Rape Controversy: Is a Revision of the Status of Forces Agreement with Japan Necessary, The


THE RAPE CONTROVERSY: Is A REVISION OF THE
STATUS OF FORCES AGREEMENT WITH JAPAN

NECESSARY?

INTRODUCTION

Four young men met at a local disco and discussed getting a girl and
having some "fun." They discussed hiring a prostitute, but the men had no
money. One man then proposed rape instead.I The others thought he was
joking until the discussion grew more serious. They drove their rented white
Subaru to a grocery store to buy adhesive tape and condoms. At this point,
one of the men left after realizing his associates were serious about the rape.
He later helped identify the other three men.2

Around 8:00 p.m., the three young men spotted a girl walking alone
on a street. The twelve-year-old girl had walked just five minutes away from
her home to buy a notebook for school. She had just started sixth grade.3

Two of the men got out of the car. While one man approached her and
pretended to ask her directions, the other man hit her in the face and grabbed
her from behind. They covered her eyes and mouth and bound her hands
and feet with tape. After throwing her in the back seat, they beat her in the
chest and face, causing injuries requiring two weeks of medical treatment.
After driving to a remote farm road surrounded by fields, the man who
proposed the act went into the back seat and raped her. The other men, for
various reasons, did not penetrate the girl. The rape was over at 8:20 p.m.
The men dumped the girl in the field and drove off.4

Unfortunately, this story is common in today's world. However, this
particular crime set off an international furor because the sixth-grade
schoolgirl is Japanese and the three men are United States (U.S.) servicemen
stationed in Okinawa, Japan. The rape occurred at a time when both anti-
American sentiment in Okinawa was growing, and the United States and
Japan were planning to renew the security alliance between the two nations.5

The uproar the rape created in Japan has people from both nations
calling for a revision of the security alliance between the United States and
Japan. At the heart of the debate is the Status of Forces Agreement, which
states that members of the American armed forces suspected of crimes will

1. Edward W. Desmond, Rape of an Innocent, Dishonor in the Ranks, TIME, Oct. 2,
1995, at 51.

2. Andrew Pollack, One Guilty Plea in Okinawa Rape; 2 Others Admit Role, N.Y.
TIMES, Nov. 8, 1995, at A3.

3. Desmond, supra note 1, at 51.
4. Pollack, supra note 2, at A3.
5. Id.



IND. INT'L & COMP. L. REV.

not be turned over to Japanese authorities until after they are formally
indicted by Japanese prosecutors. 6

Okinawans, in particular, claim that this agreement allows many U.S.
servicepersons stationed in Okinawa to commit crimes and avoid
prosecution.7 However, top U.S. and Japanese officials have stated there is
no need to revise this part of the security agreement. Instead they created
a bilateral group of experts to explore ways to improve the current
agreement.'

This note will discuss the ramifications of a possible revision of the
Status of Forces Agreement (SOFA) between the United States and Japan.
The discussion includes an examination of the history and nature of SOFA's
and the Japanese criminal system. This discussion will demonstrate why a
revision of the Japanese SOFA is unnecessary. It also will explore the
similarities between the Japanese SOFA and the SOFA's the United States
has with other nations. Also, a discussion of the Japanese criminal system
will demonstrate why the Japanese SOFA is vital to protect the rights of U.S.
military personnel in Japan. First, however, a brief historical overview of
modern Japan and a discussion of why this rape case has created an
international dilemma will be considered.

I. HISTORICAL OVERVIEW

Japan began to modernize with the Meiji Restoration in 1868. Japan
established a new government and began a vigorous policy of "westernizing"
by learning as much as possible from Europe and the United States. The
previous government, the Tokugawa-bakufu system (1639-1868), had closed
Japan to foreign relations, permitting only limited contact with Dutch and
Chinese traders at one southern Japanese port.9

During this seclusion period, Japan was peaceful and prosperous.
However, Japan's seclusion policy isolated the island nation from the
progress of the rest of the world, particularly the industrialization occurring
in Europe and the United States. 10 The Tokugawa period of seclusion ended
in 1853 when Matthew C. Perry of the United States arrived in Japan with

6. Andrew Pollack, Rape Case in Japan Turns Harsh Light on U.S. Military, N.Y.
TIMES, Sept. 20, 1995, at A3.

7. Id.
8. Strengthen Japan-U.S. Alliance, THE DAILY YOMIURI, Sept. 22, 1995, at 13,

available in LEXIS, Nexis Library, AP File.
9. 2 HARUMI KoJo & MAKOTO Kojo, THE LEGAL SYSTEM OF JAPAN, MODERN LEGAL

SYSTEMS CYCLOPEDIA Ch. 6 § 2.2(A) (Kenneth R. Redden ed. 1989).
10. Id.

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four warships. He carried a letter from President Millard Fillmore urging
Japan to open the country to trade."

In 1854, Japan signed a treaty of peace and friendship with the United
States. Similar treaties followed with Russia, the Netherlands, and the
United Kingdom. This, however, ended the period of internal peace and
created over a decade of political turmoil which ended with the Tokugawa-
bakufu being overthrown for the new Meiji government. The root of the
political division was the opening of Japan to trade and avoiding the
colonization of Japan, such as had happened in China. 12

In 1868, a group of southern daimyos (feudal lords) took political
leadership, re-established the emperor as the head of the nation, and
organized the new Meiji government. The most important task of the new
government was to strengthen the country both economically and militarily.
This was accomplished by inviting foreign scholars to teach modern science
and technology and by sending Japanese students to Europe and the United
States to be trained in modern western methods. Additionally, a modern
legal system was implemented as an important step to strengthen Japan. 3

In 1889, the Meiji Constitution was promulgated, and it took effect in
1890. Modeled after the Prussian Constitution, it contained both provisions
providing for a strong, centralized government and elements of a modern
democracy. This enabled Japan to claim it had a civilized system of
government and was therefore entitled to treaty revision with other nations.
While the constitution made the emperor the divine and sovereign head of
state, it also created the Imperial Diet to limit the emperor's power. 4

However, the new Meiji Constitution provided no mechanism to
control the military. The military was directly subordinate to the Emperor
and could act independently of the Diet in his name. 5 This set the stage for
the aggressive expansionist and colonization policies of Japan during the next
half century.

The unchecked power of the military, coupled with Japan's strong
desire to become a world power, led to Japan's policy of expansionism. In
1904, Japan went to war with Russia over conflicts of interest in Korea and
in Chinese territory.'6 Japan's victory over Russia '" surprised the world
because it marked the first time a non-European power had defeated a

11. Id. However, the warships sent a message that the United States was not going to
take no for an answer. The United States wanted to be the first nation to open trade with
Japan to gain an advantage over its European competitors.

12. Id.
13. Id.
14. Id. § 2.2(E)(1).
15. Id.
16. SYDNEY GIFFARD, JAPAN AMONG THE POWERS 1890-1990, 30 (1994).
17. Id. at 32.

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IND. INT'L & COMP. L. REV.

