Part V Case Studies, 43 Visiting Forces in Korea
Hyun Kim, Donald A. Timm
Edited By: Dieter Fleck
- Military assistance — Occupation — Military matters — Peace keeping
The development of the law of visiting forces in Korea, at least in modern times, is an interesting study, and an educational one. It begins in the aftermath of World War II, with the liberation of the Korean peninsula from the Japanese, who had occupied the country since 1910. However, the winding down of that war, the establishment of an interim civil authority, and the transition from that authority to the sovereign and autonomous Republic of Korea were probably in and of themselves not that extraordinary from the worldwide perspective. The true beginning of the modern era of visiting forces in Korea came with the invasion of the fledgling Republic by forces of its co-inhabitant on the peninsula on 25 June 1950. This act resulted in the first Chapter VII1 enforcement action by the United Nations (UN), which ultimately saw the forces of 16 Member States deployed in Korea under the UN flag.2
The situation surrounding visiting forces in the Republic of Korea (ROK) today is unusual, some would even say unique. There are three commands operating at the theatre level that are not Receiving State commands. The first, the United Nations Command (UNC), is a multinational command, with a presence in Japan as well as in Korea; the second, the ROK-US Combined Forces Command, is a binational regional self-defence organization which is similar in many respects to the North Atlantic Treaty Organization (NATO); and the third, United States Forces Korea (USFK), is wholly a US command. Because of the multiple commands, and the fact that there are two host nations (Korea and Japan) in the Korean area of operations, four separate and distinct SOFA-type agreements apply. The status-of-forces agreements (SOFAs) that apply in Japan are covered in another chapter,3 this chapter discusses the three commands and the two SOFA-type agreements covering visiting forces in the Republic of Korea. It also includes a brief discussion of the Korean Augmentation to the United States Army (KATUSA) programme, a binational force that may be unique in the world.
1. The United Nations Command (UNC)
The first organization is the UNC. This multinational body was authorized by the United Nations Security Council and provides the foundation and framework for the relationships between the ROK and the non-US forces on the peninsula, as well as providing some of the basis for the US/ROK relationship. Sixteen national contingents comprised the UNC References(p. 624) during the Korean conflict, and all have declared their intention to provide forces should hostilities resume.
The UNC came about primarily through three UN Security Council resolutions in June and July 1950: the first, on 25 June 1950, basically called for North Korea to withdraw to the 38th parallel;4 the second, on 27 June 1950, called on UN member nations to ‘furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and restore international peace and security to the area’;5 and the third, on 7 July 1950, established a ‘unified command’ of UN member forces under the US, requested the US to designate the commander of such forces, and authorized the command to use the UN flag in the course of operations against North Korean forces.6 After more than three years of intense fighting, an Armistice was signed in the truce village of Panmunjom on 27 July 1953.7 An armistice is not a peace, but merely a cessation, perhaps temporary, of active hostilities.8 The UNC had fulfilled its mission of at least stopping the armed attack, but the mission of restoring international peace and security remained. The mission of the UNC today is overseeing the maintenance of the 1953 Korean Armistice Agreement, pending a peaceful political resolution to the Korean conflict. Of course, should hostilities resume, the original mission of restoring international peace and security in the area would still apply.
Although originally headquartered in Tokyo, in 1957 the UN Command moved its main headquarters to Korea. The UNC is currently headquartered in Seoul, capital city of the Republic of Korea, and has elements stationed along the Military Demarcation Line (MDL) established by the Korean Armistice Agreement9 and in the southern part of the Demilitarized Zone (DMZ) adjacent to it. Indeed, the Commander10 of UNC (COMUNC) is responsible for civil administration and relief in the part of the DMZ that lies south of the MDL.11 One element of the UNC in Korea is the UNC portion of the Military Armistice Commission (MAC), established to supervise the implementation of the Armistice Agreement and to settle through negotiations any violations of the Agreement.12 Finally, the UNC is also responsible for providing logistic support to the Swiss and Swedish members of the Neutral Nations Supervisory Commission (NNSC) References(p. 625) and their staff.13 The UNC structure also has a presence in Japan, and with its existing international agreements provides access to several UNC bases in Japan. The UNC (Rear) located at Yokota Air Base, Japan, is currently commanded by an Australian officer, and has a number of UNC liaison officers from different nations accredited to it.
COMUNC communicates directly with the US National Command Authority14 through the US Joint Chiefs of Staff (JCS) for planning, strategic guidance, and direction, and (under certain circumstances) for the conduct of combat operations. US Pacific Command (USPACOM), the United States Unified Combatant Command with responsibility for operations in the Pacific region, is kept informed since Korea is in its geographical area of responsibility.15 Reports are made to the UN Security Council through the US Ambassador to the UN. Since the UNC consists of forces of many different nations and operates both in the ROK and in Japan, the visiting forces come under one of four different SOFA-type agreements, depending on the Sending State from which they came and the Receiving State in which they are serving. In Japan, for US forces personnel, even those assigned to UNC, there is a US-Government of Japan (GOJ) SOFA, signed 19 January 1960;16 for UNC personnel other than US personnel, there is a UNC–GOJ SOFA, signed 19 February 1954;17 for US forces personnel in Korea, including those serving with the UNC, there is a US–ROK SOFA, signed 9 July 1966;18 and for UNC forces in Korea, other than US personnel, there is the residue of an agreement known as the ‘Meyer Agreement’, signed 24 May 1952.19
2. The Republic of Korea–United States Combined Forces Command (CFC)
The second command is the Republic of Korea–United States Combined Forces Command (CFC), which is also an international (regional) military organization, but by nature it is References(p. 626) composed only of forces of the US and ROK.20 CFC was established in 1978 under the authority of the US-ROK Mutual Defence Treaty.21 Prior to that time, most ROK forces were under the operational control (OPCON) of COMUNC,22 although they were not part of the UNC per se, as the ROK was not a UN Member State at the time.23 To resolve this dichotomy, with the advent of CFC, ROK forces were (for the most part) removed from OPCON of COMUNC and placed under the authority of the Commander of CFC (COMCFC). Since CFC now holds the bulk of the fighting forces available in the Republic of Korea, key forces that COMUNC would have to call on should hostilities again resume, COMUNC is given certain directive authority over CFC.24
The mission of CFC is very simple—to deter acts of external aggression against the Republic of Korea and, if deterrence fails, to defeat an armed attack. CFC has a ‘NATO-like’ command and control structure where strategic guidance and direction do not come from individual member nations, but rather from an entity composed of representatives of the member nations. The National Command and Military Authorities (NCMA)25 of both the ROK and the US provide strategic guidance and direction to a body called the ‘ROK/US Military Committee’. The Military Committee is composed of two sessions, a plenary session and a permanent session. The plenary session meets once a year26 and is composed of five members: two ROK representatives (the Chairman of the ROK JCS plus the ROK JCS Director of Strategic Policy), two US representatives (the Chairman of the US JCS and Commander of USPACOM), and the fifth member, COMCFC, representing the combined interests of both States. Since the plenary session meets only once each year, the permanent session of the Military Committee meets as necessary to provide guidance to COMCFC. The permanent session consists of the Chairman of the ROK JCS and the ‘Senior US Military Officer Assigned to Korea’27 who represents the Chairman of the US JCS and US interests. In summary, the chain of direction flows from each individual State, through its NCMA, to the Military Committee, and thence to COMCFC. Each State provides strategic guidance and direction to the Military Committee which, having reached agreement, passes it to COMCFC. Thus, as with Supreme Allied Commander, Europe (SACEUR), COMCFC does not report directly to any national authority; rather he reports to and receives direction from the binational Military Committee.28
The third theatre level command in Korea that contains visiting forces is the United States Forces Korea (USFK). USFK is a subordinate unified command under USPACOM.30 Unlike UNC and CFC, USFK is composed solely of US forces. In US parlance, it is a joint or ‘purple’ command, and has service component commands (Army, Navy, Air Force, Marine Corps and Unconventional Warfare/Special Operations) under it. With its component commands, it is responsible for housekeeping matters for US forces, such as logistic support, administration, and military justice. It also provides administrative and logistical support to the UNC headquarters. Finally, it is responsible for the reception, staging, onward movement, and integration of those US forces deploying to reinforce CFC or USFK in time of crisis or renewed hostilities. As commander of a subordinate unified command, the Commander of USFK reports to the Commander of USPACOM, who in turn reports to the Secretary of Defense through the Chairman of the US JCS. US forces in Korea are covered by the US–ROK SOFA.31
When massive numbers of US forces began pouring into Korea at the commencement of the Korean conflict,32 the US and the Republic of Korea exchanged diplomatic notes which provided that the US could exercise exclusive jurisdiction over ‘members of the United States Military Establishment in Korea’ and that US forces would not be required to submit to any but US courts.33 This agreement, called the ‘Taejon Agreement’ since the References(p. 628) government of the ROK had moved to Taejon at this time, essentially gave the US extraterritoriality34 in the area of criminal jurisdiction.
While the Taejon Agreement effectively dealt with foreign criminal jurisdiction (FCJ) matters (at least as to US forces), the many other matters spoken to in a typical SOFA were not resolved. Perhaps in the heat of the situation, with the ROK and UNC forces under enormous pressure, this was understandable; however, all parties recognized that a formal agreement of some sort was preferable, and as a result the Agreement on Economic Coordination Between the Unified Command35 and the Republic of Korea was concluded on 24 May 1952.36 As Clarence Meyer signed it on behalf of the UNC, it is commonly known as the ‘Meyer Agreement’. The Meyer Agreement addressed many matters,37 one of which was the privileges and immunities to be granted the members and agencies of the UNC. Article III of the Agreement, at para. 13, provided as follows:
The Republic of Korea undertakes to grant to individuals and agencies of the Unified Command, except Korean nationals, such privileges, immunities, and facilities as are necessary for the fulfillment of their functions within the Republic of Korea under the above-cited resolutions of the United Nations, or as have been heretofore granted by agreement, arrangement or understanding or as may be agreed upon formally or informally hereafter by the parties or their agencies.
This was interpreted as covering the other (non-FCJ) areas normally spoken to in status-of-forces and basing agreements, and the retroactivity (‘or as have been heretofore granted’) ratified the formal and informal accommodations the ROK government had previously accorded the UNC and its forces, for example, the use of facilities and areas; the right to bring in materials, supplies, and equipment free of customs duties; exemption from ROK taxes; and the like.
The Korean Armistice Agreement38 was signed on 27 July 1953. It was envisioned, at least by some, that a peace agreement would be reached in a reasonable time,39 and efforts were focused on the implementation of the prisoner and civilian exchange, and commencing the rebuilding of the war-torn country. There did not appear to be a need for formal agreements involving the long-term stationing of foreign forces. But what is References(p. 629) tolerable during a crisis may become intolerable over time. When years went by and the Armistice had still not turned into peace, the ROK began urging the US to regularize the situation as to US forces by negotiating a formal status-of-forces agreement,40 and in 1966 the US-ROK SOFA was signed.41 The US-ROK SOFA was drawn from many sources, including the NATO SOFA, the US-GOJ SOFA, and improvements based on experiences with those SOFAs and others throughout the world. Some points of interest include the following:
Like all SOFAs to which the United States is a Party, other than the NATO SOFA, the agreement is not fully reciprocal. It applies to US forces in the territory of the ROK, but does not apply to ROK forces in the territory of the US.42
Problems arising from the NATO SOFA definitions of persons covered by the SOFA have been remedied in the US-ROK SOFA. Defining a ‘force’ in the NATO SOFA in terms of Sending State military personnel in the Receiving State ‘in connection with their official duties’ had led to the situation where a service member visiting a Receiving State on leave, or possibly even one transiting a Receiving State en route to another Receiving State where he had official duties, would not technically be covered by the SOFA. In some cases, such individuals were deemed covered by practice of the Receiving State;43 in other cases additional agreements were considered necessary to fill the lacuna.44 The US-ROK SOFA, by defining members of the armed forces as being those ‘on active duty … when in the territory of the Republic of Korea’, avoids these problems.45 Under the plain language of the US-ROK SOFA, military personnel on leave, transiting, or even absent without authority References(p. 630) in Korea are covered by the SOFA. However, in recent years, the ROK government has taken the position that the SOFA covers only those military personnel stationed in Korea or otherwise in Korea on official duty. When a member of the military who is not stationed in Korea or otherwise in Korea on official duty46 is accused or suspected of a crime, USFK resolves the issue in a practical manner, in accordance with current US doctrine, by reassigning or attaching the affected military member to a unit in Korea.
