America’s 703 officially acknowledged foreign military enclaves (as of September 30, 2002), although structurally, legally, and conceptually different from colonies, are themselves something like microcolonies in that they are completely beyond the jurisdiction of the occupied nation.1 The United States virtually always negotiates a “status of forces agreement” (SOFA) with the ostensibly independent “host” nation, including countries whose legal systems are every bit (and perhaps more) sophisticated than our own.

 

In Asia, the SOFA is a modern legacy of the nineteenth-century imperialist practice in China of “extraterritoriality”—the “right” of a foreigner charged with a crime to be turned over for trial to his own diplomatic representatives in accordance with his national law, not to a Chinese court in accordance with Chinese law. Extracted from the Chinese at gun point, the practice arose because foreigners claimed that Chinese law was barbaric and “white men” engaged in commerce in China should not be forced to submit to it. Chinese law was indeed concerned more with the social consequences of crime than with establishing the individual guilt or innocence of criminals, particularly those who were uninvited guests in China.

 

Following the Anglo-Chinese “Opium War” of 1839-42, the United States was the first nation to demand “extrality” for its citizens. All the other European nations then acquired the same rights as the Americans. Except for the Germans, who lost their Chinese colonies in World War I, Americans and Europeans lived an “extraterritorial” life in China until the Japanese ended it in 1941 and Chiang Kai-shek’s Kuomintang stopped it in 1943. But men and women serving overseas in the American armed forces still demand that their government obtain as extensive extraterritorial status for them as possible. In this modern version, extrality takes the form of heavy American pressure on countries like Japan to alter their systems of criminal justice to conform with procedures that exist in the United States, regardless of historical and cultural differences.

 

Rachel Cornwell and Andrew Wells, two authorities on status of forces agreements, conclude, “Most SOFAs are written so that national courts cannot exercise legal jurisdiction over U.S. military personnel who commit crimes against local people, except in special cases where the U.S. military authorities agree to transfer jurisdiction.”2 Since service members are also exempt from normal passport and immigration controls, the military has the option of simply flying an accused rapist or murderer out of the country before local authorities can bring him to trial, a contrivance to which commanding officers of Pacific bases have often resorted. At the time of the terrorist attacks on New York and Washington in September 2001, the United States had publicly acknowledged SOFAs with ninety-three countries, although some SOFAs are so embarrassing to the host nation that they are kept secret, particularly in the Islamic world.3   Thus the true number is not publicly known.

 

U.S. overseas military bases are under the control not of some colonial office or ministry of foreign affairs but the Department of Defense, the Central Intelligence Agency, the National Security Agency, the Defense Intelligence Agency, and a plethora of other official, if sometimes secret, organs of state. These agencies build, staff, and supervise the bases—fenced and defended sites on foreign soil, often constructed to mimic life at home. However, not all overseas members of the military have families or want their families to accompany them; therefore, except in Muslim countries, these bases normally attract extensive arrays of bars and brothels, and the criminal elements that operate them. The presence of these bases unavoidably usurps, distorts, or subverts whatever institutions of democratic government may exist within the host society.

 

Stationing several thousand eighteen-to-twenty-four-year old American youths in cultures that are foreign to them and about which they are utterly ignorant is a recipe for the endless series of “incidents” plaguing nations that have accepted U.S. bases. American ambassadors quickly learn the protocol for visiting the host foreign office in order to apologize for the behavior of our troops. Even in closely allied countries where English is spoken, local residents get very tired of sexual assaults and drunken driving by foreign soldiers. During World War II, the British satirized our troops as “over-paid, over-sexed, and over here.” Nothing has changed.

