GI Myths: The Unfair US-ROK SOFA Agreement

Introduction

A myth in Korea that is persistently held by many in Korean society no matter how discredited it is, is the belief that Korea has signed an unfair Status of Forces Agreement (SOFA) with the United States. A SOFA is a document signed between the US and the host country of US military personnel in order to clarify each side’s rights and responsibilities in regards to a variety of issues that arise with the stationing of US troops in a foreign country.

A SOFA between different nations is never the same because each nation has different legal and political systems that influence the way in which a SOFA is written. For example in the United States people expect that someone accused of a crime should have the right to remain silent and have access to lawyer. It is important to realize with Status of Forces Agreements, that unlike civilians, troops are ordered to go overseas. Since troops are under orders they are owed the legal protections they would find in the United States. Ambassador Thomas Hubbard summarizes this best, “we sent them under our system, and we owe them those protections.”[i]

Not all countries the United States has troops in respect these rights. For example the SOFA between the US and Japan allows the military to hold servicemembers accused of crimes until they are indicted by a Japanese court, to which then they are handed over to Japanese authorities[ii]. The holding of a servicemember prior to indictment is to protect their rights to remain silent, not to have coercive interrogation tactics used against them[iii], and have access to a proper lawyer, which is not something readily available to them if held by local Japanese authorities[iv]. It is legal differences such as this that make detailed status of forces agreements necessary.

The US-ROK SOFA

Like all other nations that hosts US troops, Korea has its own SOFA in regards to the stationing of United States Force Korea (USFK) personnel in the country[v]. Here is how USFK summarizes it responsibilities under the US-ROK Status of Forces Agreement:

The SOFA sets forth each nation’s responsibilities with respect to many subjects, including facilities and areas used by U.S. forces, entry and exit of U.S. personnel, customs, taxation, criminal jurisdiction, claims procedures, health and sanitation, use of utilities and USFK’s employment of Korean citizens.

The SOFA applies to members of the U.S. armed forces, civilian employees, invited contractors, technical representatives and their dependents. Civilian and military personnel of the U.S. Embassy and JUSMAG-K enjoy privileges under the SOFA, but are covered by separate agreements with the ROK government.

SOFA-status personnel are obliged to respect the laws of the ROK and abstain from any activity inconsistent with the spirit of the agreement and, in particular, from any political activity. In some cases the SOFA supersedes or abridges Korean law. For example, active-duty military personnel are exempt from passport and visa requirements and SOFA-status personnel are exempt from Korean taxes on wages and salaries paid by the U.S. government. […]

The SOFA also fully acknowledges the ROK government’s right to exercise criminal jurisdiction over USFK personnel accused of violating Korean laws. Accused military personnel may be placed in ROK custody upon indictment in serious cases, and the ROK may retain custody upon arrest in some of the most serious murder or rape cases. Civilians may be placed into ROK custody if the charges are serious and their presence for trial cannot be guaranteed.[vi]

The original SOFA was established in 1966 and has numerous revisions over the years with the most recent revision coming in 2001 that take into account the maturation of the Korean legal and political systems, which leads to the transfer of more rights and responsibilities to the Korean government.

However in Korea the SOFA has become a very convenient issue for the anti-US movement in the country to demagogue in order to create anti-US sentiment within the general Korean population. Like many of their other misinformation operations in Korea, the anti-US groups have succeeded in creating a widely held belief in the country that US servicembers can literally get away with murder and there is nothing the Korean government can do to stop them.

The 2000 Yongsan Water Dumping Scandal

One of the more recent and well known attempts to pass off this disinformation to the general Korea public was with the 2000 Yongsan Water Dumping Scandal where a USFK mortician ordered 20 gallons of formaldehyde to be disposed of down a sink in the mortuary. The formaldehyde was of no threat to the public because it was diluted with water and passed through two different water treatment plants before the wastewater was discharged into the Han River[vii]. Despite these facts the anti-US groups in coordination with their media allies were able to launch ferocious anti-US protests over this issue claiming that USFK was intentionally poisoning the Seoul city water supply and exposing everyone in the city to cancer. These groups distorted the amount of chemicals poured as well as the fact that they could not cause any cancer because they passed through two different water treatment plants.

Korean activists protest the dumping of formaldehyde by a USFK mortician.

