United States’ Hands Tied by Unfair SOFA?

24 Responses to This Entry

1. Larry Grant on January 14, 2008 @ 10:20 am

   It is intersting that you note this to me because my wife and I ran into several Korean pilots while we were vacationing in Las Vegas last summer.  I think the big problem that might surface is gambeling addiction.  One of the pilots that my wife was talking to was trying to borrow one thousand dollars from her so he could continue to play blackjack.  Of course she did not lend him the money, but one wonders what will happen when one of the pilots gets into debt with the local mob.

2. WayneChang on January 15, 2008 @ 1:28 pm

   I know you come from the military so you would be biased but this is a little too much.  First, when Koreans talk about unfairness, they are not necessarily referring to reciprocity or the lack thereof.  Many Koreans view the problem as being that ROK-USA is drafted in such a way that it puts Korea on unequal footing with many other countries that also signed SOFA, like Japan or Germany.  Shamefully, in many instances, and unlike these other SOFAS, the ROK-USA SOFA has served (and will probably continue to unless drastically amended) as a safehaven for those who committed the most heinous crimes in Korea (need I list them here?  BTW, we’re not talking about DWI.)

   Second, as to reciprocity, I think you can hardly call it reciprocal when its 60,000 troops vs. a handful.  When the ROK army gets a military base smack in the middle of D.C., then we can talk about reciprocity.  Perhaps that would be a “teachable moment” for the US.

3. fencerider on January 16, 2008 @ 11:02 am

   It’s nice to see a blogger that can take one on the chin and admit mistakes....nice catch wayne.

   I, too, had heard the SOFA was much different in Korea than in European countries. 

   Might this have something to do with the relative....hmmm...how should i put this....historically injust system of justice for foreigners?  Perhaps the overzealousness and mindless cattle mentality of the majority of protestors will encourage a more equitable arrangement, eh?  Fact is, the SOFA has very rarely been used for what any reasonable person would call a ‘safe haven’ for heinous criminals in Korea (and YES you SHOULD mention a couple of the cases to which you are referring and exactly how the SOFA was unfair in its excecution, I’d like to read more about that, perhaps then I will eat crow as well). 

   No justice system is perfect, but left to its own the Korean justice system, sans SOFA, would have jailed and unduly punished a LOT of innocent people in the name of national pride or because someone slipped the judges wife a fat envelope.  We have ALL seen how foreigners who are NOT afforded the rights of the SOFA have been percecutedprosecuted and given harshequal punishment with Koreans (you show me yours I’ll show you mine).  The ROK-US SOFA has done an adequate job of protecting U.S. Soldiers from xenophobia and levels of corruption that do not exist in the other countries under the SOFA.

   The original post mentioned the potential for a ‘teachable moment’ for Koreans under a certain set of circumstances that do not exist...a mistake was made...but the need for that ‘teachable moment’ still exists because too many Koreans who know little or nothing of the SOFA spend too much time bitching about it.  It can and would be changed when and if Koreas legal and social system were up to the task of fairly judging and punishing criminals.

4. Brendon Carr on January 16, 2008 @ 1:18 pm

   Wayne left excellent comments. Most of it was stuff on which he’s misinformed; but that one point was glaring enough that I want to take some time to reply so that I’m not propagating bunk.

   For example, I am really curious to find out under what diplomatic arrangements Korean forces train in the US. There must be some basis for me to have gotten myself twisted up and confused, and I want to find it.

5. GI Korea on January 16, 2008 @ 6:21 pm

   I would like Chang to provide examples of this supposed unfair SOFA.  How is it unequal to Japan and Germany?  From what I see Korea has one of the most stringent SOFAs of any country that has US troops in it. 

   I would also love Chang to provide his list of GIs getting away with the “"most heinous crimes in Korea” because it is a myth that I’m well prepared to challenge.

6. WayneChang on January 17, 2008 @ 1:43 pm

   fencerider,

   Your gratuitous and unwarranted characterization of the Koreans as some mindless, unscrupulous morons, and of the SOFA situation as almost a non-issue is not only grossly unfair to the Koreans and those whose human rights have been utterly violated at the hands of the US serivcemembers but it’s also a clear testament to your own unwavering stupidity.  In my experience, those who choose to trash a whole nation of people, as you practically have done in your comment, usually are serious bigots or hopeless retards.