European power. From its victory, Japan gained control of the Korean
peninsula, the Liatong peninsula, and the southern half of the Sakhalin
peninsula. 18  Japan also took footholds in Manchuria, Taiwan, and
Shantung. 9 The Japanese wanted these territories for raw materials and
protection by creating a buffer zone around the nation. During World War
II, Japan took a large part of East Asia and was advancing on Australia.2"
By 1942, the Japanese Empire stretched from the Kuriles in the north, to the
Marshall Islands in the east, to New Guinea in the south, and to Burma in the
west.

This expansion was halted, however, by the eventual victory of the
Allies over the Japanese forces. After Japan's surrender on September 2,
1945, the Allied Powers began a period of occupation. 21 Although it was
officially an Allied Powers occupation, the American forces were actually
in command. General Douglas MacArthur was the Supreme Commander for
the Allied Powers (SCAP) and oversaw the twin objectives of the occupation.
Those objectives were demilitarization and democratization. This policy was
pursued to ensure that Japan could never again pose a threat to international
security and to introduce a responsible government in Japanese society.2

Individual freedom and democratic government were encouraged along with
the development of the Japanese economy on a peaceful basis.' 3 A few of
the transformation measures included: demobilization of the military,
demilitarization of industry, land reform, liberalization of political activities,
reform of the education system, and revision of the old constitution. 24

A revised constitution was promulgated in 1946 and took effect in
1947. Formally, it was an amendment to the Meiji Constitution due to the
utilization of that document's amendment procedures. It was, however, a
totally new constitution because it was based on popular sovereignty, rather
than the principle of "divine sovereignty" of the emperor.26 A large part of
the 1946 constitution was based on American ideas and on pacifism,
provided for in the Preamble and in Article 9 of the Japanese constitution. 7

These provisions renounce war as a sovereign right of Japan and the threat
to use force to settle international disputes. However, this was soon
interpreted as permitting the maintenance of sufficient forces for self-

18. Id.
19. Id. at 37, 41. Shantung was a part of China.
20. Id. at 121. This area was deemed the Greater East Asia Co-Prosperity Sphere.
21. Id. at 132-33.
22. Id. at 133.
23. NISUKE ANDO, SURRENDER, OCCUPATION, AND PRIVATE PROPERTY IN

INTERNATIONAL LAW - AN EVALUATION OF US PRACTICE IN JAPAN 11 (1991).

24. Id.
25. GIFFARD, supra note 16, at 136.
26. KoJo & KoJo, supra note 9, § 2.2(E)(2).
27. GIFFARD, supra note 16, at 136-37.

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defense, 8 now known as the Japanese Self-Defense Forces (SDF)29 This
interpretation came in light of the outbreak of the Korean War in 1950. At
that time MacArthur authorized the creation of the SDF.3° Today, the SDF
has the third largest defense budget in the world and the largest budget
among non-nuclear powers. Japan maintains fleets comparable to those of
the United Kingdom and the United States, despite Japan's defense spending
being only one percent of its GNP.3

II. OKINAWA AND THE CURRENT RAPE CONTROVERSY

The preceding discussion of modem Japanese history gives a good
background for discussion of the current rape controversy. The rape of the
schoolgirl not only caused tensions between Japan and the United States, but
it also emphasized the problems between Okinawa and the Japanese
government.

When Navy Seaman Marcus D. Gill confessed to raping the Okinawan
girl and Marine Private first class Rodrico Harp and Kendrick Ledet
admitted to helping him in the Naha District Court on November 7, 1995,32
Americans were both shocked and dismayed by their actions. If charged
with the maximum sentence for rape resulting in injury, the servicemen
would face life in prison in Japan.33 To many Okinawans, the rape is just
one example of the many crimes committed by United States servicemen
throughout the years.

Okinawa is home to the largest Marine base outside the United States,
containing 29,000 of the 45,000 American troops in Japan.34 Including
civilians and dependents, there are 54,000 Americans who live a relatively
isolated life from the rest of the Okinawans. Most do not venture far from
the base, unless visiting a nearby bar. In light of the recent rape, discipline
has been tightened, the sale of alcohol has been restricted after 8:00 p.m. 35
military police patrols have been increased, and a large entertainment district

28. Id.
29. James E. Auer, Anicle Nine of Japan 's Constitution: From Renunciation of Armed

Force "Forever" to the Third Largest Defense Budget in the World, 53 LAw & CONTEMP.
PROBS. 171, 179 (1990).

30. Id. at 176.
31. Id. at 184.
32. Eric Talmadge, U.S. Servicemen Admit Plotting Girl's Rape, INDIANAPOLIS STAR,

Nov. 8, 1995, at A5.
33. Peter Landers, Okinawa's Governor Steps Up Pressure Despite Handover of U.S.

Suspects, Associated Press, Sept. 29, 1995.
34. Andrew Pollack, Marines Seek Peace with Okinawa in Rape Case, N.Y. TIMES,

Oct. 8, 1995, at A3.
35. Id.

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near Kadena Air Base is off limits for U.S. soldiers after midnight.36

However, this might just be a bandage for the problem, especially when one
considers that the rape occurred at 8:00 p.m. The Okinawan government
reports that 4700 crimes have been committed by military personnel since
Okinawa's reversion to Japan in 1972, including 509 particularly heinous
crimes.37 Americans in Okinawa account for 4.2 percent of the population
but committed 11.5 percent of felonies such as murder, rape, and robbery.38

However, crimes significantly declined from more than 300 a year during
the 1970's to 98 in 1994.19 The Defense Facilities Administration Agency
confirms these figures but notes that they reflect crime throughout all of
Japan, not just the Okinawan prefecture. I

Okinawans see the current rape case as just one of a long list of crimes
committed over the past fifty years. Thus, even before the rape, concern
about the conduct of U.S. troops was building. Examples of the more
heinous crimes committed during the last forty years include:

* In 1955, a six-year-old girl was raped and murdered in the Kadena
area. A U.S. sergeant was arrested and eventually sentenced to forty-
five years heavy labor. This is known as the Yumikochan incident.4'
e In 1974, a sleeping woman was beaten to death with a cement block
by a U.S. serviceman intending to commit robbery. 42

" In 1985, a man was stabbed to death by a U.S. serviceman.43

* On September 16, 1995, a U.S. sailor exposed himself to a sixth-
grade schoolgirl."

These crimes are just a few of the many crimes Okinawans claim are
an everyday part of their lives. The same types of crimes have occurred
both before and after Okinawa's 1972 reversion to Japan. While Okinawa
comprises only 0.6 percent of Japan's land mass, it houses nearly seventy-

36. Eric Talmadge, After Alleged Rape, U.S. Soldiers Face Restrictions, Associated
Press, Oct. 11, 1995.

37. Landers, supra note 33.
38. Id.
39. Id.
40. U.S. Forces Involved in 1,264 Crimes Since '85, Japan Economic Newswire, Sept.