The NATO SOFA definition of ‘civilian component’ also created problems by limiting coverage to only those civilian personnel ‘who are in the employ of an armed service’ of the Sending State. Such a definition could operate to exclude from coverage employees paid from non-appropriated funds, civil servants from departments other than the Department of Defense, technical representatives of contractors, and officials of support organizations such as the American Red Cross (ARC) and the United Service Organizations (USO).47
The US-ROK SOFA avoids this result by defining the civilian component in terms of civilian persons of US nationality ‘who are in the employ of, serving with, or accompanying the United States armed forces’.48 This definition includes certain officials of the ARC and USO, as well as a category known as ‘Technical Representatives’. Technical Representatives are defined as special instructors or advisers to US personnel in the operation and maintenance of complex military equipment where the particular skills required are not available from US military or other sources in the ROK.49 Technical Representatives also include persons supplying special contract services to the soldier and family support base, contract medical and dental services in support of military medical facilities, and special vendor representatives.50
Finally, the definition of ‘dependents’ was also broadened from the NATO SOFA version. The NATO SOFA limits ‘dependents’ to spouses, and children dependent on the sponsor for support. In these days of extended families, and in view of service regulations permitting sponsors to have as dependents other persons such as parents, parents-in-law, and other relatives, many of whom would accompany the sponsor and depend on him for support, the NATO SOFA definition appears to be too limited, and there appears to be little principled reason for such a limitation.51 The US-ROK SOFA defines dependents as being (i) spouse and children under 21, and (ii) parents, children over 21, or other relatives dependent on the sponsor for over half their support.52
Art. II implements the provision of Art. IV of the Mutual Defense Treaty that grants the US the right to dispose US forces in and about the territory of the ROK, by granting the use of what are known as ‘facilities and areas’, the equivalent of what are called ‘accommodations’ under the NATO SOFA (that is, land, buildings, structures, and other improvements thereon).53 Initially, the facilities and areas granted to the US were those being used by the US upon the entry into force of the SOFA. Additional facilities and areas are provided by agreements concluded by the two governments through the Joint Committee.54
Along with the grant of use come further powers. Para. 1 of Art. III of the US-ROK SOFA begins with the following grant of authority: ‘Within the facilities and areas, the United States may take all the measures necessary for their establishment, operation, safeguarding, and control.’55 The interplay between this provision, other provisions of the SOFA, and the provisions of Korean ‘municipal’56 law merits discussion. Certainly some host nation laws apply on a US installation; for instance, a murder committed on the installation would seem to be subject to either exclusive or concurrent jurisdiction of the local courts.57 On the other hand, some local laws would seem not to apply, such as the laws concerning licensure of attorneys when applied to military attorneys practising in courts-martial, or to Sending State attorneys working for the force.58
Clearly the grant of authority to the US is broad, but it is not unbounded. In para. 2 of Art. III, the US agrees not to take the measures referred to in the initial sentence of para. 1 ‘in References(p. 632) such a manner as to interfere unnecessarily59 with navigation, aviation, communication, or land travel, to, from, or within the territories of the Republic of Korea’.
Finally, para. 3 of Art. III places limitations on the broad grant of power set out in the initial sentence of para. 1. Para. 3 states that ‘Operations in the facilities and areas in use by the Government of the United States shall be carried on with due regard for the public safety’.
Certain conclusions appear reasonable. When it comes to mala in se, host nation law is probably applicable. However, the US appears to have been given a right to exercise that regulatory power known as the ‘police power’, so that as applies to US forces’ day-to-day operations, US forces are not subject to ROK regulations (mala prohibita) such as those governing licensure for dispensing narcotics and dangerous drugs60 and for the practice of law and medicine, traffic regulations (the US can set speed limits on its installations), gambling (as applies to SOFA personnel), zoning laws, requirements for building permits, mandatory education requirements for minors and related mandatory curricula, and so on.
When it comes to environmental regulations, it would appear that the limiting terms are ‘all measures necessary’ and ‘due regard to the public safety’. If the activity in question has no impact away from the installation, it would appear not to have impacted the public safety. Where it does have an impact away from the installation, for example, noise, runoff or dust, the question would seem to be whether the activity is ‘necessary’ for the proper and effective operation of the post, and if so, whether there has been ‘due regard’ for the public safety.61 If, for instance, the installation is a military air base, ‘training as you will fight’ necessarily requires night-time training. Having said that, however, it may be that ‘due regard’ for the public safety may require consideration of limiting which hours in the night, or which nights, will be used for such training.
In many countries, when the US returns real estate provided by the Receiving State, a negotiation ensues concerning how much the Receiving State should pay the US for improvements made to the real estate at US expense (sometimes called ‘residual value’), and how much the US may owe the Receiving State for loss of value to the real estate through destruction of indigenous buildings, environmental damage and so on (sometimes called ‘restoration’).
The US-ROK SOFA is based on a different concept, one that might be called a concept of ‘mutual waivers’. In Art. IV, the US-ROK SOFA provides that when the US returns (p. 633) facilities and areas to the ROK government, the ROK government has no obligation to compensate the US for any improvements made by the US; by the same token, the US is not obligated to restore the facilities and areas to their original condition, nor to compensate the ROK government in lieu of such restoration.62
Art. V of the US-ROK SOFA provides that the ROK is responsible for providing the areas and facilities without cost to the US,63 to make compensation where appropriate to owners and suppliers of such areas and facilities, and to hold the US harmless from any third party claims that may be advanced in connection with such use. The United States agrees to bear all other expenditures for the maintenance of the US armed forces in the ROK without cost to the ROK.64 However, in 1991 the US and ROK entered into an agreement,65 known as a Special Measures Agreement (SMA), under which the ROK provided certain contributions in cash and in kind to help defray the non-personnel costs of stationing US forces in the ROK.66 The first SMA lasted for three years; thereafter References(p. 634) follow-on ‘burden-sharing’ SMAs were concluded between the US and the ROK in 1993, 1995, 1999, 2005, 2009, and 2014.67
Unlike the NATO SOFA which at para. 2 of Art. IX requires a Sending State ‘normally’ to make local purchases through the military procurement authorities of the Receiving State—what is known as ‘indirect contracting’68— the US–ROK SOFA explicitly provides in Art. XVI that ‘The United States may contract for any materials, supplies, equipment and services (including construction work) to be furnished or undertaken in the Republic of Korea … without restriction as to choice of contractor, supplier or person who provides such services.’69 Of course, the US-ROK SOFA also permits indirect contracting, and in some cases the US utilizes that method through the US-ROK Mutual Logistics Support Agreement,70 a type of acquisition and cross-servicing agreement (ACSA).71 Additionally, the US-ROK SOFA requires the US to coordinate with the Republic of Korea when proposed US local procurement may have an adverse effect on the local economy.
Finally, the US and the ROK have concluded an Umbrella Agreement under which the ROK can provide logistics support to US forces in times of crisis, hostilities or war.72 The support, known as Wartime Host Nation Support, or WHNS, is primarily (but not exclusively) for deploying forces, and in general falls within twelve functional areas.73 The WHNS Umbrella Agreement envisions lower level implementing agreements, arrangements and plans dealing with specific support.
References(p. 635) (e) Taxes
The US-ROK SOFA provides an exemption both for the force and for SOFA personnel from direct taxes, similar to that in Art. X of the NATO SOFA.74 In addition, the US-ROK SOFA also provides an exemption from indirect or ‘turnover’ taxes, such as Value Added Taxes, excise taxes and the like, on local purchases by the force or their authorized procurement agencies for official purposes.75 The exemption also applies to procurement ‘for ultimate use by’ the Sending State, for example materials or equipment procured by a Korean construction contractor for incorporation into a building being built under contract with the US.
Unlike the arrangement in Japan and in many other Receiving States, in the ROK the US forces directly hires its local national labour force.76 The US-ROK SOFA specifically provides that the US armed forces ‘may recruit, employ and administer’ local employees.77 The SOFA also requires that the conditions of employment, compensation, and labour-management relations for those local employees shall ‘conform with’ the provisions of labour legislation of the Receiving State, ‘to the extent not inconsistent with (the SOFA) or the military requirements of the United States armed forces’.78 Local national employees may organize into a union or unions, and indeed they have done so. Except for those designated as working in ‘essential categories’, employees have the right to strike as part of collective action, after exhaustion of specified mediation procedures.79
Also specified in the SOFA is the sovereign immunity of the Sending State under international law and the right for the Sending State to terminate employment ‘at any time the continuation of such employment is inconsistent with the military requirements of the United States armed forces’.
References(p. 636) (g) Criminal jurisdiction
The history of foreign criminal jurisdiction over US forces personnel in the ROK is long and varied. As mentioned earlier,80 the Taejon Agreement gave the US exclusive jurisdiction over US forces personnel, and that status continued until the entry into force of the US-ROK SOFA.81 Negotiations concerning the Criminal Jurisdiction article were lengthy and contentious. On the US side, there was the concern loudly sounded in the Congress and elsewhere that US personnel be assured of due process and fair trial guarantees roughly congruent to those accorded in US or Western European jurisprudence.82 There was the experience gained under SOFAs in other nations, and the concerns arising from observations of the particular systems in issue.83 On the ROK side was the feeling that they should be treated no less favourably than any other nation.84
Fortunately, the US experience over the years with other SOFAs in a variety of other countries, many not having a Western cultural heritage, allowed both sides to reach an agreement; although neither country was wholly happy with the result, both were willing to live with it. The US-ROK SOFA adopts the NATO model for determining exclusive and concurrent jurisdiction, and which State has the primary right to exercise jurisdiction.85 References(p. 637) Originally, it also adopted the Netherlands model of advance waiver86 (which had been adopted in numerous SOFAs following 1954), but with a reservation similar to that found in the German Supplementary Agreement87 that the ROK authorities could recall their waiver within fifteen days after they were notified or otherwise apprised of the commission of an offence falling within ROK primary jurisdiction.88 Additionally, a representative list of ‘cases of particular importance’ substantially parallel to the list in the German Supplementary Agreement89 was set out in the Agreed Understandings.90
In 1988, the ROK requested a review of these and other provisions. After negotiations, in 1991 an agreement was reached that requires an individualized US request to the ROK authorities for waiver in each case. The ROK has 28 days to respond, and may have an additional fourteen days on request. If the 28-day period (or 42-day period, as the case may be) expires without an answer, ROK jurisdiction is considered to have been waived and the US may exercise jurisdiction over the matter.91 Additionally, the Exchange of Notes and the Agreed Understandings that contained the list of ‘cases of particular importance’ were terminated.92
Along with the provisions concerning which sovereign would exercise jurisdiction in a particular case,93 the standard due process provisions of the NATO SOFA are of course (p. 638) included, and additional provisions are incorporated into the Criminal Jurisdiction article to protect the rights of the accused. Among these due process guarantees the following are of interest.94 In the matter of custody, the original 1966 US–ROK SOFA provided that if the accused is in US custody, he will remain in US custody95 pending the completion of all trials and appeals and will then be turned over to the host nation to serve his sentence upon receipt of a request by the Receiving State. If he is in the hands of the Receiving State, he will be turned over to the US upon US request, and the US will then maintain his custody through all trials and appeals.96
In the negotiations that led to the 2001 changes, the ROK requested two changes to this provision, specifically the right to assume custody upon the indictment of an accused over whom they intended to exercise jurisdiction, and also the right to retain custody of a suspect if they arrested him. The US explained that it was US policy to maximize custody of US forces personnel in US hands to the greatest degree practicable, and to work with host References(p. 639) nation authorities to assure that their interests were protected as well97 while the suspects or accused were in US custody. The US further explained that there were internal reasons for the policy besides a concern for the suspect’s or accused’s due process rights.98 Finally, the US offered to take any steps within their authority to assure that the individual did not flee, destroy evidence, tamper with witnesses, or present a danger to himself or others, and this had been considered by other host nations to be sufficient.99
The ROK responded that on the whole they were generally satisfied from a jurisprudential standpoint with the US retaining custody of accused and suspects, but did note that there were some occasions where accused who had not been placed in pre-trial confinement had fled to avoid trial or service of sentence. However, there was another consideration besides purely jurisprudential, and that was sovereignty. The suspects or accused were believed to have broken ROK laws and their victims were ROK citizens, and the ROK had a sovereign interest in not only protecting its citizens and vindicating its law, but also in being manifestly seen to be doing so, in order to maintain the confidence of its citizens. A robust criminal justice system is a mark of a powerful sovereign.
