From james_west@msn.com
Date: Mon, 16 Sep 96 21:23:54 UT
From: James West 
To: Korea Information & Resource Center/Korea Report 
Cc: moogoonghwa@UCSD.EDU
Subject: RE: SOFA legal issues


Mr. Hyuk-Kyo Suh raised the subject of discussions on revisions of
the Status of Forces Agreement (SOFA), however his comments showed
some misunderstandings about the treaty and the negotiations.

In the first place, the SOFA agreement does not limit Korean jurisdiction
to prosecute U.S. military personnel who commit crimes against Korean
nationals, and it grants no "immunity" comparable to diplomatic immunity.   

The disagreements now under negotiation with respect to criminal
prosecutions concern, among other things, the timing of transfer of
custody (now U.S.soldiers are transferred post-conviction, after revision
suspects would be transferred before indictment).  Even though U.S.
defendants remain in U.S. custody until conviction is final, the jurisdiction
remains with the Korean side, and the suspect is produced for
interrogation and for trial appearances in the Korean courts. 

       As the news stories below from the Korean press indicate, there are
       several issues of legal procedure which remain to be resolved:

       1. Verification of testimony given by accuseds

The U.S. insists that confessions and other testimony given by suspects to 
Korean prosecutors should be valid only if an American government 
representative is present.    This may be regarded both as a protection 
against coerced confessions and also against faulty translations or other 
possible
language-related problems.   Apparently it is felt that having a U.S. 
defendant renounce a confession or dispute his/her testimony by contradicting 
the written protocol of interrogation made by the prosecutor (which Korean 
courts presume to be good evidence) might generate serious problems in 
bilateral relations.   The presence of an American representative to witness 
interrogations and confirm the voluntariness of any confession would preempt 
most such problems.   In the U.S., defendants once they are indicted are 
entitled to have advice of counsel during questioning, and they may invoke the 
right to remain silent.   In Korea, these rights are not well secured, or at 
least have not been until recently.

        2. Right to confront and cross-examine witnesses

It is a fundamental constitutional right in the U.S. that a criminal defendant 
must be allowed to confront accusers, to summon them to appear at trial, if 
necessary, and to pose questions for cross-examination through counsel.   
Korean criminal procedure is not so protective of defendants' rights. Although 
judges and prosecutors may exercise their discretionary powers to assist a 
defendant in presenting a defense, sometimes they do not.   If a witness gives 
testimony unfavorable to the accused but refuses to appear and be subject to 
cross-examination, then that testimony is regarded as unreliable in U.S. law 
and is subject to exclusion.    Also, rules of evidence such as the hearsay 
rule are sometimes rather laxly applied in Korean courts.   

          3. Double Jeopardy -- Prosecutorial Right of Appeal

Another area of concern arises from basic differences in the legal systems of 
the U.S. and Korea.   In the U.S., if a person is found not guilty after trial 
by a jury, he/she cannot be tried again for the same offense and the 
prosecution has no right to appeal the verdict (except where the court made 
some glaring error of law which requires a mistrial).   In Korea, on the other 
hand, there is no jury, and the trial court's judgment can be appealed by 
either the prosecution or the defendant.  The appeal can involve not only 
rulings on errors of law, but also review of fact-finding and taking of new 
evidence.  Even if a defendant is found innocent in the first trial, a 
conviction on appeal is possible.  And a sentence may be increased on appeal, 
if the higher court grants a prosecutorial request for greater punishment.   
>From the American perspective, these procedural options of the prosecution may 
be open to abuse.

Most of the rights being insisted on by the U.S. in the SOFA talks are rights 
which Korean as well as American defendants ought to be guaranteed in a fair 
criminal trial.   Despite the many abuses under Chun and Roh, including 
involuntary confessions, mistreatment of prisoners, obstruction of the ability 
of accuseds to have effective assistance of counsel, etc., the practices of 
Korean prosecutors have improved gradually in the last several years.  Some of 
their practices, however, are still questionable under international human 
rights law (this is also true of criminal procedure in Japan, which is very 
similar to Korean law).  It might be interesting to check the US-Japan SOFA 
treaty to see what kinds of guarantees are provided in cases where U.S. 
prisoners are held in pre-trial custody by the Japanese authorities -- I would 
guess that the issues mentioned above probably are addressed in that 
convention.

Objections about the SOFA agreement often are based on a feeling that Korea is 
somehow being "insulted" or that the U.S. side insists that its nationals 
receive special protections unavailable to Korean defendants (and so Americans 
are receiving "special treatment" which makes it more difficult to convict 
them when they are guilty).   However, the guarantees mentioned above are of 
little use to a guilty defendant, though they might make all the difference 
for one who is innocent.  I would say that "equal treatment" ought to be 
easier to achieve in the future, because Korean criminal procedure is much 
closer to minimum human rights standards than it was in the past.       
Rather than objecting to "higher" U.S. standards, a person interested in 
promoting Korean democratization might argue that the relevant Korean laws 
should be amended to strengthen due process guarantees -- then the U.S. would 
have no basis for demanding special protections left ineffectively secured in 
Korean law.    The courts in Korea still need to be strengthened vis-a-vis the 
prosecutors -- and the right to summon and confront hostile witnesses is 
fundamental and should be fully guaranteed in any fair criminal trial.  

