Monday, April 2, 2001

By Jim Lea, Osan bureau chief

SEOUL — New criminal custody procedures are among the most significant revisions to the South Korea-U.S. Status of Forces Agreement that go into effect Monday, U.S. Forces Korea officials say.

U.S. troops charged with breaking Korean law formerly were held in U.S. military custody until their trial in Korean court and all appeals were completed.

Now, in some cases, those troops can be put into Korean pretrial confinement upon indictment. If arrested by Korean police in hot pursuit from the scene of a murder or egregious rape, they can be held by Korean authorities through indictment and trial.

"There are 16 specific crimes listed in the revisions in which Korean authorities can take custody upon indictment," said Robert T. Mounts, the U.S. SOFA secretary in Seoul. Those crimes include murder, rape — including sexual intercourse with a minor under age 13 — kidnapping for ransom, drug trafficking and robbery with a dangerous weapon.

Those crimes are the only ones in which Korean authorities have the right to request pretrial confinement, he said. All other crimes are handled in the same manner they were before the revisions.

One fundamental thing that has not changed is that Korean authorities still have primary jurisdiction in cases in which U.S. military community members violate Korean law, Mounts said. Korean authorities have 28 days from the time a crime is reported — plus an additional 14 days if necessary — to inform USFK they will take jurisdiction.

Before the accused is turned over to Korean custody, a pretrial confinement hearing must be held. The accused, an attorney and a command representaive may be present.

The rights of the accused will be respected while in Korean custody, Mounts said.

"The Koreans have agreed not to interrogate the accused for the crime he is charged with while he’s in pretrial confinement," he said. "They can question him on a totally unrelated offense, but only if a U.S. representative is present."

Lt. Col. Stephen R. Irwin, chief of international law in the USFK judge advocate’s office, said USFK will provide attorneys for personnel covered under SOFA. USFK regulations do not provide attorneys for invited contractors, however, he said.

In Korean trials, the prosecutor is allowed to appeal a not-guilty verdict or a sentence. That, Mounts said, will not be allowed in cases involving U.S. troops, U.S. civilian employees or dependents.

Korean police during their investigation of crimes also frequently require an accused to go through a re-enactment of the crime, often inviting the media to cover it. Mounts said the Korean government "has given assurances" that will not be done in cases involving members of the U.S. military community.

U.S. authorities involved in the SOFA negotiations also "were worried that (accused people) would be isolated and their family and attorney would not have access to them," he said. Korean officials "have given assurance we’ll have full access and that detention facilities will be the same as facilities at Chonan Prison," where U.S. forces people sentenced to jail serve their terms.

Another change in the criminal clause concerns traffic accidents. In the past, statistics published by Korea authorities on USFK crime have included traffic accidents. "We have agreed that minor traffic offenses resulting in property damage only will no longer be reported as a crime as long as the party involved has adequate private insurance," he said.

But, he added, "a victim still has the option of pursuing the case as a criminal complaint if he’s not satisfied."

The SOFA revisions also include a clause on environmental protection. "This is groundbreaking because there is no other SOFA agreement with such a clause," Mounts said.

"We now have an agreed minute that says both the United States and South Korean governments recognize the importance of environmental protection, that we commit to implement the SOFA consistent with protection of the environment and health and we will conform our policy to respect South Korean environmental laws," he said.

Mounts said the U.S. military will "cooperate, consult and jointly manage environmental incidents." Details of how that will be done have not been worked out, he said.

One thing SOFA negotiators did not decide on was access to U.S. nonappropriated fund activities by Koreans. There are frequent complaints by the Korean government that Korean citizens are allowed to play slot machines in USFK clubs.

U.S. authorities say that they do what they can to stop that, but Mounts said that issue is not covered by the revisions.

One revision allows dependents of active-duty personnel and U.S. civilian employees to seek employment in the Korean community without having to change their visa from SOFA to work status.

"Now they can get jobs on the economy without giving up their SOFA status as long as they’re qualified for the job and pay (Korean) taxes on money they make," Mounts said.

The agreement became effective Feb. 9, 1967. Modifications were made in 1991. Revisions that go into effect Monday were worked out during more than five years of negotiations. The revisions were ratified by the South Korean National Assembly in March.

The SOFA covers all aspects of the U.S. military presence in the country and governs the the U.S. military community which totals about 80,000 people — active-duty military, civilians, family members and U.S. invited contractors. About 37,000 of those people are active-duty military.

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