Further, there was the matter of ROK people’s sensitivities. They would learn of a crime having been committed, allegedly by a SOFA person, and even if the person was arrested References(p. 640) at the scene he would be turned over to the US and disappear onto the base. A Korean citizen similarly accused would be placed under arrest, and often into a Korean confinement facility to be investigated by Korean authorities, and Korean people would see this. The different treatment accorded the American caused some to question whether SOFA people were being treated better than Koreans, and that disrespected the Korean system. The people believed the SOFA was unfair and unequal, and was being used as a shield behind which the SOFA member could hide after committing crimes, and they were angry that their government would let that happen.100 They knew this was not the case in Japan, and wanted Korea to have at least the same consideration from the US as Japan enjoyed.101 The ROK was not asking to be allowed to violate a SOFA person’s rights, and were more than willing to make that plain, but they also wanted to be shown respect for their sovereign status and accorded equality of treatment with other host nations, particularly Japan. Since the US is a good treaty partner, the US should respect that and try to solve the problem.
After lengthy negotiations, agreement was reached as follows: First, the US is obligated to transfer custody to the ROK at or after indictment if requested, if the offence falls within the following categories: (1) murder; (2) rape (including quasi-rape and sexual intercourse with a minor under 13 years of age); (3) kidnapping for ransom; (4) trafficking of illegal drugs; (5) manufacturing illegal drugs for the purpose of distribution; (6) arson; (7) robbery with a dangerous weapon; (8) attempts to commit the foregoing offences; (9) assault resulting in death; (10) driving under the influence of alcohol resulting in death; (11) fleeing the crime scene after committing a traffic offence resulting in death; (12) offences that include one or more of the above-referenced offences as lesser included offences.102 Secondly, the amendment provides that adequate cause103 and necessity104 must exist for such custody. In all situations where authorized under the law of the Republic of Korea, a preliminary hearing to examine the legality of any arrest, detention or request for either, is automatically requested by and on behalf of the accused and will be held. The accused and counsel for the accused shall be present and shall be permitted to participate. The US representative shall also be present.105 The right to request bail and to a review by a judge before deciding any such request shall be a continuing right that the accused, his counsel or his family may assert at any time prior to completion of all judicial proceedings.106 Finally, the ROK authorities have agreed not to question an accused who is in (p. 641) the custody of the Republic of Korea, after indictment, about the facts, circumstances or events that form the basis for the offences for which the accused has been indicted or could have been charged based on the same set of events for which the accused was indicted.107
Under the second change created by the 2001 amendment, the ROK still agreed that if they arrested a SOFA person suspected of a crime over which the ROK would have the primary right to exercise jurisdiction, upon US request the suspect would be turned over to US authorities, who would make him available on request to ROK authorities for investigation and trial.108 In this respect, the general rule remained similar to that under the 1966 SOFA. However, the Parties agreed to add an exception or gloss to this general rule, where the US agreed not to make such a request if the suspect109 was arrested at the scene of the crime, in immediate flight therefrom, or prior to his return to US control and there is adequate cause to believe that he has committed ‘a heinous crime of murder or an egregious rape’, and there is necessity to retain him for the reason that he may destroy evidence; he may escape; or he may cause harm to the life, person or property of a victim or a potential witness, unless there is legitimate cause to believe that a failure to request custody would result in prejudice to an accused’s right to a fair trial.110
In addition, in response to a ROK concern that they should be allowed to conduct a preliminary investigation when they detained a suspect before turning him over to US military authorities, it was agreed that the authorities of the ROK can question SOFA personnel in the presence of a duly appointed US representative and make preliminary investigation into the case before transferring them to the military authorities of the US. The suspect has the right to legal representation at such questioning, which includes the right to have counsel present, and to consult confidentially with such counsel at the questioning.111
Finally, the basic SOFA was amended to delete the provision of para. 5(c) of Art. XXII as set out in the 1966 SOFA112 to replace it with the following text taken, mutatis mutandis, from the US-Japan SOFA:
The custody of an accused member of the United States armed forces or civilian component, or of a dependent, over whom the Republic of Korea is to exercise jurisdiction shall remain with the military authorities of the United States until he is indicted by the Republic of Korea.113
(p. 642) Rights pertaining to interrogation are also specified. The right to communicate with a representative of the US government commences from the moment of arrest or detention, and no statement taken in the absence of such a representative is admissible as evidence against the accused.114 Additionally, the right to legal representation commences from the moment of arrest or detention, and the accused has the right to have counsel present, and to consult confidentially with such counsel, at all preliminary investigations, examinations, pre-trial hearings, the trial itself, and subsequent proceedings at which the accused is present.115 Provisions covering the conduct of the trial itself are also included. One of which, the ‘right of confrontation’, has caused some contention in the US-ROK relationship.116 Para. 9(c) of Art. XXII provides that a SOFA accused ‘shall be entitled to be confronted with the witnesses against him’. This provision is taken verbatim from the NATO SOFA, and is commonly contained in other SOFAs. In the US-ROK SOFA it is fleshed out in the Agreed Minute Re: para. 9(c) and (d),117 which provides that the accused ‘shall have the right to be present throughout the testimony of all witnesses, for and against him, in all judicial examinations, pre-trial hearings, the trial itself, and subsequent References(p. 643) proceedings, and shall be permitted full opportunity to examine the witnesses’. However, there have been several instances in Korea where an ex parte statement (a statement taken outside the presence of the accused) has been used in court against a SOFA accused, yet he has not been permitted to confront and cross-examine the person making the statement, based on unavailability of the witness. In the most egregious case, in 1992, a SOFA accused was tried and convicted for vehicular hit and run resulting in injuries. The sole evidence identifying him as the perpetrator came in the form of an ex parte statement taken from an alleged witness, which statement was admitted in court over defence objection. The defence, citing the above provisions of the SOFA, insisted on the witness being brought forward for confrontation and cross-examination. The court attempted to subpoena the witness, but it was discovered that the witness had given a false name, and he was unable to be properly identified or brought forward. None the less, the accused was convicted.118 On appeal, the Seoul High Court upheld the conviction, citing a ROK Supreme Court decision in a previous SOFA case that interpreted the SOFA provision as guaranteeing only that if a witness was called by the prosecution, then the accused would have the right to confront him, but where the witness was not brought into court, no such right existed.119 The court also declined to hold the ex parte statement inadmissible, finding the witness to be unavailable and the statement to be trustworthy under the ROK Code of Criminal Procedure despite the fact that the witness had given a false name.120 After lengthy discussions between the two governments, the ROK Ministry of Justice issued a directive, directing prosecutors in SOFA cases to take depositions of all essential witnesses before a judge, at which the accused and his counsel would be entitled to be present and to cross-examine the witness. Compliance with this directive has been spotty.121
A recently amended provision of the ROK Code of Criminal Procedure raises another potential right-of-confrontation issue, Art. 297 of the Code allows the judge to exclude the accused from the courtroom during the testimony of a sexual assault victim. However, utilizing a screen or testimony through video to allow the defendant to remain in the courtroom and cross-examine the victim witness has been a practical solution to this potential problem. Another provision specifies the right of an accused to appear in appropriate References(p. 644) military uniform or civilian attire and unmanacled.122 A prohibition is included against trying an accused before a Receiving State military tribunal.
Rights of appeal are specified. The right of an accused to appeal a conviction or sentence is stipulated. The prosecution is precluded from appealing an acquittal or finding of not guilty (a right the prosecutor could otherwise exercise under Korean law) on any grounds, and from appealing in any case where the accused did not appeal, except where the prosecution appeal is on the ground of errors of law. The accused is also protected from receiving a more severe sentence on appeal.
Protections in case of confinement are also specified. Any place of confinement for SOFA personnel is required to meet certain agreed minimum standards, which are set out in a SOFA Joint Committee Agreed View. The US is given the right to visit and observe any areas of any confinement facilities used or proposed to be used for the confinement of SOFA personnel, and also has the right to have access at any time to SOFA personnel who are confined or detained by the Receiving State. Further, the US is also authorized to provide supplemental care and provisions for SOFA confinees, such as clothing, food, bedding, and medical and dental care.123
Finally, the US-ROK SOFA includes a provision that a SOFA prisoner can be transferred to a US confinement facility to serve his sentence.124 Another provision of interest in the Criminal Jurisdiction article is that Receiving State criminal jurisdiction is suspended upon declaration of martial law as to any area under martial law; the US then has exclusive jurisdiction over all SOFA personnel in that area, including members of the civilian component and dependents, until martial law is lifted.125
References(p. 645) (h) Claims
In addition to the above, the US-ROK SOFA also contains a Claims article patterned after that in the NATO SOFA,126 a provision allowing the US to enrol in its reserve forces and train, in the Republic of Korea, eligible US citizens who are in the ROK,127 and the usual entry into force, revision, and duration provisions.128
As noted earlier,129 the Meyer Agreement, at para. 13 of Art. III, provides as follows: ‘The Republic of Korea undertakes to grant to individuals and agencies of the Unified Command, except Korean nationals, such privileges, immunities, and facilities as are necessary for the fulfillment of their functions within the Republic of Korea under the above-cited UN resolutions, or as have been heretofore granted by agreement, arrangement or understanding or as may be agreed upon formally or informally hereafter by the parties or their agencies’. This was interpreted as covering the non-FCJ rights and privileges normally addressed in SOFAs and similar basing agreements, for example, the use of facilities and areas; the right to bring in materials, supplies and equipment free of customs duties; and exemption from ROK taxes. Even though the Meyer Agreement itself has been superseded,130 the privileges, immunities, and facilities granted thereunder continue to be accorded to the individuals and agencies of the UNC.131
Although the US-ROK SOFA did not directly affect the application of the Meyer Agreement to the non-US elements of the UNC,132 the ROK government and its agencies have generally considered the UNC and its members to be entitled to rights and privileges similar to those granted the US under the US-ROK SOFA. Perhaps a better way of stating it would be to say that whatever the privileges and immunities granted under the Meyer Agreement, they are at least as extensive as those granted the US under the US-ROK SOFA.133 It will be recalled, however, that the Meyer Agreement does not explicitly speak to the area of criminal jurisdiction. Nor is there any explicit formal written grant of extraterritoriality to the UNC similar to the Taejon Agreement, which by its terms applied only to US forces.
What then is the status of ROK criminal jurisdiction over the non-US members of the UNC? The ROK Government, for its part, has argued that currently accepted international law is that a sovereign nation has jurisdiction to punish offences against its laws committed within its borders, unless it expressly or impliedly consents to a waiver of References(p. 646) its right to exercise that jurisdiction.134 The ROK government points out that the Taejon Agreement by its terms was applicable only to US forces, and notes that there is no written agreement similar to the Taejon Agreement explicitly divesting the ROK of jurisdiction as to other UN forces. The practice of extraterritoriality as to UN forces that prevailed during active hostilities was at best mere acquiescence by the ROK, and at worst was limited to the ‘prevailing conditions’ then obtaining, involving the chaos of war and the lack of a functioning civil authority. Such blanket waiver of jurisdiction should be considered to be limited to the circumstances that drove it, and should not be read to apply in time of relative calm when the civil authority is fully functioning.