 

The SOFA as Unequal Treaty

 

Okinawa, Japan’s most southerly prefecture and its poorest, has been the scene since 2001 of a particularly fierce confrontation between Washington, Tokyo, and Naha over the Japanese-American SOFA and its use by American authorities to shield military felons from the application of Japanese law. To many Japanese and virtually all Okinawans, the SOFA represents a rebirth of the “unequal treaties” that Western imperialists imposed on Japan after Commodore Perry’s armed incursion in 1853. On November 15, 2003, in talks with Japanese officials in Tokyo, Secretary of Defense Donald Rumsfeld said that he planned “to press anew for the Japanese government to relent on a long-standing U.S. demand for fuller legal protections for members of its military force accused of crimes while serving in Japan.”4  Most American press accounts avoided details about what this enigmatic comment might mean, including whether the American defense secretary was equally concerned about legal protections for Japanese citizens forced to live in close proximity to American soldiers and their weapons and warplanes.

 

As of November 2003, the United States had stationed in Japan some 47,000 uniformed military personnel, not counting 14,000 sailors attached to the Seventh Fleet at its bases at Yokosuka (Kanagawa prefecture) and Sasebo (Nagasaki prefecture), some of whom are intermittently at sea. In addition there were 52,000 American dependents, 5,500 civilian employees of the Department of Defense, and 23,500 Japanese working for the U.S. forces in jobs ranging from maintaining golf-courses and waiting on tables in the numerous officers’ clubs to translating Japanese newspapers for the Central Intelligence Agency (CIA) and the Defense Intelligence Agency (DIA).5  This large contingent was deployed at ninety-one bases on Japanese soil, of which thirty-eight are located in Okinawa, where they occupy some 23,700 hectares or 19 percent of the choicest territory of the main island. Okinawa is host to some 28,000 American troops plus an equal number of camp followers and Defense Department civilians. The largest contingent of U.S. forces in Okinawa consists of 17,600 Marines, followed by Air Force pilots and maintenance crews at the huge Kadena Air Force Base, the largest U.S. military base in East Asia. Even without these unwelcome guests, Okinawa is an overcrowded island with an indigenous population of 1.3 million in a land area smaller than Kauai in the Hawaiian Islands.

    

The Marines are spread out in huge forbidding enclaves from the headquarters of the 3rd Marine Division at Camp Foster (the 3rd Division is the only one of America’s three Marine divisions located outside the continental United States) to Camp Hansen in Kin village, Camp Courtney in Gushikawa, Camp Schwab in Nago, and the Marine Corps Air Station Futenma located in the dead center of Okinawa’s second largest city, Ginowan, where it takes up fully a quarter of the city’s land area. All have been there since the battle of Okinawa in the spring and summer of 1945 or the height of the Cold War in the 1950s.

 

There is nothing particularly unusual about this manifestation of American military imperialism in Okinawa except for its concentration. It offers scenes that are easily reproduced in Germany, Italy, Kosovo, Kuwait, Qatar, Diego Garcia, and elsewhere, including more recently Afghanistan, Central Asia, and Iraq. However, one distinguishing feature of the Okinawan bases is how much money the Japanese government pays to support them—some $4.25 billion a year out of a total annual cost of approximately $7.6 billion  It does so in part to keep American soldiers well out of sight of mainland Japanese—much as the Tokugawa Bakufu quarantined Dutch merchants on the island of Deshima—because fully enfranchised Japanese citizens would not tolerate them. It also hopes to keep them happy living in the Japanese equivalent of Puerto Rico, a culturally heterogeneous part of the country that Japan forcibly annexed in 1879 and that has long been subject to official and popular discrimination by mainland people and authorities. The Japanese press refers to these base-support payments as the omoiyari yosan (sympathy budget), meaning sympathy for the poor Americans who cannot afford their expansive foreign policy. The SOFA covering American forces in Japan says that the United States will cover all costs of the deployments (art. xxiv) but since 1978, when the omoiyari yosan came into being, the Japanese government has in fact paid more than half. No other nation offers such lavish “host nation support” to the United States.6

 