These were inconvenient facts that were simply ignored. The anti-US groups also demanded that the USFK mortician be tried in a Korean court even though under the SOFA he was legally not eligible to fall under Korean jurisdiction since his alleged crime happened on duty. According to the US-ROK SOFA, all crimes committed on post or while on duty anywhere in the peninsula fall under USFK jurisdiction. Any crimes committed off a US military facility while the servicemember was off duty falls under Korean jurisdiction. The case of the mortician did not meet either criteria. Despite this the mortician was tried in absentee in a Korean court and fined. USFK actually paid the fine, but the anti-US groups were not happy with the fine and demanded a re-trial. Thus the Korean courts re-tried the case even though they had already reached a verdict. In the re-trial the mortician was sentenced to six months in jail, which was a longer sentence than what a child molester in Korea would receive[viii]. This was all because of the Korean court’s attempt to appease public sentiment instead of holding a fair trial to render justice.

This issue gave the anti-US groups a platform to bash the US-ROK SOFA, but if anything this issue only demonstrated to the United States why the nation needs a SOFA with Korea in the first place, to protect US servicemembers from politically charged trials. Even more telling is that Korean logging companies that were caught dumping 271 tons of lethal chemicals directly into the Han River without passing through any water treatment plant were simply fined with no one receiving jail time yet the USFK mortician is sentenced to jail[ix]. Such hypocrisy in the Korean courts and subsequent bashing of the US-ROK SOFA is not uncommon in Korea and the greatest example of this is the aftermath of the 2002 armoured vehicle accident.

2002 Armoured Vehicle Accident

On June 13, 2002 a USFK armoured vehicle struck and killed two thirteen-year-old Korean schoolgirls walking to a friend’s birthday party. The incident was clearly a tragic accident that led to apologies from every commanding general in USFK, the US Ambassador to Korea, and even President George Bush himself. In accordance with Korean law USFK payed over $150,000 to each of the effected families in compensation for their loss. Additionally $22,000 was raised for the two families through a candle light vigil fundraiser held by US soldiers after the accident and another $30,000 was eventually raised by US soldiers to fund a memorial for the two girls.[x]

Despite all of this, the anti-US groups were able to very successfully portray this accident as an act intentionally committed by US soldiers and that they were exempt from Korean justice because of an unfair SOFA. This perception only grew when the two soldiers were acquitted of negligent homicide charge after the conclusion of a military court martial. The USFK Commanding General Leon LaPorte felt that a military court martial could be used to disclose all the facts in an open setting to show the Korean public that this was simply a tragic accident. General LaPorte however unintentionally fed the frenzy because the perception of a court trial in Korea is very different from what Americans perceive trials to be in the US.

In the US defendants are presumed innocent and trials are held to have an open debate about the facts of the case with a verdict rendered by either an impartial judge or jury. In Korea when someone goes to trial, they are already presumed guilty; the only question to be found out during the trial is how guilty that person is. So when the two soldiers were acquitted, the Korean public took it to mean a cover up by the US military because if they were not guilty to begin with than why put them on trial? This belief of a cover up by USFK validated many people’s feelings of why the SOFA with the US must be changed so Korean courts can try soldiers who commit crimes while on duty.

After the not guilty verdict, anti-US groups and their media allies were able to feed this perception of a cover up and injustice by making claims that US soldiers regularly avoid Korean courts by claiming on duty status. Others even claimed US soldiers were never tried in Korean courts at all because of the unfair SOFA. However, US soldiers have actually been regularly tried in Korea courts since the 1960’s with some even receiving the death penalty[xi]. With such information easily available to those willing to look for it, it was incredible to see how the Korean media would simply avoid such inconvenient facts in their reporting.

Legal Status of ROK Military Servicemembers

The most hypocritical aspects of the anti-US groups and the Korean media’s claims of an unfair SOFA is that servicemembers in the Korean military are not subject to civilian courts whether they commit a crime on or off duty. For example, four young Korean males attacked and stole two K2 assault rifles from two on duty Korean soldiers. The gang was not able to get any ammunition for the rifles until one member of the gang stole ammunition from his ROK Army unit while conducting his annual reserve training. The gang used the weapons to execute a bank robbery in 2002 where they stole over $11,000[xii]. When the gang was apprehended by authorities, all four of the gang not just the reserve soldier who committed a crime while on duty were tried in a ROK Army court martial.

