263. Memorandum From Michael V. Forrestal of the National Security Council Staff to the President’s Special Assistant for National Security Affairs (Bundy)0
SUBJECT
- Status of Forces Agreement in Korea
I have discussed the progress of our negotiations on the Korean Status of Forces Agreement (“SOFA”) with Messrs Rice and Yager in State and Mr. Lang in Defense (ISA).
Talks on this subject have been going on intermittently since August 1953 when Secretary Dulles agreed to prompt SOFA negotiations after the ROK signed a Mutual Defense Treaty.
In 1958 the Defense Department made a study of the criminal law and legal procedures of Korea and concluded that several important changes would have to be made both in the penal code and in the administration of justice before the United States could submit its personnel to Korean criminal jurisdiction. The results of this study have never been given to the ROK.
[Page 574]In April 1961 actual negotiations were finally begun but with the understanding that there would be no agreement on criminal jurisdiction unless arrangements could be made to assure fair trials by U.S. standards to U.S. personnel. The Korean Government fell shortly after the opening of negotiations and was replaced by a military junta. Negotiations were thereupon suspended, both State and Defense agreeing that they should not be renewed until civil government and civil administration of justice was restored.
In May of this year we again agreed to start negotiations on a SOFA but only on the understanding that there would be no discussion of criminal jurisdiction. After the recent unpleasant incidents, we reaffirmed essentially this position, but the ROK has refused to negotiate without discussing what they consider the most important attribute of a status of forces agreement, i.e. criminal jurisdiction.
Comment: I asked both State and Defense to explain why it is not possible to begin discussions immediately on an overall SOFA including a criminal jurisdiction. State’s position is a little wobbly. They mainly want to use the issue of the SOFA as a means of compelling the restoration of a civilian government. Governor Harriman, however, is inclined to go ahead with negotiations if Sam Berger, our ambassador, concurs.
Defense’s position is clearer and tougher. They are unwilling to make even a first step towards an agreement covering criminal jurisdiction under the present circumstances. To do so, they think, would only make incidents like the recent ones even more dangerous, since they would increase the pressure for signing an agreement on criminal jurisdiction.
In light of the obvious political beating we appear to be taking in Korea now, I would think that we could agree to begin negotiations on a SOFA in Korea. We obviously should not sign an agreement until the military lawyers are satisfied that appropriate safeguards have been obtained; but I don’t see how we can refuse even to negotiate.1
In the last analysis, I should think that what we really care about is the physical safety of our people. I wonder why it isn’t possible when we have doubts about the local courts to agree to the criminal jurisdiction of the host country and also agree as an executive matter that U.S. personnel convicted of crimes and sentenced would be, at our request, expelled from the country. This would tend to solve the political problem while at [Page 575] the same time protecting our people from the consequences of primitive and un-American legal systems.
- Source: Kennedy Library, National Security Files, Countries Series, Korea, General, 3/62-7/62. No classification marking. Copies were sent to Taylor and Kaysen.↩
- In a memorandum to McGeorge Bundy, June 14, Executive Secretary Brubeck stated that the Department had authorized Ambassador Berger to inform ROK authorities that the United States was prepared to resume status of forces negotiations in July, provided that it was clearly understood that no agreement on criminal jurisdiction could be reached until after the re-establishment in South Korea of normal constitutional and judicial procedures. (Department of State, Central Files, 611.95B7/6-1462) Berger received these instructions in telegram 1126 to Seoul, June 14. (Ibid., 611.95B7/6-1262)↩