   First off, I have no idea what “historically injust (sic) system of justice for foreigners” you’re talking about because if anything, the Korean criminal justice system has historically been unbashfully generous to foreigners.  In fact, the Korean criminal justice system treats foreigners here considerably better than its American or European counterparts do.  I don’t know about you but where I come from, if you’re a foreigner or a racial minority accused of attempted rape of a cop or premeditated murder, you’d better be ready to face some serious consequences.  Seems in Korea, though, the fact that one is a foreigner, and maybe even a GI to boot, works heavily in his/her favor and almost always results in a ridiculously light penalty.  I don’t know what constitutes your “historically injust (sic) system of justice for foreigners,” but if there is such a thing I’d like to know.

   Secondly, you say:
   “Fact is, the SOFA has very rarely been used for what any reasonable person would call a ‘safe haven’ for heinous criminals in Korea (and YES you SHOULD mention a couple of the cases to which you are referring and exactly how the SOFA was unfair in its excecution, I’d like to read more about that, perhaps then I will eat crow as well).”

   The FACT is that SOFA has been used extensively to thwart the Korean authorities from exercising proper jurisdiction in numerous instances of blatant violations of Korean criminal, civil and environmental laws and a whole host of human rights.  The FACT is that when left up to the US military, the perpetrators got away, in most cases, with disproportionately minimal penalty.  The FACT is that McFarland, who committed the egregious act of dumping 25 gallons of toxic waste into the Han River was never tried by the Korean courts because according to SOFA, his actions fell within the line of duty and therefore not subject to primary Korean jurisdiction. Reportedly, he merely received an “administrative action” by the US military.  The FACT is that the vehicular manslaughter case of the two Korean girls who were ran over by the GIs never was tried by the Korean courts because the SOFA did not confer Korean courts the jurisdiction.  The FACT is, in that case, even though all the indisputable objective evidence pointed to at least criminal negligence and thus a probable vehicular manslaughter conviction, the two GI’s responsible for the deaths were found not guilty by the US military court. The FACT is, that in the attempted cop rape case, the Korean police’s hands were tied from doing proper interrogation and investigation because the SOFA required that the two GI’s be handed over to the US Forces the day after the incident.  Apparently, SOFA does not deem “attempted rape” a serious enough crime to yield primary jurisdiction.  The FACT is that recently, an American GI who was sentenced to a jail term for defrauding a Korean lady into having a sexual relationship with him under the pretense of promise of marriage was freed hours after the sentencing because of SOFA.

   I can go on but cases like these are a dime a dozen and if you’re willing to do your own research you’ll find plenty more.  It’s no wonder that SOFA has been invoked by every single GI’s arrested by the Korean authorities for breaking the Korean law.  The record clearly shows that unnecessarily pro-US provisions in SOFA only serve to make scofflaws out of the American servicemembers abroad.

   Now why don’t you eat some crow and tell me more about those cases of “injustice,” “xenophobia and levels of corruption that do not exist in the other countries under the SOFA.”

7. Brendon Carr on January 17, 2008 @ 4:51 pm

   I’m still holding two voluminous comments (#3 and #4) between me and Wayne, so that I can check my facts carefully before launching into a riposte. Those will be inserted back into the thread after I check myself.

   I was wrong on the reciprocity issue—the US-ROK SOFA itself is not reciprocal, unlike the NATO SOFA. That’s really not material, though, because there is a good reason for the provisions to be one-way: There are significant US forces here in Korea, and negligible Korean forces in the US.

   I think I am correct on all the other issues on which I engaged Wayne. And as I am looking at this latest comment, I see that Wayne is further misinformed—but I worry my own credibility is in tatters after the reciprocity mistake. Anyway, he’s a generous guy and as long as we all stay civil this can be an educational discussion.

   Anyway, the reason SOFA is “invoked in every case” is that it applies to every case. SOFA establishes rules on allocating concurrent primary and secondary jurisdiction.

   As for McFarland’s formaldehyde-dumping and the Walker/Nino tracked-vehicle accident, both of those were in the course of the performance of official duties—which is clearly established in the SOFA as being subject to American primary jurisdiction, which jurisdiction was not waived.

   So in McFarland’s case, the Korean court that rashly tried, convicted and sentenced him did not have lawful jurisdiction. Do you think this is helpful or harmful to Korea’s cause of gaining more powers under the SOFA, given that one of the Congressional concerns about Korean justice is a fear of forcing soldiers against their will into a situation where they may be subjected to irrational, emotion-driven jurisprudence?