19, 1995, available in LEXIS, Nexis Library, AP File.
41. List of Main Crimes Committed and Incidents Concerning US Military on Okinawa,

OKINAWA TIMES, Oct. 12, 1995, available in the Internet, http://www.inforyukyu.
or.jp/- koj/rape/index-e.html. This list was compiled by an Okinawan newspaper and might
be biased since the Okinawans are trying to reduce the U.S. presence on Okinawa.

42. Id.
43. Id.
44. U.S. Sailor Accused of Exposing Himself to Schoolgirl, Japan Economic Newswire,

Sept. 22, 1995, available in LEXIS, Nexis Library, AP File.

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five percent of U.S. military bases and operations, taking up nearly twenty
percent of Okinawan land. Additionally, thirty-one zones of the sea
surrounding Okinawa are reserved for U.S. military use.4s Okinawans claim
that their subjection to such American control is a result of the second-class
perception they have among the Japanese and Americans.

The Okinawans have a real sense of being deprived of their culture and
history. Okinawa, a tropical island south of the main part of Japan, was
annexed by Japan in the 1870's.46 Its king was forced to abdicate, and his
subjects were assimilated into the Japanese Empire.47 At the close of World
War II, Okinawa was the site of one of the bloodiest battles of the war,
which cost the island one-quarter of its civilian population. After the
Japanese surrendered, Okinawa was sacrificed for political expediency.
Even though the occupation of Japan ended in 1952, the United States
retained control over Okinawa, with Tokyo's consent, until 1972.11

Okinawans claim Tokyo continues to treat them like second-class
citizens by burdening the island with nearly seventy-five percent of the U.S.
military facilities. The Okinawan people, including their governor,
Masahide Ota, have called for the reduction and realignment of the U.S.
bases to the rest of mainland Japan.4 9 The Okinawan government has even
taken out a large advertisement in the New York Times pleading with the
American public to help them in their fight to reduce and realign U.S. bases
located on their island.5" Okinawans allege U.S. bases are a hotbed for
crime and violence. Nearly 85,000 protestors turned out on October 21,
1995, in the biggest protest ever against U.S. bases. The protestors claimed
that brutal crimes, such as the rape, show a decline in U.S. forces' discipline
and indicate an occupation mentality."' Governor Ota and many local
assemblies in Okinawa have also called for a revision of the SOFA. 52

The SOFA between the United States and Japan is the main source of
conflict. This provision is part of the larger Treaty of Mutual Cooperation
and Security. Under Article 17, Paragraph 5(c) of the 1960 treaty, the
United States is obliged to hand over criminal suspects only after they have
been indicted.53 Thus, when the Japanese police arrived to take custody of
the three servicemen, the U.S. military police denied the request. This

45. Desmond, supra note 1, at 52.
46. Pollack, supra note 34, at A3.
47. Id.
48. Id.
49. Landers, supra note 33.
50. N.Y. TIMES, Nov. 15, 1995, at A13.
51. David Eisner, 85,000 Okinawans Turn Out to Protest U.S. Presence, CHI. TRIB.,

Oct. 22, 1995, at Cll.
52. Pollack, supra note 6, at A3.
53. Desmond, supra note 1, at 52.

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decision angered many Okinawans who claim the SOFA puts the American
military above the law, making it more difficult for Japanese police to
apprehend them. For example, two years ago an American soldier accused
of raping a Japanese woman escaped to the United States after being held on
his base. The man was eventually brought back to Japan, but the charges
against him were dropped by the accuser.-4 However, Foreign Minister
Yohei Kono said there was no need to revise the agreement because it was
not impeding the investigation." Thus, there is a true discrepancy between
the viewpoints of Okinawa and the Japanese government in Tokyo regarding
the possible revision of the SOFA. Even so, critics contend that the SOFA
makes it hard to investigate. Also, they have accused the U.S. military of
using exemptions in the SOFA to avoid paying full compensation to Japanese
civilians injured by American soldiers.56

The United States made the suspects in the rape case available to
Japanese investigators whenever necessary, which was a step to stop
criticism that the investigation was being hampered by time restrictions. The
three men were driven from a Marine facility to police headquarters in Naha
for daily sessions with investigators.5 7

In an effort to calm a nationwide uproar in Japan against American
military bases, the United States agreed on October 25, 1995, to new
criminal procedures allowing Japanese officials to gain early custody of U.S.
military suspects in rape and murder cases.58 This is the first time the
Japanese have been able to request early custody of suspects. The United
States pledged to give sympathetic consideration to requests concerning rape
and murder cases. The accord gives Japan the same process given Germany,
which resolved a major complaint that Japan has been receiving unequal
treatment compared to European nations.59

The United States also has decided to consider redeployment of the
troops currently in Okinawa to other areas of Japan.' ° The United States has
announced this move in an effort to reduce tensions on the island and to keep
plans intact of reaffirming the security relationship between the United States
and Japan when President Clinton visits Japan in November 1995. However,
the move would only occur if Tokyo agrees to finance construction of new

54. Pollack, supra note 6, at A3.
55. Id.
56. Charles Smith, Rape Sparks Call to Review US Pact, S. CHINA MORNING POST,

Sept. 22, 1995, at 12.
57. Id.
58. Teresa Watanabe, U.S., Japan OK Pact on Military Crime Suspects, L.A. TIMES,

Oct. 26, 1995, at Al.
59. Id.
60. Art Pine, U.S. Willing to Cut Troops on Okinawa, L.A. TIMES, Oct. 28, 1995, at

A23.

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military facilities elsewhere in Japan. Analysts state that they do not expect
Japan to accept this idea because of the cost of the plan. Moreover, the
Japanese traditionally have not been enthusiastic about keeping large
numbers of U.S. troops on their home territory.6 This statement is in
accordance with what many Okinawans believe - that the Japanese think
of them as second-class citizens. The message from Tokyo seems to be that
U.S. troops will be tolerated as long as they do not interfere with the home
territory. Currently, Japan pays the United States about five billion dollars
a year to help finance the cost of stationing troops in Japan, which is about
seventy percent of the total cost of the operation.62

This historical background, along with the current rape case, illuminate
the discord in Okinawa. To fully understand the problem, this note next
examines the issues of the Japanese criminal system and why the United
States has a SOFA with Japan or any other nation.

III. THE JAPANESE CRIMINAL SYSTEM

The modern Japanese criminal system is an assimilation of criminal
codes from other countries. Japan is a nation that aggressively studies the
practices of other nations and modifies those practices to fit into the Japanese
way of thinking. After the Tokugawa period ended in 1868, the Japanese
studied the Western codes of jurisprudence so they could model their new
system of government after these "modern" systems. Early in the Meiji
period, Japanese law was strongly influenced by French law. In the 1880's,
the German influence became visible. In the 1900's, German legal theories
came to have an overwhelming influence and superseded the French
influence. Thus, scholars introduced German legal theory as a guide to
interpret Japanese codes. 63

The Code of Criminal Procedure of 1880 was drafted by the French
scholar Boissonade and introduced modern fundamentals of criminal justice.
Strongly influenced by the French inquisitorial system, the code encouraged
a very limited role for the defense counsel throughout the proceedings.
Although a new German-influenced code was introduced in 1922, the strong
French influence was not eliminated. The limited role of defense counsel
and the insufficient protection of the suspect remained unchanged.'
Although a new code was promulgated in 1948 under the heavy influence of
American law by giving suspects more rights and protections, the French and

61. Id.
62. Id.
63. KoJo & KoJo, supra note 9, § 2.2(C).
64. Id. § 2.2(G).

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IND. INT'L & COMP. L. REV.

