No Need to Maximize: Reforming Foreign Criminal Jurisdiction Practice under the U.S.-Japan Status of Forces Agreement

AuthorJonathan T. Flynn
PositionJudge Advocate, U.S. Navy
Pages1-69
MILITARY LAW REVIEW
Volume 212 Summer 2012
NO NEED TO MAXIMIZE: REFORMING FOREIGN CRIMINAL
JURISDICTION PRACTICE UNDER THE U.S.-JAPAN STATUS
OF FORCES AGREEMENT
LIEUTENANT COMMANDER JONATHAN T. FLYNN, JAGC, USN
“[T]he Status of Forces Agreement is humiliating . . . . We want to end
the suffering and the burden . . . .”1
I. The Foreign Criminal Jurisdiction Dilemma
A. Background
In September of 1995, a U.S. sailor and two Marines brutally
kidnapped, beat, and raped a 12-year-old Okinawa girl in the backseat of
* Judge Advocate, U.S. Navy. Presently assigned as Group Judge Advocate, Coastal
Riverine Group TWO/Explosive Ordnance Disposal Group TWO, Portsmouth, Virginia.
LL.M., 2011, The Judge Advocate General’s Legal Center and School, U.S. Army,
Charlottesville, Virginia; J.D., 2004, Brooklyn Law School; B.A., 1998, University of
South Carolina. Previous assignments include Staff Judge Advocate, Region Legal
Service Office, Yokosuka, Japan, 2007–2008; Military Liaison Office of the Central
Criminal Court of Iraq, 2007–2008; Officer in Charge, Navy Legal Service Office
Central, Branch Office Forth Worth, Texas, 2005–2007. Member of the bars of New
York, U.S. Court of Appeals for the Armed Forces, and the Supreme Court of the United
States. This article was submitted in partial completion of the Master of Laws
requirements of the 59th Judge Advocate Officer Graduate Course. The author would like
to thank Lieutenant Colonel Brendan Klapak, USMC, and Major Andrew Gillman,
USAF, for their invaluable assistance with this article. The views expressed in this article
are the author’s and do not necessarily represent those of the Judge Advocate General’s
Corps, the U.S. Navy, or the Department of Defense
1 Kyoko Hasegawa, Japan Minister: U.S. Troop Agreement ‘Humiliating, DEF. NEWS,
Oct. 15, 2009, available at http://www.defensenews.com/story.php?i=4325916 (quoting
Japanese Minister of Defense Toshimi Kitazawa).
2 MILITARY LAW REVIEW [Vol. 212
a car.2 “Massive protests” erupted as Okinawans unleashed “pent-up
emotions about the U.S. military,” anger boiling after decades of hosting
70% of the U.S. forces in Japan.3 The United States refused to remit
custody of the suspects to Japanese police until formal indictment, citing
servicemember protections afforded under the U.S.-Japan Status of
Forces Agreement (SOFA).4 The result was momentous controversy5 and
popular cries for SOFA reform.6 In the following months and years,
Japan would call for the total removal of U.S. bases from Okinawa.7
Fast forward to 2009. The Democratic Party of Japan (DPJ), seeking
control of Japanese parliament, needed to wrest votes from the relatively
pro-U.S. military Liberal Democratic Party (LDP).8 With LDP rule
virtually uninterrupted since 1955, this was no easy task. 9
As part of
their platform, the DPJ vowed a “greater ‘equality’ in Japanese relations
with the United States,”10 including “radical” revision of the U.S.-Japan
SOFA and a pledge to reduce the U.S. military presence in Okinawa.11 In
2009, the DPJ won a “landslide victory” in parliamentary elections,
2 Andrew Pollack, One Pleads Guilty to Okinawa Rape; 2 Others Admit Role, N.Y.
TIMES, Nov. 8, 1995, available at http://www.nytimes.com/1995/11/08/world/one-
pleads-guilty-to-okinawa-rape-2-others-admit-role.html.
3 William L. Brooks, The Politics of the Futenma Base Issue in Okinawa, ASIA-PAC.
POLY PAPER SERIES, No. 9, at 4 (2010), available at http://www.sais-jhu
.edu/centers/reischauer/publications.html.