   Also, as a point of clarification, McFarland did not order anyone to “dump formaldehyde into the Han River”—he directed that 20 gallons of waste fluid which contained formaldehyde be disposed of by dumping down the drain of a sink, which after passing through two water-treatment plants along with 1.6 million gallons per day of other sewage from the city,eventually discharges into the river. But after passing through water-treatment, the discharge is deemed “safe” and in fact independent simulations concluded the formaldehyde was diluted to a harmless level. (And before becoming drinking water, the Han River water gets treated and filtered again.)

   As for Walker and Nino, under US law there is no way either of them could have been guilty of anything. I’ve got a binder full of investigative reports on my bookshelf at home. The disconnect between that fact, and the Korean mob braying for their blood, is exactly the reason the SOFA exists.

   I don’t know anything about the other matters Wayne describes.

8. slim on January 18, 2008 @ 4:53 am

   Assuming that the ROK fliers who go to the US on this program are covered by a SOFA of sorts, Brendon’s larger point holds.

   Wayne’s misunderstanding of the SOFA, on the other hand, is vast, if not total. In reciting the talking points/urban legends the anti-USFK NGOs and Korean media use when discussing this emotive issue, he makes all the same mistakes they do. He even cites the same flawed Han River example.

   The antidote to misunderstandings is to go to the original source material, read the terms of the comparative SOFAs, study the history of the SOFA negotiations and revisions. If any of the Korean dailies who helped whip up the masses in 2002 had taken these steps, there would not have been an anti-USFK furore that year. After studying up, you may still viscerally hate the notion of the SOFA, but you will have a better intellectual grasp of why it exists and what it entails.

   Insensitive language aside, fencerider is correct in his explanation of why gaps in various bilateral SOFAs USED TO exist.

9. Korea Beat on January 18, 2008 @ 10:41 am

   I may have a faulty memory, but as I recall the SOFA for Korean soldiers in Afghanistan prevents the Afghan courts from ever having jursidiction over Korean soldiers, in any circumstance.

   Ah, here we go. My memory isn’t that faulty I guess.

   http://seoul.usembassy.gov/february_11_2003.html

   “As a matter of fact, the SOFA between the U.S. and Korea is identical in all important respects to those that the U.S. has with 90 other countries, and is based on international law. Korean armed forces stationed in Afghanistan operate under a SOFA under which any problem, including a traffic accident, is handled strictly through Korean military channels.”

10. WayneChang on January 18, 2008 @ 9:29 pm

    Korea Beat,

    I wouldn’t put too much stock in what the former Ambassador Hubbard had to say about the ROK-US SOFA.  Although I’m sure he is one hell of a guy, he’s hardly an impartial observer when it comes to this issue.  After all, at the time he made that speech he was the US Ambassador to Korea so he had every reason to portray the ROK-US relationship in the most positive light.  While I think his assessment about the ROK-Afghanistan SOFA is probably correct, it was misleading of him to compare it to the ROK-US SOFA.  For one thing, Afghanistan is still a war zone.  Does Hubbard honestly expect foreign forces to submit to the laws of a chaotic warring nation when the nation itself is lawless?  What Hubbard should have been comparing ROK-US SOFA to is the US-Japan or German Supp. to US-NATO SOFAs.  While these SOFAs were also drafted to favor the US, their provisions provide far more latitude to the host nations than the ROK-US SOFA does when it comes to criminal jurisdictional issues.  So I have no idea what Hubbard was talking about when he said the ROK-US SOFA is “identical in all important respects” to other SOFAs.

11. fencerider on January 19, 2008 @ 6:53 pm

    Wayne said,
    “Your gratuitous and unwarranted characterization of the Koreans as some mindless, unscrupulous morons...”

    I just went back to check my writing to be sure, but I just couldn’t find the part where I used any of these words or even hinted at such broad generalizations of Koreans.  On the contrary, I believe that the majority of Koreas fine upstanding individuals.  I did mention the mindlessness of the majority of the protestors who really have no idea what the SOFA is or its purpose.  They are only practically able to complain about a few cases where they have been told that Korea was slighted.  It just so happens that at least two of those cases are the ones you mentioned and Mr. Carr doused those two completely. The others can be addressed by reading GIKoreablog. Post-epiphany, perhaps you would like to “go on” with the other myriad of examples you have in your repertoire to convince us of that the SOFA is unjust (forgive my previous typo ‘u’ and ‘i’ are very close on the keyboard aren’t they?)

