Foreign Relations of the United States, 1952–1954, China and Japan, Volume XIV, Part 2

611.94/1–1852

No. 480
Memorandum by the Secretary of State and the Secretary of Defense (Lovett) to the President¹

secret

[Washington,] January 18, 1952.

Subject:

• Arrangements for United States Forces in Japan in the Post-Peace Treaty Period

1. Article 6 of the Treaty of Peace with Japan permits the stationing or retention of United States forces in Japan under a bilateral agreement between the United States and Japan.

2. In Article I of the United States–Japan Security Treaty, Japan grants and the United States accepts the right “to dispose United States land, air and sea forces in and about Japan” upon the coming into force of the Peace Treaty and the Security Treaty.

3. Article III of the Security Treaty provides that the “conditions which shall govern the disposition of armed forces of the United States of America in and about Japan shall be determined by administrative agreements between the two Governments.”

4. There now remains the task of concluding with the Japanese Government the necessary agreements on the conditions which shall govern the disposition of United States forces in and about Japan in the post-Peace Treaty period. This present memorandum deals with the Administrative Agreement.

5. Decisions by the President are respectfully requested on the following:

A. That the Administrative Agreement with Japan be concluded as an Executive Agreement, after full consultation with the appropriate Committees of Congress.

The Departments of State and Defense concur in recommending that the President decide that the Administrative Agreement be negotiated and concluded as an Executive Agreement, after full consultation with the appropriate Committees of Congress.

The Administrative Agreement is in implementation of the Security Treaty with Japan which will be submitted to the Senate; as an implementing measure, it is an appropriate subject for an Executive Agreement. It is in the nature of base agreement; post-war base agreements have generally been handled as Executive Agreements. In the case of Japan, a high degree of flexibility is desirable during the period of adjustment following the end of the Occupation; an Executive Agreement provides such flexibility. Preliminary exchanges of views with the Japanese indicate that an Executive Agreement would be the preferred method of handling from the Japanese point of view, although the Japanese Government may wish to ask the Diet for legislation on certain points, such as Jurisdiction. In order to ensure adequate Congressional support, it is intended that the Administrative Agreement be discussed, prior to negotiations with the Japanese, with the Foreign Relations and Armed Forces Committees of both Houses of Congress.

B. That the draft Administrative Agreement be approved as a basis for negotiation.

There is attached as Tab A the draft Administrative Agreement with Japan which, with the exception of the Article on Criminal Jurisdiction, has the concurrence of the State and defense Departments. The Articles on Taxation and Expenses also have the concurrance of the Treasury Department. It is requested that the draft, subject to such minor modifications as may be considered desirable by the interested Departments, be approved as the basis for negotiation with the Japanese Government.

The attached draft agreement provides that facilities and areas to be used by United States forces in Japan shall be determined by the two Governments in consultation through a Joint Committee. United States forces are authorized to continue to use facilities and areas now held by them until arrangements agreed to through the Joint Committee can be made effective. As in agreements covering the maintenance of United States forces in other countries, the draft agreement with Japan confers upon the United States such rights, power and authority as are necessary or appropriate for the establishment, operation, defense and control of the facilities and areas including transit privileges throughout Japan, the establishment of navigation and communications systems, the use of public services, and the right to establish post offices and post exchanges.

The draft Agreement provides for the military arrangements which should be taken in the event of hostilities, or in the event that hostilities in the Japan area are threatened. The two provisions, known as “Defense Measures”, in Article XXII,² are of fundamental importance to the United States in carrying out its responsibilities under the U.S.-Japan Security Treaty. The first provision confers on the Commander of United States forces in the Japan area the authority and latitude to use these United States forces to provide for the security of Japan and for the maintenance of international peace and security in the Far East. He can also take whatever actions are necessary to ensure the security of his forces in Japan. In taking these actions he will not be limited by the terms of the Administrative Agreement, nor can he be legally hampered by any restrictions, delays, or lack of agreement on the part of the Japanese. Under the terms of the second provision, in the event of hostilities, or when either party believes hostilities are imminent in the Japan area, the United States may establish a combined Command, to include Japanese forces, and designate a Commander thereof, if the Japanese Government agrees to such a Command.

As for sharing costs, the draft agreement provides that Japan will furnish all real estate used by United States forces and, in addition, an amount of Japanese currency to bring the Japanese contribution to approximately one half of the local yen costs incident to maintenance of United States forces in Japan (in the first year, this would be the equivalent in yen of $155 million). The United States would bear the other half of the yen costs and all of the dollar costs incident to pay and allowances, rations, military equipment and transportation to and from the United States. The two Governments undertake to re-examine the determination of their relative contributions from time to time in the light of the total resources which each is able to and does devote to security and of any comparable arrangements for collective security concluded by the United States with other powers.

