By P.K.Balachandran
Colombo, July 9 (SAM): Except for Finance Minister Mangala Samaraweera, most Sri Lankan political leaders are opposed to the signing of a Status of Forces Agreement (SOFA) with the United States. President Maithripala Sirisena has categorically stated that no such agreement will be signed so long as he is President.
The general feeling is that SOFA would critically abridge the hard-earned sovereignty of the country for no valid reason when Sri Lanka faces no threat from any country in the region or the world.
However, there is still a possibility that the US in its over-anxiety to contain China, will pressure the powers-that-be in Colombo into signing on the dotted line.
After all, Sri Lanka is obligated to the US in some critical ways. The US had tacitly helped Sri Lanka win the war against the LTTE by giving vital information on the location of the latter’s arms ships called “floating warehouses”, as the Chief of Defense Staff Adm. Ravindra Wijegunaratne pointed out in the Pethikada program on Sirasa TV.
The US had also helped train the Small Boat Squadron, which had played a critical role in defeating the LTTE’s Sea Tigers. It had recently gifted a Coast Guard vessel.
The Lankan military is opposed to SOFA in its present draft form, but at the same time, it is also wary about alienating the US. The military therefore wants a carefully negotiated and crafted SOFA which will not impair the sovereignty of Sri Lanka and make the local military mere spectators.
The website www.globalsecurity.org gives an idea of a typical SOFA. SOFAs, of which there are almost a hundred now, are not “basing” or even “access” agreements. Rather, they define the legal status of US personnel and property in the territory of another nation.
The purpose of such an agreement is to set forth rights and responsibilities between the United States and the host government on such matters as criminal and civil jurisdiction, the wearing of the uniform, the carrying of arms, tax and customs relief, entry and exit of personnel and property, and resolving damage claims.
Civil/Criminal Jurisdiction
The touchy issue in SOFAs is civil and criminal jurisdiction. The US Department of Defense (DoD) has the responsibility to “protect, to the maximum extent possible, the rights of United States personnel who may be subject to criminal trial by foreign courts and imprisonment in foreign prisons.”
Therefore, SOFAs uniformly provide that the United States, and not the foreign government, has the “primary” right to exercise criminal jurisdiction over US personnel for offenses arising out of the performance of official duty.
In those agreements that give host nations primary jurisdiction over some offenses, other than official duty, the US Department of Defense personnel are protected by “fair trial guarantees,” including provision of defense counsel, interpreters, trial observers, and prison visits.
Ensuring Fair Trials
The website www.globalsecurity.org further points out that US military commanders are responsible for seeing that individuals under their authority who run afoul with host-county laws receive fair trials from the host country under all circumstances.
DoD directives list 14 “fair trial” safeguards or guarantees that are considered applicable to US state court criminal proceedings by virtue of the 14 th. Amendment of the US Constitution.
These safeguards include the right of the accused person to be tried without unreasonable delay, to be tried by an impartial court, and to be protected from the use of a confession obtained by torture, threats, or violence.
If the U.S. commanding officer believes an American under his authority is not being protected under the host country’s legal system because of the absence or denial of constitutional rights the accused would enjoy in the US, he will request that the host country waive its SOFA rights.
If the host country authorities refuse, the U.S. commander will inform the Department of State to press the request through diplomatic channels. U.S. military commanders may seek waivers from the host country for reasons other than the absence of trial protection, and in most countries waivers are routinely granted, www.globalsecurity.org states.
Problems Face By SOFA in Japan
Japan is a close military and political ally of the US since the end of World War II. In 1960, the US and Japan signed a SOFA. US forces have been stationed in Okinawa since World War II. But the presence of thousands of US troops in Okinawa has always been controversial.
Article 17, which gives the US military the right of jurisdiction over members of the US forces or civilians working for them if they break Japanese laws while engaged in their official duties, has always been a thorn in the side of the police,.
The Japanese police have long complained about the lack of cooperation when it comes to questioning US military-linked people suspected in involvement in serious crimes, Japan Times has reported.
Citing a case, the paper said that in January 2011, Rufus J. Ramsey II, a US civilian working at Camp Foster in Okinawa, was driving home after he’d clocked out when he had a head-on collision with Koki Yogi, 19, who was killed. At the time, the U.S. still considered the driver on official duty, however, and used Article 17 to prevent him from being prosecuted in a Japanese court.
However, in November, an agreement was reached that would allow Japan to have jurisdiction over “serious” crimes like fatal traffic accidents, but only if the US side first decides not to pursue criminal charges. This case created outrage in Okinawa, and Washington and Tokyo found themselves under intense pressure to revise the SOFA.
Japan Times further said that the rape of a 12-year-old girl by three U.S. personnel in 1995 led to mass protests against both the SOFA (which left the accused in American custody) and the bases.
“A decade later the U.S. and Japanese governments agreed to move the Marines Corps Air Station at Futenma out of Ginowan to a less heavily populated area on Okinawa, and relocate 8,000 Marines (plus dependents) to Guam. Tokyo pledged to cover about $6 billion of the relocation cost,” the paper said.
US legal experts note there are fundamental differences in U.S. and Japanese law that make turning over a US service member to Japanese police problematic, Japan Times pointed out.
In the US, the police must tell the suspect about his rights upon arrest. But this is not applicable to people arrested in Japan on criminal charges. The US also has concerns about the fact that suspects in Japan can be detained for up to 23 days without being formally charged, and can be denied access to legal counsel.
Articles in Japan Times also point out that in the SOFA is a clause which says that the Japanese authorities are not normally allowed to exercise the right of search, seizure or inspection with respect to any people or property within the facilities and area in use by and guarded under the authority of the US armed forces or with respect to properties of the US armed forces wherever situated.
If Japanese police want to search, seize or inspect people or property of the US armed forces, they have to get permission, which may or may not be granted.
Giving an example, Japan Times said: In August 2004, a US Marine Corps Sea Stallion helicopter crashed on the campus of Okinawa International University. Nobody was killed and no Japanese were injured, but controversy ensued when U.S. Marines from the adjacent Futenma base arrived, sealed off the crash site and refused to allow Okinawa police and firefighters access.
Later, the differences were ironed out to an extent. Some degree of access was given. But the damaged aircraft was still out of bounds to the local police.
(Japanese protest against US troops presence in Okinawa)