    Wayne goes on:
    “and of the SOFA situation as almost a non-issue is not only grossly unfair to the Koreans and those whose human rights have been utterly violated at the hands of the US serivcemembers”

    Again, examples of ‘human rights’ violations would be nice if you could enlighten me...for I am a simple man, a “retard” as you so succinctly put it.  Perhaps I am confusing human rights issues with matters of jurisprudence.

    Wayne again:
    “but it’s also a clear testament to your own unwavering stupidity.  In my experience, those who choose to trash a whole nation of people, as you practically have done in your comment, usually are serious bigots or hopeless retards.”

    Again, I don’t deny my own stupidity if it should be shown here.  It must be stupidy that prevents me from seeing how my comments could be construde as ‘trashing’ a whole nation.  If this is what I have done, I whole-heartedly apologize to any who have been offended.

    Wayne’s Coup de Grace:
    “It’s no wonder that SOFA has been invoked by every single GI’s arrested by the Korean authorities for breaking the Korean law.  The record clearly shows that unnecessarily pro-US provisions in SOFA only serve to make scofflaws out of the American servicemembers abroad.”

    How could I possibly match the brilliance of this statement?  I’m convinced then, I don’t need any more examples of the injustice.  I’ll just take your word for it and join the fight against the evil imperialists bent on making a mockery out of Koreans and their obviously superior justice system.  How could I have been such a fool?  I am hereby resigned to eat crow as soon as Wayne comes up with one single, irrefutable example of SOFA injustice. 

    BTW - (a) the GI accused of ‘attempted rape’ is a poor example for you since the Korean courts DID try him.  But I’m sure you have some reason why that was unfair too.  You can go over to GIKorea and join the argument on this issue over there.

    (b) I’m gonna go out on a limb here and say that the case of the soldier that defrauded the woman into a sexual relationship is a perfect example of why the SOFA is good. It protected the soldier from being tried for a non-crime (his sheer stupidity aside). In our country, lying to a woman to get her to bed is not necessarily a crime (impersonating an officer however is), it may be seen as a necessity by some.  This soldier was punished much more for this incident BECAUSE it happened in Korea and because of how he did it not because of the simple act of lying to get laid. His career is over and probably his marriage, too.  He deserved to be punished but not jailed as he would probably have been if the Korean courts would have gotten hold of him.

    (c) as for the ‘history of injustice’ I said I’d show you mine if you show me yours but if you need a teaser we could start by looking at several cases of injustice perpetrated against non-soldiers accused of crimes in Korea.  Seems that those of us who are NOT afforded the rights of the SOFA basically have NO rights under the law.

    Mmmm...that crow sure tastes good:) Tastes like YangNyum Chicken.

12. Bones on January 30, 2008 @ 1:45 pm

    I would likes to add my .25 cents and say in Korea the laws are different than say Germany or Japan. Korea doesn’t have self defense laws like western countries do nor do they have laws of provocation here.

    You can wind up paying compensation just because they are Korean and your not.

    Take for instance the GI that was made to apologize in the stadium after being provoked into a confrontation by a former Politician, A GI who had to pay money because a Korean woman felt offended by his apology, the death of the girls which was a tragedy but somehow morphed into a war protest, Green Peace who only exists because of USFK. That’s why the SOFA is like it is for Korea.

    Don’t blame the West, blame your society and their way.

13. WayneChang on January 30, 2008 @ 10:21 pm

    Bones,

    I’m not sure which I should be alarmed by more:  your twisted views of Korea or the temerity and shamelessness with which express them. Your post is factually inaccurate and frankly, it’s not even deserving of a comment.  But let me just say this: The SOFA isn’t the way it is because of the Korean people – the Korean people are merely rightfully and correctly reacting to the unfair SOFA and some GI’s who think the SOFA is their “get out of jail free” card.  As to your false claims about the Korean legal system, I would only suggest that you do some homework and educate yourself because you obviously don’t have a clue as to what you’re talking about.

