SOFA scrutinized after rash of crimes by US troops in Korea
By ASHLEY ROWLAND AND YOO-KYONG CHANG | STARS AND STRIPES Published: November 22, 2011
Story updated Nov. 23, 2011 at 9 a.m. EST
SEOUL — Two high-profile South Korean rape cases involving U.S. troops as well as a fire in Itaewon last week linked to a U.S. soldier have renewed complaints about the status of forces agreement outlining legal procedures and protections for the U.S. military community. The agreement has generated such anger and political outcry in South Korea that officials from both countries met Wednesday in Seoul to discuss it.
Critics call the SOFA agreement a shield for U.S. soldiers dodging swift justice. Others believe it’s a valuable tool to protect the rights of U.S. citizens in foreign countries.
South Korean politicians and critics are calling for the agreement to be revised so police can retain custody of U.S. military suspects before they are formally indicted by prosecutors — something prohibited by the current agreement in virtually all cases. South Korean police and the activists supporting them claim that the SOFA puts unnecessary roadblocks in the way of the police doing their jobs.
Park Sang Yung, chief of the Dongducheon Police Station near Camp Casey, said the agreement sets a “double standard” in how the U.S. military and South Korean citizens are treated in the country’s legal system. It also is an affront to police, he said, who have to file a subpoena with the U.S. military before they can interview suspects, as well as the public.
“The SOFA should reflect the sentiments of the Korean people,” Park said.
The agreement, however, has its supporters.
“Nothing was and is wrong with the SOFA at all,” a prosecutor with the Seoul Central District Court said, speaking on condition of anonymity. He rebuffed protesters’ claims that the agreement infringes on South Korea’s sovereignty or hinders police and prosecutors.
U.S. Forces Korea says the SOFA does not need to be changed and is in fact “working well.”
“No problems have been identified by either side that require SOFA revision,” USFK said in a statement to Stars and Stripes.
Few critics of the 45-year-old agreement, which was amended in 1991 and 2001, offered detailed suggestions of how to reform it. A number of South Korean prosecutors and government agencies, including the Ministry of National Defense, declined to comment on what needs to be changed. An official with the Ministry of Foreign Affairs and Trade said he could not comment because the “matter is under consideration.”
USFK said in a press release issued after Wednesday’s meeting that a subcommittee would continue studying criminal jurisdiction and custody procedures. The release also said that the Joint SOFA Committee “recognized that the vast majority of U.S. personnel serve honorably in Korea and that USFK commanders are taking active steps to reduce crime” and noted “that violent crimes are not only committed by citizens of one country. Recent rape cases involving Americans here have involved Korean victims, but also Korean perpetrators.”
Yonhap News reported Wednesday evening that South Korea asked United States to consider a clause in the SOFA regarding custody and prosecution of U.S. troops. Citing a “senior Seoul official,” Yonhap said the request, if granted, would give South Korean authorities more authority in conducting criminal investigations of U.S. troops.
The Joint SOFA Committee can address implementation of the SOFA but cannot change it.
Custody a contentious issue
Much of the anger over the SOFA seems to be focused on a perceived increase in crimes committed by USFK servicemembers — an increase that is disputed by military officials — and a frustration among South Koreans who believe the SOFA is an antiquated agreement, written when their country was much poorer and dependent on the U.S., that constrains them from controlling crime in their own country.
According to a recent column in the Korea Times, “the treaty has become a shield behind which American soldiers and their families hide when they do something wrong. But it could create a moral hazard among them, giving them the wrong idea that they could go unpunished.”
Status of forces agreements are put in place in any foreign country where the U.S. stations its troops, differ from country to country, and can address everything from taxation to driving privileges.
The agreements help make sure military personnel retain the protections offered by the U.S. Constitution even though they stationed in a country with different laws.