Another more recent example is when in 2007 a South Korean man struck two patrolling South Korean Marines with his truck and then assaulted them with a knife, killing one of them and then fleeing with their weapons and grenades. A manhunt ensured for the killer and he was eventually apprehended a week later. However, even though he was a civilian he was handed over to the Korean military to be tried by a military court martial[xiii]. The fact that ROK military personnel never stand trial in Korean courts and the fact that civilians can be forced to stand trial in a military court martial is an inconvenient fact that many Koreans would rather not acknowledge. A USFK servicemember on the other hand is subject to Korean civilian court for any crime committed while off duty. With the differences in jurisdiction between the Korean and American militaries, it makes you wonder if the Korean civilian judicial system is not good enough for the Korean military than why should it be good enough to try American soldiers in? This is an inconvenient fact that is left unaddressed by the anti-US groups and their media allies

Korean Media Disinformation

This avoidance of inconvenient facts would continue long after the 2002 accident. A year after the tragic 2002 accident, a USFK servicemember was involved in a DUI hit and run that killed a Korean woman. The servicemember was handed over to Korean authorities and put on trial in Korean court. A Korea Times headline about the trial of the USFK servicemember read, “First US Soldier to be Tried in Korean Court”[xiv]. What is quite ironic about this article is that the first GIs tried in Korean court was in 1967 when an airman was tried for arson and assault [xv]. In the article covering the rape convictions the newspaper said, “This is the first case which the Republic of Korea has exercised criminal jurisdiction over an American serviceman”.  Nearly 40 years later and the media is making the same claims.

Later on other incidents that happened between GIs and Koreans that were ultimately handled by Korean courts would be covered in the Korean media with passages that would say, “However, many U.S. soldiers have evaded the South Korean jurisdiction by citing their exemption from the SOFA clause by claiming on-duty status.”[xvi] This claim in the years after the 2002 accident was made repeatedly in Korean newspapers in regards to incidents with GIs. I e-mailed the newspapers that made these proclamations to substantiate their claim by providing one example of when a soldier was off duty and claimed to be on duty to avoid prosecution in Korean court, I did not receive one reply back.

Probably the most stunning hypocrisy of the SOFA criticism is the fact that the Korean military has status of forces agreements with every nation that is host to South Korean military personnel. In every one of these SOFAs, the ROK Army has primary jurisdiction of crimes committed by their soldiers both on and off duty. A couple of recent examples of when the ROK military’s SOFA was activated were both in Iraq and involved the deployment of the ROK Army’s Zaytun Division outside the Kurdish capitol city of Irbil. In the first case a South Korean soldier was playing with his rifle when an accidental discharge killed a nearby Kurdish soldier[xvii].

The SOFA was activated and the Korean soldier was handled by a ROK military court martial. In 2006 a Korean soldier driving a military truck was involved in a traffic accident where he caused the death of a 53 year old Kurdish politician. Once again the South Korean military activated their SOFA. This is what Colonel Ha Du-cheol told reporters after the accident, “The traffic accident occurred in the line of duty, so we are seeking ways to compensate the victim’s family.”[xviii] Sound familiar? It should because it is the same thing the US military did after the 2002 armored vehicle accident, which everyone demanded SOFA revisions for, however when a nearly identical situation happens with a Korean soldier it receives a small passage in the newspaper and no righteous indignation from anyone complaining about an unequal SOFA between Korea and Iraq.

The Korean military has never allowed one of their soldiers to be tried in a foreign host nation’s civilian courts, which shouldn’t be surprising considering that Korean soldiers do not even stand trial in civilian courts in their own country. Despite all of these inconvenient facts the anti-US groups and their media allies have the nerve to condemn USFK for an unfair status of forces agreement. The hypocrisy is really quite stunning.

US Camp Pollution Claims

In recent years the claims of GIs getting away with crimes in Korea because of the SOFA have become more muted probably because of the sheer hypocrisy of it has become too evident as I noted. Instead the anti-US groups and their media allies have decided to shift their focus back on to so called USFK environmental crimes. This logic is a recycle of the anti-US tactic used in 2000 in regards to the Yongsan Water Dumping Scandal. However, this time the anti-US groups were not making claims that USFK is poisoning the Seoul water supply, but rather that the bases USFK was closing down and handing back to the Korean government were grossly polluted and a threat to their surrounding communities. USFK was handing back the bases as part of a USFK transformation plan made between the United States and the Republic of Korea that would see all 2^nd Infantry Division bases in the north of the country and Yongsan Garrison in Seoul closed down and consolidated on an expanded Camp Humphreys base south of Seoul.

This agreement was made in compliance with the SOFA, and the ROK government stated that the Korean government would receive all the USFK land “as is”.[xix] This is because in the SOFA it states that USFK is “not obliged … to restore the facilities and areas to the condition they were at the time they became available to the U.S. armed forces, or to compensate the government of the ROK in lieu of such restoration.”[xx] The reason for this is because the ROK government is receiving 33,000 acres of prime real estate with many modern buildings and amenities already constructed on them. For example when Yongsan Garrison in the heart of Seoul is closed out, the Korean government will be receiving 615 acres of land, nearly the size of New York City’s Central Park, right in the middle of a city with some of the world’s highest real estate prices. Plus the Korean government will be receiving at no costs modern facilities on the camps such as the brand newly refurbished hospital on Yongsan Garrison[xxi]. Any costs in regards to cleaning any pollution on handed over USFK camps can easily be covered with the profits the Korean government is sure to make from the sale of the acquired USFK land.