Alternatively, the ROK government argues, the implied consent to immunity from ROK jurisdiction must be read in the light of the Meyer Agreement, and would be limited to the immunity ‘necessary for the fulfillment of (the UNC) function within the Republic of Korea under the … United Nations resolutions’. Since this immunity is connected to the fulfilment of the UNC function, it should go no further than cases arising out of acts or omissions in the performance of the UNC function, and is thus similar to the ‘official duty’ waiver contained in the NATO and US-ROK SOFAs. Therefore the immunity from ROK jurisdiction (or the waiver of its right to exercise criminal jurisdiction) would not extend to criminal conduct outside the scope of official duties, particularly when that misconduct occurs outside of the UNC installations.135
The position of the UNC, on the other hand, is that it enjoys extraterritoriality, and therefore the ROK has no jurisdiction to try its members. It argues that at the time the UN forces came to Korea in answer to the call of the United Nations Security Council, the same ‘prevailing conditions, such as the infiltrations of north Koreans into the territory of the Republic’ that drove the US and ROK to agree to extraterritoriality in the Taejon Agreement also applied to the other UN forces, and that accordingly the terms of the Taejon Agreement were understood to apply to the other UN forces as well. Besides, there is no principled reason for the different UNC forces pouring into Korea to defend the Republic to have been treated differently in 1950.
The UNC further points to the fact that the UN forces did indeed exercise extraterritoriality over their members during the period of 1950–1952, whether with the explicit or implicit concurrence of the ROK government, and therefore this extraterritoriality was confirmed or ratified by the ROK government in the Meyer Agreement, as a ‘privilege or immunity … heretofore granted by agreement, arrangement, or understanding’. That the UNC members were immune from prosecution by ROK authorities was officially stated by the UNC in the timeframe of 1959–60, and thus was reconfirmed when the McConaughy-Chyung Exchange of Notes on 8 February 1961 confirmed that the privileges, immunities and facilities envisaged by this paragraph of the Meyer Agreement ‘shall continue to be accorded individuals and agencies of the United Nations Command’.
Finally, the UNC notes that the Agreed Minute to Article XXII of the US-ROK SOFA specifically states:
The provisions of this Article shall not affect existing agreements, arrangements, or practices, relating to the exercise of jurisdiction over personnel of the United Nations forces present in the Republic of Korea other than forces of the United States.
References(p. 647) This can only be read to recognize that there were then in being ‘agreements’ or ‘arrangements’ concerning the exercise of criminal jurisdiction, but even in their absence, the existing ‘practice’ was extraterritoriality, and those ‘agreements, arrangements, or practices’ continue in effect. This matter has not been finally resolved,136 but is currently handled on a case-by-case basis.137
The Korean Augmentation to the United States Army (KATUSA) Program had its genesis in the early days of the Korean War, and it still exists today—a binational force probably unique in the world. Most binational or multinational forces remain single nation forces at the lower levels, combining at the upper, command level. The KATUSA program, on the other hand, is integrated at the lowest levels—the squad, firing platoon, and tank crew level. On 14 July 1950, shortly after United Nations military forces began arriving in the ROK in response to the call of the United Nations Security Council,138 ROK President Syngman Rhee issued a letter to the Commander of the United Nations forces, General Douglas MacArthur, placing the armed forces of the ROK under his command. By letter dated 16 July 1950, General MacArthur expressed his thanks and deepest appreciation for President Rhee’s action.139 On 15 August 1950, General MacArthur ordered the Korean augmentation of the Eighth United States Army to meet the replacement requirements in the depleted American ground forces.140
References(p. 648) Although for various reasons the KATUSA program did not work well in the beginning,141 as US military personnel began rotating,142 the KATUSAs, remaining with the units, proved an invaluable source of continuity, intelligence and cross-cultural communication. Additionally, of course, the KATUSAs were receiving training in US military techniques and practices, and took that knowledge with them when they returned to regular ROK Army units. With the end of combat, the number of KATUSA soldiers declined, but the program continued. Today there are about 3,500 KATUSA soldiers augmenting the US Eighth Army, with the bulk of the KATUSAs being assigned to US 2d Infantry Division units.
The KATUSA soldiers are members of the ROK Army, but are assigned to US Army units.143 They are fully integrated into the US military unit, with only a few exceptions (pay, access to duty-free goods, and military justice are the main ones). The KATUSA receives some formal training in English144 and the US military ‘way of doing things’, but most of the training is ‘on the job training’ or unit-level training. KATUSA soldiers take the same unit-level training as US soldiers, and do so side-by-side with those soldiers. This is part of being ‘fully integrated’.
Other parts of full integration include the fact that KATUSA soldiers are assigned to US Army units in the same manner that US replacements are assigned to the same units, except that traditionally KATUSAs do not fill more than twenty per cent of the E-5145 and below positions in the unit, although this is not embodied in a formal agreement. They are issued uniforms (at US government expense) like their fellow US soldiers, and barracks assignments are not based at all on the national origin of the soldier assigned to the room. Thus KATUSA soldiers do not have the option of refusing to be billeted with US soldiers, nor do US soldiers have the option of refusing to be billeted with KATUSA soldiers. They work together, train together, play sports together, eat together,146 live together, and, in the event of hostilities, would fight together. KATUSA soldiers are integrated even at the platoon and squad level—many tank crews have a KATUSA as the loader or gunner.
Other KATUSA soldiers may work in administrative positions, such as translators, radiomen, assistant editors of unit newspapers, and so on. In such positions, they can utilize their expertise in Korean language and culture, but still are members of a US unit and under the command of a US unit commander.
(p. 649) KATUSA soldiers have only one chain of command, that of the unit to which they are assigned. They take orders from the officers and non-commissioned officers in the unit, most of them American, and if they are senior, they may supervise junior US soldiers. Since the KATUSA soldiers are assigned to US units, are following the orders and direction of US commanders and supervisors, and are performing US missions, the US-ROK SOFA provides claims coverage for damage or injuries caused by KATUSA soldiers in the performance of official duties as though they were American soldiers.147 However, KATUSA soldiers are members of the ROK Army, and as members of the ROK Army, they are paid by the ROK and are subject to court-martial and other formal discipline by the ROK Army. The criminal jurisdiction provisions of the US-ROK SOFA do not apply to them. US commanders may impose minor administrative discipline, such as withholding of passes, but the US Army does not and cannot court-martial KATUSAs. However, the US commanders may provide recommendations as to discipline through the ROK Army support group responsible for KATUSA affairs.
The KATUSA program has been a great success both in hostilities and during Armistice. Even beyond the advantages provided by additional manpower resources, the cross-cultural learning that takes place between allies serves to strengthen the alliance. Many influential ROK businessmen, politicians, educators, and ordinary citizens comment that they look back on their time as KATUSA soldiers as a wonderful learning experience and a matter of pride and accomplishment. It has served both members of the alliance well, and the coalition too.
The agreements that govern the rights, privileges and responsibilities of visiting forces in Korea, and the relationships between the sovereigns involved, have evolved based on the situation and context of the times. Facing challenges unknown in NATO, which is essentially an alliance among nations with a similar cultural foundation, the US-ROK SOFA represents a marvellously delicate balance between strikingly different cultures. Grounded in the mutual respect of fellow sovereigns, the agreement protects the legitimate interests of both while as a whole subordinating neither to the other.
While each Party could undoubtedly find specific provisions that it would rather not have agreed to, on the whole the US-ROK SOFA is a magnificent accommodation of the fundamental interests, values, and philosophies of a liberal Western democracy on the one hand, and a traditional Eastern culture on the other. It blends the relationships of host and guest, and of firm allies and partners dedicated to a mutual goal of maintaining peace and freedom. Although not immune to the occasional honest disagreements occurring between parties of mutual goodwill, the relationship remains strong, and the SOFA is one of its strengths.
2 The 16 States were Australia, Belgium, Canada, Columbia, Ethiopia, France, Greece, Luxembourg, the Netherlands, New Zealand, the Philippines, Thailand, Turkey, the Union of South Africa, the United Kingdom, and the United States of America.
3 See Chapter 42.
7 Agreement Between the Commander-In-Chief, United Nations Command, on the One Hand, and the Supreme Commander of the Korean People’s Army and the Commander of the Chinese People’s Volunteers, on the Other Hand, Concerning a Military Armistice in Korea (27 July 1953), 4 UST 234, TIAS 2782, hereinafter ‘Korean Armistice Agreement’.
9 Korean Armistice Agreement (n. 7) at Art. I, paras. 1 and 2, and map attached to the Agreement.
10 Referred to in the Armistice Agreement as the ‘Commander-in-Chief, United Nations Command’ and denoted by the acronym ‘CINCUNC’. Subsequently, the position has been renamed ‘Commander, United Nations Command’ and denoted by the acronym ‘COMUNC’. The original nomenclature can still be found in some older documents.
11 Korean Armistice Agreement (n. 7), Art. I, para. 10.
12 Ibid. Art. II, para. 24. The MAC is composed of ten members, five from the United Nations Command side and five from the Korean People’s Army/Chinese People’s Volunteers (KPA/CPV) side. The MAC originally met daily, see Korea Armistice Agreement, Art. II, para. 31, but as the Armistice dragged on with no political settlement (a matter outside the authority of the MAC), the MAC began to meet at the call of either side. The MAC has not met since 1991, as the KPA/CPV side did not appear for the 460th MAC meeting scheduled for 29 May 1992. Since then, the KPA has declared the MAC to be ‘broken’ and has stated that it will no longer participate in MAC meetings, and the CPV, while reaffirming the validity of the Armistice Agreement, has announced that it has ‘withdrawn’ from the MAC. Nonetheless, meetings between general officers from both sides occur occasionally, and lower level meetings take place regularly.
13 Agreement Concerning the Logistical Support and Expense of the Military Armistice Commission, the Neutral Nations Supervisory Commission, the Neutral Nations Repatriation Commission, their Respective Subordinate Bodies and Other Personnel, Subsequent Agreement to the Armistice Agreement, approved at the 27th Meeting of the MAC held on 31 October 1953. The NNSC was originally composed of members from the nations of Switzerland, Sweden, Czechoslovakia, and Poland, with the mission to supervise Armistice compliance outside the DMZ, Korean Armistice Agreement at Art. II, paras. 37 and 41. The North Koreans used the separation of Czechoslovakia into two republics in 1992 to ‘decredential’ and expel the Czech delegation, and on 28 February 1995 the Polish delegation was also forced to depart upon total withdrawal of support by North Korea. Today the NNSC remains in place with the Swiss and Swedish delegations present in Korea and the Polish delegation performing its duties from Poland but travelling to Korea periodically.
15 United States Joint Chiefs of Staff Memorandum for Commander in Chief, United Nations Command, Subject: Terms of Reference for the Commander in Chief, United Nations Command (CINCUNC), dated 19 June 1983.
16 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 United States Forces in Japan, with Agreed Minutes (19 January 1960), 11 UST 1652, TIAS 4510, 373 UNTS 248. For discussion of the US-GOJ SOFA see Chapter 42, Part V.
17 Agreement Regarding the Status of the United Nations Forces in Japan, with Agreed Official Minutes and Protocol for Provisional Implementation (19 February 1954), 5 UST 1123, TIAS 2995. See discussion of the UNC–GOJ SOFA in Chapter 42, Part V.
18 Agreement under Art. IV of the Mutual Defence Treaty between the United States and the Republic of Korea, Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea (9 July 1966) as amended, 17 UST 1677, TIAS 6127, 674 UNTS 163. See discussion of the US-ROK SOFA beginning with text accompanying (n. 32).
19 Agreement on Economic Cooperation between the Unified Command and the Republic of Korea, with exchange of notes and official minutes (24 May 1952), 3 UST 4420, TIAS 2593. See discussion of the Meyer Agreement beginning with text accompanying (n. 129).
22 On 15 July 1950, Republic of Korea President Syngman Rhee assigned ‘command authority over all land, sea, and air forces of the Republic of Korea’ to the Commander of the Unified Command, General Douglas MacArthur, see UN Doc S/1627 (25 July 1950). See discussion of Exchange of Public Letters Concerning Transfer of Operation Command, Vol. 1, The Treaties of the National Defense, 630-1 (War History Compilation Committee, Ministry of National Defense, Republic of Korea) at text accompanying (nn. 139 and 140).
23 The Republic of Korea was admitted into the United Nations on 17 September 1991. However, although some ROK officers serve on COMUNC’s staff with the permission of the commander concerned, the ROK has not ‘joined’ the UNC as such.
24 Terms of Reference for the Military Committee and ROK/US Combined Forces Command/Strategic Directive 2, with change 1 as of 1 March 1999. Some specifics as to extent of directive authority and the conditions under which it may be exercised are classified.