The result is that the Marines, who have not a clue about Okinawa’s history or culture and are given little or no instruction by their officers, live far more comfortably than they would in Oceanside, California, home of the First Marine Division’s headquarters at Camp Pendleton, or Jacksonville, North Carolina, locale of the Second Marine Division’s headquarters at Camp Lejeune. Facilities being built in Okinawa over just the past two years using Japanese money include a “luxury hotel” at Camp Foster, two new family-living towers with 68 two-and-three bedroom apartments each, a 4,700 square foot youth center, a “state of the art” theater complex for the 3rd Marine Expeditionary Force’s band, and a 33,024 square foot “community services building” that includes an arts and crafts hobby shop, an “entertainment center,” an auditorium, broadcast facilities, and a photo lab.7

 

Criminal Law Under the SOFA

 

The Japanese-American Security Treaty of 1960, which replaced the original pact that was signed along with the peace treaty in 1951, is a short, relatively straight-forward document of ten, normally one-sentence articles. It authorizes the SOFA—”the status of the United States armed forces in Japan shall be governed by a separate agreement” (art. vi)—which is a much longer, extremely complex legal document of some twenty-eight quite dense provisions. The text of the Security Treaty is readily available, usually as an appendix to books on Japan’s international relations; the text of the SOFA is so hard to come by it is virtually classified. Japanese citizens must search widely to find a decent translation. Its official title is “Agreement Under Article VI of the Treaty of Mutual Cooperation and Security Between the United States of America and Japan, Regarding Facilities and Areas and the Status of U.S. Armed Forces in Japan, January 19, 1960.” It has never been modified.8

 

Among its salient features is article iv: “The United States is not obliged, when it returns facilities and areas to Japan on the expiration of this Agreement or at an earlier date, to restore the facilities and areas to the condition in which they were at the time they became available to the United States armed forces, or to compensate Japan in lieu of such restoration.” To many Japanese and all local government officials this is a deeply resented invitation to the U.S. military to pollute anything it wants to and evade responsibility for cleaning it up. The U. S. military’s record on environmental protection is abominable.

 

Art. ix (2) says, “Members of the United Sates armed forces shall be exempt from Japanese passport and visa laws and regulations,” meaning that American servicemen accused of crimes in Japan can be spirited out of the country without facing legal obstacles. Article x (1) is truly hated by most Japanese: “Japan shall accept as valid, without a driving test or fee, the driving permit or license or military driving permit issued by the United States to a member of the United States armed forces, the civilian component, and their dependents.” Okinawans pay a high price in crashes and hit-and-run accidents because of this clause, especially after 1972, when driving on the left hand side of the road was restored on the island.  Art. xiii (1) aggravates art. x: “The United States armed forces shall not be subject to taxes or similar charges on property held, used or transferred by such forces in Japan.” The current (conservative) governor of Okinawa, Keiichi Inamine, contends that U.S. military personnel pay less than one-fifth of what Japanese citizens pay for the public services they receive and that if the tax rate on their vehicles were equal to what ordinary citizens pay, Okinawa’s income would increase by ¥780 million.9 It should be noted that none of these clauses exists in any of the SOFAs with NATO countries.

 

By far the greatest SOFA-related popular outrage in Japan concerns art. xvii, which covers criminal justice. This one article is over two pages long and contains twelve complex subclauses. Opinion in Okinawa is virtually universal that it should be thrown out, whereas the U.S. military clings desperately to its every stipulation and in 2003 even threatened to rescind a slight concession it made after the abduction and rape of a twelve-year-old Okinawan school girl on September 4, 1995, by two Marines and a sailor from Camp Hansen. The offending words are contained in art. xvii (3) (c): “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.” This means that Japanese authorities investigating a crime committed in their country cannot have exclusive access to a suspect held by the U.S. military until Japanese prosecutors have actually indicted him in court. It also means that the Japanese police are hobbled in carrying out an investigation and that prosecutors may thus be reluctant to indict an American serviceman because of insufficient evidence. Press reports following the September 4, 1995 rape that the three military suspects were lolling around the pool at Camp Hansen eating hamburgers while the child victim (her name has been protected by Okinawa Women Act Against Military Violence, an organization that came into being after her assault) was in the hospital led to the largest anti-American demonstrations in Japan since the Security Treaty was signed in 1960. All servicemen in Okinawa know that if after committing a rape, a robbery, or an assault, they can make it back to the base before the police catch them, they will be free until indicted even though there is a Japanese arrest warrant out for their capture.

