Foreign Relations of the United States, 1964–1968, Volume XXIX, Part 1, Korea

38. Memorandum From the Assistant Secretary of Defense for International Security Affairs (McNaughton) to the Deputy Secretary of Defense (Vance)¹

Washington, April 13, 1965.

Cy—

Bill Bundy and Dean Rusk feel that we have reached a point where we must settle quickly the criminal jurisdiction issue that has been with us off and on over the past ten years in Korea and Taiwan. Bill is particularly anxious to get a favorable Defense reaction to State’s proposed solution before Henry Lodge leaves this weekend to talk the Koreans into increasing their effort in Vietnam.²

The Services and the Chiefs have taken a hard position against State’s proposal but, on close analysis, it turns out that the difference between them and State is only of degree and approach. I am satisfied that State’s proposal protects adequately Defense’s interest (including the GIs’). General Howze and Admiral Gentner, speaking individually, have also indicated that State’s proposal is satisfactory.

John T. McNaughton

Attachment

SUBJECT

• Chinese and Korean Status of Forces Negotiations—Criminal Jurisdiction

This memorandum recommends your concurrence in Secretary Rusk’s criminal jurisdiction proposal (Tab A)³ for the Chinese and Korean Status of Forces negotiations. The Service Secretaries and the Joint Chiefs of Staff non-concur (Tabs B–E).⁴

The issue is the extent to which the host states would have the option to exercise criminal jurisdiction over US personnel. Everyone is agreed that the US would have jurisdiction over official duty offenses and those involving only US personnel or property. In the remaining cases, the Services and the Joint Chiefs of Staff want to continue to press for limiting the host state’s option to exercise jurisdiction to definitive categories of cases (e.g. rape, death of a human being and robbery). They are concerned by reports of corruption, bribery and political influence which, in their judgment, may have an impact that would not be readily detectable by US observers in the administration of justice by the courts of these countries. Through the definitive categories formula, they hope to reduce the exposure of US personnel to the local courts. Secretary Rusk believes that the definitive categories formula is not negotiable since it is without precedent and that, in any case, it is not necessary. He recommends we offer instead the jurisdiction formula in effect with the Federal Republic of Germany. Under this formula, the host state is not limited to specific categories of cases. However, before the Chinese or Korean authorities could exercise jurisdiction in a given case, they would have to determine that the particular circumstances of that case make their exercise of jurisdiction imperative. This stringent criterion would in Secretary Rusk’s judgment limit the number of cases in which the host states would exercise jurisdiction. (The memorandum at Tab F from the Acting General Counsel discusses both sides of the issue in greater detail.)

The difference in positions is basically one of degree and approach. No one contends that we must not accept some local exercise of jurisdiction over US personnel. It is a matter of judgment as to which formula is negotiable and which, if accepted, would work better over the longer term. The Acting General Counsel considers that either formula is acceptable from a legal point of view.

Given all the circumstances, I believe that the totality of the safeguards incorporated in Secretary Rusk’s proposal is adequate to protect our personnel. The Rusk proposal would require Korea and China to accept a far less favorable arrangement than we have offered to the Philippines. I share his judgment that the German formula is a reasonable solution to a difficult problem and that to continue to press for the definitive categories formula would jeopardize our present excellent relationships without any appreciable increase in protection for our personnel.

If you approve Secretary Rusk’s proposal, I will notify the Services and the Chairman of the Joint Chiefs of Staff and have appropriate instructions sent to Seoul and Taipei.⁵

John T. McNaughton ⁶

1. Source: Washington National Records Center, RG 330,OSD/OASD/ISA Files: FRC 70 A 1266, Korea 013. Secret. A copy of the attachment was sent to the Secretary of Defense.
2. Lodge visited Korea on April 27 during a trip to 10 Asian countries April 19–May 1 made at President Johnson’s request. A copy of Lodge’s report to the President is in the National Archives and Records Administration, RG 59, Central Files 1964–66,POL 27–3 VIET S. Lodge’s mission in Korea was to explain the current situation in Vietnam and to raise the possibility of Korea furnishing a 4,000-man regimental combat team to Vietnam. (Telegram 2754 to Tokyo, repeated to Seoul as telegram 1039, April 25; ibid., POL 27–14 KOR/UN; additional relevant documentation is ibid., POL 27–3 VIET S)
3. Document 36.
4. None of the tabs is printed.
5. Vance approved the proposal on April 15.
6. Printed from a copy that indicates McNaughton signed the original.