25 The National Command and Military Authorities are composed of each country’s Joint Chiefs of Staff, the US President and Secretary of Defense, and the ROK President and Minister of National Defense.
26 The plenary session normally meets in conjunction with the annual ROK-US Security Consultative Meeting or ‘SCM’. The SCM is a meeting between the US Secretary of Defense and the ROK Minister of National Defense.
28 Strategic Directive 2, (n. 24).
29 See discussion of the US-ROK SOFA beginning with text accompanying (n. 32).
31 See discussion of the US-ROK SOFA beginning with text accompanying (n. 32).
32 The US presence in the Republic of Korea had significantly diminished following the end of World War II. The United States (Army) Military Government in Korea (MGIK) had acted as civil authority (technically as Occupying Power, since Japan had exercised governmental authority over the Korean peninsula since 1910) following the Japanese surrender, and in 1948 civil authority was handed over to the new Republic of Korea. US forces had withdrawn thereafter, leaving only a security assistance office (United States Military Advisory Group to the Republic of Korea (KMAG)). As a part of the transition from MGIK to ROK, the Commanding General of the US Army Forces in Korea, Lieutenant General John R. Hodge, and the President of the ROK, Syngman Rhee, entered into an Executive Agreement, Art. 3 of which provided, inter alia: ‘It is further agreed that the Commanding General, United States Army Forces in Korea, shall retain exclusive jurisdiction over the personnel of his command, both military and civilian, including their dependents … It is further agreed that any individuals under the jurisdiction of the Commanding General, United States Army Forces in Korea as described above, who may be apprehended by law enforcement agencies of the Government of the Republic of Korea shall be immediately turned over to the custody and control of the Commanding General, United States Army Forces in Korea.’ Executive Agreement between the President of the Republic of Korea and the Commanding General, United States Army Forces in Korea, Concerning Interim Military and Security Matters during the Transitional Period (24 August 1948), 79 UNTS 57. By 19 September 1949 all US military forces, save those assigned or attached to KMAG, had departed the Korean peninsula. It was felt that the grant of exclusive jurisdiction contained in the 1948 Executive Agreement could be argued to have lapsed with the withdrawal of those forces, and thus a new agreement of some nature was appropriate to remove any ambiguity.
34 ‘Extraterritoriality’ is used here in its older sense, that of the exemption from the obligations of the laws and the jurisdiction of the courts of a Receiving State, granted to foreign diplomatic agents etc., of a Sending State.
35 I.e. the United Nations Command. In some of the early agreements, the United Nations Command was referred to as the ‘Unified Command’, the term being taken from SC Res. 84 (1950), see (n. 6), which at para. 3 recommends the Member States providing military forces and other assistance pursuant to SC Res. 83 (1950), see (n. 5), to make such forces and other assistance ‘available to a unified command under the United States’. This ‘unified command’ was clearly a command consisting of multinational forces, and the term should not be confused with the US system of ‘unified commands’ or ‘unified combatant commands’, see Pub.L. 99-433, Title II, § 211(a), 100 Stat. 1012 (10 USC § 162), such as the United States European Command (USEUCOM), which are composed of US forces only.
36 Agreement on Economic Cooperation Between the Unified Command and the Republic of Korea, with exchange of notes and official minutes (n. 19).
37 Although not as well known as the three Security Council Resolutions previously mentioned, there was another resolution SC Res. 85 (1950), which requested the Unified Command to exercise responsibility for determining the requirements for the relief and support of the civilian population of Korea, and for establishing in the field the procedures for providing such relief and support. Thus, while dealing generally with the Unified Command’s presence and activities in the ROK, the Meyer Agreement spoke mainly to civil relief and assistance.
38 See n. 7.
39 Art. IV of the Armistice Agreement recommended that within three months after the Armistice was signed, a political conference of a higher level of both sides be held ‘to settle through negotiation the questions of the withdrawal of all foreign forces from Korea, the peaceful settlement of the Korean question, etc’.
40 The United States and the Republic of Korea had entered into a formal Mutual Defence Treaty in 1953, see (n. 21) Art. IV of which provided that the ROK granted, and the US accepted, the right to dispose US land, air, and sea forces in and about the territory of the ROK, ‘as determined by mutual agreement’. This latter language, said the ROK, clearly contemplated negotiation of a SOFA.
41 The US was reluctant to negotiate a SOFA with the authoritarian and increasingly unpopular Rhee regime. After the Rhee government was toppled on 26 April 1960 following the violent ‘April 19 Student Revolution’ and a popularly elected government took power, negotiations did commence on 17 April 1961. However, the elected government was overthrown in a military coup d’etat less than a month later, and the US initially declined to negotiate with the coup leaders. Nonetheless, on 20 September 1962, negotiating sessions did resume, and following over 80 formal negotiating sessions, the contents of the agreement were finalized and it was signed in Seoul on 9 July 1966. For a summary of the ‘discussions on discussions’ that preceded the actual negotiations, at least from the ROK viewpoint, see Soon Sung Cho, ‘Status of Forces Agreement Between the Republic of Korea and the United States: Problems of Due Process and Fair Trial of U.S. Military Personnel’, US Status of Force Agreements with Asian Countries: Selected Studies, 7 Occasional Papers/Reprints Series in Contemporary Asian Studies (University of Maryland School of Law, 1979) [hereinafter ‘Occasional Papers’] 49, 50–2. Professor Cho references a ROK Ministry of Foreign Affairs publication, Daehan Minkuk Kwa Mihapjungkuk Kanui Juhan Hapjungkuk Kundae ui Chiui e Kwanhan Hyopjong (Status-of-Forces Agreement Between the Republic of Korea and the United States of America) (Seoul, 1972).
45 Art. I, para. (a). The definition also goes on to exclude military personnel attached to the US Embassy (e.g. Marine guards and Defense Attachés), and personnel who have status under a Military Advisory Group (i.e. the security assistance office) Agreement. Those personnel are accorded status under agreements aliunde the US-ROK SOFA.
46 Military personnel stationed in nearby nations, such as Japan, frequently visit Korea for shopping or tourism while on leave, as do military personnel visiting friends stationed in Korea or families of spouses etc. living there. On occasion they are accused or suspected of involvement with an offence, and are questioned or detained by local law enforcement authorities. In such cases, when their status as a member of the United States military comes to light, the Korean authorities routinely notify the local military authorities. In such cases, a US representative is made available to observe the interrogation and, if it appears likely the matter will not be quickly resolved, the military member is attached to a local unit, whereupon he is recognized as being covered by the SOFA. Unusual cases, e.g. deserters, are treated in much the same way once the fact that the individual is a military member is discovered.
48 Art. I, para. (b). The terminology has a long history, dating back to the Indian Wars of the middle 1800s on the US side, and perhaps further on the British side. The term ‘employed by’ obviously means employees of the military; the term ‘serving with’ refers to persons in the ‘public service’, e.g. employees of other government agencies such as the Department of Education or the General Services Agency; while ‘persons accompanying’ derives from the category of ‘retainers to the camp’, i.e. servants, employees of companies working for or with the military, service organizations such as ARC and USO etc. See discussion in Winthrop, Military Law and Precedents (2nd edn, 1896) 131–8.
51 See Rouse and Baldwin (n. 47), 38.
53 The US military does not ‘own’ this land; rather the US is granted the use of these facilities and areas ‘without cost to the United States’, see Art. V, US-ROK SOFA. The host nation is responsible to ‘make compensation where appropriate to the owners and suppliers’ of such facilities and areas. Ibid. This may involve the host nation paying ‘rent’ under a lease or actually acquiring title to the real estate through eminent domain or voluntary sale.
54 Art. XXVIII of the US-ROK SOFA established a Joint Committee composed of a representative of the government of the United States and a representative of the government of the Republic of Korea, ‘each of whom shall have one or more deputies and a staff’. The Joint Committee is established as a means for consultation between the two governments on all matters requiring mutual consultation regarding the implementation of the SOFA. Such a consultative body, variously called a Joint Committee, Joint Board, or other similar appellation, although not provided for in the NATO SOFA is common in the modern SOFAs, see e.g. US-GOJ SOFA (n. 16) Art. XXV; Agreement between the United States of America and the Republic of China on the Status of United States Armed Forces in the Republic of China (31 August 1965), 17 UST 373, TIAS 5986, Art. XVII. Commonly the Joint Committee will have one or more subcommittees responsible for functional areas such as Claims, Criminal Jurisdiction, Facilities and Areas, Utilities, Environment, etc. As a body subordinate to the SOFA, a Joint Committee has no power to change a SOFA, although it may change how a particular provision of a SOFA is implemented. Concerning the Joint Commission concept in general, see Chapter 28.
55 A similar provision is found in the US-GOJ SOFA (n. 16) at Art. III.
58 It might be argued that the ‘Respect for Local Law’ article of the US-ROK SOFA, Art. VII, which is substantially identical to Art. II of the NATO SOFA, would come into play and require the application of local law on the facilities and areas. The question of the meaning and effect of such an Article has been the subject of substantial debate (see Chapter 7); however, the question as to whether the provision is substantive or merely psychological (see Lazareff, n. 43, 100–5) was resolved as to the US-ROK SOFA in favour of the Lazareff position. As explained in the authoritative ROK Ministry of Foreign Affairs document Agreement Under Article IV of the Mutual Defense Treaty Between the Republic of Korea and the United States of America, Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea—Explanation and Text (Seoul, 1966) [hereinafter ‘Explanation and Text’], that accompanied the draft SOFA upon submission for ratification by the ROK National Assembly: ‘In view of the general principle of international law, namely, territorial sovereignty, this article is simply a suggestive provision. But it is of significance inasmuch as it helps prevent a sense of privilege apt to imbue the personnel of the U.S. armed forces stationed in Korea in view of their special nature, and as it imposes upon the U.S. military authorities an obligation to take necessary measures for that purpose.’
59 Inclusion of the word ‘unnecessarily’ at this juncture seems to confirm two points: First, that the grant of authority in para. 1 is very broad, so broad that it would include interference, even to the extent of action that, if taken by a private person, would violate host nation laws. Second, that although the grant is very broad, the United States is agreeing not to exercise that authority more broadly than is reasonably necessary. That this is an affirmative undertaking on behalf of the US seems clear; otherwise the wording would be more likely to have been ‘The United States recognizes that it cannot …’ rather than as it actually reads, an agreement on the US side to moderate its exercise of the authority granted in the first paragraph. See also the commentary concerning para. 3 of Art. III.
60 Note that this exemption from ROK regulatory laws, and from prosecution for failing to comply with those laws, would apply only where the activity was in accordance with US ‘establishment, operation, safeguarding and control’ of its installations. For example, a pharmacist licensed by the US military authorities to dispense narcotics in a US military medical facility would not be subject to prosecution for violating ROK narcotics transfer laws if he transferred the narcotics in the course of operation of the medical facility; however, if he were to transfer them to someone in his private capacity, he could be subject to prosecution for violation of Korean narcotics control laws.
61 This discussion is limited to the international law aspects inherent in the interpretation of the terms of the international agreement. A visiting force may also be required by its internal regulations to take measures to protect the environment beyond those measures required by the international agreements, and of course the visiting force is bound by its own regulations. The US Department of Defense has promulgated such regulations.
62 As explained in ‘Explanation and Text’ (n. 58): ‘Such a provision is intended to facilitate the settlement of the matter by stipulating mutual waiver because the restoration of original conditions is impossible, because their evaluation will be complicated, and because various disputes may arise over that matter.’ The US-GOJ SOFA (n. 17), has a similar provision at Art. IV. But see the US-Republic of China SOFA (n. 54), negotiated during the same timeframe as the US-ROK SOFA, which, at para. 2 of Art. IV, relieves the US of any duty to restore or to pay damages but at para. 3 imposes on the Republic of China the duty to pay residual value, including scrap value, upon return of facilities and areas by the US. These provisions pre-date 1991; since then Congressionally directed policy is to ensure that the United States receives, through direct payment or otherwise, consideration equal to the fair market value of the improvements made by the United States at facilities that will be released to host countries, see § 2921, National Defense Authorization Act for Fiscal Year 1991, PL 101-510, 104 Stat 1819. Of course, where the governing SOFA already contains a contrary provision, the terms of the international agreement would control.