 

Japanese criminal law gives the police twenty-three days during which they can hold and question a suspect before either charging or releasing him. During this period a suspect meets alone with police investigators who attempt to elicit a confession, the king of evidence (shôko no ô) in the minds of all Japanese prosecutors and most citizens. The Japanese believe in a lengthy process of reasoning with a suspect to cause him to see the error of his ways and leading him to try to restore the harmony of the society by acknowledging publicly what he has done. Japanese judges treat guilt established in this way much more leniently than it would be in an American criminal proceeding (except for the American practice of plea-bargaining). On the other hand, a suspect in a Japanese courtroom who refuses to cooperate or who continues to asserts his innocence in the face of material evidence and witnesses is likely to receive a harsh sentence. During the period of interrogation, a criminal suspect is not permitted to consult an attorney, be released on bail, or seek a habeas corpus hearing. In Japan, a criminal suspect who is arrested and charged is much more likely to be found guilty than in the United States, but the Japanese police and courts are much less likely to arrest or convict an innocent suspect.10

 

The American military contends that these procedures, which are a long-standing part of Japanese culture and apply to all suspects arrested in Japan, not just American servicemen, could lead American soldiers to make false confessions and thus constitute violations of their “human rights.” In refusing to turn over suspects to the Japanese police before indictment, the U.S. military relies on another part of the SOFA’s art. xvii, namely clause (9): “Whenever a member of the United States armed forces, the civilian component, or a dependent is prosecuted under the jurisdiction of Japan he shall be entitled: (a) to a prompt and speedy trial; (b) to be informed, in advance of the trial, of the specific charge or charges made against him; [and] (c) to be confronted with the witnesses against him.” These requirements do not apply to an investigation prior to an indictment, but the U.S. military contends all the same that Japan does not live up to this clause and that Japanese criminal justice as a whole does not meet American standards. The Americans seem to have resurrected the old defense of extrality in China: no “white man”—or American soldier—should be subjected to the laws of an alien society where respect for human rights allegedly differs from ours.

 

This argument does not carry much weight in Okinawa (or anywhere else for that matter, given the U.S.’s abysmal record of protecting the human rights of foreigners). Every time there is a new instance of a sexually violent crime in which the prime suspect is an American soldier, the victim Okinawan, and the military refuses to turn him over until a Japanese court has issued an arrest warrant, there are calls from the governor, unanimous votes in the prefectural assembly, and street demonstrations demanding a total rewrite of the SOFA.

 

Until the rape of September 4, 1995, the United States had never turned over a military criminal suspect to Japanese authorities prior to his being indicted. In the wake of that incident, however, pressure mounted on the United States to become more flexible if it hoped to keep its troops in Okinawa. Even then, after the American ambassador to Japan, former vice president Walter Mondale, publicly denounced the suspects as “monsters,” the defendants’ American lawyers accused Mondale of making it impossible for the three alleged rapists to get a fair trial in Okinawa. In February 1996, President Clinton and Prime Minister Hashimoto met at an emergency summit in Santa Monica, California, to think of ways to defuse Okinawan anger. Finally, the U.S. made a concession. In a meeting of the Joint Committee authorized by art. ii(1)(a) of the SOFA, the United States agreed in future cases to give “sympathetic consideration” (kôiteki kôryô) to Japanese requests that a military culprit be handed over to Japanese authorities before indictment if they are suspected of “especially heinous crimes.” The latter category was left undefined but generally means murder and rape cases.

