, more definite regulations are essential. In this respect, the contents above can be said to be a sort of improvement. But the problem is not that simple. In the agreed minutes, there is a provision that regulates the denial of admissibility of evidence in the absence of a US representative. With the regulation still in effect, how can the authority of the Korean judicial authorities be guaranteed? Under current conditions regulated in the minutes or agreed items, the Korean investigative authorities cannot help but to hand over suspects of murder or rape who are captured on the spot. With the inequality in the agreement remaining unchanged, it is no use adopting those items for improved applications. Both the authority of the Korean judiciary and the protection of the victims’ rights cannot be secured.

To force US authorities to offer related documents and cooperate in joint field access, the agreed items by the joint committee are never enough because they are no more than formal and technical regulations, lacking enforcement power. Therefore, specific regulations must be clarified in SOFA, the agreed minutes and the agreed items so as to be systemized into a legal basis for the substantial matters of rights and duties between Korea and the US, thereby enable Korea to press hard when they are violated. From this point of view, the recent items of understanding are far from being satisfactory.

Let’s consider once again: Why an all-out revision, not a partial alteration? Many of the revised issues about environment, facilities, areas, labor, and right to civil claim as well as criminal jurisdiction are far from satisfactory. Besides, there is little revision in the criminal jurisdiction other than the timing of handover. On this, the government explains that it did not make a claim about those provisions of criminal jurisdiction that are unequal but are not frequently used. The government probably believes that is the best way to deal with the issue, but laws should reflect the thoughts of society members and even create the trend of the times. As far as an undesirable law exists, it is likely to harm principles of justice and equity and, accordingly, to push members of society into despair. Therefore, a law that becomes out-of-date should be removed or revised. Furthermore, regulations on criminal jurisdiction are matters of the independence and judicial sovereignty of a nation. If the sovereignty of the Republic of Korea must continue to be limited in the 21st century in the name of negotiation strategy with the US, the basis of the Korea-US relationship will have to be reconsidered.

The demands for an all-out revision of SOFA are still going on. Both the Korean and US governments should revise SOFA full-scale from the standpoints of equity, mutual benefits, respect to the autonomy of each other, and protective principles of the human and property rights of Korean people. It is not a good excuse for deterring an all-out revision by saying that the agreement was recently modified. In the following section, issues that should be revised in the claims of criminal jurisdiction and civil rights will be discussed.

III. Criminal Jurisdiction

1. Jurisdiction

First, the application of relevant regulations is too wide-ranging. It is too much of a privilege for Articles on the protection of the rights of the accused, specifically the hand-over of suspects in case of execution of a sentence to be applied to not only servicemen and their direct family members but also to many other relations or invited contractors. This is unprecedented in any other agreements, so it should be removed.

The second is about who holds the first trial. The SOFA regulates that US authorities have the jurisdiction of the first trial over crimes against US property and security and offenses against its citizen’s body and estate along with crimes on official duty. On other cases, Korean authorities can hold courts (22:3). Whether an offense was committed while on official duty or not becomes a decisive criterion of criminal jurisdiction. The agreed minutes say that the certificate of official duty issued by a US army general can be an ample proof to decide who exercises jurisdiction over the first trial. According to the agreed minutes, even in cases where the Korean authorities raise an objection, the certificate of official duty remains decisive unless the other side modifies it. The question of which side holds jurisdiction lies in the certificate of official duty issued by a US general, not in the Korean court of justice or in any other neutral organization, which is an unfair limitation of jurisdiction severely encroaching upon the international principle of respecting a nation’s sovereignty. It is also against the Constitution, because it infringes upon the victims’ rights of statement in judicial proceedings and the pursuit of happiness. Basically, it remains doubtful if it is right that US authorities have jurisdiction over the first trial even in the case of such a “serious” crime on duty as the deaths of Shin Hyo-soon and Shim Mi-sun.