In 1967, the year the US-ROK SOFA entered into force, the US wrote to the ROK side noting that a projected increase in accompanied tours in order to provide greater continuity of key personnel necessitated additional military family housing. In response, the ROK side replied that while it recognized the housing requirements of the US forces in Korea, the ROK government was not ‘under the present circumstances’ in a position to provide the housing with its own budgetary resources. The US, sensitive to the fragile condition of the Korean economy at that time, then entered into a ‘build to lease’ arrangement with a private developer. By the late 1970s, that arrangement had collapsed, and the US again approached its ROK ally about providing needed military family housing. Again the ROK side pleaded poverty, and so the US made available certain land that had been granted to the US under the SOFA, and an agency of the Korean government then constructed military family housing on it, which the US then rented from the ROK agency. In the early 1980s, the US again approached the ROK side about providing military family housing, and again the ROK side stated that the US would have to provide the land on which the ROK would construct the housing, and would have to pay rent to the ROK agency for using the housing. Since then the US has frequently raised the issue of military family housing with its ally, but to no avail. Some ROK officials have even taken the rather inexplicable position that military family housing is not related to the stationing of US troops on the peninsula, and thus is not covered by the ‘no cost to the US’ provision in the SOFA. In the interim, the costs to the ROK for the construction of the housing have long since been recouped, Korea is no longer a poor country (in 2016, the Republic of Korea was the eleventh largest economy in the world), and yet the US continues to pay rent for the housing. Thus the Republic of Korea is the only ally, rich, poor or otherwise, where the United States has troops stationed in which the United States pays rent to the host nation for using military family housing constructed and owned by the host nation to house SOFA personnel.
64 A similar provision is found in the US-GOJ SOFA (n. 16) at Art. XXIV.
65 Agreement Between the United States and the Republic of Korea Concerning Special Measures Relating to Article V of the Agreement under Article IV of the Mutual Defense Treaty Between the United States and the Republic of Korea Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea (25 January 1991).
66 Japan began providing assistance to the US in meeting stationing costs in 1978, and similar Special Measures Agreements were concluded under the US-GOJ SOFA between the US and Japan beginning in 1987, see Agreement Between the United States and Japan Concerning Special Measures Relating to Article XXIV of the 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 United States Armed Forces in Japan, with Agreed Minutes (30 January 1987); follow-on Special Measures Agreements between the US and GOJ were signed as the older agreements expired.
67 Agreement Between the United States and the Republic of Korea Concerning Special Measures Relating to Article V of the Agreement under Article IV of the Mutual Defense Treaty Between the United States and the Republic of Korea Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea (23 November 1993). New agreements of the same name were signed on 24 November 1995, 25 February 1999, 9 June 2005, 15 January 2009, and 2 February 2014.
68 In the NATO SOFA, this is a ‘default’ provision; other arrangements may be made between the host nation and the Sending State, see Lazareff (n. 43), 365–7. Shortly after entry into force of the NATO SOFA, the United States entered into agreements with many of the host nations under which the US was permitted to contract directly. These agreements, collectively known as ‘Off-Shore Procurement Agreements’ or ‘Lines of Communications Agreements’, are typified by the Agreement Relating to Off-Shore Procurement, with exchange of notes, between the US and Belgium (2 September 1953), 5 UST 1311, TIAS 3000, 200 UNTS 127. See also Agreement between the United States of America and the Netherlands Regarding Stationing of United States Armed Forces in the Netherlands (13 August 1954), 6 UST 103, TIAS 3174, 251 UNTS 91, at para. 6: ‘With respect to paragraph 2 of Article IX [of the NATO SOFA], US forces may procure supplies, facilities and services directly from local sources in The Netherlands.’
69 A similar provision is found in the US-GOJ SOFA (n. 16) at Art. XII.
70 Mutual Logistics Support Agreement Between the Government of the United States of America and the Government of the Republic of Korea (8 June 1988), TIAS 12024, as amended on 5 February 1991, 23 February 2004, and 30 June 2010. This agreement has also been used outside Korea itself; for example, when ROK troops were sent to East Timor under UN aegis, the ROK utilized the MLSA to acquire support from the US.
71 Acquisition and cross-servicing agreements are authorized under the NATO Mutual Support Act, 10 USC § 2341 et seq. There is no such agreement with the UNC itself, but the US has bilateral ACSAs with many of the United Nations Command member nations that can be used when necessary.
72 Umbrella Agreement Between the Government of the United States of America and the Government of the Republic of Korea Concerning Wartime Host Nation Support (21 November 1991), 1738 UNTS 265 [hereinafter ‘WHNS Umbrella Agreement’].
73 The twelve functional areas are: Communications; Engineering (which includes construction and acquisition of facilities); Field Service (includes laundry, etc.); Maintenance; Medical; Munitions; Biological, Chemical and Special Weapons Services; Personnel and Labor Services; Petroleum; Security; Supply; and Transportation. Additional functional areas may be added by mutual agreement.
75 Art. XVI, US-ROK SOFA. The US-ROK SOFA explicitly denies such exemptions for personal purchases made by SOFA personnel; there is nothing similar to the ‘Abwicklungsschein’ programme (whereby purchases made by individuals on the local economy are exempted from VAT and similar taxes) in Korea as there is in Germany and some other host nations. See Chapters 25 and 37.
76 Furthermore, in Japan, under the Special Measures Agreement (n. 66), the host nation pays substantially all of the local labour costs for the US forces. In Korea, the host nation currently contributes approximately 75% of the local labour costs, but unlike in Japan, this applies only for appropriated fund employees (i.e. not for employees paid from non-appropriated funds (NAF), e.g. employees working in gymnasiums, child care centres, libraries, clubs, etc.). When NAF employees are included, the host nation pays less than 50% of local labour costs in Korea.
77 Art. XVII, US-ROK SOFA. The local national labour force in Korea are thus employees of the US, and the system is called a ‘direct hire’ system. In some other host nations, on the other hand, the local national employees are employees of the host nation in positions resembling civil service and thus are not employees of the US. Such a system is called an ‘indirect hire’ system.
78 For many years there was some disagreement in interpretation of this provision, with the ROK side occasionally insisting that ‘conform with’ meant ‘comply with’. However, in 1991 it was agreed that ‘conform with’ does not mean ‘comply with’; it means only that the conditions of employment, compensation, and labour-management relations developed and applied by the US must be ‘in substantial agreement with those conditions laid down by the labor laws of the Republic of Korea’—Understandings on Implementation of the Agreement Under Article IV of the Mutual Defense Treaty Between the United States of America and the Republic of Korea Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea and Related Agreed Minutes (1 February 1991), as amended [hereinafter ‘Understandings on Implementation’] concerning Paragraph 3 and Agreed Minute 2 and 4 of Art. XVII, at para. 2.
80 See text accompanying n. 33.
81 Para. 3 of Art. XXIX of the US-ROK SOFA notes that the US-ROK SOFA, ‘upon its entry into force’, shall supersede and replace the Taejon Agreement. The US-ROK SOFA entered into force on 9 February 1967, seven months after it was signed. Para. 4 of the same article provides that ‘within the scope of this Agreement’ the Meyer Agreement (n. 19), shall not apply to SOFA personnel.
82 In the Introduction to Occasional Papers (n. 41), the co-editors, Professor Charles Cochran and Professor Hungdah Chiu note: ‘Law, of course, reflects the culture, socio-economic conditions, and political system in which it arises.’
83 Professor Cho (n. 41), at 49 notes: ‘[B]ecause the ROK lacked a tradition of guaranteeing Western judicial rights, the U.S. was reluctant to allow its military personnel to be subjected to Korean justice.’ The criminal justice system in the ROK had much in common with that of Imperial Japan, Japan having imposed its system on Korea from 1910 until 1945 when Korea regained its independence; additionally, the US had the opportunity for some twenty years to observe the way in which the system was actually being administered.
84 ‘For their part, the Koreans viewed the U.S. resistance to negotiate a SOFA as an affront to their sovereignty and national pride.’ Cho (n. 41), 49.
85 Basically, SOFAs today incorporate one of three jurisdictional arrangements: The first, based on the NATO SOFA, provides for sharing criminal jurisdiction with the Receiving State, with the latter having the primary right to exercise concurrent jurisdiction except for cases involving official duty or those involving the Sending State or its personnel as victims (these are sometimes called ‘inter se’ cases). This arrangement is the least favourable to the Sending State, and it is this arrangement that is adopted in the US-ROK SOFA. The second also shares criminal jurisdiction with the host nation and permits the Sending State to have the primary right to exercise in cases involving official duty or inter se cases, but in addition reserves to the Sending State either exclusive jurisdiction or the primary right to exercise concurrent jurisdiction within installations in which the Sending State troops are garrisoned. This arrangement might be called the ‘Oppenheim’ model, see Oppenheim, International Law (4th edn, 1928) at § 445: ‘This rule [of immunity from Receiving State jurisdiction], however, applies only in case the crime is committed, either within the place where the force is stationed, or in some place where the criminal was on duty; it does not apply if, for example, soldiers belonging to a foreign garrison or a fortress leave the rayon of the fortress, not on duty but for recreation or pleasure, and then and there commit a crime. The local authorities are in that case competent to punish them.’ Examples are the United States-Philippine Military Bases Agreement, TIAS 1775, signed 14 March 1947 at Art. XII, para. 1 (exclusive jurisdiction) and the Panama Canal Treaty, 33 UST 39, TIAS 10030, signed 7 September 1977, at Art. XI, para. 2 (a) (i) (primary right to exercise). The third vests exclusive jurisdiction in the Sending State. This model, which could be called ‘full extraterritoriality’, is not as extinct as some commentators would like one to believe, but rather is alive and well, even robust. The United Nations Model Status of Forces Agreement for Peace-keeping Operations, UN Doc. A/45/594 (9 October 1990), (used in the case of Cyprus and other places where the UN has sent peacekeeping forces) incorporates the concept at Art. 47 (b): ‘Military members of the military component of the United Nations peace-keeping operation shall be subject to the exclusive jurisdiction of their respective participating States in respect of any criminal offenses that may be committed by them in [host country/territory].’ (Emphasis added.) Likewise, the Agreement Between the Republic of Bosnia and Herzegovina and the North Atlantic Treaty Organization (NATO) Concerning the Status of NATO and its Personnel, signed 23 November 1995, contains a similar exclusive jurisdiction provision at Art. 7. Similar provisions were found in the agreements between NATO and the Federal Republic of Yugoslavia and NATO and the Republic of Croatia implementing the Dayton Accords. Currently, this immunity from criminal prosecution by the host nation is being increasingly confirmed in so-called ‘A&T Agreements’ in which the Sending State forces are granted privileges and immunities or status equivalent to that accorded the administrative and technical staff of Embassies under the Vienna Convention on Diplomatic Relations (18 April 1961), 500 UNTS 95, see Chapter 47. This arrangement is, of course, the most favourable to the Sending State.
86 The agreement with the Netherlands (n. 68) included a blanket advance waiver by the Netherlands of its primary right to exercise jurisdiction under Art. VII of the NATO SOFA, with the ability to withdraw that waiver where the Netherlands authorities determined that it was ‘of particular importance’ that jurisdiction be exercised by the Netherlands.
87 Supplementary Agreement to the NATO Status of Forces Agreement with respect to Forces Stationed in the Federal Republic of Germany (3 August 1959), with Protocol of Signature, 14 UST 531, TIAS 5351, 481 UNTS 262. The German Supplementary Agreement contains an advance waiver of primary jurisdiction with a right by the German authorities to recall that waiver when ‘major interests of German administration of justice make imperative the exercise of German jurisdiction’. A list of cases that ‘may’ meet that criterion is set out. See Art. 19 and the provisions of the Protocol relating to it.
89 See (n. 87) at Protocol concerning Art. 19. See also the US-Republic of China SOFA (n. 54), Agreed Minute to Article XIV, concerning para. 3 (c) which contains an advance waiver of the right of primary jurisdiction, a right to recall the waiver in a specific case where ‘major interests of Chinese administration of justice make imperative the exercise of Chinese jurisdiction’, and a list of types of cases that ‘may’ meet that criterion. Similarly, the Criminal Jurisdiction Arrangements between the United States and the Republic of the Philippines, (10 August 1965) 16 UST 1090, TIAS 5851, provided for waiver upon US request ‘except where (the Philippine authorities) determine it is of particular importance’ that they exercise jurisdiction. The advance waiver and the list of cases of particular importance had, by 1966, become a usual feature of a ‘modern’ SOFA.