German traditions still are evident in actual practice by the Japanese police
and prosecutors.

Daniel Foote classified Japan's criminal justice system as "benevolent-
paternalism."'s During the Tokugawa period, close questioning of suspects
and intensive pretrial questioning of suspects guarded against the possibility
of an acquittal, which was seen as a disgrace to the shogunate, and it could
also have undermined respect for the government itself. 6 Confessions also
played a central role in the Tokugawa period as confession was regarded as
the best evidence of the truth. Further, torture was accepted and even
codified as a means to extract a confession. Confessions also maintained the
public's trust in the shogunate criminal process.6 7

Under the influence of European scholars during the Meiji period, the
idea that criminal behavior could be attributed to an identifiable cause
became more accepted. Thus, the primary role of penalties became not
punishment but rehabilitation. Yet confessions, extracted through
intimidation and physical abuse, were still the centerpiece of the Japanese
criminal system. However, keeping with the new prominence of
rehabilitation in Japan, true confessions were deemed to play an important
role in the rehabilitation of suspects and their reintegration into society.6'

As mentioned, the new constitution, adopted after the American
occupation, set forth ideas of protection against self-incrimination, the right
to refuse to answer questions, and prohibitions against admission at trial of
coerced confessions.69  However, in practice, these statutory and
constitutional reforms were interpreted narrowly by Japanese courts.

Authorities have wide discretion when investigating a person under
suspicion of criminal conduct. This discretion leaves the potential for
intrusion into a person's privacy rights. Police may request that individuals
voluntarily submit to questioning and to voluntarily accompany the police to
the station. This police power, to suggest voluntary accompaniment, has
been broadly interpreted by the courts.7' However, the distinction between
a compulsory and a voluntary questioning and accompaniment does not relate
to the use of physical force. The authorities can use physical force to
"persuade" a suspect to comply with a request to cooperate. 7 ' The

65. Daniel H. Foote, The Benevolent-Paternalism of Japanese Criminal Justice, 80 CAL.
L. REV. 317, 317 (1992).

66. Id. at 328. A shogun is a chief military commander who governed Japan, and a
shogunate is the office or rule of a shogun. The Emperor played only a minor role in the
government during this period.

67. Id. at 329.
68. Id.
69. Id. at 330.
70. Id. at 334.
71. William B. Cleary, Criminal Investigation in Japan, 26 CAL. W. L. REV. 123, 125

(1989).

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prosecutor is given wide latitude when investigating and interrogating a
suspect. Although the exercise of this power is usually done with concern
for the individual's rights, abuse of this power has occurred. The purpose
of the interrogation is to obtain a confession. In order to effectively
accomplish this, the suspect is isolated from family and legal counsel for up
to twenty-three days.72

Police prefer that a suspect voluntarily agree to questioning because
there is no provision in the Code of Criminal Procedure to limit the length
of time the police can question someone. Although the suspect has the right
to refuse to be questioned, this right is rarely exercised. 3 If an arrest is
made, police have forty-eight hours to question the person. After that, the
police must either release the person or refer the person to the prosecutor.
The prosecutor then has one day to decide whether to release the suspect or
to seek a warrant for the suspect's detention. I

Even though the criteria appear narrow for the extension of detention
time, an overwhelming majority of detention requests are granted by judges75

99.7 percent of the time.76 The length of the first detention is ten days from
the time prosecutors petitioned the court for the writ of detention. This
detention period can be extended for another ten days upon the request of the
prosecutor. Thus, suspects may be detained for a total of twenty-three days
without a formal charge against them. After a prosecutor has indicted a
suspect under a criminal charge, the prosecutor has all the detention time
desired because suspects are seldom released on bail.77 Police refer over
ninety percent of suspects to the prosecutors, and the prosecutors request
detention for about eighty-five percent of those suspects with ten days of
additional detention time requested for approximately one-third of them.78

Arrest is merely the beginning of the criminal investigation. The
suspect's detention time is used to build the prosecution's case. The police
and prosecutors, who work together as a unit, view the suspect as the center
of the investigation, relying on the confession instead of extrinsic evidence
gathered through investigative skill." In the United States, arrest usually
occurs after an extensive investigation which reveals enough extrinsic
evidence to indict a person. Prosecutors in Japan have freely admitted that

72. Id. at 123-24.
73. Id. at 126.
74. Foote, supra note 65, at 335.
75. Christopher J. Neumann, Arrest First, Ask Questions Later: The Japanese Police

Detention System, 7 DICK. J. INT'L L. 253, 257-58 (1989). See Keiji Sosh6h6 (Code of
Criminal Procedure) art. 60 § 1.

76. Foote, supra note 65, at 335.
77. Neumann, supra note 75, at 258.
78. Foote, supra note 65, at 335.
79. Neumann, supra note 75, at 259.

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the purpose of this pre-indictment detention period is to "demand a
confession. "80

There are no restrictions the police must follow when interrogating a
suspect. Questioning may exceed ten hours per day. Judges do not have
authority to interfere with the police and prosecutors' interrogations during
the detention period. 81 Under the Code of Criminal Procedure, the suspect
has the right to remain silent and must be informed of this right.' However,
under a literal reading of the Code, there is an inference that a suspect has
no right to leave the interrogation room, and there is no requirement that
investigators stop questioning if a suspect invokes the right to silence. Thus
a duty to submit to questioning has resulted. This is the duty to sit in the
interrogation room and listen to questions and comments of the investigators
during the twenty-three day detention period. In cases where the suspect has
invoked the right to silence, investigators have applied the maximum
pressure, which leads to the problem of coerced confessions.8 3

The Japanese make a distinction between the investigation and the trial.
Until a person is formally indicted, there is no litigation and no adversarial
relationship between any parties. The Japanese view it as logical that
because there is no litigation, just an investigation, there is no need for legal
counsel. A suspect, therefore, has virtually no right to legal counsel during
the investigative phase of the case.8

This practice might seem contrary to Article 34 of their constitution
which states: "No person shall be arrested or detained without being at once
informed of the charges against him or without being granted the right to
retain the services of legal counsel." 5 However, the language of Article
39(3) of the Code has been used by investigators to circumvent this
constitutional guarantee. The article states: "a prosecutor may . . .
designate the dates, places, and times for interviews." 6 Under this article,
a system has been created where visits are permitted at the convenience of
the investigators and are usually very brief. Some critics have noted this
practice results in false confessions.

