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HOME  > Past issues  > 2008 March 19 - 25  > U.S. forces in Japan, including criminals, are privileged under Article 17 of SOFA
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2008 March 19 - 25 TOP3 [US FORCES]

U.S. forces in Japan, including criminals, are privileged under Article 17 of SOFA

March 22, 2008
Article XVII of the SOFA that gives the U.S. military the right to exercise exclusive jurisdiction is in the background behind many U.S. servicemen committing crimes.

At the rally held on March 23 in Okinawa in protest against crimes committed by U.S. servicemen, the main demand was that the Status of U.S. Forces Agreement (SOFA) be reviewed. Article XVII of the SOFA that gives the U.S. military the right to exercise exclusive jurisdiction is in the background behind many U.S. servicemen committing crimes.


No military court held

Article XVII of the Japan-U.S. Status of Forces Agreement (SOFA) gives Japan the jurisdiction over U.S. servicemen who committed crimes in Japan. It also provides the U.S. forces with the right to exercise such jurisdiction (paragraph 1) as well as extraterritorial rights.

Paragraph 3 of Article XVII provides that the U.S. Forces have the primary right to exercise jurisdiction over U.S. military personnel if they committed crimes in the performance of official duty. This means that if the U.S. military recognizes that a crime was committed by U.S. servicemen while “on duty,” the United States will have the right to try them even though the victims may be Japanese.

The “Agreed Minutes” to the SOFA makes it clear that when a member of the U.S. military is charged with an offense, “a certificate issued by or on behalf of his commanding officer stating that the alleged offense, if committed by him, arose out of an act or omission done in the performance of official duty, shall, in any judicial proceedings, be sufficient evidence of the fact unless the contrary is proved.”

Based on the agreement of the Japan-U.S. Joint Committee on the SOFA, Japanese police, if they arrest a suspect who is a member of the U.S. military, are required to hand over the suspect to the U.S. Forces even though it is not clear whether the act of the suspect was “in the performance of official duty” or not.

What is absurd is that there has been no case in which a member of the U.S. military brought before a U.S. military court was convicted.

According to a document made available by the Defense Ministry at the request of Japanese Communist Party member of the House of Representatives Akamine Seiken, there were 47,640 accidents and crimes involving U.S. servicemen “on duty,” in which 517 people died, between FY 1952 (when the old Japan-U.S. Security Treaty came into force) and FY 2006.

Out of these cases, 7,046 occurred during the FY 1985-FY 2004 period, in which 19 people died. However, during the same period (1985-2004), the U.S. military brought only one suspect to military court and only took disciplinary measures against 318 (a Justice Ministry official’s answer to Akamine at a Lower House Foreign Affairs Committee meeting on July 1, 2005).

Some criminals allowed to go back to homeland

Article XVII, Clause 3 (b) of the SOFA says: “In the case of any other offense the authorities of Japan shall have the primary right to exercise jurisdiction.”

However, Article XVII, Clause 5 (c) specifies that “The custody of an accused member of the United States armed forces or the civilian component over whom Japan is to exercise jurisdiction shall, if he is in the hands of the United States, remain with the United States until he is charged by Japan.”

This means that if an offender went into the U.S. base after committing a crime, the U.S. military authorities are not required to transfer the suspect to Japanese authorities until his indictment.

Under the Japan-U.S. agreed minutes, even in the case that Japanese police arrested a U.S. serviceman, Japan is not allowed to detain him unless it has reason to do so and therefore must leave him in U.S. military custody until he is indicted.

Also, a classified Japanese Justice Ministry document concerning the exercising of jurisdiction over members of the U.S. armed forces who committed crimes says that the “detention” of offenders can be simple confinement. Under this provision, a suspect may have a chance to leave Japan as was the case with a serviceman suspected of raping a Japanese woman in Okinawa who fled to the United States in 1993.

Japanese government does nothing to have SOFA’s ‘flexible application’ reviewed

In the September 1995 gang rape by U.S. Marines of a young girl, the United States cited the SOFA’s Article 17, Clause 5 (c) as the ground for refusing to hand over one of the suspects to Japan after he fled to the United States, arousing strong criticism not only among Okinawans but throughout the country. In October of the same year, the Japanese and U.S. governments agreed on the “flexible application” of this provision requiring the U.S. side to offer “favorable consideration” to a request from Japan to hand over the suspect before indictment as far as murder and rape cases are concerned. But what is termed as "flexible application" means that Japan will leave everything to the United States’ “favorable consideration”. This does not guarantee that Japan can hold the suspect in custody before indictment. In fact, in the 2002 aborted rape of a woman in Okinawa, the U.S. side rejected Japan’s request to hand over the suspect before the indictment in Japan.

On March 11, 2008, governors of 14 prefectures hosting U.S. bases jointly requested the Japanese government to have the SOFA reviewed. They criticized the government for being unwilling to review it sticking to its "flexible application." As regards Japan’s right to exercise its jurisdiction, the governors demanded that the SOFA be reviewed so that the suspect will be handed over to Japan promptly.
- Akahata, March 22, 2008


[APPENDIX]

Agreement Under Article VI of the Treaty of Mutual Cooperation and Security between the United States of America and Japan, Regarding Facilities and Areas and the Status of U.S. Armed Forces in Japan

ARTICLE XVII

1. Subject to the provisions of this Article,

(a) the military authorities of the United States shall have the right to exercise within
Japan all criminal and disciplinary jurisdiction conferred on them by the law of the
United States over all parsons subject to the military law of the United States;
(b) the authorities of Japan shall have jurisdiction over the members of the United
States armed forces, the civilian component, and their dependents with respect to
offenses committed within the territory of Japan and punishable by the law of Japan.