Korean activists protest the expansion of Camp Humphreys.

Once again the claims that the environmental clauses in the US-ROK SOFA are unequal compared to SOFAs the US has with Japan and Germany are totally unfounded as well. For example when the US closed camps in Germany the US was responsible for cleaning any environmental damage on the closed camps. This is a fact that the anti-US groups like to trumpet to claim that the US-ROK SOFA is unfair, however what they don’t tell people is that the German government was responsible for buying back all the facilities built on the camps. The money the US government received from the German government to buy back the facilities was more than enough to cover the environmental clean up associated with closing the camps[xxii]. In the US-ROK SOFA the Korean government receives all the facilities on the camp free of charge. For example the renovation and added wing to the Yongsan 121 General Hospital that the Korean government will receive free of charge cost USFK $39 million dollars. The cost savings the Korean government will receive from conducting an environmental clean up compared to paying to receive all the USFK facilities will be enormous.

Likewise the anti-US groups will also not mention the environmental provision in the US-Japan SOFA. In this SOFA the US has no responsibility to clean any environmental damage when handing over closed out bases. The Japanese government bears all the costs in cleaning the returned land[xxiii].

Unequal SOFA Claims

Finally another common claim is that Korea has an unequal SOFA with the United States compared to the one the US currently has with Japan or Germany. As I have already shown in regards to environmental regulations, this claim is totally bogus, however the rhetoric does have a grain of truth to it, but the vast majority of the people making the claims have no idea what they are talking about[xxiv]. Both SOFAs with Japan and Germany are reciprocal meaning that German and Japanese servicemembers have the same rights granted to them while in the United States as American servicemembers have while stationed in their respective countries.

The US-ROK SOFA however is not reciprocal and this is because Korea does not have permanently stationed troops in the United States while Japan and Germany do. The Germans and the Japanese have air defense soldiers stationed on Ft. Bliss, Texas for example. The Germans even have their Luftwaffe flight-training center located just outside of Alamogordo, New Mexico. South Korea on the other hand does not have permanently stationed units in the US and ROK military soldiers that do travel to the United States are usually soldiers there to attend training. International soldiers who attend US military training schools fall under a separate status of forces agreement.

This is the only reason how the SOFAs between these nations are unequal, but the common people who make the unequal SOFA claims think that Japan and Germany have greater rights over American servicemembers than Korea does when in fact the opposite is true. The latest SOFA revision in 2001, before the armored vehicle accident, gave Korean authorities the right to hold US servicemembers before their trials. In comparison to the US-Japan SOFA there is nothing written that says that the US has to hand over servicemembers to Japanese authorities before being indicted. However, the perception in Korea exists that the agreement does allow Japan to take custody of US servicemembers before a trial because the US military often hands over servicemembers suspected of serious crimes to the Japanese authorities as part of a gentleman’s agreement. When one views the US-ROK SOFA without an agenda, it is quite clear that it is not unfair compared to the over 80 other SOFAs the US has signed with other nations that host US troops[xxv].

Conclusions

If people in Korea want to complain about unfair status of forces agreements they can start with the agreements their own military has signed with foreign nations. As I have clearly demonstrated the US-ROK status of forces agreement is much more fair than agreements Korea has with other nations that host Korean troops. I have also demonstrated that the US-ROK SOFA is just as, if not more fair to the Republic of Korea than similar agreements signed between the US and with Japan and Germany.

The fact of the matter is that the anti-US groups and their media allies could care less about how fair the US-ROK SOFA really is. The anti-US groups find an issue that will appeal to the wider Korean public and then the groups demagogue the issue by only presenting facts that support their side of the story while ignoring all the other evidence that says otherwise. Their media allies than spread this disinformation around the country without challenging the veracity of the claims. These anti-US groups manipulate issues such as the US-ROK SOFA in order to create increased anti-US sentiment in the country as well as drive a wedge in the US-ROK alliance.

Past political leaders in Korea would not show any leadership in exposing the untruthfulness these groups’ claims and often time were complicit in their activities. With all this misinformation being passed to the public is it any wonder why the average Korean has such a skewed view of the US-ROK SOFA when all they are fed by the Korean media is one-sided propaganda?

