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Japan; United States: Reviewing Criminal Jurisdiction over Civilian Employees Under the Status of Forces Agreement

(Dec. 7, 2011) In January 2011, a 19-year old man was killed in a traffic accident that was caused by a United States civilian employed by the U.S. military stationed in Okinawa. The civilian employee was on his way home from a military base. Under the U.S.-Japan Status of Forces Agreement (SOFA), he was considered to be still on official duty as long as he was heading straight home. (Chiyomi Sumida, Okinawans Protest U.S.-Japan Status of Forces Agreement, STARS AND STRIPES (June 29, 2011); SOFA, U.S.-Japan, Jan. 19, 1960, 11 U.S.T. 1652; T.I.A.S. 4510; 373 U.N.T.S. 248, text of SOFA available in Japanese and English on the Ministry of Foreign Affairs of Japan website (last visited Dec. 5, 2011).)

The Japanese Public Prosecutor's Office decided in March 2011 not to prosecute the U.S. civilian because it assumed that the U.S. military would have criminal jurisdiction over any civilian who committed a crime while on duty, under article XVII 3(a)(ii) of the SOFA and the SOFA Guidelines. (Sumida, supra; for the SOFA guidelines, see U.S. Forces Japan website (last visited Dec. 5, 2011).)

Family members of the victim requested that the Naha (Okinawa's capital city) Prosecution Inquest Panel review the decision of the Public Prosecutor's Office. (Sumida, supra.) The Panel decided in May 2011 that the civilian should have been indicted, because civilians are not “subject to the military law of the United States” in times of peace under the U.S. law. (SOFA, art. XVII, 1; Satoshi Inoue, Komuchu no bei gunzoku wa sabakarenai? [Aren't Civilians Accompanying the U.S. Military Able to Escape a Trial?], INOUE SATOSHI ONLINE (Oct. 27, 2011).) Article XVII of the SOFA states:

1. Subject to the provisions of this Article,

(a) the military authorities of the United States shall have the right to exercise within Japan all criminal and disciplinary jurisdiction conferred on them by the law of the United States over all persons subject to the military law of the United States. (SOFA, supra.)

Therefore, it seems that the U.S. military does not have jurisdiction over the civilian employee, whether or not he was on duty. Japan has jurisdiction over the U.S. civilians who commit crimes in Japan.

The U.S. military exercised its authority over the case and suspended the employee's driving privileges in Japan for five years. (Sumida, supra.) It has been reported that Japanese people, especially Okinawans, thought the disposition was much too lenient. Moreover, it was not the first time that Okinawans expressed their anger over the SOFA. “Crimes committed by U.S. military personnel in Japan have repeatedly caused public outrage, compounded by delayed handovers of suspects to Japanese authorities or when those convicted receive punishments perceived as lenient.” (Steve Heman, Japan Wants More Say over US Troops on Okinawa, Global Security (Nov. 26, 2011).)

While the Japanese Public Prosecutor's Office was considering the Prosecution Inquest Panel's decision, a Diet (Japan's Parliament) member of the Japan Communist Party, Satoshi Inoue, asked the Minister of Justice, Hideo Hiraoka, during a House of Councilor's Judiciary Committee meeting on October 27, 2011, to review the criminal jurisdiction rules under the SOFA. (Inoue, supra.) Inoue also asked the Ministry of Justice to obtain and reveal statistics on dispositions of offenses committed by U.S. military personnel against Japanese nationals. According to the numbers provided by the U.S. military to the Ministry of Justice, the defendants did not receive any punishment in 27 out of 62 cases between September 2006 and December 2010. (Ittetsu Mekaru, Gunzoku 4 wari bei de hushobun, nihonjin eno komuchu hanzai [40% of Civilians Not Punished in the United States, Crimes Against Japanese During Official Duty], OKINAWA TIMES (Nov. 13, 2011).)

The U.S. and Japanese governments reviewed criminal jurisdictional matters under the SOFA at a recent meeting of the Criminal Jurisdiction Subcommittee of the Joint Committee, and released a memorandum on November 23, 2011. The memorandum allows Japan to request legal jurisdiction over civilians involved in incidents while they are working that cause death or permanent injury. The U.S. government will “give sympathetic consideration to such [a] request.” (Joint Committee, Memorandum (Nov. 23, 2011), 2 (b)(i).) On November 25, 2011, the Japanese Public Prosecutor's Office indicted a U.S. civilian employee for vehicular manslaughter. (Travis J. Tritten & Chiyomi Sumida, AAFES Employee Indicted In Fatal Collision, STARS AND STRIPES (Nov. 25, 2011).)