USA’s SOFA & Japan’s SOFA

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Via the Sankei Shimbun: Kunihiko Miyake, a visiting professor at Ritsumeikan University and research director of the Canon Institute for Global Studies

“The propriety of “proposing” the revision of the Japan-U.S. Status of Forces Agreement (SOFA) has been discussed lately. The pact with the United States is not the only SOFA Japan has concluded; Japan has concluded similar agreements with such countries as Kuwait and Djibouti since 2003.

Let us take a look at the agreement with Djibouti. It is formally called “Exchanges of Notes between the Government of Japan and the Government of the Republic of Djibouti concerning the status of the Self-Defense Forces of Japan, etc. in the Republic of Djibouti.” The agreement contains a provision pertaining to criminal jurisdiction over SDF personnel sent to Djibouti.

According to the provision, Japanese personnel, including SDF personnel, are granted the privileges and immunities specified in the Vienna Convention on Diplomatic Relations. The provision also stipulates that Japan “has the right to exercise within the territory of the Republic of Djibouti criminal jurisdiction and disciplinary powers over all [the Japanese] personnel.”

In short, SDF personnel are exempt from Djiboutian criminal jurisdiction and are subject only to Japanese criminal jurisdiction. I believe the terms are the same in Kuwait and Iraq, where SDF personnel were also dispatched. Needless to say, the terms do not constitute a violation of sovereignty.

Although a simple comparison cannot be made, the Japan-U.S. Status of Forces Agreement is generally favorable to Japan, the host nation. For instance, if an off-duty U.S. service member is caught red-handed by Japanese police, Japan will keep the service member in custody.

If an off-duty U.S. service member commits a crime and is on a U.S. military base, the U.S. side will have custody of the individual until he or she is indicted in Japan. However, if accused of heinous crimes such as rape and murder, the service member can be transferred to Japanese custody prior to indictment.

Although their names differ, the Japan-U.S. and Japan-Djibouti agreements are equally effective. As far as criminal jurisdiction is concerned, Japan has more rights regarding foreign troops than Djibouti does.

The Japan-U.S. Status of Forces Agreement now in force gives Japan, the host nation, primary jurisdiction over U.S. service members who committed crimes while off duty, as is the case with NATO nations and South Korea. Further, Japan is a step ahead of other countries regarding the pre-indictment transfer of custody.

I do not think the Japan-U.S. SOFA is markedly unfair when viewed objectively.

In addition, a joint committee has been established to solve new problems under the SOFA. As a result of serious discussions between Japan and the United States over the last 50 years, a large number of agreements have been reached by joint committees and implemented. It can be said that the Japan-U.S. SOFA has been “revised” daily.

Some are calling for inclusion of environmental rights in the SOFA on the model of the German agreement. But in every instance of environmental pollution, the matter has been referred to a joint committee and settled according to local circumstances.

Of course, I do not mean to say that achievements until now have been sufficient. I support the idea of “proposing” the revision of the SOFA as necessary. However, I am deeply skeptical about the appropriateness of top Japanese and U.S. leaders taking political risks to discuss environmental cases amenable to effective solution by joint committee.

To deliver on what was promised in the manifesto [of the Democratic Party of Japan], it would be sufficient to order administrative officials to bring the question of environmental rights to the attention of the U.S. side at Japan-U.S. joint committee meetings. A raft of security issues require earnest discussion by Japan and the United States. The new administration must use the assets conferred by its public mandate more effectively.”

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