50 years of Japan-US Alliance

Japan Press Weekly

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50 years of Japan-US Alliance SOFA, the Darkness - Part IV

DoD presses Japan to waive jurisdiction

The U.S. Department of Defense has an open policy of pressing other countries to renounce jurisdiction over crimes and accidents committed by U.S. servicemen.

DoD instruction

The DoD Directive 5525.1, “Status of Forces Policy and Information (issued on August 7, 1979 and certified current as of November 21, 2003)”, instructs, “If the designated commanding officer determines there is risk of an unfair trial, the commanding officer shall decide, after consultation with the chief of the diplomatic mission, whether to press a request for waiver of jurisdiction through diplomatic channels.”

Why is it so important for the U.S. administration to make other countries abandon jurisdiction? We can find the answer in a report to the President by Frank C. Nash, titled “United States Overseas Military Bases,” compiled in December 1957.

The report points out, “A problem of inevitable delicacy involves the exercise of criminal jurisdiction over American servicemen abroad - a relatively new problem resulting from the stationing of large numbers of troops in friendly countries in time of peace” after WWII. The Report also warns that “[i]f the accused soldier is not brought to trial in accordance with normal local practice, the American soldier appears to be beyond the law. Opposition parties and forces hostile to allied cooperation” can use this as anti-U.S. propaganda.

In short, the United States had to deal with this issue at any cost to maintain its global military network.

U.S. authorities possess the primary jurisdiction over crimes committed by U.S. personnel while on duty. If an offense arises while off duty, jurisdiction rests with the country concerned. Therefore, the U.S. government inserted the provision “signatories should give sympathetic consideration to requests for waivers” into the SOFA in order to encourage the country exercising jurisdiction to give up this right.

Even with this, the United States could not dispel its anxiety. So, they tried to win an agreement with allied nations to waive in advance their right to exercise jurisdiction “in all cases except those they consider of particular importance.” The Nash Report boasts, “During the three and one-half years ending May 31, 1957, out of 38,315 cases which might have been tried in foreign courts, only 11,320 servicemen have been actually tried in such courts,” as a result of this agreement.

Agreement with Japan was the only one kept in secrecy

The U.S. government considers Japan’s waiver of jurisdiction as a matter of course. Professor Emeritus of Hosei University Honma Hiroshi, a SOFA expert, pointed out that because the United States believes that “protection of the accused as stated by the U.S. Constitution is the best provision in the world, and so all U.S. personnel even outside the United States should be protected with this provision.”

The Nash Report suggests that arrangements for jurisdiction should not be dealt in secrecy, except for compelling reasons.

However, in October 1953, Japan concealed all the arrangements regarding Japan’s waiver of jurisdiction. It instead revised a few items in the administrative arrangement which were criticized as reminiscent of colonial rules. By informing the general public of a certain achievement in claiming back some rights, the Japanese government succeeded in misleading the public.

According to Army statistics obtained by international affairs analyst Niihara Shoji, Japan waived its jurisdiction in 96 percent of cases in which the right resided with Japan between 1954 and 1958 while the rate of waiver by Britain stayed at 19 percent. Documents that the Japan Peace Committee obtained also show that 83 percent of U.S. personnel committing crimes or accidents in Japan were exempted from prosecution between 2001 and 2008.

The secret agreement on Japan’s waiver of jurisdiction has, in effect, played a role in hiding its degrading colonial status from the people.

(To be continued)