The next is the regulation about the renunciation of jurisdiction concerning the first trial. The agreed minutes also say that when US authorities request the Korean machinery of law to renounce jurisdiction, it should surrender its right, with the exception of cases where Korean authorities see the exercise of its jurisdiction as being extremely important. The Korean authorities exercised its jurisdiction over US servicemen’s crimes while off duty for no more than 1.6 and 7.4 percent of cases in 1992 and 2000, respectively. And once Korean authorities renounced its jurisdiction, the perpetrators were rarely subjected to stern punishment they deserve. Regarding the 511 cases over which Korea renounced jurisdiction in 1999, there were 219 stays of prosecution on cases of car accident, 240 cases of reprimand, 28 of degradation, 14 of compulsory labor, 6 of payment confiscation, and 4 of dishonorable discharge. But, not a single case of imprisonment! Renunciation of jurisdiction on the part of Korean authorities over many off-duty crimes results from the unfaithful handling of the US authorities and the lack of apology and compensation from offenders are also heating up rages against the crimes of US servicemen. Meanwhile, in the case involving the girls’ deaths, Korean authorities requested the US to renounce its jurisdiction, which happened for the first time since SOFA was concluded. However, US authorities took no notice of the request, which reflects the hard fact that the regulations about the renunciation of jurisdiction have served the interests of the US military unilaterally.

2. Process of Investigation

The agreed items recently adopted by the joint committee show some modifications for early stages of investigation. But it still makes basic restrictions in investigation because it strongly limits compulsory rights of detection like arrest and confinement.

According to the main agreement concluded in December 2000, Korean authorities can detain the accused. In the agreed minutes, however, its application is limited only to 12 grave offenses including murder, rape, kidnapping, and abduction for money. Regarding the expansion of the range, the minutes just say it can be discussed, virtually making the agreement of handover an exception when a suspect is indicted. Moreover, following the minutes, when Korean authorities arrest a suspect taken in an act of crime, it can keep him in custody only on charge of murder or felonious rape. But, the two authorities can have different opinions about what is a felonious rape because the concept of ‘felonious rape’ is not in the Korean criminal law system. It is a preferential article of the English version, so it is likely to be interpreted against Korea. Thus, it should be revised so that Korean authorities, if necessary, can confine suspects of felony for close investigation.

3. Process of Trial

First, when the Korean Court of justice tries to hold a court, the problem of serving written arraignment on the accused can arise. On the McFallend case, forwarding arraignment failed due to the US authorities’ non-cooperation and the trial could not be held on the appointed date. Therefore, strong measures have to be taken so that one-sided opinions of US authorities cannot interrupt the delivery process. Applications of provisions on the process of non-criminal trial or articles of forwarding to the commander can be included in those measures.

In addition, the following provisions must be removed because they excessively limit the Korean judicial authorities in the progress of the trial and in passing judgment on the evidence: a provision that allows US authorities to refuse the trial if the case is deemed to harm US prestige; and a provision which stipulates that a US representative must take part in the process of investigation and trial for all the statements of the accused to be adoptable as evidence of guilt.

In the agreed minutes (Article 22, clause 9), moreover, a prosecutor cannot appeal decisions of “Not Guilty” or on verdicts that the accused do not appeal. This should also be eliminated because it does not admit the difference in legal systems between the two nations and is forcing Korea to accept the fundamentals of the US legal system against the principle of respecting sovereignty. Neither the US-Germany Supplementary Agreement nor the US-Japan SOFA has similar provisions.

The minutes also regulate that facilities and treatments must fulfill the minimum level of standards (22:9), which provides the convicts with a much more luxurious environment than the facilities in the US. In terms of the principle of equity, at least, a situation where the minimum level of intimidatory function of punishment on US criminals cannot work well should be corrected.

IV. Civil Rights to Claim

1. Problems of unlawful deeds while on official duty

The main issue over illegal acts on duty is about how to split up indemnities. Recently, the Korean people’s demand of reparation for illegal acts of the US military has sharply increased, jumping to 733 claims in 1999. Of these, 443 claims, worth 1.45 billion won in all, were accepted. But a provision in the minutes (23:5:5) regulates that Korea should cover 25 percent of indemnities when the US military is responsible for the unlawful acts, while Korea and the US should share the expenses equally when both of them are responsible.