Under the Code, investigators may impose conditions on meetings
between the suspect and legal counsel. Meetings with counsel can be limited
to fifteen minutes once every four or five days, and this is not even likely to
occur until after prosecutors have finalized their case. The Supreme Court
of Japan has upheld this practice as well. In Sugiyama v. Osaka, an attorney

80. Foote, supra note 65, at 336.
81. Neumann, supra note 75, at 260.
82. Foote, supra note 65, at 336.
83. Id.
84. Cleary, supra note 71, at 141.
85. Neumann, supra note 75, at 261.
86. Id.

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REVISION OF STATUS OF FORCES AGREEMENT

filed suit after being consistently denied access to his client. The court held
that although it is very important for an attorney to meet with his client, the
prosecution must be given wide discretion to control contact with anyone on
the outside in order to regulate the investigation and interrogation of
suspects.87

During these interrogation periods, the investigators may barter with
the suspect for "privileges" such as food, water, or bathroom visits. Some
suspects have been subjected to other forms of cruel and degrading treatment
in order to extract confessions. 8 Why is the confession so vital to the
investigators in Japan? It relates to the maxim that confession is good for the
soul.

Japan has one of the lowest crime rates in the world. Its conviction
rate is more than 99.8 percent, but fewer than five percent are sentenced to
prison, and those who do go to prison serve an average sentence of less than
two years.8 9 An explanation for the low crime rate is the emphasis in
Japanese society on affiliation with a group. Society's norms and mores
subject the individual to the needs of the entire group. Thus, individuals act
with the group in mind. There typically is a strong commitment to uphold
the honor of one's family, employer, and nation. Consequently, an
individual is cautious not to commit an act which could cause the loss of
prestige or honor to any group to which the individual belongs, or else
expulsion from the group may occur. 90

An apology is used extensively for misconduct. It serves not only as
an admission of guilt, but also as a promise to refrain from committing the
offense again. There are strong ethical norms in Japanese society to
acknowledge one's guilt. "Police often adjust their reaction to misconduct
based on the repentance of the individual. "91 This once again demonstrates
the great amount of discretion the police possess when dealing with suspects.

Japan's criminal justice system places emphasis on the reintegration
and rehabilitation of the offender. Maintenance of order is achieved through
this "specific prevention" method. Japan's system resembles an inquisitive
family that insists on keeping tabs on its relatives and learning everything
about the person if the person should come under suspicion. Thus, great
trust must be placed in the authorities. This is the paternalistic part of Daniel
Foote's model.92 The display of concern for the rehabilitation and reform of
the individual is the benevolent part of Foote's model. The model would not

87. Cleary, supra note 71, at 142-43. See Sugiyama v. Osaka, 32 Minshii 820 (Supreme
Court 1978).

88. Neumann, supra note 75, at 253.
89. Foote, supra note 65, at 318.
90. Neumann, supra note 75, at 254-55.
91. Id. at 255.
92. Foote, supra note 65, at 321.

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IND. INT'L & COMP. L. REv.

only permit but would expect public officials to maintain a careful watch
over members of society. It also would allow officials to intrude on the
personal autonomy of suspects so they could determine the most suitable
means for reformation and reintegration into the community.93

Foote also describes Japan as following more of a crime-control model
of criminal justice, than a due process model, which the United States more
closely follows. 94 The crime-control model emphasizes the repression of
criminal conduct, which is seen as the most important function to be
performed by the criminal process. The main features of this model are
speed, finality, and uniformity. The process is based on the assumption that
the suspect is probably guilty. Mistakes are accepted as long as the mistakes
do not interfere with the efficiency seen as essential to repressing crime.95

Foote describes Herbert Packer's due-process model as emphasizing
the rights of the individual. The model stresses reliability rather than
efficiency, demonstrated by its concern for avoiding mistakes and limiting
official power. The model also establishes many restrictions on the fact-
finding procedure by excluding evidence. By placing primacy on the
individual, the due-process model shows a concern for "equality of justice
and a [general] skepticism [of] the morality and utility of the criminal"
process itself.'

Foote notes that although Japan's criminal justice system appears no
different from the crime-control model, there are some crucial differences.
Speed and finality are not regarded in Japan as essential for deterrence
purposes. The Japanese system does allow one level of full review of both
the facts and the law on the motion of either the prosecution or the defense.
The Japanese system does not emphasize uniformity but stresses the
importance of individualized determinations. It places great weight on
achieving rehabilitation without resorting to incarceration, basing itself on
specific prevention. Incarceration is only resorted to when the gravity of the
crime, such as rape, commands no other viable alternative.97 Thus, Japan's
system, according to Foote, is a mixture of the benevolent-paternalism model
with the influence of the crime-control model.

In Japan, informal social controls play as much a part of deterring
crime as the public officials. In Japan, offenders are more willing than those
in the United States to throw themselves on the mercy of the police,
prosecutors, and judges because reconciliation with one's group is
considered more important than the process of legal vindication.

93. Id. at 327.
94. Id. at 319. These two models are based on an exposition by Herbert Packer. See

HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 149-73 (1968).
95. Foote, supra note 65, at 323.
96. Id. at 323-24.
97. Id. at 340-41.

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REVISION OF STATUS OF FORCES AGREEMENT

Investigators not only expect a confession but act in a way to reinforce the
norm of confessions. Hence, a moral obligation is created in Japanese
society to confess one's misdeeds. 98

An involuntary confession may still be upheld at trial as valid because
the judge has the discretion to decide whether specific items in the confession
are true or not.' In Japan, complex case trials, such as rape cases, are often
comprised of separate hearings held between long intervals. In the current
rape case, the trial opened on November 7, 1995, but the next date for the
trial is in December 1995. There are no jury trials in Japan. Instead, in
cases such as rape, a three judge panel in a district court presides over the
case. The acquittal rate in trials during 1987 was less than one percent.'00

In Japan, the concept of individual freedom and liberty is secondary to
the perceived necessity for public safety and social control. Thus, the
criminal investigative procedures described are not seen as an extreme
violation of an individual's rights. Although too much reliance is placed on
the confession, it is seen as a vital first step at rehabilitating the offender.
The Japanese believe the extraction of a confession will help the individual
feel remorse and encourage him to conform with the standards of society.

Now that the Japanese criminal system has been examined, the
discussion will turn to the need for a SOFA between the United States and
Japan. It is interesting to note that while modem Japanese criminal law has
been heavily influenced by French and German law, American criminal law
is a direct descendant of the English criminal codes. This could explain the
divergent views between the United States and Japan on the issue of criminal
justice.

IV. STATUS OF FORCES AGREEMENTS AND WHY THEY ARE NECESSARY

The voluntary acceptance by a host nation of large, foreign land forces
on a permanent basis is a new historical development, unique to the twentieth
century. Until World War I, there was no clear customary rule of
international law relating to the status of visiting friendly foreign forces. The
conditions of that war made it necessary to create international law to resolve
this uncertainty in international relations.