90 US-ROK SOFA (n. 18) at Agreed Understandings concerning Agreed Minute Re paragraph 3(b).
91 Understandings on Implementation (n. 78) concerning Art. XXII, para. 3(c). The provision is symmetrical; that is, if the US has primary jurisdiction, the ROK can request a waiver in the same way, and if the ROK does so the same time limits and ‘default waiver’ provisions apply.
92 Exchange of Notes between US Ambassador Donald P. Gregg and ROK Minister of Foreign Affairs Lee, Sang-Ock (1 February 1991). The ROK side assured the US side that the deletion of the list of ‘cases of particular importance’ was cosmetic in nature, and that the list would continue to guide ROK authorities in their determination of which cases to waive, and over which to exercise jurisdiction. This worked well in practice until about 1995, at which time the ROK began to expand the exercise of its primary right, taking even simple assault cases and minor traffic cases that resulted in fines. Despite discussions between the US and ROK within the Joint Committee structure, refusals to waive jurisdiction over such minor offences continue.
93 It is interesting to note that under the ROK system, the military has exclusive jurisdiction over military personnel for all offences, even those committed while off duty and away from base, and the ROK civil courts have none. Ironically, the effect of the SOFA provision is to give the ROK civil courts significantly more jurisdiction over a US soldier than they have over a ROK soldier! It is also interesting to note that when Korea later began contributing forces to activities outside Korea, and negotiated Status of Forces Agreements as a Sending State, Korea insisted on having exclusive jurisdiction over its military personnel in all cases, see David Straub, ‘Anti-Americanism in Democratizing South Korea’, Shorenstein Asia-Pacific Research Center, Stanford University (2015), at 112.
94 The due process protections discussed in this chapter are among those listed in Art. XXII of the US-ROK SOFA and the Agreed Minute to Art. XXII. For an analysis of the differences between the US and Korean legal systems, and problems of fair trial, see ‘Due Process Challenge to the Korean Status of Forces Agreement’ 57 Georgetown Law Journal (1969), 1097, and Cho (n. 41). Professor Cho discusses specific cases, and in Appendix A reprints the opinion of the court in the unpublished case of Ernest W. Bruch v. Clifford Alexander, Case No. 74-125-C5, US District Court for the District of Kansas (6 July 1977), in which the Court determined that a fair trial had not been provided to Bruch when he was tried by Korean authorities. Professor Cho concludes, ‘These traditions [of “government by man” rather than “government by law”] still linger on despite the fact that the present ROK constitution and laws of criminal procedure explicitly prohibit them. Under these circumstances the protection of [the] American serviceman’s right to [a] fair trial will become difficult to obtain if the law is not followed closely in practice. …. The problem now is the implementation of these laws; it will take a long time for Korea to build a democratic tradition. However, a fair trial can be obtained in a Korean court as long as the Korean and American authorities judiciously observe the safeguards of the SOFA.’ It should also be remembered that these articles and observations are decades old; virtually all observers will agree that the Korean investigative and judicial system has improved to some degree in the interim.
95 The US-ROK SOFA extends the coverage of this provision to accused who are members of the armed forces, the civilian component, and dependents, see Art. XXII, para. 5 (c). Contrast this with the parallel provision of the NATO SOFA, which limits its coverage to military members and civilian component only. As noted by Lazareff (n. 43), 240, no explanation for the omission of the word ‘dependents’ in this paragraph of the NATO SOFA appears in the Working Papers (negotiating history) of the NATO SOFA. One could speculate that the omission results from the omission of ‘dependents’ in para. 3 (a) of Art. VII of the NATO SOFA, which grants the Sending State the primary right to exercise jurisdiction over only ‘a member of the force or the civilian component’. This provision, pre-dating the United States Supreme Court decision in the case of Reid v. Covert 354 US 1 (1957) which began the line of cases limiting jurisdiction of US court-martial over civilians in time of peace, would have the effect of depriving the Sending State of the primary right to exercise jurisdiction over dependents in inter se cases, and apparently was specifically intended to do so, see Joseph M. Snee and Kenneth A. Pye, Status of Forces Agreement: Criminal Jurisdiction (1957), at 34–40. However, that would still not explain why custody over dependents being tried by the Receiving State should be handled differently from custody over members of the civilian component being similarly tried. In any event, the US-ROK SOFA includes dependents in its version of para. 3 (a), so to the extent that US courts-martial would have jurisdiction over civilians (e.g. in time of war), dependents would fall within the US primary right to exercise jurisdiction in inter se cases.
96 The term ‘custody’ has various meanings as used here. Under para. 5(c), when the US has ‘custody’, it has the responsibility to ‘promptly make any such accused available to the authorities of the Republic of Korea upon their request for purposes of investigation and trial, and shall take all appropriate measures to that end and to prevent any prejudice to the course of justice’. It thus appears that ‘custody’ as used here really means ‘responsibility to maintain control over the person of the accused’ and the level of custody, whether ‘own recognizance’, restriction, or pre-trial confinement, is a matter to be decided by the US after taking ‘full account’ of any special request concerning custody made by the host nation authorities, see para. 5(c). However, when speaking of ‘custody’ by the host nation, it appears that such custody encompasses some sort of pre-trial physical restraint, i.e., detention or confinement. If the accused is to remain unincarcerated, there seems to be little point in the host nation assuming the responsibility to maintain control over the person of the accused.
97 Consistent with due process and the presumption of innocence, the jurisprudential interest of the state over the pre-trial ‘custody’ of an accused would seem to be limited to ensuring that he is available for investigation, trial and related proceedings, and that he does not interfere improperly with the investigation by destroying or concealing evidence or tampering with witnesses. In some cases, upon a proper showing, some sort of restraint may also be appropriate if the accused is determined to be a danger to himself or others. Accordingly, if an accused is placed in pre-trial detention or confinement by the authorities of the Sending State, the interests of the Receiving State would seem to be fully met. The accused is under sufficient restraint that his presence for trial can be assured, he is removed from the scene where tampering with evidence would be a possibility, and society is protected from future depredations.
98 The US explained that, particularly with respect to military personnel but also to civilian employees, they were performing duties that were essential to or in support of the collective self-defence mission, and their absence would cause difficulties for the US in fulfilling that mission. The US would have to either divert other personnel to perform those duties, or do without. Further, the US explained that under US law a military member in foreign pre-trial confinement would no longer be eligible to receive pay or allowances. While this may not be a great hardship for a single soldier, if the individual had a spouse or other dependents, allowances to support those dependents would also be cut off, which could cause a great burden on the family of the individual, as well as problems for the command. However, if the soldier was in US pre-trial confinement, even though he was in confinement he would still be earning pay and allowances.
99 Modern SOFAs to which the US is a party typically provide that the Sending State may maintain custody of a SOFA accused pending completion of all judicial proceedings. See, e.g., the US-Republic of China SOFA, (n. 54) Art. XIV, para. 5(c) (‘The custody of an accused member of the United States armed forces, or civilian component, or a dependent shall be promptly entrusted to the military authorities of the United States pending conclusion of all judicial proceedings.’); and the US-Philippines Criminal Jurisdiction Arrangements (n. 89) provided that in all cases where the Republic of the Philippines was to exercise jurisdiction, the custody of an accused ‘shall be entrusted without delay to the commanding officer of the nearest base’ pending investigation, trial and final judgment, see paras. 4 and 5 of the Agreed Official Minutes regarding Art. XIII. Similarly with respect to nations covered by the NATO SOFA, the Agreement Between the United States of America and the Kingdom of Greece Concerning the Status of United States Forces in Greece (7 September 1956), 7 UST 2555, TIAS 3649, provides in Art. III that in cases where Greece exercises criminal jurisdiction over the accused, the US shall ‘take custody of the accused pending completion of trial proceedings’. The Netherlands Agreement (n. 68) also provides that the US maintains pre-trial custody of US personnel. Under the German Supplementary Agreement (n. 87), custody of US personnel remains with the US ‘until release or acquittal by the German authorities or until commencement of the sentence’ irrespective of which authorities effected an arrest, see Art. 22. Similar provisions are found in other Supplementary Agreements with NATO nations where the US has forces stationed. In this respect, the provision in the 1966 ROK SOFA had the same effect as the others, except for the SOFA with Japan and its implementation. Of course, the Sending State should give full consideration to any requests by the Receiving State concerning the level of custody, and in a case where the Sending State cannot impose what it believes to be a necessary level of restraint, e.g. where the accused is a civilian not subject to pre-trial confinement by the military authorities of the Sending State and the Sending State believes that confinement is appropriate, a request can be made to the Receiving State for assistance in maintaining the custody of the accused, or custody could be transferred to the Receiving State.
100 Straub (n. 93), at 104–11. Mr. Straub was, before his retirement in 2006, a career diplomat with the United States Department of State, and was posted to Seoul from 1999 to 2002 as Director of the Embassy’s Political Section. As such, he was closely involved with the negotiations that led to the 2001 revision to the SOFA and allied agreements.
101 Ibid. at 110. No matter what the US did in other countries where US forces were stationed, or what sort of agreements the US had with those Receiving States, the Korean people and Korean media tended to compare their situation with that of Japan, both for reasons of geography and of history.
103 ‘Adequate cause’ that the accused committed the offence charged shall be a judicial determination that there exist reasonable grounds to believe that the accused committed the offence. Such judicial determination shall be made in accordance with the laws of the Republic of Korea. Para. 4, Agreed Minute re para. 5(c), Art. XXII.
104 ‘Necessity’ for pre-trial custody shall be a judicial determination that confinement of the accused is required because there is reasonable ground to suspect that the accused has destroyed or may destroy evidence; that the accused may flee; or that the accused is likely to cause harm to the life, person or property of a victim, a potential witness, or a family member of a victim or potential witness. Such judicial determination shall be made in accordance with the laws of the Republic of Korea. Para. 5, Agreed Minute re para. 5(c), Art. XXII.
107 Para. 6 of the Understandings on Implementation (n. 78) concerning the Agreed Minute re para. 5(c), Art. XXII. This guards against use of the coercive nature of foreign pre-trial confinement to perfect a prosecution case.
110 Para. 2, Agreed Minute re para. 5(c), Art. XXII. This is generally equivalent to what was accorded to Japan in 1995, Straub, (n. 93), at 105, which had triggered more Korean dissatisfaction with perceived unequal treatment vis-à-vis Japan. Despite periodic discussions, the US and the ROK have not been able to agree on the definition of ‘a heinous crime of murder or an egregious rape’; however, there has been no murder case since 2001 to invoke this exception and in a couple of rape cases in which the ROK invoked this exception, the US military authorities had no objection.
111 Para. 1 of the Understandings on Implementation (n. 78) concerning the Agreed Minute re para. 5(c), Art. XXII.
112 See text accompanying (nn. 95–6).
113 The corresponding text in the US-Japan SOFA, para. 5(c), Art. XVII, reads as follows: ‘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.’ The pertinent provision the NATO SOFA, para. 5(c) of Art. VII, is similar:
The US hoped that by acceding to the ROK request for treatment similar to that accorded Japan, and by replacing the language in the SOFA itself with language drawn from the SOFA with Japan, this would demonstrate that the US did not intend to discriminate against Korea, and would mute the claims that the ROK SOFA was somehow ‘unequal’ and ‘unfair’. Even the ROK chief negotiator, Mr. Song, Min Soon, who later became ROK Minister of Foreign Affairs and Trade, and upon his retirement from the Korean diplomatic service served in the ROK National Assembly, the unicameral national legislature, declared that Korea now had the best SOFA in the world, Straub (n. 93), at 107. However, a recent poll revealed that despite the revisions in 1991 and 2001, over 90% of South Koreans believe the SOFA is unfair, Straub (n. 93), at 189. Obviously, there is still work to be done.