As for the recent murder in Tongduchon, it seems unlikely, given experience 
with the Markle case (in which the U.S. side reportedly went very far to 
assist the Korean prosecutors, including by releasing polygraph evidence which 
would not have been admissible in the United States), that the SOFA 
arrangements will present any significant obstacles to expeditious prosecution 
of the perpetrator.   Apparently, he confessed to the CID investigators, if 
the press reports are to be believed.  Terrible as the crime was, it seems 
premature to try to use it as an occasion to complain about the SOFA 
arrangements.   There is no reason to believe that this miscreant will get any 
sort of favorable treatment, as far as I can see.  
	
James West
		 
Korea, US Fail to Reach Agreement on SOFA 
96-09-12 18:28:33

Seoul and Washington have made partial progress in the two-day talks on the 
revision of the Status of Forces Agreement (SOFA) but failed to reach an 
agreement because the United States put forward new proposals, officials here 
said yesterday. 

Song Min-soon, deputy director general of the Foreign Ministry's American 
Affairs Bureau, headed the Korean delegation, while the U.S. delegation was 
led by Deputy Assistant Secretary of State Charles Kartman and Deputy 
Assistant Secretary of Defense Kurt Campbell. 

Seoul and Washington have so far held six rounds of talks since last November, 
when Foreign Minister Gong Ro-myung and U.S. Secretary of Defense William 
Perry agreed to revise the agreement regulating the administrative affairs of 
37,000 American servicemen here. 

The U.S. side agreed in principle to transfer American suspects to Korean 
authorities even before their indictment when dealing with such serious crime 
as murder and rape but demanded that it secure measures to protect American 
suspects under the custody of Korean authorities. 

``According to the existing SOFA, such legal protection measures were 
unnecessary because American suspects were transferred to Korean authorities 
after all legal procedures were wrapped up. Therefore, the U.S. side stressed 
the necessity of legal protection measures in the new SOFA, which will make it 
possible for Seoul to gain custody of American suspects earlier than before,'' 
a ministry official said. 

The official said it will take time for Korean government branches to review 
Washington's new proposals, and the follow-up meeting will be held after they 
finish the review process. 

If Korean authorities want to win an early transfer of U.S. suspects, they 
will have to award U.S. military authorities the right to protect their 
servicemen legally ``as both are linked,'' the official said. 

The level of legal protection for American suspects will be ``comparable'' to 
how American suspects are treated in the United States and other countries 
where U.S. forces are stationed, he said. For example, such measures include 
the suspects' right of confrontation and the limitation of witnesses' 
statements as evidence, he said. The U.S. side has maintained that it cannot 
recognize as evidence any statements by U.S. servicemen made in the absence of 
U.S. officials, while Seoul sought to strengthen its authority in the 
investigation process. 

Meanwhile, the Korean side will continue to recognize the necessity of the 
presence of American officials during the interrogation process as it helps 
keep the suspects' statements as evidence acceptable to both Korean and 
American sides, he said. However, both sides failed to reach an agreement on 
how to recognize witnesses' statements as evidence, he said. 

As Korea has sought a package deal, it will still take time before the two 
countries reach an agreement on various issues involved. 

If the criminal jurisdiction issue makes progress, the two sides will not find 
it difficult to settle environment and labor issues in U.S. military bases 
here. 

``Korea and the United States have the understanding that SOFA's main text, 
agreed minutes and other supplementary documents were all rewritten to embody 
the changed regulations,'' the official said. (SKY) 
           
+++++++++++++

KPS - SOFA talks held 

------------------------------------------------------------------------
   Seoul, September 13 (KPS)--Korean and U.S. officials held the seventh round 
of talks on the revision of the Status of Forces Agreement (SOFA) over two 
days in Seoul without reaching any agreement. 
  The U.S. side is said to have agreed to turn over U.S. criminal suspects 
accused of committing murder or rape before indictment, but demanded the right 
for suspects to cross-examine witnesses. 
  Under the current SOFA provisions, U.S. criminal suspects are placed under 
the custody of Korean authorities only after conviction and the exhaustion of 
appeals. 
  The two sides also showed differences over whether to allow Korean 
prosecutors to appeal to a higher court. The existing SOFA stipulation bans 
it.
------------------------------------------------------------------------
(c) Copyright 1996, Korean Overseas Information Service.







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