2. (a) The military authorities of the United States shall have the right to exercise exclusive
jurisdiction over persons subject to the military law of the United States with respect to
offenses, including offenses relating to its security, punishable by the law of the United States, but not by the law of Japan.

(b) The authorities of Japan shall have the right to exercise exclusive jurisdiction over members of the United States armed forces, the civilian component, and their dependents with respect to offenses, including offenses relating to the security of Japan, punishable by its law but not by the law of the United States.

(c) For the purposes of this paragraph and of paragraph 3 of this Article a security offense
against a State shall include

(i) treason against the State;
(ii) sabotage, espionage or violation of any law relating to official secrets of that State,
or secrets relating to the national defense of that State.

3. In cases where the right to exercise jurisdiction is concurrent the following rules shall apply:

(a) 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
(i) offenses solely against the property or security of the United States, or
offenses solely against the person or prop erty of another member of the
United States armed forces or the civilian component or of a dependent;
(ii) offenses arising out of any act or omission done in the performance of
official duty.
(b) In the case of any other offense the authorities of Japan shall have the primary
right to exercise jurisdiction.
(c) If the State having the primary right decides not to exer-cise 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 e of particular importance.

4. The foregoing provisions of this Article shall not imply any right for the military authorities of the United States to exercise jurisdiction over persons who are nationals of or ordinarily
resident in Japan, unless they are members of the United States armed forces.

5. (a) The military authorities of the United States and the authorities of Japan shall assist each other in the arrest of members of the United States armed forces, the civilian component, or their dependents in the territory of Japan and in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions.

(b) The authorities of Japan shall notify promptly the military authorities of the United States of the arrest of any member of the United States armed forces, the civilian component, or a
dependent

(c) The custody of an accused member of the United States armed forces or the civilian
component over whom Japan is to exercise jurisdiction shall, if he is in the hands of the United States, remain with the United States until he is charged by Japan.

6. (a) The military authorities of the United States and the authorities of Japan shall assist each other in the carrying out of all necessary investigations into offenses, and in the collection and production of evidence, including the seizure and, in proper cases, the handing over of objects connected with an offense. The handing over of such objects may, however, be made subject to their return within the time specified by the authority delivering them.

(b) The military authorities of the United States and the authorities of Japan shall notify each
other of the disposition of all cases in which there are concurrent rights to exercise jurisdiction.

7. (a) A death sentence shall not be carried out in Japan by the military authorities of the United States if the legislation of Japan does not provide for such punishment in a similar case.

(b) The authorities of Japan shall give sympathetic consideration to a request from the military `authorities of the United States for assistance in carrying out a sentence of imprisonment pronounced by the military authorities of the United States under the provisions of this Article within the territory of Japan.

8. Where an accused has been tried in accordance with the provisions of this Article either by
the military authorities of the United States or the authorities of Japan and has been acquitted,
or has been convicted and is serving, or has served, his sentence or has been pardoned, he
may not be tried again for the same offense within the territory of Japan by the authorities of the other State. However, nothing in this paragraph shall prevent the military authorities of the United States from trying a member of its armed forces for any violation of rules of discipline arising from an act or omission which constituted an offense for which he was tried by the authorities of Japan.

9. Whenever a member of the United States armed forces the civilian component or a
dependent is prosecuted under the jurisdiction of Japan he shall be entitled:

(a) to a prompt and speedy trial;
(b) to be informed, in advance of trial, of the specific charge or charges made against
him;
(c) to be confronted with the witnesses against him;
(d) to have compulsory process for obtaining witnesses in his favor, if they are within
the jurisdiction of Japan;
(e) to have legal representation of his own choice for his defense or to have free or
assisted legal representation under the condi-tions prevailing for the time being in
Japan;
(f) if he considers it necessary, to have the services of a compe-tent interpreter; and
(g) to communicate with a representative of the Government of the United States and
to have such a representative present at his trial.

10. (a) Regularly constituted military units or formations of the United States armed forces shall have the right to police any facilities or areas which they use under Article II of this Agreement. The military police of such forces may take all appropriate measures to ensure the maintenance of order and security within such facilities and areas.

(b) Outside these facilities and areas, such military police shall be employed only subject to
arrangements with the authorities of Japan and in liaison with those authorities, and in so far as such employment is necessary to maintain discipline and order among the members of the
United States armed forces.

11. In the event of hostilities to which the provisions of Article V of the Treaty of Mutual
Cooperation and Security apply, either the Government of the United States or the Government of Japan shall have the right, by giving sixty days' notice to the other, to suspend the application of any of the provisions of this Article. If this right is exercised, the Governments of the United States and Japan shall immediately consult with a view to agreeing on suitable provisions to replace the provisions suspended.

12. The provisions of this Article shall not apply to any offenses committed before the entry into force of this Agreement. Such cases shall be governed by the provisions of Article XVII of the Administrative Agreement under Article III of the Security Treaty between the United States of America and Japan, as it existed at the relevant time.


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