 

Despite this new “flexible application” of the SOFA, rather than its wholesale revision, the United States has rejected all subsequent requests for early hand-over except one, a 1996 case in which a sailor pleaded guilty to American authorities for the attempted murder (slitting the throat) and robbery of a 20-year-old Japanese woman.11

 

The Three Rapes

 

Governor Inamine’s predecessor as chief executive of Okinawa prefecture was Masahide Ota, a retired university professor, prolific writer on the history of the Ryukyus, and devoted anti-base activist (he is today a Socialist member of the upper house of the Diet). By contrast, Inamine is a conservative and comes from a deeply conservative, not to say reactionary, background (he was president of Ryukyu Petroleum before standing for office). He ran against Ota’s record of protest against the American military occupation and claimed that he could reopen friendly relations with the ruling Liberal Democratic Party and the U.S. military. Nonetheless, in the five years since he was elected in December 1998, Inamine has drawn increasingly closer to Ota’s positions and has become well known for browbeating the incumbent Marine lieutenant general in charge of the huge Marine deployments on the island for incompetence in maintaining troop discipline.12

 

In talking about the excessive crime rates among American servicemen in Okinawa, Inamine likes to use the metaphor of points and lines—taken from the title of a well known mystery novel of the same name by Seichô Matsumoto.  The American high command always characterizes each rape or murder committed by an American serviceman as an isolated “point”—an exceptional “tragic occurrence” committed by a one-in-a-million “bad apple,” for which the American ambassador and commanding general profusely apologize. According to Inamine, Okinawans see not points but lines: the 58-year-long record of sexual assaults, bar brawls, muggings, drug violations, drunken driving accidents, and arson cases all committed by privileged young men who proclaim they are in Okinawa to protect the people from the dangers of political “instability” elsewhere in East Asia. During Secretary of Defense Rumsfeld’s visit to Okinawa in November 2003—the first visit of a secretary of defense since Bush I’s secretary, Dick Cheney, was there thirteen years previous—he said to the governor, “This region has been at peace during the existence of our bilateral security treaty [which has] greatly benefited our two nations.”13  Rumsfeld evidently overlooked both the Korean and Vietnamese wars, which occurred during this period—and Okinawa’s role as a staging area.

 

For his November 16, 2003, meeting with Rumsfeld, Inamine invited in the Japanese and foreign press (it was the only open meeting Rumsfeld held during his trip to Japan) and conspicuously delivered a seven-point petition outlining Okinawa’s grievances, including a demand for a fundamental review of the SOFA. Inamine later acknowledged that he was deliberately discourteous and that Rumsfeld was “visibly angered,” but he explained that since the American and Japanese governments took Okinawa completely for granted, he had to use this “rare occasion” to make the people’s case.14

 

The governor’s petition included the information that, according to Okinawan prefectural police records, during the thirty-year period since Okinawa reverted to Japan’s administration (1972-2002), American troops, Pentagon civilians, and military dependents committed 5,157 crimes in Okinawa, of which 533 were the “heinous” crimes of murder and rape. This works out to 17.7 heinous crimes per year or 1.5 per month.15 In a famous study comparing rates of military sexual assault leading to court martial around the world from 1988 to 1994, the Dayton Daily News found that Okinawa had a rate of 4.12 per 1,000 U.S. military personnel compared with Camp Pendleton’s 2.0, Camp Lejeune’s 1.75, San Diego’s 1.09, and Norfolk, Virginia’s 0.80. Inamine stressed that this situation has not changed. In fact, since fiscal year 1996, just after the major Okinawan rape incident, the number of crimes committed by servicemen grew at a rate of 1.3 times per year.16

 

The transformation of Governor Inamine into a resolute advocate of the need to rewrite the SOFA started the moment he came into office. Three major rape cases that occurred on June 29, 2001, November 2, 2002, and May 25, 2003, hardened his views and precipitated an open confrontation between the Japanese and American governments over the “human rights” of American soldiers in Japan. This dispute has been negotiated at the ministry of foreign affairs/state department level, at the deputy secretary and secretary of defense/chief of the defense agency level, and in a summit telephone call between President Bush and Prime Minister Koizumi. The confrontation may ultimately precipitate the removal of some or all Marines from Okinawa, since the positions of both governments appear unlikely to change.

 

[continued]

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