The recent rape cases in Korea had us refreshing our memories on Status of Forces Agreements in general, and the US-Korean one in particular. In this two-part post, we review some of the major issues, drawing on some of the legal literature and conversations with several former military personnel (for the record, Haggard was stationed in Yongsan in the early 1970s).
SOFAs reflect an effort to reconcile competing sovereignty claims among allies. On the one hand, we are a long way from the “law of the flag,” when countries completely ceded authority over foreign troops once they allowed them to transit or base. Host countries should have the right to exercise legal jurisdiction within their territory.
On the other hand, countries stationing troops abroad—which means primarily the United States these days—have legitimate concerns about their troops' legal rights. For examples, SOFAs typically require an American to be present when an arrested soldier is questioned, and establish that testimony given in the absence of such representation is inadmissible in court. This is not a simple issue of “extraterritoriality,” as critics allege. It goes to questions of military discipline and the political underpinnings of alliances as well.
It is sometimes claimed that the US-Korean SOFA, signed in 1966 and amended in 1991 and 2001, is a particularly unequal one compared to the NATO SOFA (all the primary documents are conveniently located here). This is not the consensus of most legal scholars. Beyond some small issues dealing with dependents, the two SOFAs are largely the same. Moreover, the revisions of 1991 and 2001 moved in the direction of Korean interests, for example by doing away with automatic waivers of jurisdiction and constraining the duration of US custody. Put differently, Korea did not get screwed because it was a smaller partner.
It is also not true that SOFAs constitute a full assertion of extraterritorial jurisdiction. The US has managed to secure some exclusive jurisdiction SOFAs, but most of them—including the one with Korea—share jurisdiction. Where one or the other party has laws that the other does not, that party enjoys jurisdiction over those cases. But most serious crimes that are likely to arise—murder, rape, property crimes--are going to be crimes under the statutes of both countries.
In these cases, the host country is presumed to have jurisdiction if the SOFA is not exclusive, and this is true in the US-Korea SOFA as well. In the current rape case, the Koreans asserted jurisdiction, the prosecutor’s office asked for a sentence of 15 years, and the Korean courts will rule by November 1.
There are two exceptions: offenses committed solely against US property or against another member of the U.S. armed forces member, which seems reasonable to us; and offenses arising out of the conduct of official duties, which has proven contentious. I will return to this second issue in a moment.
For many years, the US fell into the habit of filing waiver-of-jurisdiction petitions on a routine basis. Moreover, Korea got into the habit of granting them. Data reported in Jung and Hwang (reference below) shows that Korea ceded jurisdiction of 97% of all cases to the USFK in the 1990s.
This changes whenever there is a politically-significant case, such as the 2002 tank incident, when two teenage girls--Shim Mi-son and Shin Hyo-sun ― were run over and killed by a U.S. armored vehicle north of Seoul. According to one of our sources, waivers were scrutinized very closely by both US and Korean personnel in the wake of this episode. What ultimately determines whether waivers are submitted and approved or rejected depends on the relationships between the key players on both sides: the Korean National Police, the Korean Prosecutor’s, the Military Police and the JAG. Where trust and communication are good, there is greater likelihood that the parties will have faith in the disposition of the case regardless of who handles it.
Finally there is the “line of duty” question. U.S. military authorities have the right to exercise jurisdiction over U.S. personnel with respect to offenses arising out of any “act or omission done in the performances of official duty.” Just such a claim created the furor over the tank incident mentioned above. The US asserted jurisdiction over the case, and ruled that the deaths did not result from negligence. The deaths and subsequent ruling not only sparked widespread protest and anger, but help explain the sharp drop in South Korean support for the alliance around that time.
As it turns out, though, the Korean SOFA appears to be more specific than the NATO SOFA in constraining the definition of acts committed in the line of duty. For example, official duty does not include all acts during on-duty hours and is restricted to those required as functions of those duties. Again, procedure seems to trump statute: Korean authorities have generally been willing to accept US claims that potentially criminal acts were committed in the line of duty, thus ceding jurisdiction. But they need not do so; the SOFA has provisions permitting consultation if Korean authorities believe they are being led around.
Next time, the typical social scientists plea: why we need more data.
Youngjin Jung and Jun-Shik Hwang, “Where Does Inequality Come From? An Analysis of the Korea-United States Status of Forces Agreement,” American University International Law Review, 18 (2003).
Jimmy Koo, "The Uncomfortable SOFA: Anti-American Sentiments In South Korea and The U.S.-South Korea Status of Forces Agreement," National Security Law Brief: 1, 1 at http://digitalcommons.wcl.american.edu/nslb/vol1/iss1/5
R. Chuck Mason, “Status of Forces Agreement: What It Is, and How It Has Been Utilized,” Congressional Research Service, January 5, 2011.