Secret agreement concerning arrest of U.S. soldiers

Japan Press Weekly

Japan Press Service Co., Ltd. is the only news agency providing information of progressive, democratic movements in Japan

50 years of Japan-U.S. Alliance

SOFA, the Darkness - part VI

Secret agreement concerning arrest of U.S. soldiers

The Justice Ministry Criminal Affairs Bureau in March 1972 produced a secret document concerning exercising the right of jurisdiction over offenses committed by United States armed forces personnel or their civilian component.

Following the Justice Ministry's strong request, the National Diet Library in June 2008 decided to stop offering this document for public inspection. Since November 2008, the Justice Ministry has opened the document to the public, but all critical parts are blacked out.

Full text is blacked out

This document contains the full text of Criminal Jurisdiction Matters agreed on by the Joint Committee for Implementation of amended Article 17 of the Japan-U.S. SOFA.

The Justice Ministry's secret document states that "(the government) has never made public the full text of the agreement." The document that the National Diet Library now offers for public inspection excludes the agreement. The full text of the agreement was also deleted from the document that Akahata obtained from the Justice Ministry under the Freedom of Information Act late last year.

The provision on arresting U.S. military personnel in this secret agreement states, "When members of the United States Armed Forces, the civilian component or their dependents are arrested by the Japanese authorities, the arresting officers will immediately notify the nearest Provost Marshal of the United States Armed Forces that such arrest has been made and will turn the prisoner over to him when the primary right to exercise jurisdiction rests with the United States or when it is questionable whether the alleged offense arose out of the performance of official duty. (No.9-a)"

Article 17 of the Japan-U.S. SOFA stipulates that the United States has the primary right to exercise jurisdiction when U.S. personnel commit crimes during their official duties. However, under agreement No.9 (a) cited above, Japanese authorities have to hand over the arrested U.S. personnel to the United States even though it is "questionable whether the alleged offense arose out of the performance of official duty."

It has been revealed that the Japanese and the U.S. governments concluded a secret agreement which state, "There will be not so many cases that those who violate the Japanese relevant law are kept in custody by the Japanese authorities (off-the-record minutes of the Japan-U.S. Joint Committee meeting, October 22, 1953)."

Journalist Yoshida Toshihiro said, "Agreement No.9 (a) indicates specific measures to ensure implementation of this secret agreement without fail."

Agreement No.9 (a) violates Japanese Criminal Code

Agreement No.9 (a) also goes against the Japan's Special Criminal Act attendant upon the enforcement of the Japan-U.S. SOFA.

"When the Japanese authorities recognize that offenses (committed by the United States Armed Forces, the civilian component or their dependents) fall into cases which are referred to Clause 3-a of Article 17 of the Japan-U.S. SOFA (offenses arising out of any act or omission done in the performance of official duty and offenses solely against the person or property of the United States), they have to turn over the suspects to the United States Armed Forces (Clause 1 of Article 11 of the Special Criminal Act)."

In short, the law states that when the authorities of Japan "acknowledge" that the U.S. personnel committed crimes while "they are on duty," they have to hand over the suspects to the U.S. forces in Japan. Literal interpretation of the law means that when "it is questionable" whether crimes occurred during official duties, the Japanese authorities are not required to extradite the suspects.

Which is prioritized, the secret agreement or Japan's Special Criminal Act? A secret document compiled by the Justice Ministry in August 1965 clearly states that Agreement No.9 (a) has priority.

Yoshida stated, "In order to disguise the fact that crimes by U.S. personnel are actually handled under the secret agreement, the Japanese government established a mechanism in which crimes committed by U.S. personnel are ostensibly handled under Japan's Special Criminal Act. This is unacceptable for a country ostensibly functioning under the rule of law."

(To be continued)