Disclaimer: The following is a totally unauthoritative personal translation of an article appeared in <Yonhap News Agency> on October 6, 2011. This article addresses the problem of current KOR-US Status of Force Agreement (SOFA) in terms of infringement to Korean judicial system. The issue of KOR-US SOFA revision has been repetitively raised in Korea due to heinous crimes by US soldiers and recently rose again due to a rape of teenage high school girl by a US army private at Dongducheon. Original article (in Korean) can be located in the link at the bottom. All rights are reserved by the author of original article and by <Yonhap>. This post will be scrapped immediately from their request.
SOFA, plenty of clauses open to arbitrary interpretation by US military authority
Lockup during investigation, practically impossible .. Prosecution’s right to appeal also restrained
“Korean government should consider US authority’s requests favorably.”
Disputes concerning infringement to national sovereignty by the ROK-US SOFA are concentrated on the fact that this agreement violates Korean criminal judicial system seriously.
Though it has been revised two times since 1966, some terms are still ambiguous and cases where judicial rights of Korea are neutralized against US military, civilian personnel, and their families in Korea who committed crimes are not rare due to the provisio of favorable consideration.
According to KOR-US SOFA, US government can intervene in every step of criminal judicial procedure starting from the arrest of US soldiers who committed crimes to investigation, indictment, trial, and, finally, imprisonment.
This is intended not to allow any member of US military to be disadvantaged in human rights during judicial procedures just because they are stationed abroad.
However, many criticize US government’s opinion overshadows the whole judicial procedure, which infringes sovereignty of Korea since Korean government cannot practically decline any ‘request of favor’.
A law professor at Hankuk University of Foreign Studies Jang-hee Lee pointed “Clauses unfair and infringing national sovereignty of Korea still exist in KOR-US SOFA from disbeliefs to Korean judicial system in the past. It should be revised to match current status of Korea.”
“US soldier criminals should be caught before they return to base”
US itself is the highest barrier one needs to overcome to catch, arrest, indict, and put US soldiers in trial who committed crimes against Koreans in Korea.
Art. 22 paragraph 5 of agreement minutes book that is revised in 2001 defines Korean government’s right to lock up and investigate US soldier suspects who committed limited list of heinous crimes such as murder or sexual assault without turning them over to US military authority when Korean authority arrests them.
This is regarded equal to the level of US-NATO or US-Japan SOFA.
Even in this case, US military can request extradition of detainee to Korea if they decide ‘there is legitimate reason to believe that the detainee’s right to stand fair trial would be violated.’
But Korean authority cannot lock up and interrogate a US soldier suspect if any of the following 4 conditions is not fulfilled; (1) caught during action (2) substantial reason to believe that he committed heinous violent crimes such as murder or sexual violence (3) possibility to destroy evidence, runaway, harm witness (4) guarantee for fair trial.
Kyoung-soo Park Jung, executive secretary of The National Campaign for Eradication of Crimes by US Troops in Korea, said “When US soldier suspects are handed over to US military authority, early stage investigation becomes problematic and they will match their stories or even create their own alibis.”
Before revision, Korean government could secure US soldier suspects only when court sentenced imprisonment at the final instance since Korean authority had to hand over US soldier suspects at US military’s request even if they had been caught in action however serious their crimes had been.
If Korean authority requested the extradition of US soldier suspects at special occasions, US military was supposed to ‘consider them favorably’ but, since they were non-binding, Korean authority had to literally rely on US military’s favors.
Indicting US civilian personnel, ‘long winding road’
Once US soldier suspects have already escaped to US military base, the possibility of lockup investigation is very slim.
It was Only after the second revision in 2001 that Korean authority was able to secure US soldier suspects from indictment not after final instance.
Substantial progress was made in second revision and suspects of 12 violent crimes like sexual violence, robbery with lethal weapons, arson, drug trafficking would be secured by Korean authority at indictment since then.
Some others point out that there will not be much difference in fact finding procedures because evidence collection and crime investigation are usually done prior to indictment.
Even for 12 violent crimes, Korean judicial authority can request US soldier suspects to US military at indictment only if provisions such as (1) the punishment right of the crime stays with Korean authority (2) there are fair amount of reason and necessity to detain suspects are satisfied.
In MOU (Art. 22, Para. 5), there is a proviso stating that US military is not required to hand over suspects to Korean authority but will ‘consider the request thoroughly’ even for 12 violent crimes.
So far, US soldier suspects were indicted only for two cases, one for the rape case against an old woman in 60s at Mapo in 2011 and the other for the attempted rape case against an old woman in 70s at Dongducheon in 2011.
Even when Korean authority secures US soldier suspects, investigation by police and prosecution is severely restrained under the cause of suspect and human rights protection because US soldier suspects (or defendants) retain the right to see and ask US government representatives to be present in trials as well as the right to get support from lawyers by ROK-US SOFA (Art. 22, Para. 9).
Depositions made in the absence of US government representatives are not recognized as evidences and there have been many cases where US soldiers change their previous depositions after being handed over to US military although they had admitted their crimes at the pressing moment they had been caught in action.
Also, there have been occasions where police investigations are stalled since US government representatives are not present at interrogation for other reasons.