As in agreements covering the maintenance of United States forces in other countries, the draft agreement with Japan exempts the United States Government and individual members of the armed forces and civilians brought into Japan for purposes of the agreement, from restrictions upon entry into Japan, import duties and general taxation. In recognition of Congressional policy that funds made available by the United States Government for military assistance to foreign countries shall not be spent for the payment of taxes, the United States is also exempted from taxation on the procurement of materials, supplies, equipment and services in Japan. On the subject of civil jurisdiction and the settlement of claims, the draft agreement adopts the basic formulae of the NATO Status of Forces agreement; the formula on settlement of claims will require the enactment of legislation, but it is believed that the legislaton required for similar purposes in connection with the NATO agreements will suffice. The Agreement would continue in force for the duration of the Security Treaty.

Differences of View on Criminal Jurisdiction

There is a difference of view between the Departments of State and Defense on criminal jurisdiction over members of United States forces, the civilian component, and their dependents while in Japan. The Department of State considers, that the NATO Status of Forces formula should be used in Japan; the Department of Defense considers that members of United States forces, the civilian component, and their dependents should be immune from Japanese criminal jurisdiction except where this immunity is waived by the United States forces.

The Department of State view is based upon the following factors:

(a) General policy. Since the Declaration of Independence U.S. public policy has been opposed to the immunity of the military from the criminal jurisdiction of the civil authority. This attitude is firmly held by other Governments; the NATO Status of Forces Agreement and existing base agreements reflect the determination of Governments generally to retain criminal jurisdiction over the members of armed forces stationed in their respective territories.

(b) Japanese opinion. The Japanese have led the historic resistance of the people of Asia against extra-territoriality, discrimination and unequal treatment by the West. Unless the NATO formula is used with respect to Japan, the Japanese will quickly identify a gross discrimination and will assume that it means that we are trying to treat them as (1) not sovereign, (2) a defeated enemy, or (3) racially inferior. It will be difficult enough to maintain friendly relations between our forces in Japan and the Japanese people; it will be impossible if U.S. forces are looked upon as a symbol of western discrimination and arrogance toward Asiatics. Discrimination against the Japanese on the matter of jurisdiction would provide opposition parties and groups in Japan an issue on which to inflame national and racial feelings against a close association with the United States. The voluntary membership of the Japanese in the free world system is directly at stake on this issue.

(c) Asiatic opinion. The entire non-white world will be watching closely the nature of our relations with Japan to determine whether we are willing to work with a non-white country on the basis of equality and partnership. Widespread misgivings were expressed throughout Asia that the retention of U.S. forces in Japan would be in derogation of Japanese sovereignty. The political success of the Japanese Peace Treaty and the U.S.-Japan Security Pact would be largely undermined if our post-Treaty arrangements nullify the high ideals we expressed in connection with the conclusion of these treaties. The one great issue which will be decisive in setting the basis of our future relations with Asia will be questions of equal treatment. Our discriminations at home are a great burden upon our relations with Asia: an attempt to practice similar discriminations officially in our relations with the Governments of Asia would be considered by them to be intolerable.

(d) Practical factors. The issue here is not that of impairing our official activities in Japan: persons engaged in official duties are placed by the NATO formula under the primary jurisdiction of U.S. authorities. The issue is whether U.S. military personnel and the large numbers of accompanying civilians are to be exempt from Japanese criminal jurisdiction while off duty. There are no strange “oriental” crimes in the Japanese penal system: it was modernized by 1899 and became the basis for the abolition of extra-territoriality at that time: the Japanese Penal Code was further improved and modernized under the Occupation.

(e) Germany no precedent. The willingness of the Germans to accept immunity of Allied forces from German criminal jurisdiction is not a persuasive precedent, particularly in face of the NATO agreement. Germany is not yet to be made soverign as is Japan and furthermore, in its German context, there is no problem of racial discrimination.

The Department of Defense view is based upon the following considerations:

The Joint Chiefs of Staff and General Ridgway have emphatically stated that our forces in Japan should be completely immune from Japanese criminal jurisdiction as a matter of military necessity General Handy³ has expressed equally strong views with respect to the parallel situation of our troops in Germany. The right to subject members of our forces to any substantial extent to trial by Japanese courts for offenses against Japanese law and to punishment by Japanese authorities in Japanese penal institutions or by other authorized Japanese punishments could be so applied by Japanese officials as materially to hamper CINCFE and the members of his command in the execution of their security mission in Japan. First, it would subject members of our forces, particularly personnel, to harassment by unfriendly local officials in a manner which would prevent them from performing their duties. It is not unlikely that such officials, motivated by resentment against the presence of our troops, or by resentment resulting from our war crimes trials of Japanese individuals, or by hostility left over from the war, or by a lack of sympathy with the mutual security objectives of the United States and Japan, would, trump-up charges and carry on unjustified and time-consuming prosecutions against United States personnel and their commanders.