The US authorities urge that it should be relieved of the excessive burden of reparations, claiming that the same provision is applied to SOFA with NATO. However, it is against the principle of equity and the rule of liability for accidents that Korea should share 25 percent of indemnities when it is not responsible at all and cover 50 percent of them when Korea shares the blame regardless of the proportion.2) The unfairness of this is easily seen in comparison with the example of Iceland. The Annex to the Agreement of May 5, 1951, on the Status of United States Personnel and Property (12:2:5) regulates that when the US is responsible, Iceland is responsible for only 15 percent of the reparation.

The main agreement of the US-Korea SOFA (23:1,2,3,4) also stipulates that both countries should renounce rights of claim in case where acts on official duty or vehicles for public use cause damage to national property and members of the military. In respect to the management of the National Treasury, these provisions should be revised so that the two nations may negotiate about each occurrence.

2. Problems in indemnity for off-duty occurrence

In cases of off-duty occurrences, reparations can be provided only after assessment by the local deliberate council, notice to US authorities, and a decision by the US military. In the case of a car accident, which happens most frequently, the major problem is to raise medical fees for the victims. Regarding this, there are assertions that all of the public or private vehicles of the US military should be insured with general insurance, as in Germany and Australia. Provisions on this matter should be re-regulated.

‘The Agreed Provisions of the Joint Committee over the Process of Civil Trials’ was adopted in January 2001 to improve the process of civil trials on occurrences that happened while off duty. But it is no more than a provision on the process of civil trials, so, from a systematic viewpoint, it should be contracted as a treaty in the main agreement, or in an annex like the US-German Supplementary Agreement. It should also clarify that wages of the US servicemen can be seized and, in cases where those responsible leave Korea, liaison organs should trace their whereabouts and help get in touch with them when they are in overseas service. Furthermore, regarding detention as a way to enforce the courts’ decisions, it is against consistency of the trial process that those responsible are not detained in cases of official duty upon the presentation of the certificate of official duty issued by US authorities. Thus, whether an occurrence happened on official duty or not should be decided by mutual agreement when there is not an argument, and by a Korean arbitrator who has the right to decide about official duty when there is a controversy.

In the case of non-official-duty occurrence, there are usually gaps between assessments or reparations decided by the Korean court and US authorities. It is necessary for the Korean government to balance the difference in the amount to protect the victims and to go on discussing matters with the US to reach an agreement in a bid to induce US authorities to respect the decision of the Korean court. The Korean government should also extend the range of its support for victims in regard to legal proceedings. And, for this, it should revise ‘the Special Law of Civil Affairs on the Enforcement of the SOFA’ and its enforcement Ordinance.

V. Conclusion

Regarding the discussion over SOFA, impartial perspectives of lawyers are required to understand facts correctly and tell them like they are. The SOFA can be revised only with the mutual agreement with the US, so cool-headed discernments are necessary to realize the principle of mutual benefits and equity, which are the fundamental elements of the international relationship, and to come up with ways to change provisions and practices of the agreement to solve problems of unequal application.

However, only a few studies have been conducted about SOFA and it is also hard to find any judicial cases to set a precedent. The indifference of opinions among lawyers on this matter cannot be separated from current conditions where the practical applications of SOFA have not been improved to a great extent. This indifference also cannot be separated from the history of modern Korean law where the national security has been the highest priority. Its practical application resulted in the trend of the times: national security is the topmost priority, while victims thought it was impossible to claim their rights against the US, which was in charge of security. There is no doubt that the basic obligation of laws is to secure fundamental rights of people, but it has been infringed upon in the name of national security. Also, while laws are the manifestation of the national sovereignty, the self-determination of Korea has been victimized under the rhetoric of maintaining the US-Korea alliance. Now demands to fix all of them are coming from victims and the general public. What roles have Korean lawyers played so far in the whole process?

Compared with Japanese lawyers who have raised various lawsuits against the damages caused by the US military and who have tried to reconstitute matters of their national security in relation to the fundamental rights of their people, the Korean legal world seems to have a long way to go on these matters. Even though law cannot lead the trend of the times, it should at least support the big wave of changes that call for respecting the sovereignty of a nation and the fundamental rights of its people.

Jung-Hee Lee (Attorney at Law, MINBYUN-Lawyers for a Democratic Society)

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