Furthermore, there is a clause (SOFA Art. 22 Para. 7) that Korean authority “should consider US military’s request for support favorably” even when US solders are imprisoned from court rulings.
Although there has not been any previous cases where this provision has been elected and it is not concrete what the ‘request for support’ by US military would be, institutional tools are already there to allow US military authority to pull out their soldiers from Korean prison possibly through parole, stay of execution, or special pardon.
Abandoning jurisdiction priority
For crimes that can be tried by both Korean and US laws, both countries basically compete with each other for criminal jurisdiction. In this case, the question of who owns the jurisdiction becomes a very sensitive issue because the level of punishment relies on it.
First of all, ROK-US SOFA indicates that US military authority retains jurisdiction for internal crimes between US soldiers or crimes committed on duty and Korean Authority, in principle, retains jurisdiction for all other cases.
However, SOFA agreement minutes book (Art.22 Para.3) dictates that Korea is supposed to abandon its jurisdiction priority for cases other than those regarded ‘extremely important’ to Korean authority when US military requests.
Because of this rule, only about 5% of all crimes committed by US soldiers were tried by Korean authority during 1990 ~ 2002 period. However, the percentage rose to 20 ~ 30% since the 2nd SOFA revision took effects practically at the aftermaths of horrific case where two middle school girls were crushed dead by an armored vehicle of US military. [Ironically, none was held responsible for the accident.]
Professor Jang-hee Lee says “The abandonment of supervision clause for crimes that Korean authority has jurisdiction priority in the agreement minutes book is a typical toxic clause that infringes judicial sovereignty of Korea. Also, SOFA in no other country has such a clause. It should be struck out right away.”
Before the first revision in 1991, US military’s jurisdiction was automatically granted if Korean authority did not notify its intention for trial to US military within 15 days since it first recognized crimes even for crimes that Korean authority had jurisdiction priority.
Although, by documentation, Korean authority can ask US military to relinquish its jurisdiction, it had never been elected before the horrific accident by armored vehicle in 2002.
Germany can regain its abandoned jurisdiction before if it recognizes the need to fulfill the judicial administrative interest against crimes such as murder, robbery, rape against its own people that the prosecutor general can indict to federal high court.
Furthermore, US forces in Korea is supposed to notify Korean authority when they arrest US soldier criminals only for crimes Korea retains jurisdiction priority but Korean authority is supposed to notify US military immediately when it arrests US soldiers even for crimes Korea retains jurisdiction priority.
As such, it is even difficult for Korean judicial authority to recognize crimes if US military catches suspects before Korean police.
In Japan, Japan-US joint committee decides whether Japan would try US soldier suspects or not. Even if Japan decides not to try suspects itself, trials should proceed within Japanese territory close to where the crime took place and Japanese government representatives can attend those trials.
In KOR-US SOFA, US soldiers’ crimes committed purposefully or unpurposefully while they were acting on official cause are tried by US military first.
Therefore, determining if crimes by US soldiers happened during their act of official cause is very critical but, since there is no concrete clauses what constitute official cause, room for possible arbitrary interpretation is rather wide.
Presently, documents that prove whether US soldiers’ actions are official or not are issued by US military. Anything can be official if US military says so.
According to agreement minutes book, Korean government can ask about the certificate of official cause. If US military do not respond to it, Korean prosecutors can discuss the matter with US judge advocates and, if still no agreement is reached, the matter will be brought to joint committee or criminal jurisdiction subcommittee.
If no agreement can be reached even in these subcommittees within 30 days from the day certificate of official cause was issued, US military can try US soldier suspects through its court-martial and deliver non-judicial punishment to protect the rights of US soldier suspects to be tried as soon as possible.
So, if KOR-US cannot agree whether actions were of official cause or not, US military can handle the case at will after 30 days even though Korean authority claims they were not official and subsequent jurisdiction priority.
Although it is also US military who determines whether actions by US soldiers were official or not, Japan-US SOFA put a constraint that Japanese criminal procedure code (Art. 318) should not be interfered with.
In Philippines, US military can appeal to Philippines Attorney General if local prosecutor decides the actions were not of official cause but final decisions are made by the Attorney General.
Not guilty in the first trial, ‘end of story’
KOR-US SOFA Art.22 Para.8 and minutes book Art.22 Para.9 are the most typical clauses that infringe Korean jurisdiction sovereignty and are very exceptional. US SOFA with no other countries contain such clauses.
In summary, the clauses dictate that Korean prosecution cannot appeal to the second trial if US soldier suspects were ruled innocent in the first trial or suspects do not appeal to the second trial themselves against the court ruling.
These, experts say, are exceptional rules ignoring the core of Korean judicial system that stands on the ground of 3 trials.
Also, ‘the right not to be tried under circumstances that do not match the prestige of US military’ is guaranteed. Accordingly, the possibility that US soldiers avoid trials in Korean court arbitrarily under the vague expression of ‘the prestige of US military’ is still wide open.
Useful link
- Original article (in Korean) of this post can be located in the following: ‘한미 SOFA’ 언제까지 촛불을 들어야하나 (2)
koreanstory 
[…] Korean side to show “favorable consideration” in such requests. Such a SOFA provision reportedly does exist, although it has apparently never been […]