114 Agreed Minute Re para. 9(g) of Art. XXII. The ‘US representative’ is not a spokesman or advocate for the accused but is rather a disinterested representative of the US government. The requirement that a representative of the Sending State be present during interrogation of the SOFA member is not unique to the US-ROK SOFA, and even though as stated here it is broader than the right set out in para. 9(g) of the NATO SOFA, for policy reasons some NATO host nations will nonetheless not interrogate a US suspect without a US representative being present. Lazareff (n. 43), 222–5. Although at first blush this might appear to be an adverse reflection on the conduct of the host nation investigative process, a moment’s thought shows that the provision operates to the benefit of both the Sending State and the Receiving State. The Sending State, through its representative, knows that the rights granted under the SOFA are being observed, and the Receiving State knows that it has a representative of the Sending State to refute any claim to the contrary. Contrast this situation with that obtaining in Japan and elsewhere. Claims of statements being extracted by threats, unlawful inducements, or coercion during host nation interrogations are not uncommon in cases arising there and in other host nations, see e.g. United States v. Talavera, 2 MJ 799 (ACMR 1976). In 1998, allegations of host nation mistreatment and coercion were raised in a trial in Japan involving SOFA accused, see ‘Post-arrest treatment focus of brawl case’, Pacific Stars and Stripes (10 June 1998) 1; ‘Marines say they were mistreated by police’ Pacific Stars and Stripes (10 June 1998) 1. That particular case resulted in substantial adverse publicity, public criticism of the US-GOJ SOFA, and intercession (and demands for investigation) by members of the US Congress. Such situations can cause tension in the relationships between allies, and can cause unfavourable public perception of the fairness of the ally’s judicial system. How much easier to meet such a charge if a representative of the United States government was present at the interrogation and can testify that the SOFA guarantees were observed. Indeed, the mere fact that such a representative was present, and is available to counter a baseless claim, can dissuade a partisan from even raising the claim. In the 50 years the US-ROK SOFA has been in force, there have been no cases where such a charge was raised in the trial of a SOFA person in Korea.
115 Agreed Minute Re para. 9(e) of Art. XXII. This provision, fleshing out the general ‘right to counsel’ provision found at para. 9(e) in the NATO SOFA, was prompted by experiences in the non-European nations. Reportedly under the Japanese legal system, an accused has no right to the presence of counsel during interrogations, United States v. Talavera (n. 114). According to Professor Cho, there were concerns that the Korean legal system forbade consultation between the defendant and his attorney during trial. Cho (n. 41) 59.
116 As noted by Snee and Pye in their seminal analysis of Art. VII of the NATO SOFA, ‘It is clear … that “confrontation” has in the civil law system a meaning quite different from its signification in American constitutional law. Unfortunately, a study of the Working Papers does not reveal the precise sense in which the word is used in Article VII, paragraph 9(c); and the question seems not to have been discussed by the drafters of the Agreement.’ Snee and Pye (n. 95) 108. The same could be said with respect to the negotiating history of this provision in the US-ROK SOFA.
119 Compare this result with the result in the case reported by Lazareff as the only known case arising in France in this connection. In that case, an American serviceman named Baldwin was accused of assault and battery on a French citizen. In court, he denied committing the offence and no witnesses testified against him. However, in the file the Court had a statement taken outside the presence of the accused stating that the accused had admitted to the military police that he committed the offence. The accused was convicted based on that statement, and the US authorities protested to the French authorities that such was a violation of para. 9 (c). The French Ministry of Justice agreed and directed the prosecutor to appeal the case (apparently so that the appellate court could overturn the verdict). Through confusion, the appellate court thought the case was being appealed because the prosecutor thought the sentence to be inadequate, and without addressing (or apparently even recognizing) the SOFA issue, increased the sentence. Ultimately, the Ministry of Justice remitted the punishment and the French Ministry of Foreign Affairs expressed its regret to the US for the ‘repetition of error’. Lazareff notes that Baldwin ‘certainly had raised a valid argument against his conviction’. Lazareff, (n. 43) 214–15. A more detailed statement of the facts in the Baldwin case can be found in Rouse, (n. 47) 56–7.
120 Republic of Korea v. Frankie C. Thomas, Seoul High Court (11 December 1992). As the Korean legal system is a civil law system, all lower court decisions are unpublished. Copies of decisions can be obtained from the court by specifying the names of the parties, name of the court, and date of decision. The Thomas case was not appealed to the ROK Supreme Court, which (as noted) had ruled similarly in previous cases, as the accused’s sentence had been suspended.
121 For a detailed analysis of the Right of Confrontation as it applies to SOFA personnel under the US-ROK SOFA, see Kim, Hyun S., The Right of Confrontation of a U.S. Soldier in Korean Court, unpublished research paper submitted in partial completion of Masters of Law requirements, The Judge Advocate General’s School—Army, Charlottesville, VA (1998).
123 A similar provision appears in the US-Philippines Criminal Jurisdiction Arrangements (n. 89) para. 3 of the Agreed Implementing Arrangements regarding Art. XIII, 16 UST at 1097–8. The conditions of confinement in host nation prisons, particularly in Japan, were of great concern to the Congress, see Status of Forces Agreements, Hearings before the Committee on Foreign Affairs of the House of Representatives, 84th Congress, 2nd session, on H.R.J. Res. 309 (1956) 9,239, 335, 532, 546–52, 936. A lengthy report on conditions in Japanese prisons was presented at the Hearings the next year (85th Congress, 1st Session, 9 April 1957). Indeed, treatment of foreigners in Japanese prisons as to food, heat, clothing, medical care, etc., were under criticism even in recent times, see Japan—Ill-treatment of Foreigners in Detention, Amnesty International Report ASA 22/09/97 (November 1997); ‘Japanese jails accused of abusing prisoners’, Pacific Stars and Stripes (28 June 1998) 4. Incorporating provisions of this nature into a SOFA not only ensures the SOFA prisoner is treated appropriately, but also helps assure the host nation that its treatment of SOFA prisoners will not be misrepresented for partisan purposes.
124 Such a transfer must be upon US request and with ROK concurrence, Art. XXII at para. 7(b). This provision of the US-ROK SOFA has never been used; however, one might conceive of it being very useful in an emergency such as the onset of renewed hostilities. At the time of the negotiation of the US–ROK SOFA, to the best of the authors’ knowledge no other SOFA contained a similar provision. Indeed, Snee and Pye considered the omission of such a provision to be a significant defect in the NATO SOFA, Snee and Pye, (n. 95) 102–5 and Lazareff, (n. 43) at 247 also remarks on the omission. In recent years, since the entry into force on 1 July 1985 of the Strasbourg Convention on the Transfer of Sentenced Persons, US SOFAs and SOFA Supplementary Agreements with nations, particularly NATO and PfP members, who are Parties to that Convention have usually included a provision referring, directly or indirectly, to the applicability of that Convention to SOFA personnel who may be a ‘sentenced person’ within the terms of that Convention.
125 Agreed Minute Re para. 1(a) of Art. XXII. This provision is present for two reasons. The first is that should martial law be declared based on heightened tensions or resumption of hostilities, the reasons that gave rise to the Taejon Agreement (military exigencies and the need for a Commander in the field to maintain discipline and control of the force and persons accompanying the force in the field) would again apply. Note that a similar provision was contained in the US-Philippines Criminal Jurisdiction Arrangements (n. 89) at para. 6 of the Agreed Official Minutes regarding Art. XIII, which provided that in time of war the US shall have the right to exercise exclusive jurisdiction over any offences that may be committed by members of the armed forces of the United States in the Philippines, 16 UST at 1096. The second reason is that under ROK law, when martial law is declared the civil courts are suspended and military tribunals assume jurisdiction. The US is extremely reluctant to agree to permit its personnel to be tried by foreign military tribunals. However, to prevent a ‘jurisdictional void’ from existing where a dependent could literally get away with murder since US courts-martial have no jurisdiction over civilians except in time of war, the Understandings on Implementation (n. 78), concerning the Agreed Minute Re para. 1(a) provide that the US will sympathetically consider requests by the Republic of Korea to exercise jurisdiction over US civilians and dependents if the ROK ensures that such persons will be tried in regularly constituted civilian courts with normal SOFA safeguards.
129 See text accompanying (n. 37).
130 Agreed Minute to Exchange of Notes between U.S. Ambassador Walter P. McConaughy and ROK Minister of Foreign Affairs Yil Hyung Chyung concerning Economic, Technical and Related Assistance (8 February 1961), 12 UST 268, TIAS 4710.
135 I.e. the ‘Oppenheim’ model, see (n. 85).
136 Although from time to time comments are made about negotiating a ‘UNC–ROK SOFA’, either as a stand-alone agreement as is the case in Japan or as an implementing agreement under the residue of the Meyer Agreement, neither side has shown much enthusiasm for such negotiations. In view of the fact that the model UN SOFA (n. 85) provides for extraterritoriality, both sides realize that any negotiations would be extremely contentious and even risky; if the result does not follow the UN model, it could discourage member nations from participating in the UNC. Occasional suggestions that each individual UNC Sending State negotiate a separate bilateral SOFA with the ROK, as the US did with the US–ROK SOFA, have also failed to gain traction. Not only is there no mutual defence treaty between those individual UNC Sending States and the ROK as there is underlying the US–ROK SOFA, the concern is that a proliferation of individual bilateral agreements containing different wording would further exacerbate the perception (and potential actuality) of invidious treatment of the various Sending States whose forces are in the ROK in response to the UN Resolutions, with some receiving more favourable treatment than that accorded others. Accordingly, if there are to be bilateral SOFA-type arrangements between the individual UNC Sending States and the ROK Government instead of an umbrella UNC-ROK SOFA similar to that in Japan, it is probably necessary that the texts be the same, as in the case of the German Supplementary Agreement (n. 87), which is essentially six bilateral agreements between Germany and the six individual Sending States that originally had forces stationed in the Federal Republic of Germany.
137 In many cases the alleged offence is relatively minor, and the ROK is satisfied to permit the Sending State to take disciplinary action; in other cases, the UNC member is also accredited to his nation’s embassy in Korea and therefore is entitled to the privileges and immunities granted to members of diplomatic missions. The last time a serious incident took place involving off-duty misconduct by a UNC member not entitled to diplomatic privileges, the UNC and the ROK disagreed on the matter of jurisdiction. The accused remained in UNC custody, and while the discussions were ongoing the ROK asserted jurisdiction, tried the accused, convicted and sentenced him, and then suspended execution of the sentence. The accused was then removed from Korea by his force, and the disagreement was left unresolved.
139 Exchange of Public Letters Concerning Transfer of Operation Command, Vol. 1, The Treaties of the National Defense, 630–1 (War History Compilation Committee, Ministry of National Defense, Republic of Korea) hereinafter ‘ROK Defense Treaties’.
141 Many KATUSAs had received little or no training nor were they used to military discipline; language and cultural differences also played a part. See e.g. Ray E. Appleman, South to the Naktong, North to the Yalu, (Washington, Government Printing Office, 1962) 385–9; David C. Skaggs, ‘The KATUSA Experiment: The Integration of Korean Nationals into the US Army’, Military Affairs (April 1974) 53–4 (hereinafter ‘Skaggs’).
142 Ibid. 54–5. American combat troops normally returned to the US after a year and were replaced with new officers and men who often were totally unfamiliar with Korea.
144 Currently the requirement is 56 hours of formal English training at the KATUSA Training Academy. The vast majority of the KATUSAs already speak reasonably good English, and many have been educated in US or European schools and are simply serving their time in the military as required—Korea has mandatory universal military training for males. Even many of those who have not been educated abroad have still received substantial formal training in English; over 50% have some college education, many have undergraduate degrees.
145 The grade of ‘E-5’ in the US military carries the rank of ‘Sergeant’ and is the most junior non-commissioned officer rank. There are ROK Army senior non-commissioned officers assigned to US Army units, but technically the KATUSA program does not apply to anyone over the grade of E-5.
146 The US unit military dining facilities provide free meals to KATUSA soldiers just as to US soldiers assigned to the unit. Because of cultural tastes, the selections include Korean food as well as more traditional US food.
147 US-ROK SOFA (n. 18), Art. XXIII, Claims, para. 12: ‘For purposes of this Article, members of the Korean Augmentation to the United States Army (KATUSA) shall be considered as members of the United States armed forces.’