Foreign Relations of the United States, 1955–1957, Japan, Volume XXIII, Part 1

137. Memorandum From the Assistant Secretary of State for Far Eastern Affairs (Robertson) to the Secretary of State¹

Washington, May 20, 1957.

SUBJECT

• Trial of Specialist 3/c Girard by Japanese Court

Considerable attention has been given in the press recently to the case (also known as the Somagahara Incident) of Specialist 3/c William S. Girard, who is accused of the fatal shooting of a Japanese woman on a United States firing range in Japan. A detailed summary of pertinent factors in the case follows.

Facts (Japanese and United States authorities in general agreement as to these facts.) On the afternoon of January 30, 1957, about thirty members of Girard’s company were engaged in a small unit exercise at Camp Weir range area (called the Somagahara maneuver area by the Japanese) in central Japan. About twenty-five Japanese, engaged in salvaging expended cartridge cases, had been following the unit during the course of the morning exercises and had interfered to such an extent that ball ammunition was withdrawn from the troops.

During a short recess, Girard and another soldier were ordered by their platoon leader, a lieutenant, to guard a machine gun and some items of personal clothing in the maneuver area. Girard had a grenade launcher on his rifle. After arriving at the gun position, Girard picked up and threw expended cartridge cases in the direction of the Japanese “brass-pickers” and beckoned for two of them, a man and a woman, to come to gather these empty cartridge cases. After they had drawn near, Girard suddenly shouted to the man and woman to leave, and placing an expended cartridge case in the grenade launcher attached to his rifle, fired at the man. He then placed another expended cartridge case in his grenade launcher and fired at the woman, striking her in the back. An autopsy disclosed that the expended cartridge case penetrated her back to a depth of three to four inches, causing her death (Tab A).²

Jurisdictional Question Involved. Criminal jurisdiction over American forces in Japan is governed by the provisions of Article XVII of the Administrative Agreement (in effect an annex to the Security Treaty between the United States and Japan), which are similar to the provisions of the NATO Status of Forces Agreements (Tab B).³ The Japanese have been lenient in the exercise of the right of jurisdiction which derives from this agreement (Tab C).⁴

Paragraph 3 of Article XVII states that the military authorities of the United States shall have the primary right to exercise jurisdiction over members of the United States armed forces or the civilian component in relation to “offenses arising out of any act or mission done in the performance of official duty”. The question of jurisdiction in the Girard case turns on the issue of whether Girard’s actions vis-à-vis the “brass-pickers” were a deviation from the course of duty.

United States Position. The United States military authorities in Japan concerned with this case contend that Girard was ordered to guard the gun position and that the shooting incident arose in the performance of official duty.

Japanese Position. Japanese authorities admit that Girard was on duty but contend that the shooting had no connection with his duty of guarding the machine gun. They assert that the act of Girard in throwing out the expended cartridge cases and enticing the Japanese woman toward him had no connection with guarding the machine gun. They accept Girard’s contention that he had no intention to shoot the Japanese woman and have expressed the belief that Girard acted only in a mischievous manner, perhaps “intending to have fun in a child-like way”.

Present Status of Case. The Socialist opposition in Japan contended that this was a wanton and intentional act and succeeded in arousing considerable public indignation. In view of the differences between the American and Japanese sides as to whether the offense with which Girard is charged arose out of an act done in the performance of official duty, the Joint Committee, as provided in the Administrative Agreement, referred this question to a joint Japanese-American Criminal Jurisdiction Subcommittee, which began its consideration of the issue on March 12. By the end of April it was obvious that neither side would change its position. The Department of the Army thereupon informed CINCFE that it believed that resort to diplomatic channels, as required by Article XXVI of the Administrative Agreement, in cases where agreement cannot be reached in the Joint Committee would be “unproductive and unwise,” and instructed CINCFE to resolve the matter in the Joint Committee, authorizing the Command “to allow Girard to be tried by Japanese authorities,” if necessary (Tab D).⁵ This decision was not cleared in the Department of State. The Department of Defense was also erroneously of the impression that in case of disagreement in the Joint Committee the question of whether the act was in performance of official duty would have to be decided by the Japanese courts. It did not desire to have the question decided by these courts. The Girard case was also felt to be a poor one for initial judicial determination (Tab D).

In view of the desirability of trying Girard for the alleged offense as quickly as possible and in view of the impasse on the question of Japanese or American jurisdiction, a compromise was reached in which the United States decided not to exercise jurisdiction in the Girard case. This was done without prejudice to the United States position that the alleged offense of Girard arose in the performance of official duty. As part of this compromise a confidential arrangement was concluded in accordance with which Japan agreed to indict Girard on no greater charge than wounding resulting in death, under Article 205 of the Japanese Penal Code, for which the penalty is two to fifteen years. This is the least serious offense for which it is reasonable to indict Girard under Japanese law. Japan also agreed to recommend, through Japanese procuratorial channels, that the Japanese court mitigate the sentence to the maximum practicable extent, considering the circumstances of the case (Tab E).⁶

The decision to allow Girard to be tried by Japanese authorities was made by the Department of the Army without consultation with the Department of State (Tab D). When the Department discovered that this decision had been made it voiced exception to the Department of State not being consulted in this matter since an interpretation of the Administrative Agreement was involved. (See Deptel 2381 to Tokyo, Tab F)⁷ The Department of the Army instructed CINCFE to ignore this message and reiterated its instruction authorizing CINCFE to agree to the exercise of jurisdiction by the Japanese (Tab F). Embassy Tokyo has been kept fully informed, however, of the Far East Command position in the Girard case. The Embassy concurred in the message from CINCFE to the Department of the Army reporting that the Japanese had been notified, in accordance with instructions from the Department of the Army, that the United States would not exercise jurisdiction in the Girard case (Tab F). A complete file of all messages exchanged between Embassy Tokyo and the Department on the Girard case is attached (Tab G).⁸

Although the administrative machinery provided in the Administrative Agreement requires the use of diplomatic approach as a final step in cases of disagreement, this requirement was avoided by the decision to allow the Japanese to exercise jurisdiction.

Recommendation:

That the Department of State adopt the position that a binding agreement has been entered into with the Japanese in the Joint Committee (i.e., the United States has decided not to exercise jurisdiction in the Girard case) and that we should live up to this agreement.⁹

1. Source: Department of State, Central Files, 711.551/5–2057. Secret. Drafted in NA on May 21. Sent through Murphy. The May 20 date is stamped on the source text.
2. Tab A consists of telegrams FE 804366 and 804372, summaries of the facts in the case. (Department of Defense Files)
3. Tab B is the text of Article XVII.
4. Tab C is a statistics sheet (not found attached).
5. Tab D is DA 921933, Document 130.
6. Tab E is FE 805032 to the Department of the Army, May 14; see footnote 3, supra.
7. Telegram 2381 is Document 131. Tab F also consisted of copies of telegrams 2413 from Tokyo, April 25, and DA 822301 to CINCFE, May 3. The former is Document 129; regarding the latter, see footnote 5, Document 131.
8. Not found attached.
9. The source text bears no action notation.