“A soldier does not have the option to come to Korea or not. His option is to go AWOL or come to Korea,” said Sean Hayes, a U.S. attorney working in Seoul. He said demands to reform the SOFA are politically motivated, with leftist politicians hoping to drum up anti-Americanism before next year’s national elections.
In South Korea, provisions in the SOFA that spell out which country has custody of a suspect have been particularly contentious.
A 2001 amendment to the agreement says that South Korean authorities, upon their request, will be given custody of U.S.
servicemembers and others covered by the SOFA following indictment for serious crimes such as murder, arson, rape and illegal drug trafficking.
Otherwise, South Korean authorities must transfer U.S. servicemembers and civilians to U.S. custody upon request. However, the U.S. must make suspects available to South Korean law enforcement personnel for investigation and trial.
‘Good working relationship’
The latest furor began after a South Korean teenager said she had been brutally raped and tortured by a U.S. soldier in her boarding house, and a second rape accusation was made against another soldier who said he had consensual sex with a South Korean woman after a night of drinking.
Police said that they didn’t have quick access to Pvt. Kevin Lee Flippin, the suspect in the first rape, because he was a U.S. soldier. Nor could South Korean police arrest him without the cooperation of the U.S. military, a factor that many complained was preventing swift justice.
However, within a matter of weeks, Flippin was arrested and turned over to South Korean police. And on Nov. 1, just 39 days after the rape, Flippin was convicted in Uijeongbu District Court and sentenced to 10 years in prison.
Park, the Dongducheon police chief, conceded that SOFA worked in Flippin’s case.
South Korean police were granted access to Flippin on the day they requested permission to interview him, according to 2nd Infantry Division spokesman Lt. Col. Joe Scrocca.
Flippin confessed that day — Sept. 26, two days after the rape — and “all possible measures” were then taken to segregate Flippin from other soldiers, Scrocca said. He was confined to his room and placed under 24-hour supervision by two noncommissioned officers, and was escorted to meals and meetings with mental health and military legal officials.
Flippin was placed in a military confinement cell Sept. 28, and before his transfer to South Korean custody on Oct. 6, was escorted to Dongducheon for questioning when requested by South Korean police, Scrocca said.
USFK officials said that in the past five years, no request from South Korea for jurisdiction in a criminal case has been turned down.
“Additionally, when we are notified by ROK officials of a crime committed by a U.S. servicemember, we have an affirmed obligation to secure the member and that he or she is available for questioning,” USFK said in a statement.
Senior USFK legal officials said the military has a “good working relationship” with South Korean authorities, and the SOFA lets the military act as neutral observers to make sure an individual receives a fair trial, not to influence the outcome of a case.
Under the SOFA, the U.S. military automatically retains custody of troops suspected of committing a crime, though civilians might — and sometimes do — chose to remain in South Korean custody, the officials said.
Troops or civilians with SOFA status can only be questioned by South Korean police if a SOFA representative — someone who observes an interrogation to make sure it is being conducted fairly — and a translator are present.
Any testimony taken without a SOFA representative being present is not admissible in court, according to the agreement.
SOFA a needed advantage for troops
South Korean officials have established a committee to investigate overall USFK crime in the wake of the alleged rapes. Many South Koreans have also expressed concern that U.S. troops receive far lighter sentences under South Korean law than if they had been convicted in the U.S. for the same crimes.
Critics of SOFA say that servicemembers should be subject to the same legal procedures as South Korean citizens, including the possibility that prosecutors may retry their case even if no new evidence has been presented.
In South Korea, prosecutors can appeal a case twice if they believe judges gave a sentence that was too lenient, made an incorrect finding of facts or misapplied the law, according to the USFK legal officials.
Hayes said the SOFA gives U.S. troops a needed advantage in what he describes as an unfair South Korean legal system, where police usually extract confessions soon after a suspect is held for questioning.
“If you’re accused of a crime, you receive overwhelming pressure to confess to that crime,” he said. “Policemen here are very good at getting confessions out of people but very bad at gathering evidence.”