The Status of Forces Agreement in Korea: History of Conflict and Understanding

Abstract

More than seven years have passed since the tragic deaths of Hyosoon and Misun, but nothing much have changed in the tension between Korea and the U.S. in respect of the Korea SOFA arrangement. The fundamental cause of the conflict seems to lie in the fact that both parties do not fully trust each other. In the eyes of average Koreans, the United States appears as though it would make no scruple to ignore the human rights of Korean people when it comes to its own interests or protection of its own citizens. Many Koreans hold such a narrow-minded view of the US, and their view is further reinforced by the reports of the US military's massacres of Korean civilians in the past, including the incident of Nogeun-ri. As for the Americans, the majority of them seem to distrust the Korean judicial system. Where do we need to start in order to resolve this problem? It should be noted that the ROK-US SOFA is not a mere treaty between two countries with different interests, but it is a promise made by two allies, both of which share the common objective of achieving peace on the Korean peninsula. This is precisely what the two countries must bear in mind. In conclusion, they should proceed with the discussion on the revision of the SOFA in accordance with the aforementioned objective. With this in mind, I would like to make the following suggestions. First of all, prior to discussing the revision of the SOFA, they should continue to make efforts to better understand the differences in their culture and their legal systems. If they do not have mutual trust for each other, the discussion will degenerate into nothing more than a series of conflicts. Secondly, according to the current SOFA minutes, even in a case in which South Korea reserves exclusive jurisdiction, the US is still allowed to demand that South Korea waive jurisdiction. It would be better to abolish this particular provision because it implies that the US completely denies South Korea's right to exclusive jurisdiction, and thus this provision runs counter to mutual reciprocity between allies. Thirdly, the US should transfer exclusive jurisdiction to Korean courts whenever it deems necessary, since the US can choose to waive its exclusive jurisdiction under the agreement even when it is entitled to it. This would better correspond with mutual reciprocity between allies. Fourthly, I would like to suggest that the Korea SOFA should be revised in a way that would narrow the differences between the Korea SOFA and NATO SOFA. Although there exist differences among various SOFAS, the US has not officially clarified this issue. Unless there are military or strategic reasons for which South Korea should have more limited rights than NATO countries, this kind of unequal treatment will vitiate mutual reciprocity between South Korea and US. The best course of action for the United States and Korea is to promote more dialogue and educate the other party about how its legal system operates. The lack of understanding of the Korean culture led the U.S. to the delay of apologizes. Most troubling are apologies that are purely symbolic, and carry no concrete shifts in resources or practices to alter the current situation. The apologies of the United States were regarded by the Koreans as one of those troubling apologies.