Via a reader tip comes a report that USFK is about to authorize a change to the US-ROK SOFA for servicemembers accused of rape or murder:

Korea and the United States have reportedly agreed on a plan for US military personnel stationed in Korea who commit murder or rape to be transferred to Korean investigative agencies before they are indicted.

“Korea and the US are deliberating the handing over of implicated US military personnel to Korean investigative agencies before indictment in cases where they have committed a crime such as murder or rape,” said an official at the Ministry of Foreign Affairs and Trade.

“[The conclusion] is heading in that direction and an agreement will probably be reached within a month or two.” At present, US military personnel suspected of crimes that were not caught in the act are only handed over to Korean investigative agencies after being indicted by prosecutors, in accordance with Clause 5 of Article 22 of the Status of Forces Agreement between Korea and the US. The inability to secure US military crime suspects early on has brought constant criticism of inadequate initial investigations and a high risk of destruction of evidence.

It appears that crimes where personnel can be handed over before indictment will be restricted to murder and rape from among the list of 12 crimes where, according to regulations in the current agreement, they can be handed over after indictment. It appears that this change will take the form of an “agreed view” by the Korea-US SOFA Joint Committee, rather than an amendment to the agreement itself. The decision has also reportedly been taken to admit as evidence records of statements made before visits by US military representatives.  [Hankyoreh]

If the claims of the SOFA changes is true it for the most part will have little impact because the vast majority of servicemembers accused of murder and rape actually did commit the crimes.  However, I can see this change impacting a very small percentage of servicemembers from getting a fair trial.

Take for instance the case of PFC Mark Feldman.  He was accused of participating in the attempted sexual assault of a off duty policewoman.  The Korean authorities reportedly tried to coerce the other soldier involved in the incident SGT Anthony Basel into lying about the involvement of Feldman to implicate him in the crime in return for a lighter sentence.  Basel refused to lie and implicate Feldman.  The Korean authorities had already been able to get a Korean witness to change his story to implicate Feldman.  Would Basel have refused to lie about Feldman’s involvement if he was immediately handed over to Korean authorities where he didn’t understand what was going on due to language difficulties?  Heck even before this potential SOFA change translation services for accused servicemembers has been spotty at times.  At least if he is initially held in USFK custody every time he is questioned by Korean authorities USFK can ensure he has an interpreter present.  If he was sitting in a Korean jail immediately after the arrest would the Koreans have given USFK enough notice to ensure a USFK interpreter and legal counsel was present before conducting any questioning?  It is issues like this that I think need to have more detail before allowing such a change to the SOFA.

In the policewoman rape case both soldiers ended up being convicted but the conviction was so dubious that the chief Korean judge urged that Feldman appeal the case. Eventually when this case was appealed both GI’s were released much to the anger of the anti-US groups who believe any servicemember accused of a crime is automatically guilty.