ARTICLE XVI: It is the duty of members of the United States armed forces, the civilian component, and their dependents to respect the law of Japan and to abstain from any activity inconsistent with the spirit of this Agreement, and, in particular, from any political activity in Japan.
THE U.S. – JAPAN STATUS OF FORCES AGREEMENT
In 2009, Japan considered a plan to make it mandatory for the United States to hand over military personnel suspected of committing crimes in Japan to Japanese investigators before indictment in any kind of crime whenever demanded by Japan. That proposal went a step further from the current agreement in which personnel under the Status of Forces Agreement (SOFA) are handed over to Japan before a formal indictment is filed only in cases of murder and other heinous crimes. Japan also sought jurisdiction over crimes committed by U.S. personnel on duty outside U.S. bases.
In response, the United States refused to comply with Japan’s call for a provision of the kind under the agreement, citing a delay in Japan implementing the full visual and audio recording of interrogations. It was reported, “the United States views that the Japanese way of questioning (suspects) disregards human rights so there is a need for Japan to make efforts to ensure (transparent) questioning through full audio and visual recordings.”
There has always been a call to revise the SOFA but as U.S. Forces Japan commander Lt. Gen. John Dolan rightfully stated, “The SOFA is very clear — people who commit crimes in Japan are subject to arrest by Japanese police and prosecution by Japanese authorities.”
According to the Marine Corps Installations Pacific website:
SOFA status is not something that is granted or denied. It is based on belonging to one of the following categories:
- (a) active duty service members in Japan, regardless of purpose or length of stay
- (b) U.S. civilians who are in the employ of, serving with, or accompanying the military in Japan
- (c) “dependents” of categories (a) and (b):
- spouse (same-sex or opposite-sex spouse)
- children, step-children, and adopted children under 21
- children, step-children, and adopted children over 21 (i.e., no maximum age) if dependent on the sponsor for over half their support
- parents and parent-in-law if dependent on the sponsor for over half their support and not ordinarily resident in Japan
SOFA status gives an individual:
- visa exemption
- criminal jurisdiction procedures IAW Article XVII of the SOFA
- eligibility for a USFJ driver’s license (Commander may deny or place additional criteria on the application)
- eligibility for a USFJ vehicle registration (Commander may deny or place additional criteria on the application)
SOFA status, by itself, does not entitle an individual to:
- base access or use of base facilities
- exchange, commissary, or other similar benefits
- TRICARE enrollment
- DoD ID card
- military family housing
- funded travel
In response to the heinous crime committed by a contractor and former-U.S. Marine working at Kadena AB, Kenneth Gadson-Shinzato, the United States agreed to “review SOFA implementation practices related to U.S. personnel with SOFA status, including the civilian component, as reported by Eric Johnston of the Japan Times. Johnston also reported that “the Okinawan media were quick to point out that it (the review) did not meet growing demands in the prefecture for a formal SOFA revision to give local officials, especially the police, more authority and autonomy when dealing with incidents involving U.S. military personnel, their dependents or civilian workers.”
In an Asahi Shimbun editorial:
“The changes will deny SOFA-based immunity to some employees of private-sector contractors working in U.S. bases, such as the murder suspect, a former U.S. Marine working as a civilian at the U.S. Kadena Air Base. But a large number of American civilians working in U.S. bases as well as U.S. men and women in uniform will continue to enjoy their privileged legal status in Japan.”
Click the link below for the Japanese and English version of:
LIES OR OMMISSIONS?
As written in Japan’s Ministry of Foreign Affairs’ Efforts for Peace and Stability of Japan and the International Community, Section 1:
the importance of promoting reduction of the impact on Okinawa, where U.S. Forces facilities and areas are concentrated, has been con rmed mutually by Japan and the U.S. on numerous occasions, including the Japan–U.S. summits, the “2+2” meetings, and the Japan–U.S. Foreign ministerial meetings.