Under most World War I agreements, the law of the flag was
dominant. Fighting forces were not subject to the host nation's jurisdiction.
It was felt that if they were subject to the host nation's sovereignty, the
exercise of disciplinary power which is an essential part of military
organization would be lost. Thus, the United States received exclusive

98. Neumann, supra note 75, at 255.
99. Id. at 256.

100. Id. at 259.

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IND. INT'L & COMP. L. REv.

jurisdiction over its forces in France. However, France's desire to receive
allies during the war made it easy for France to yield its interests of
jurisdiction. The United Kingdom, however, was in a much stronger
bargaining position during the First World War. The United Kingdom
maintained its territorial jurisdiction over visiting forces and did not
surrender to the law of the flag.'

World War II presented a different situation. The United States was
in a strong position, while the United Kingdom was much weaker. The
United States received exclusive jurisdiction over its troops while in Britain.
The lessons of both world wars left a lasting impact on European nations.
The structure of a jurisdictional agreement will depend on the relative
bargaining power of each nation. "When both states are not politically and
economically equal, the more powerful state will obtain a broader right of
jurisdiction, even in peacetime." 02 The more a nation needs the presence of
foreign troops, the more likely it will be to grant more jurisdiction to the
sending state.

Thus in 1949, with a concern over a growing threat from the Soviet
Union, five European nations signed the Brussels Pact. This pact became the
predecessor to the NATO SOFA. The main clause in the agreement stated:
"Members of a foreign force who commit an offense in the 'receiving State'
against the laws in force in that state can be prosecuted in the courts of the
'receiving State." ' 0 3

The United States was a party to the NATO SOFA signed in 1951. It
has served as the prototype for numerous bilateral SOFA's and has remained
the benchmark from which all other SOFA's are measured. Its main themes
are reciprocity and concurrent jurisdiction. The NATO SOFA provides
exclusive jurisdiction when the laws of only one state have been broken. In
all other cases, concurrent criminal jurisdiction is granted. This arrangement
is outlined in Article VII of the NATO SOFA."

Concurrent jurisdiction calls for the sending state to exercise primary
criminal jurisdiction over its personnel for official duty offenses and for
offenses against it or members of the sending state force. The receiving state
maintains primary jurisdiction in all other cases. "The state with primary

101. Maj. Manuel E.F. Supervielle. The Legal Status of Foreign Military Personnel in
the United States, 1994-MAY ARMY LAW. 3, 8.

102. Id. at 9. See SERGE LAZAREFF, STATUS OF MILITARY FORCES UNDER CURRENT
INTERNATIONAL LAW 45 (1971).

103. Supervielle, supra note 101, at 8. This passage is taken from Article 7 of the
Brussels Treaty SOFA to which Belgium, France, Luxembourg, the Netherlands, and the
United Kingdom were parties.

104. Id. at 10.

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REVISION OF STATUS OF FORCES AGREEMENT

jurisdiction must give sympathetic consideration to a request by the other
state to waive its primary right, but is not required to grant the request."° 5

The NATO SOFA is reciprocal, meaning whatever is granted to one
nation's forces, the other nation receives the same grants. Thus, forces from
France would be under the same jurisdictional agreement in the United States
as U.S. forces would be in France. However, some U.S. bilateral SOFA's
are comprehensive. Although modeled after the NATO SOFA with regard
to jurisdictional formulas, these agreements are nonreciprocal. Under a
nonreciprocal SOFA, military personnel of the receiving nation are not
provided SOFA protection if they visit the sending state. The SOFA
between the United States and Japan is a comprehensive nonreciprocal
agreement.106

The United States has traditionally insisted on obtaining SOFA's for its
troops overseas, yet resists providing SOFA protection to foreign military
personnel in the United States. The NATO SOFA is the only reciprocal
SOFA to which the United States is a party. When the threat of communism
was high, many non-NATO allies accepted these nonreciprocal SOFA's
because the American presence and protection were worthwhile to them.
Protection from the communist threat was worth the cost of partial waiver of
jurisdiction over American troops without reciprocal rights for their troops
in the United States. However, "[w]ith the end of the Cold War, the need
for United States military presence .... may not seem as obvious to [these]
foreign [nations]." 107 In the future, foreign politicians might not be so
willing to acquiesce to U.S. demands of nonreciprocal SOFA's. The United
States might have to offer reciprocity in exchange for the jurisdictional
concessions it wants from the receiving state.

The built-in equality of a reciprocal SOFA gives a universal sense of
fairness not found in nonreciprocal SOFA's. The terms of a nonreciprocal
bilateral SOFA often reflect the unequal bargaining power between the two
nations."o The United States often gives practical and legal reasons against
reciprocity. One reason is that foreign nations needed the presence of
American troops in their countries much more than the United States needed
the presence of foreign military personnel in America. The United States
cites that they have often carried a disproportionately high cost of
maintaining the defense against the Communists and other threats in foreign
nations. The United States considers nonreciprocal SOFA's as partial
compensation by the foreign nation for the protection the United States has
provided. 0

105. Id.
106. Id. at 12.
107. Id. at 14.
108. Id.
109. Id. at 15.

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IND. INT'L & COMP. L. REV.

U.S. lawmakers assume that the American legal system will treat all
parties equitably, regardless of nationality. Yet the inverse assumption is
often made of foreign legal systems. Thus, the conclusion has been that
foreign troops in the United States do not need the protection of a SOFA, but
American troops do need a SOFA to guarantee minimum due process
fairness overseas." 0 A SOFA requires the receiving state to yield some
territorial jurisdiction to the sending state, therefore losing some of its power
to exercise jurisdiction. The United States benefits from having the SOFA
protection for its troops while not being legally required to reciprocate by
international agreement. The U.S. insistence on nonreciprocal SOFA's
generates the perception that the United States is not "playing fair" and that
the United States believes it is "superior" to foreign nations. Thus, a feeling
that the United States is biased toward European governments, and biased
against nonwhite, Asian, Arab, or African people and governments has
resulted."' Foreign governments may view nonreciprocity as a matter of
principle and symbolism. Their point is that equal sovereign states should
treat each other with mutual respect, even if one nation is more powerful.

SOFA's define the status of U.S. forces in the territory of friendly
states, but do not authorize the presence or activities of those forces. The
purpose of the agreement is not to immunize a serviceperson from criminal
sanctions in the host nation, but to protect individual rights and liberties.
SOFA's are intended to strike a balance between the jurisdictional rights and
demands of the sending and receiving states. There is a balancing of the
justification of stationing troops abroad against the possibility of any
deprivation of constitutionally protected rights when a serviceperson is
subjected to foreign local law which does not conform to American law. 1 2

SOFA's work to retrieve jurisdiction for the United States.
Under international law, which is a part of U.S. law, visiting forces are

subject to the unlimited jurisdiction of the receiving sovereign unless that
receiving state has agreed to partially waive some of its jurisdiction over
visiting forces. The absolute jurisdiction of a nation was established in The
Schooner Exchange v. M'Faddon, in which the court stated that a nation's
jurisdiction is susceptible to no limitation not imposed by itself. '3 Thus, it
is clear that a host nation would have the right under international law to take
custody of a U.S. serviceperson and try him for violations of that nation's

110. Id.
111. Id. at 18-19.
112. Donald T. Kramer, Criminal Jurisdiction of Courts of Foreign Nations Over

American Armed Forces Stationed Abroad, A.L.R. FED. 725, 747 (1973).
113. The Schooner Exchange v. M'Faddon, 11 U.S. 116, 136 (1812). In Schooner

Exchange, the Supreme Court held that a war vessel in the service and possession of a foreign
power (France) could not be subject to libel while in the port of another nation (United States)
as the host country is presumed to have consented to such immunity under international law.