 Endnotes

[i] Ambassador Thomas C. Hubbard’s KBS-TV “Sunday Analysis”, http://seoul.usembassy.gov/19_jan_03.html, accessed 07 February 2008

[ii] US-Japan Status of Force Agreement, http://www.niraikanai.wwma.net/pages/archive/sofa.html, accessed 07 February 2008

[iii] Manabu Kimura and Yuichiro Nakamura, “Interrogation Methods Questioned”, Daily Yomiuri, 26 January 2008, http://www.yomiuri.co.jp/dy/national/20080126TDY03304.htm

[iv] David T. Johnson, The Japanese Way of Justice, (Oxford University Press – 2002), pg 83

95% of lawyers in Japan never bothered to attend their client’s interrogation , 2/3^rd of lawyers in Japan never recommended that their clients remain silent, and 3/4^th of Japanese lawyers never asked a judge to have the prosecutors release evidence. The book’s list of Japanese defense lawyers colluding with the prosecution is extensive.

[v] US-ROK Status of Forces Agreement, http://www.shaps.hawaii.edu/security/us/sofa1966_1991.html, accessed 07 February 2008

[vi] United States Force Korea Website, http://www.usfk.mil/usfk/welcome/sofa.html, accessed 07 February 2008

[vii] David Scofield, “The Mortician’s Tale”, Asia Times, 28 January 2004, http://www.atimes.com/atimes/Korea/FA28Dg02.html

[viii] David Scofield, “The Mortician’s Tale”, Asia Times, 28 January 2004, http://www.atimes.com/atimes/Korea/FA28Dg02.html

[ix] “Dumping of Toxic Chemicals into Streams”, Korea Times, 03 November 2003, http://search.hankooki.com/times/times_view.php?term=han+timber++&path=hankooki3/times/lpage/opinion/200311/kt2003110317083811300.htm&media=kt

[x] US Embassy Seoul, http://seoul.usembassy.gov/june13acc.html, accessed 07 February 2008

[xi] “South Korea, Sentences to US Soldiers to Death”, New York Times, 04 December 1970, http://usinkorea.org/crimes/5_dec_1970_1.JPG

[xii] Robert Neff, “Gun Toting Robbers Set Sights on Korean Banks”, Oh My News, 17 November 2006, http://english.ohmynews.com/articleview/article_view.asp?menu=c10400&no=327489&rel_no=1

[xiii] T.D. Flack & Hwang Hae-rym, “South Korean Indicted in Murder of Marine”, Stars & Stripes, 12 January 2008, http://www.stripes.com/article.asp?section=104&article=59037&archive=true

[xiv] Byun Duk-kun, “First US Soldier to be Tried in Korean Court”, Korea Times, 15 December 2003

[xv] USinKorea Site, http://usinkorea.org/crimes/12_22_1967.JPG, accessed 07 February 2008

[xvi] Korea Herald, http://www.koreaherald.co.kr/SITE/data/html_dir/2005/07/18/200507180024.asp, accessed 07 February 2008-02-07

[xvii] “Korean Soldier Accidentally Killed Iraqi”, Chosun Ilbo, 13 April 2005, http://english.chosun.com/w21data/html/news/200504/200504130032.html

[xviii] Jung Sung-ki, “Kurd Official Killed in Traffic in Erbil”, The Korea Times, 02 February 2006, http://www.ekurd.net/mismas/articles/misc2006/2/kurdlocal98.htm

[xix] Teri Weaver, “97 Percent of Yongsan Garrison will be Turned Over to South Korea As Is”, Stars & Stripes, 21 December 2004, http://www.stripes.com/article.asp?section=104&article=25240&archive=true

[xx] T.D. Flack, “USFK: Total of 33,000 Acres to be Returned to South Korea”, Stars & Stripes, 16 July 2006, http://www.stripes.com/article.asp?section=104&article=37742&archive=true

[xxi] Teri Weaver, “USFK Opens New Wing at Yongsan’s 121 General Hospital”, Stars & Stripes, 23 January 2005, http://www.stripes.com/article.asp?section=104&article=25790&archive=true

[xxii] LTC Park Kwang-ok, “Misunderstandings and Truths on Return of US Bases”, Defense Daily, 21 July 2006, http://www.usfk.mil/org/fkpa/News/newsArchive.asp?id=120

[xxiii] LTC Park Kwang-ok, “Misunderstandings and Truths on Return of US Bases”, Defense Daily, 21 July 2006, http://www.usfk.mil/org/fkpa/News/newsArchive.asp?id=120

[xxiv] David Steinberg, Korean Attitudes Toward the United States (M.E. Sharpe, 2005), pg 201

[xxv] US Embassy Korea Webpage, http://seoul.usembassy.gov/june13acc.html, accessed 07 February 2008