Kunihiko Miyake, a visiting professor at Ritsumeikan University and research director of the Canon Institute for Global Studies stated that “the propriety of “proposing” the revision of the Japan-U.S. 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.”
Yes, that’s right! Japan also maintains SOFAs for its Self Defense Forces stationed around the world. Professor Miyake’s 2009 Sankei Shimbun article in part read: “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.””
Who are these Japanese personnel covered according to the Japan – Djibouti SOFA?
The dispatch of the Self-Defense Forces of Japan and the Japan Coast Guard as well as their personnel and other personnel of the Government of Japan to the territory of the Republic of Djibouti and the establishment of the offices by the Government of Japan in the Republic of Djibouti.
What protections are afforded these Japanese uniformed and civilian personnel stationed in Djibouti?
In short, SDF personnel are exempt from Djiboutian criminal jurisdiction and are subject only to Japanese criminal jurisdiction.
Professor Miyake believes the terms are the same in Kuwait and Iraq, where SDF personnel were also dispatched, and needless to say, the terms do not constitute a violation of sovereignty.
SO, WHAT’S THE PROBLEM?
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, according to Professor Miyake.
However, according to the Japan Times:
police investigating alleged crimes by those covered under SOFA cannot enter military bases without permission to investigate. And more importantly, if the U.S. determines an offense has occurred while on duty, the alleged perpetrator cannot be indicted by Japanese prosecutors.
“The U.S. is supposed to give “sympathetic consideration” to Japanese requests to turn over those protected by SOFA who are alleged to have committed an offense, but legally it does not have to honor those requests,” according to Eric Johnston.
This sounds like an issue of jurisdiction, a major source of tension and controversy in Okinawa.
The Asahi Shimbun Editorial further opined: “If this arrangement is upgraded to a formal SOFA provision requiring the U.S. military to grant such requests from Japan, it will serve as an effective deterrent to crime. The prefectural government and people in Okinawa regard SOFA as a key factor behind the endless series of crimes and accidents in the prefecture involving American troops and base workers. Okinawan people think SOFA has bred a sense of privilege among members and contractors of the U.S. military that undermines discipline.”
There seems to be something missing from the story!
JURISDICTION AND THE REST OF THE STORY!
Does the United States have to honor Japan’s request to turn over suspects? There are the specifics in doing so. According to SOFA, Article XVII, 3. in cases where the right to exercise jurisdiction is concurrent the following rules shall apply:
- The military authorities of the United States shall have the primary right to exercise jurisdiction over members of the United States armed forces or the civilian component in relation to:
- offenses solely against the property or security of the United States, or offenses solely against the person or property of another member of the United States armed forces or the civilian component or of a dependent;
- offenses arising out of any act or omission done in the performance of official duty.
- In the case of any other offense the authorities of Japan shall have the primary right to exercise jurisdiction.
- If the State having the primary right decides not to exercise jurisdiction, it shall notify the authorities of the other State as soon as practicable. The authorities of the State having the primary right shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its right in cases where that other State considers such waiver to be of particular importance.
How does jurisdiction apply in the case of Japan’s Self Defense Force stationed in Djibouti? Maybe understanding this will help dispel or at least better explain the often cited accusation by Okinawa media and others that the U.S. – Japan SOFA is unfair. As shown on Pages 3 and 4 of
4. The Forces, the Coast Guard and the Liaison Offices shall be accorded by the Government of the Republic of Djibouti the following privileges and immunities:
(a) The facilities as well as the vessels and aircraft used by the Forces, the Coast Guard or the Liaison Offices shall be inviolable. However, agents of the Government of the Republic of Djibouti shall be allowed to enter them with the consent of an authorized representative of the Government of Japan.
(b) The Forces, the Coast Guard and the Liaison Offices as well as their property and asset’s, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process.
(c) The facilities, their furnishings and other assets therein as well as the means of transport of the Forces, the Coast Guard or the Liaison Offices shall be immune from search, requisition, attachment or execution.