14. When in Rome... on January 31, 2008 @ 4:30 am

    Just a few observations from someone who’s lived abroad in several countries (but I was never in the military and it’s been a number of years since I lived in Korea):

    WayneChang:  Ad hominem statements never make valid arguments in favor of your position.  While I agree with some of your comments, you must admit that there are significant differences re: characterization and treatment within Korea’s criminal justice system vs. that of the US.  Nonetheless, it has always troubled me when any country seeks to obtain, or actually obtains, greater protection for its citizens in foreign lands (and diplomatic cover is excluded here).  In the case of military personnel stationed abroad, it should be fairly obvious when certain conduct is work-related or personal.  If conduct is personal, then everyone should be subject to local laws – for better or for worse.  If non-military visitors are required to obey local laws, even if ignorant of the same (which is never a good idea), then why should military personnel be treated any differently?

    Bones:  “Korea doesn’t have self defense laws like western countries do nor do they have laws of provocation here.” Just to state the obvious… if in Korea, then generally subject to Korean laws.  It is illogical to blame Korea and its society simply because its criminal code fails to mirror those in other countries.  Again, when in Rome, do as the Romans do (or don’t).  I certainly didn’t try to sue DC when as an undergrad, I couldn’t make an emergency beer run in between Sunday football games!

    Fencerider:  “In our country, lying to a woman to get her to bed is not necessarily a crime…, it may be seen as a necessity by some.” Are you kidding me?  I just hope that you are not in the US.  If so, I admire that you covered your butt by stating “not necessarily” because then you must know that in some US jurisdictions, fraud which induces sex is actionable under certain circumstances.  And for some, it is necessary to lie so to sleep with a woman???  Dude, why would you even ...?

    Just a thought - the US military is stretched a bit thin these days, US military presence in Korea has always been a sore issue which festers and blows up from time to time, and I’d rather my taxes be used to address domestic problems.  So how about the US military pack up and leave Korea (after all, it’s been over 50 years) and then the debate in this thread will become moot?  Hmm, how do you think Korea will react to that?

15. WayneChang on January 31, 2008 @ 12:05 pm

    When in Rome,

    You brought up a question which must cross the minds of everyone who’s had a chance to ponder the “love-hate relationship” between Korea and the US – “Why doesn’t the USFK just pack up and leave?” The answer, unfortunately, is not as simple as you might imagine.  You seem to think (like the host of this blog and many who left comments) that Korea desperately wants the US forces to stay.  Nothing could be further from the truth – the Koreans want the GI’s to leave.  In fact, I can almost see them erupting into jubilation at the first break of the news that the USFK is leaving.  Personally, I wouldn’t be so sanguine about such a prospect.  I tend to think that there’s a value in the ROK-US relationship, and the USFK, for all its shortcomings, serves to further that relationship.  Also, there is no doubting that the ROK-US Mutual Defense Treaty is vital for ensuring peace and stability not only on the Korean peninsula but in the greater Northeast Asia.  The Treaty is good for Korea for obvious reasons, and it’s good for the US as well because it is a useful tool for maintaining peace and stability in the region which happens to be one of Washington’s major strategic concerns.

    But it’s not like the Koreans didn’t know about this.  They have known this all along.  So why do they want the US forces to leave?  Well, it’s just that their perceptions have changed (like everything else in life) in the recent years with Korea’s prosperity, and its rather successful engagement of its former foes.  In light of these new developments, the Koreans naturally feel that they are now better able to care for its own defense.  While this renewed confidence can be healthy for a nation, it is also true that too much of it may prove to be shortsighted and even foolhardy.  So the bottom line, as I see it, is that for now the US forces have a reason to stay in Korea, for Washington’s sake as well as Seoul’s.

    Having said that, however, the SOFA debate involves a whole different set of issues and some of those issues have been laid out somewhere in this thread.

16. When in Rome on February 02, 2008 @ 5:35 am

    WayneChang:  You correctly point out that bilateral and global politics are complicated processes.  However, the wants/needs of a country’s citizenry are not necessarily aligned with (or reflect) that of its government.  Case in point:  my opinions/positions and the current Bush administration.  I finally see light at the end of the tunnel…

17. China Law Blog on February 04, 2008 @ 3:39 am

    I will simply note that we over at the China Law Blog have committed to memory all bilateral treaties between the US and China.

18. LovehateKorea on March 18, 2008 @ 2:07 pm

    I have lived in Korea on and off for 15 years both as a non affiliated US military member and as a soldier and civilian working for USFK.  My wife is Korean and my son is Amerasian.  I love Korea and it’s people, I also hate Korea and it’s people the same goes for the U.S.  So here is my opinion, it may be a little bias but that is to be expected since I am an American.

