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

Japan Press Weekly

Japan Press Service Co., Ltd. is the only news agency providing information of progressive, democratic movements in Japan

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

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. (The full text of Article XVII is on pp. 20-22.)

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