(d) The archives and documents of the Forces, the Coast Guard or the Liaison Offices shall be inviolable at any time, wherever they may be.
(e) The official correspondence of the Forces, the Coast Guard or the Liaison Offices shall be inviolable.
7. The personnel employed locally shall enjoy no privileges or immunities. However, the Government of the Republic of Djibouti shall exercise its jurisdiction over these personnel in such a manner as not to interfere unduly with the performance of the functions of the activities or of the Liaison Offices.
“The civilian component will be divided into four categories. Employees of private companies will be granted the SOFA status when they fulfill such criteria as having high-level technical skills. The four categories of the civilian component, and limits the range of the civilian component for private companies’ employees to technical advisers or consultants who are officially invited by the U.S. forces in Japan. The advisers and consultants must fulfill such criteria as having high-level skills and knowledge, and being indispensable to the mission of the U.S. forces in Japan.”
8. The competent authorities of the Government of Japan shall have the right to exercise within the territory of the Republic of Djibouti, in cooperation with the competent authorities of the Republic of Djibouti, all the criminal jurisdiction and disciplinary powers conferred on them by the laws and regulations of Japan with regard to all Personnel.
PROTECTIONS UNDER THE U.S. – JAPAN SOFA
The most recent statistics available from the Okinawa Prefectural Government show that in June 2011 there were 1,994 civilian contract workers in Okinawa covered by SOFA. Of that number, 1,139 were employed by the Navy; 437 by the Air Force; 326 by the Army and 92 by the Marines. At that time, there were just under 26,000 American military personnel in Okinawa, with just under 20,000 dependents. The new procedures would place civilians into four categories.
According to the Japan Times:
The four categories now defined as being part of the American military’s “civilian component” under SOFA are:
- civilians paid by the U.S. government to work for the U.S. military in Japan (on land);
- civilians who work on ships or with aircraft that are operated by the military;
- civilians working for the U.S. government and staying in Japan on official business related to the military,
- technical advisers and consultants who are in Japan at the invitation of the military.
According to Erik Slavin of the Stars and Stripes, “the four categories include Defense Department civilians working in both appropriated and nonappropriated fund positions. The SOFA procedural changes are not a revision of the bilateral treaty, which was signed in 1960.”
As reported in the Yomiuri Shimbun:
- “The SOFA defines civilian component only as “the civilian persons of United States nationality who are in the employ of, serving with, or accompanying the United States armed forces in Japan.”
- “The SOFA stipulates the status of the military and other personnel of the U.S. forces stationed in Japan and the handling of criminal cases involving them. Narrowing the range of the civilian component would expand the jurisdiction of Japan’s judicial authorities.“
Although it is yet to be seen whether the U.S. and Japan agree to provision sought by Japan in 2009, changes are definitely on the horizon. Then again, according to Hiromori Maedomari, a professor at Okinawa International University and an expert on SOFA, “Tuesday’s deal is meaningless!” I wonder if that is valid statement?
REPORTED POSSIBLE OUTCOMES
- Workers who already have Japanese residency visas will be excluded from SOFA.
- Defense Department civilians and contractors in Japan are now expected to attend the same training events as their active-duty counterparts.
- Contractors and civilians under SOFA will have added contract specifications. All workers must sign the document to acknowledge SOFA responsibilities, which can later be used, if needed, in any adjudication or incident review.
- All SOFA personnel will receive updated instruction on driving in Japan, where traffic moves on the left side of the road, before receiving driver’s licenses.
- Personnel convicted of driving under the influence will lose their licenses for a minimum of one year.
A FEW UNKNOWNS
- Whether the new procedures under negotiation would mean fewer SOFA-sponsored jobs?
- Whether U.S. military retirees and U.S. citizens residing in Japan under a spousal or working visa will be enticed to apply for Local Hire jobs if there is no change of status in visa category?
- Will Local Hires with children in schools on base lose the right to have their children attend DoDDS schools on a space available basis?
Be sure to check back for updates to this story!