Foreign Relations of the United States, 1961–1963, Volume XXII, Northeast Asia

209. Telegram From the Department of State to the Embassy in Korea⁰

Washington, April 5, 1961, 9:49 p.m.

1133. Joint State-Defense message. Embtel 1088.¹ In view political climate in Korea and strong desire of ROKG which we wish support to fullest extent consistent with US interests as well as rapidly increasing and potentially dangerous popular pressures encompassing practically all segments ROK governmental, political and public opinion, we have come to conclusion we should no longer refuse to negotiate full status of forces agreement with ROK. Accordingly, Ambassador authorized to inform PriMin that US now prepared open such negotiations. At same time Ambassador should warn PriMin again that we are not willing to pay compensation for any facilities used by US forces in Korea and shall continue to insist that ROKG be responsible for any and all such claims, public or private, although USG will cooperate to maximum extent in releasing such facilities as may be no longer needed and in accepting satisfactory alternative facilities offered by ROKG.

Ambassador should also indicate to PriMin subject of criminal jurisdiction is matter which must be handled most carefully.² US Government is under Congressional mandate to insure that US personnel subject to the jurisdiction of foreign courts will be assured fair trial guarantees comparable to those which would obtain in trials before US courts. Of necessity, this entails a study of the host state judicial system which the US has done in all countries where its personnel are subject to local jurisdiction and which it has undertaken with respect to Korea. When results of Korean law study are known, we will then be able to determine on what basis a solution to the criminal jurisdiction problem might be possible. Since all systems of criminal law are not identical, it may be necessary to take special steps to provide the assurances which we would require. FYI. As a result of the Chinese law study, we found it necessary to include fair trial guarantees additional to those found in the NATOSOF which the Chinese have informally implied might require certain revisions to their legal system. End FYI. Unless arrangements can be worked out which would ensure that US personnel would be assured of trials comparable to US standards, no agreement on criminal jurisdiction can be reached.

In addition, Ambassador should also indicate to PriMin that under any arrangements concerning criminal jurisdiction we consider it essential that in actual practice the US exercise jurisdiction over our forces in the maximum number of cases, since we believe such course will best promote continued cordial ROK-US relations.

As to agenda and negotiating tactics, we have no objection to suggestion reftel that such aspects as entry and exit, customs, duties and taxation be negotiated first, although we see no reason why these subjects could not be handled simultaneously. While we recognize that ROKG desire for some compensation could make facilities and areas agreement difficult and controversial, we believe that question could logically be separated from other elements of such agreement, especially if ROKG aware we prepared to proceed in due course on criminal jurisdiction. We expect to have draft of proposed facilities and areas agreement (excluding any provision for compensation of property claims) ready for transmittal soonest.

Since rentals and criminal jurisdiction are clearly principal issues as far as ROK Government and public are concerned, we do not believe it in our best interest to postpone consideration these aspects too long and thereby raise risk of increased popular pressures on ROKG in meantime. Now that we have decided negotiate full SOFA we believe best course of action is to proceed with negotiations as quickly as normal and prudent procedures allow.

We believe Ambassador, accompanied by CINCUNC, should meet with PriMin as authorized first paragraph above and report ROKG reaction soonest.³

Rusk

0. Source: Department of State, Central Files, 611.95B7/2-2861. Confidential. Repeated to CINCPAC for POLAD. Drafted by Manhard and William Lang of DOD/ISA; cleared by Bane, Steeves, Salans of L/FE, Huang of L/SFP, and Gilpatric of Defense; and approved by Ball.
1. See footnote 1, Document 201.
2. In a March 30 memorandum to McNamara, JCSM-195-61, the JCS stated that it was their opinion that “negotiation of a criminal jurisdiction arrangement should not be commenced until such time as the ROK has demonstrated a stable government, capable of judicious administration of a criminal jurisdictional arrangement.” The JCS also stated that, if the Department of State insisted on initiating a full SOFA with the ROK, the Department of Defense should take the issue to the President. (Washington National Records Center, RG 330, OSD Files: FRC 66 A 3542, Korea 013) This message was revised by Department of State and Defense officials to take into consideration JCS objections, but the JCS refused to concur with the message as revised. (Memorandum from William Bundy to Gilpatric, March 27; ibid.)
3. In telegram 1351 from Seoul, April 12, McConaughy reported that he and General Magruder had informed Prime Minister Chang Myon on April 10 that the United States was initiating negotiations for a full SOFA. Chang was very pleased, calling it the “best news ever.” McConaughy also stressed to Chang the sensitive nature of criminal jurisdiction. (Department of State, Central Files, 611.95B7/4-1261)