4 See Hilary E. Macgregor, Rape Case Furor Provokes Legal Review by U.S., Japan:
Diplomacy: Tokyo Wants Custody of Three GIs Accused of Assaulting a Japanese Girl,
12, L.A. TIMES, Sep. 22, 1995, available at http://articles.latimes.com/1995-09-
22/news/mn-48701_1_japanese-police; see generally 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, Jan. 19, 1960, T.I.A.S. 4510, 11 U.S.T. 1652, 373 U.N.T.S. 186 [hereinafter U.S.-
Japan SOFA].
5 See Teresa Watanabe, Japanese Take Custody of 3 Soldiers Accused of Rape, L.A.
TIMES, Sep. 30, 1995, available at http://articles.latimes.com/1995-09-30/news/mn-
51615_1_japanese-media.
6 Richard Lloyd Parry, U.S. Asked to Cut Bases in Rape Row, THE INDEPENDENT, Oct. 4,
1995, http://www.independent.co.uk/news/world/us-asked-to-cut-bases-in-okinawa-rape-
row-1575892.html.
7 Brooks, supra note 3, at 4.
8 See EMMA CHANLETT-AVERY ET AL., CONG. RESEARCH SERV., RL 33436, JAPAN-U.S.
RELATIONS: ISSUES FOR CONGRESS 1 (2009), http://assets.opencrs.com/rpts/RL33436_
20091125.pdf.
9 See id.
10 Id.
11 Wendell Minnick, In Japan, Fiery Rhetoric Subsides After DPJ Landslide, DEF. NEWS,
Sept. 7, 2009, at 4.
2012] REFORMING U.S.-JAPAN SOFA 3
marking the end of an era.12 New Japanese Prime Minister Yukio
Hatoyama publicly vowed to change the Japan-U.S. military
relationship.13
Thus, fourteen years after the Okinawa rape, Japan had elected a
ruling party that embraced the ideals of 1995 Okinawa protestors. In the
interim, U.S. military-related crimes, accidents, and other basing issues
received extensive Japanese media attention and popular opposition.14 In
response to these issues and the 1995 rape, the United States acquiesced
to some of the demands for change. In 2006, a U.S.-Japan agreement
reduced Okinawan troop-levels by 8,000.15 Also, the United States
agreed to “informal” SOFA revisions in 199516 and 2004,17 giving
Japanese law enforcement greater custodial rights over servicemember
criminal suspects. Nevertheless, the reforms failed to stop the once
perceived “leftist ideal” of SOFA revision from moving to the
mainstream of Japanese politics.18
12 See CHANLETT-AVERY ET AL., supra note 8, at 1.
13 Former Opposition Leader Yukio Hatoyama Elected Japan’s Prime Minister, DAILY
NEWS, Sep. 16, 2009, available at http://www.nydailynews.com/news/world/2009/09
/16/2009-09-16_former_opposition_leader_yukio_hatoyama_elected_japans_prime_
minister.html.
14 See Noriko Namiki, Japanese Arrest U.S. Sailor on Murder Charge, ABC NEWS, Apr.
3, 2008, http://abcnews.go.com/International/story?id=4581947&page=1 (discussing a
recent murder involving a U.S. sailor and how “crimes committed by U.S. military
personnel are nothing new to Japan”).
15 Yoshio Shimoji, The Futenma Base and the U.S.-Japan Controversy: an Okinawan
Perspective, ASIA-PAC. J.: JAPAN FOCUS, May 3, 2010, available at http://
japanfocus.org/-Yoshio-SHIMOJI/3354.
16 Press Release, U.S. Embassy in Japan, Joint Committee Agreement on Criminal
Jurisdiction Procedures (October 25, 1995) (on file with author). The United States
agreed to “give sympathetic consideration to any request for the transfer of custody prior
to indictment of the accused which may be made by Japan in specific cases of heinous
crimes of murder and rape.” Id.
17 Lieutenant Commander Timothy Stone, U.S.-Japan SOFA: A Necessary Document
Worth Preserving, 53 NAVAL L. REV. 229, 254-55 (2006). In 2004, U.S. policy was
further amended to include attempted murder and arson, with Japan agreeing to “allow a
representative to be present during all stages of interrogation of a pre-indictment
transferee.” Id.
18 See Hisahiko Okazaki, The DPJ’s Sense of Duty, THE JAPAN TIMES ONLINE, Sep. 4,
2009, http://search.japantimes.co.jp/cgi-bin/eo20090904ho.html.

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