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REVISION OF STATUS OF FORCES AGREEMENT

criminal laws, in the absence of any agreement. 14 The court in Underhill v.
Hernadez emphasized this point:

Every sovereign state is bound to respect the independence of every other
sovereign state, and the courts of one country will not sit in judgment on the
acts of the government of another, done within its own territory. Redress of
grievances.., must be obtained through the means open to be availed of by
sovereign powers as between themselves."'

The Supreme Court in Wilson v. Girard held a sovereign nation has
exclusive jurisdiction to punish offenses against its laws committed within its
borders, unless it consents to waive its jurisdiction."I6 Wilson involved an
American serviceman who was to be tried in Japan for murder under the
SOFA between the United States and Japan. The United States initially
claimed primary jurisdiction, but later decided to waive it at the request of
Japan. After an indictment, the serviceman brought a petition for habeas
corpus challenging the legality of the waiver. He claimed he would be
denied a fair trial in Japan and would not be afforded his due process rights.
The Supreme Court refused to consider his due process claim, thus indicating
that an American serviceman being tried in a foreign court pursuant to a
SOFA cannot successfully assert in an American court that the procedures
in the foreign court do not comply with due process. " 7 The court also held
that it found no constitutional barrier or statutory barrier to the Security
Treaty"'8 between the United States and Japan." 9

The court in Gallina v. Fraser addressed the question of constitutional
protection in a foreign court. The court stated that foreign court processes
differing from those used in the United States is not a sufficient ground upon
which to impeach a foreign judgment. 2 Thus, based on the decisions in
Wilson and Gallina, the trial of an American serviceperson for offenses
committed abroad by the courts of nations having different systems of
jurisprudence than the United States is not violative of the serviceperson's
rights under the U.S. Constitution. However, in Starks v. Seamans, the
district court held that adherence by a foreign court to the due process

114. Brig. Gen. C. Claude Teagarden, Status Of Forces Agreements: An International and
Domestic Obligation to Return Military Personnel from the United States to Foreign Countries
for Criminal Prosecution and Confinement, 26 A.F. L. REV. 21, 24 (1987).

115. Underhill v. Hernadez, 168 U.S. 250, 252 (1897).
116. Wilson v. Girard, 354 U.S, 524, 529 (1957).
117. Id. at 530.
118. See 3 U.S.T. § 3329 (1952).
119. Teagarden, supra note 114, at 24.
120. Gallina v. Fraser, 177 F. Supp. 856, 866 (D.C. Conn. 1959).

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IND. INT'L & COMP. L. REv.

requirements is nevertheless a condition precedent to the release of American
servicemen to the jurisdiction of foreign courts. 121

Article VI of the Treaty of Mutual Cooperation and Security between
Japan and the United States deals with the use of facilities and areas by the
U.S. armed forces in Japan, as well as the status of the U.S. forces stationed
in Japan." This agreement, entered into force June 23, 1960, also replaced
the Security Treaty of 1952 between Japan and the United States.' A
supplementary agreement to this 1960 treaty, called the Agreement Under
Article VI of the Treaty of Mutual Cooperation and Security, became
effective at the same time. 24 Article XVII of this agreement is the heart of
the current dispute concerning the criminal jurisdiction of accused U.S.
military personnel. The provision closely follows the NATO prototype. It
sets forth the rules of exclusive and concurrent jurisdiction with respect to
each nation. Most objections concern paragraph five of Article XVII. It
states that U.S. military authorities and Japanese authorities will assist one
another in the arrest of U.S. military personnel when Japan is exercising its
primary jurisdiction. Also, the Japanese authorities are to promptly notify
U.S. military authorities when any American serviceperson has been
arrested. Section (c) of paragraph five states: "The custody of an accused
member of the United States armed forces or the civilian component over
whom Japan is to exercise jurisdiction shall, if he is in the hands of the
United States, remain with the United States until he is charged by Japan." 1"
This provision of the SOFA is what the Japanese and Okinawans claim
impedes their investigations and allows many U.S. offenders to go free.

Paragraph nine outlines guarantees granted to a member of the U.S.
armed forces at trial in Japanese courts. Some of these guarantees include:
to receive a prompt and speedy trial; to be informed in advance of trial of the
specific charges against him; to be confronted with the witnesses against him;
to have legal representation; and to communicate with a representative of the
U.S. government and to have the representative present at his trial. 2 6 It
should be noted, however, that the Japanese Constitution provides many of
these same "protections" for its citizens, yet the above discussion has
demonstrated how narrowly the Japanese courts have read these provisions.
There are also no provisions in the SOFA concerning the investigative
techniques of Japanese authorities.

121. Starks v. Seamans, 334 F. Supp. 1255 (1971).
122. 11 U.S.T. § 1632, 1634 (1960).
123. Id.
124. 11 U.S.T. § 1652 (1960). The full name of the agreement is Agreement Under

Article VI of the Treaty of Mutual Cooperation and Security: Facilities and Areas and the
Status of United States Armed Forces in Japan. Id.

125. Article XVII, Paragraph 5, Section (c). Id. at 1665.
126. Article XVII, Paragraph 9, Sections (a), (b), (c), (e), and (g). Id. at 1666.

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REVISION OF STATUS OF FORCES AGREEMENT

It is not clear whether the recent agreement between Japan and the
United States is violative of the 1960 treaty. The new agreement, as
discussed above, gives Japan the option to request the United States turn
over U.S. military personnel suspected of committing particularly heinous
crimes, such as rape and murder, before Japan issues any indictments. The
United States is only obliged to give "sympathetic consideration" to the
request. 27 Article XVII, 5(c) of the 1960 treaty states that the suspect will
remain with the United States until he is charged. It does not state whether
or not the United States may, at its discretion, turn over a suspect to
Japanese officials before he is charged.

This new accord gives Japan the same process given to Germany,
thereby addressing the complaint that the United States was treating Japan
unequally compared to the treatment given to European nations. However,
it could be argued that U.S. servicemen being tried in German courts have
more rights than a serviceman being tried in a Japanese court. The 1965
German Code of Criminal Procedure includes safeguards for the accused that
parallel those guaranteed by Miranda v. Arizona.121 The accused, at all
stages of the investigation, must be informed of the charges against him and
of his right to counsel. Although the right to remain silent and right to free
counsel are not clearly included in the German Code, a U.S. serviceman
being tried in Germany is afforded most of the protections guaranteed by
Miranda when the rights in the code are coupled with the rights guaranteed
in the U.S.-German SOFA. 12 9 The Miranda protections covered by the
German Code do not exist in the Japanese Code of Criminal Procedure, nor
in the SOFA with the United States. Thus, an accused U.S. serviceman in
Japan is not given exactly the same protection to his rights as an accused
U.S. serviceman is given in Germany.

