Image Source: retiredanalyst.blogspot.com
Image Source: retiredanalyst.blogspot.com

CHICAGO – If Filipinos like to force the hands of Presidents Barack Obama and Noynoy Aquino to change the terms of the Visiting Forces Agreement (VFA) in the wake of the murder of a Filipino Jeffrey “Jennifer” Laude allegedly by United States Marine Private First Class Joseph Scott Pemberton, they should make use of two effective weapons – continuous rallies and raising funds to buy a full-page ad in the New York Times.

This strategy worked before, and I believe it should work again.

When three US servicemen (PFCs Rodrico Harp and Kendrick M. Ledet, both of the Marines, and Seaman Marcus D. Gill of the Navy) were accused of raping a 12-year-old schoolgirl in Okinawa, Japan on Sept. 4, 1995, the US refused to hand over the three servicemen to Japanese authorities.

This prompted the Okinawans to stage continuous protest, including a purchase of a full-page ad in the New York Times, decrying the rape. A full-page, color ad on the Marijuana Debate published in Aug. 3, 2014 Sunday New York Times issue cost $180,000.

Knowing that the American people would give “sympathetic consideration” to the Japanese rape victim, then President Bill Clinton held an emergency meeting with Japanese Prime Minister Ryutaro Hashimoto, forcing the US to hand over the U.S. Marines “even before their indictment.”

A resolution by the Japanese Diet to change the terms of the Status of Forces Agreement (SOFA), however, did not cut it when a similar outcry to revise the question of extraterritoriality, exemption from jurisdiction of local law only as it relates to the place the suspects were detained, was raised again in the wake of an another crime committed by a US Marine officer (Maj. Michael Brown) seven years later in Okinawa.

But in a similar case in 1968 two years after the SOFA was signed between the US and South Korea, US Army Specialist Fourth Class H. K. Smallwood, asserted in the case of Smallwood v. Clifford, that U.S. authorities did not have legitimate authority, under the jurisdictional provisions contained in the agreement, to release him to the Republic of Korea for trial by a Korean court on charges of murder and arson.

On March 11, 1968, based on the provisions of the SOFA, the Korean Minister of Justice notified the Commander of the U. S. Forces in Korea that the Korean government intended to exercise its primary right of jurisdiction over Specialist Smallwood on charges of murder and arson. On March 21, 1968, Smallwood was formally charged by US military authorities with violation of Article 118(2) (unpremeditated murder) and Article 92 (failure to obey lawful general regulation) of the Uniform Code of Military Justice.

On April 25, 1968, Smallwood was indicted by South Korea’s Seoul district prosecutor. While awaiting trial by the Korean authorities, petitioner had been incarcerated at the United States Army Stockade at ASCOM City, Korea. Proceedings in the Korean courts began on June 4, 1968.

According to US-South Korea’s SOFA, petitioner Smallwood remained in the custody of the American military authorities pending final disposition of the charges in the Korean court.

Smallwood protested that the agreement was not approved in a “constitutionally acceptable manner.”

Quoting a precedent in Wilson v. Girard (354 U.S., 77 S. Ct. 1409, 1957) that reached the U.S. Supreme Court, the U.S. District Court for the District of Columbia (286 F. Supp. 97 (1968) ruled “(w)hen a violation of the foreign jurisdiction’s criminal laws occurs, the primary jurisdiction lies with that nation and the provisions of the UCMJ only apply if the foreign nation expressly or impliedly waived its jurisdiction. In support of its decision, the court cited the principle, stated in Wilson, that the primary right of jurisdiction belongs to the nation in whose territory the service member commits the crime.

The Wilson case happened in 1957 when William S. Girard, a Specialist Third Class in the U. S. Army, was engaged on January 30, 1957 with members of his cavalry regiment in a small-unit exercise at Camp Weir Range, Japan. Japanese civilians were present in the area, retrieving expended cartridge cases.

Girard and another Specialist Third Class were ordered to guard a machine gun and some items of clothing that had been left nearby. Girard had a grenade launcher on his rifle. He placed an expended 30-caliber cartridge case in the grenade launcher and projected it by firing a blank.The expended cartridge case penetrated the back of a Japanese woman gathering expended cartridge cases and caused her death.

The US claimed that the act was committed in the performance of official duty, but Japan insisted that it was outside the scope of official duty and, therefore, Japan had primary jurisdiction to try him. After negotiations, the United States agreed to turn Girard over to Japanese authorities. In an attempt to avoid trial in the Japanese court, Girard sought a writ of habeas corpus in the United States District Court for the District of Columbia.

The writ was denied, but the Girard was granted an injunction against delivery to Japanese authorities to stand trial. The United States appealed the injunction to the US Supreme Court.

In Wilson v. Girard, the Supreme Court first addressed the jurisdictional provisions contained in the administrative agreement. The court determined that by recommending ratification of the security treaty and subsequently the North Atlantic Treaty Organization (NATO), the Senate had approved the administrative agreement and protocol (embodying the NATO provisions) governing jurisdiction to try criminal offenses.

The court held that “a sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its border, unless it expressly or impliedly consents to surrender its jurisdiction” and that Japan’s “cession to the United States of jurisdiction to try American military personnel for conduct constituting an offense against the laws of both countries was conditioned” by provisions contained in the protocol calling for “sympathetic consideration to a request from the other State for a waiver of its right in cases where that other State considers such waiver to be of particular importance.”