    The SOFA in Korea is the fairest SOFA we have, in fact Korea’s sofa agreement with other countries that it has soldiers in doesn’t even come close to what they ask the U.S/Korea sofa to be.  Not in a single country that Korea is in does there sofa allow the county to prosecute their soldiers, only Korea military can do so.  It seems to me that if Korea were asking America to provide this then they should in turn provide this to the countries they are in.

    I was an MP for many years in Korea and I can tell you from experience that Koreans know that all they have to do is cry foul to get money, even if it is a lie.  I was jumped by 5 Koreans in TDC because I was having an argument with my Korean girlfriend, they could not stand up to me one on one and yet in the end they claimed I initiated the fight and because I was American that was fact in the Korean Police mind.  That was a long time ago, back in 1990 so I just kind of laugh about it now but that is the type of injustice soldiers face who are far away from home in the name of defense of the Korean peninsula.

    If a soldier murders someone, rapes them, hurts them with intent I am all for fair prosecution of that person but if they are at work and the damage in unintentional then a soldier should not have to face a corrupt justice system like the Koreans have in place.  Anyone on this post who says the Korean justice system is not corrupt is misinformed or is a Korean who will never admit to the deficiencies that Koreans have.  I will say that I love Korea, for the most part Korea is a great place to be, I feel safer there than my own country.  I like the fact that Korean have not adopted the western culture, it makes Korea what it is.  The fact is Korea is in a position today in part because of the U.S., and a lot of young Americans gave their lives in defense of Korea, no Korean has ever given their life in defense of America. 

    I saw a statement in here about putting a Korean base in D.C., how about the reactions Korean would have in their son’s and daughters came to fight for Americas freedom and then Americans denounced their presence.  There has never been one Korean man or woman who gave their lives in defense of America and very few Koreans who have given their lives for any country other than their own.  Love or hate America, at least we help our allies become better off or at least try.

19. leefr on March 18, 2008 @ 8:37 pm

    LovehateKorea - you’re entitled to your opinion but there’s one thing I must take issue with. What about the numerous young Korean men who lost their lives in Vietnam? Maybe they didn’t die ‘in defense of America’ per se, but Park Chung Hee sent those men to Vietnam because of Korea’s alliance with the US (and in return for generous foreign aid, but that doesn’t change the fact that those soldiers went in support of a US-led war).

20. Ryan on March 24, 2008 @ 12:34 pm

    Lots of interesting (and a few laughable) opinions here.

    In response to LovehateKorea--a few good points; the note on Korea’s SOFA’s in other countries is an important one. Your “getting jumped” anecdote, while interesting, sheds little light on the fairness of Korea’s legal system. (Depending on the nature of the “argument” with your girlfriend, perhaps you deserved to get jumped...if that is what happened.) But at the very least, asserting that “Koreans know that all they have to do is cry foul to get money, even if it is a lie” demonstrates the superiority of the US system seems flawed. You haven’t lived in Korea long enough to forget our good-ole American torts system, have you? What little Korean plaintiffs know of extortion they learned from us kojengi’s.

    My biggest disagreement with your post reguards your characterization of Uncle Sam as an international knight in shining armor. Let me preface this point by conceding that the vast majority of (if not all) US servicemen/women hope that the externalities of their work-->a better world, and in many instances their hopes come to fruition. I agree with you in saying that America often tries to help its allies. But....

    Uncle Sam “saves the world” when and only when it is in his interests. American servicemen/women have not given their lives in defense of Korea, Iraq, or Vietnam--they gave their lives because it was in the perceived interest of the US. It’s safe to say that the brave US men who gave their lives in the Korean War did it in defense of the American (and not the Korean) dream. This in no way diminishes the heroic honor associated with their sacrifices. But it does torpedo the argument that Koreans should be especially understanding of US GI’s since they are protecting Korean interests. US GI’s protect American interests--that’s their job. Like any other rational country, the US acts out of self-interest and then spins their actions (to foreign and domestic audiences) as giving a helping hand. It’s unfair to expect ROK to behave differently. Korea will (and should) put up with US forces only as long as it is in their interests. And if I’m a Korean parent of a girl raped or run-down by a US GI, the argument that I should turn the other cheek because 55 years ago Americans fought for their interests in my homeland doesn’t provide much solace.