Now that both the Japanese criminal system and Status of Forces
Agreements have been discussed, the ramifications of revising the current
SOFA between the United States and Japan will be considered.

V. ANALYSIS AND CONCLUSION

Both United States and Japanese government officials have said that
there is no need to revise the Status of Forces Agreement. The Okinawans

127. Watanabe, supra note 58, at Al.
128. James S. Fraser, Some Thoughts on Status of Forces Agreements, 3 CONN. L. REV.

335, 346-48 (1971). See Miranda v. Arizona, 384 U.S. 436 (1966). That case provides that
an accused must be warned of his right to remain silent, that he has the right to counsel, and
that if he is indigent, the government will appoint counsel for him.

129. Id. at 34748. In the Supplemental Agreement, the same rights that are afforded the
accused in the Japan-U.S. SOFA are provided for in this provision to the Germany-U.S.
SOFA.

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IND. INT'L & COMP. L. REV.

want a revision. There is growing disenchantment and resentment in
Okinawa against both the American and the Japanese governments. This
was evident by the mass demonstration in October 1995. By the United
States agreeing to possible early release of accused U.S. servicemen to
Japanese authorities, it was acknowledging the Okinawans' complaints.

The new accord served two functions. First, it sought to ease tensions
between the two nations prior to the security summit held November 20,
1995. Secondly, the move was an effort to appease the Okinawans' claims
that the current SOFA allows many American servicemen to escape justice
under the Japanese criminal system. The United States wants to maintain
good relations with Japan, and especially with the Okinawans. Seventy-five
percent of U.S. military facilities in Japan are located on Okinawa, and there
are growing demands from the Okinawans for the realignment and reduction
of U.S. military bases there. It would be costly for both the United States
and Japan to move any facilities to another part of Japan. Thus, it appears
that the vow by the U.S. government to consider such a move seems hollow
because both Japan and the United States realize this would be too costly a
measure to implement.

The current rape controversy comes at a crucial time in U.S.-Japanese
relations. The rape caused a storm of apologies from almost every level of
the U.S. government and military. But does this one rape case signify that
the SOFA is so repressive of Japanese officials' ability to investigate crimes
committed by U.S. servicepersons that it must be revised? The new
agreement should satisfy many critics of Paragraph 5(c) of the treaty. It
gives the Japanese the ability to request early release of suspects from U.S.
custody, which brings Japan's rights into harmony with those granted to
Germany and other European nations by the United States. This was the
heart, it seemed, of the criticism regarding the current rape case. However,
it appears that more concessions are wanted, especially by the Okinawans.

Although there is nothing in Paragraph 5(c) which forbids early release
of suspects into Japanese custody, nothing in the treaty allows it either. The
treaty states that suspects are to stay in U.S. custody until the Japanese file
formal charges against the American suspect. One could read the treaty
narrowly and construe it to be exclusive of granting any early release. The
treaty does state sympathetic consideration should be given to Japan when the
United States has primary jurisdiction; however, the United States does not
have primary jurisdiction in this case. The sympathetic consideration
provision also did not expressly relate to the custody of suspects. Thus, this
appeasement agreement that the United States has entered could be
interpreted as violative of Article XVII of the Treaty of Mutual Cooperation
and Security.

If the United States' aim is to ease tensions, it could revise the treaty
in such a way to maintain the current SOFA, but make it reciprocal. Japan
is one of the strongest economic world powers. It could demand reciprocity

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REVISION OF STATUS OF FORCES AGREEMENT

on the basis of the desire to be recognized and treated by the United States
as a sovereign nation legally equal to both the United States and its NATO
allies. It would be presumptuous of the United States to assume that foreign
troops will automatically receive a fair trial in American courts.

Currently Japan pays for approximately seventy percent of the
operating costs of U.S. military facilities there, amounting to about five
billion dollars a year. Japan might not be willing to continue paying for
these operating costs or the cost of relocating facilities on Okinawa to other
areas of Japan. This fact could become especially potent at the upcoming
security summit. However, this unwillingness might be lessened if Japan
was given a sign from the United States government that they were equal
partners. This could be attained through a reciprocal SOFA. The United
States needs to be a consensus builder and a partner. The United States
wants all countries to bear their fair share of military responsibility. Thus,
it is counterproductive for the United States to demand greater equality in
military responsibility, yet hang on to the unequal policy of nonreciprocal
SOFA's. Although the strong presence of the United States is still needed
in Japan and East Asia, Japan could easily place itself in the better
bargaining position for full reciprocity or no SOFA at all due to the sensitive
situation created by the rape case and the anti-U.S. sentiment in Okinawa.

The Status of Forces Agreement was promulgated to protect the rights
and liberties of U.S. service personnel stationed in Japan. As discussed
above, the Japanese criminal system follows a different theory than the
United States' system of criminal justice. While the U.S. system's primary
objective is the maintenance of the suspect's due process rights, the Japanese
system is more concerned with eradicating crime from society and
rehabilitating the offender through the use of the confession. Without the
SOFA, American servicemen could be forced to endure up to twenty-three
days of potentially inhumane investigative techniques before even being
charged with a crime. Also, due process at trial would not be guaranteed
and the serviceman probably would not be allowed to communicate with
anyone from the outside world. The SOFA is meant to protect Americans
from violations of the individual's personal rights. The SOFA attempts to
maintain as many of the U.S. serviceman's rights granted under the U.S.
Constitution as possible when being tried in Japan. However many of these
rights are narrowly interpreted by the Japanese courts, even with the SOFA.
It is not hard to imagine the violations that could ensue if the SOFA did not
exist as it does currently.

In many ways, the SOFA with Japan and the SOFA with the NATO
allies are nearly identical. The Japanese SOFA and its criminal code do not,
however, provide for some rights like those of the NATO nations. The
Miranda rights are an example of this. difference. U.S. troops stationed in
Germany have these rights, while those stationed in Japan do not have these

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IND. INT'L & COMP. L. REv.

explicitly. However, unlike the German SOFA, the Japanese SOFA is not
reciprocal.

In order to maintain the current security relationship with Japan, it is
not necessary to revise the current SOFA. However, to promote the
furtherance of this security relationship, the United States should consider
making the SOFA with Japan a reciprocal agreement, thus demonstrating the
equality between the sovereigns.

Adam B. Norman"

* J.D. candidate, 1997, Indiana University School of Law-Indianapolis; B.S., 1994,
Indiana University-Bloomington. Special thanks to my wife, Amy, and my parents, Randy
and Beverly Norman, for their love, encouragement, and understanding.

[Vol. 6:3