21. Brendon Carr on March 24, 2008 @ 1:48 pm

    Servicemembers accused of off-base crimes not committed in the line of duty are subject to the primary jurisdiction of Korean prosecutors and Korean law; they are not protected from Korean laws by any stretch of the imagination.

    Servicemembers accused of off-base crimes which take place in the line of duty, such as the crime of causing a fatality by negligent operation of a motor vehicle, are subject to the primary jurisdiction of US military prosecutors and American law. Primary jurisdiction does not mean the accused servicemember gets a hearty handshake, a “Bravo Zulu” and a cookie when something tragic happens.

    Primary jurisdiction doesn’t mean the Koreans are locked out; if the US chooses not to exercise primary jurisdiction, the Republic of Korea still has a whack at the accused.

    This is agreed between the Republic of Korea and the United States precisely because, as Ryan notes, while in the line of duty servicemembers are doing the business of the American people.

    However, Ryan’s explanation overlooks one key differentiator: Often the United States defines its own interests quite selflessly—as in, we put Korea’s interests ahead of American interests. Leftists in the US and Korea each have real trouble understanding this one.

22. Ryan on March 25, 2008 @ 12:14 am

    Thanks for the quick reply, Brandon. (I can use a break from my con law casebook!)

    Actually it wasn’t an oversight, it was the crux of my (apparently unclear) point. Sure, the US may “define” its interests selflessly, claiming to put allies’ interests ahead of our own. But political realism, basic principles of economics, and common sense strongly suggest that no rational state actor ever puts the interests of another ahead of its own interests. (I know, I know, absolute statements are never accurate [:)] but this is the closest to certainty that political economists can get.)

    If, as you suggest, the US puts ROK interests ahead of their own, this would be the height of incompetence. The complex strategic game of tug-of-war that is diplomacy resembles an international chess game, and the US is Bobby Fisher—we know how to play the game. We might give Korea a pawn, but only when it means we’ll get their rook on our next turn. We (and all rational actors) give to get, period. Defining policies as exuding beneficial externalities is hardly a “differentiator;” it’s diplomacy/communications/marketing 101.

    There are no value judgments wrapped up in my argument, it’s just the way things work. When the US seemingly places the interests of its allies ahead of their own, these are calculated, minimal concessions required to achieve a higher-priority concession from an ally. Any suggestion that the US gives or should give Korea (or anyone) tit sans tat implies that the US is facilitating (or should facilitate) its own accelerated demise by wasting international political capital. Your response, at its core, is either an attack on the basic competency of US diplomacy or a suggestion that it is somehow virtuous for US policymakers to betray their constituencies and defer to overseas populations. Leftist arguments, no? I doubt this is what you meant to imply, judging from the (decidedly not-leftist) tone of your blog. But this is the logical conclusion of your response.

23. Brendon Carr on March 25, 2008 @ 7:42 am

    I do not believe US diplomacy is—or has been, for at least the last 15 years—conducted competently with respect to the Korean Peninsula. It is not virtuous for US policymakers to betray their constituencies and defer to overseas populations, yet that is what I believe is the state of play here.

24. VoXman on March 29, 2008 @ 2:33 pm

    For Ryan; I would agree that the US does not do the things they for purely selfless reasons. No one performs any act for purely selfless reasons. But in the case of Vietnam and Korea, you left out the fact that the initial reasons for US participation were to contain communism. In the case of South Korea, it would have ceased to exist had the US simply pulled back to Japan and let it happen. Surely, the families of the 50,000 plus who died who appreciate that. In Vietnam, the US lack of understanding and arrogance toward what they thought of was a backward country and people prevented them from seeing the truth which was that was a civil war to unify Vietnam not necessarily spread communism. Current Vietnam is the truth in that statement. Also, look up, Giap and Mcnamara meeting in 2001(?) All countries and peoples have an agenda some include helping others and some do not. Look at all the help America has provided so many countries after natural disasters occur. Is it always for some secret political reasons that the US as a people extends a hand of charity and good will toward others? I think not. It more like this, if your house caught fire and your neighbors joined in to help you put out the fire, would you later disparaged them for joining the fire brigade when you know they’re motive also included trying to keep the fire from spreading to their own homes? If one of them was injured or killed would you not mourn the loss and praise him for heroism? Or would you say...well he was just looking after his own interest?

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