Another fundamental danger to our security mission would be the adverse effect on the morale of our troops resulting from—1) the possibility of harassment; 2) their being subject to strange laws and strange procedures administered by a people who have different standards and a different outlook from our own and who were not so long ago our bitter enemies; 3) the fact that they would be subject to this foreign system of justice involuntarily and not through choice; 4) the loss of “face” which would result from the assumption of jurisdiction over our troops by the Japanese; and 5) the fact that the standards of treatment in Japanese penal institutions are considerably different from ours. These considerations would also have an adverse effect on home-front morale.

The military importance of having our troops immune from the criminal jurisdiction of foreign countries (even in the case of our allies) was recognized by wartime agreements which provided for just such immunity. Its importance in “forward zones”, even in time of “peace”, is shown by the tripartite position taken in the present negotiations concerning German jurisdiction over our forces under the proposed contractual arrangements with Western Germany. This position calls for complete immunity from German criminal jurisdiction, and officials of the Bonn Government have indicated substantial acceptance of the principle.

Japan is as much, and in many ways more of a “forward zone” than in Western Germany. It is the view of the Defense Department that the initial negotiating position of the United States vis-à-vis Japan should be one which is consistent with, rather than one which would undercut our negotiating position vis-à-vis the Federal Republic of Germany.

One additional compelling reason for not applying the NATO Status of Forces formula to our relationship with Japan is that our relationship with Japan involves no reciprocal stationing of Japanese forces in the United States. The normal NATO situation involves an exchange of Personnel, so that possible unfair treatment of the nationals of one NATO state by another NATO state is limited by the fear of reprisals.

The Defense draft of Article XV governing criminal jurisdiction is drafted in the light of the foregoing considerations. This position should be presented to the Japanese as a transitional one. We should indicate that after a period of adjustment to the new status it may be re-examined. Meanwhile, we may test the practicability of the exercise of Japanese criminal jurisdiction over our personnel by waiving our immunity in proper cases.

The Departments of State and Defense concur in recommending that the President approve the attached draft Administrative Agreement as a basis for negotiation and that, in doing so, the President indicate whether he desires the U.S. Government to make arrangements with the Japanese on criminal jurisdiction which follow the NATO formula or which provide for the complete immunity of U.S. personnel from Japanese criminal jurisdiction.

[Attachment]

Draft Administrative Agreement Between the United States and Japan

[Extract]

secret

[Washington,] January 16, 1952.

. . . . . . .

Article XV

Criminal Jurisdiction and Related Matters

(Defense Draft)⁴

1. Subject to the provisions of this Article, the United States armed forces shall have the right to exercise within Japan all criminal and disciplinary jurisdiction conferred on them by United States law. Members of the United States armed forces, the civilian component, and their dependents, shall be immune from Japanese criminal jurisdiction except where this immunity is waived by the United States armed forces. This immunity, however, shall not extend to persons who are ordinarily resident in Japan, and shall not extend to persons who are Japanese nationals and are not also nationals of the United States.

2. Japanese authorities shall not arrest members of the United States armed forces, the civilian component, or their dependents, unless requested to do so by the United States armed forces, or unless the individual concerned is apprehended during the commission or attempted commission of an offense involving serious injury to persons or property, or while committing a serious breach of the peace. In the event of an arrest of such an individual by Japanese authorities, he shall immediately be remanded to the custody of the United States armed forces.

3. The United States armed forces shall have the exclusive right to arrest within United States armed forces facilities and areas. The United States armed forces may arrest any person whose conduct in or near a United States armed forces facility or area affects the security of that facility or area. Any person not subject to the jurisdiction of the United States armed forces shall immediately be remanded to the custody of Japanese authorities.

4. The United States armed forces may arrest members of the United States armed forces, the civilian component, and their dependents, anywhere within Japan, and may travel throughout Japan for the purpose of maintaining order and discipline of members of the United States armed forces, the civilian component, and their dependents.

5. The authorities of the United States and Japan shall cooperate in making available witnesses and evidence for criminal proceedings in their respective tribunals. In the event of a criminal contempt, perjury, on [or?] an obstruction of justice before a tribunal which does not have criminal jurisdiction over the individual committing the offense, he shall be tried by a tribunal which has jurisdiction over him as if he had committed the offense before it.

6. The United States armed forces shall have the exclusive right of extradition and expulsion with respect to members of the United States armed forces, the civilian component, and their dependents.

7. Japanese authorities shall have no right of search or seizure with respect to any property within United States facilities and areas, or with respect to property of the United States armed forces wherever situated. Japanese authorities shall have no right of search or seizure with respect to the persons or property of members of the United States armed forces, the civilian component, or their dependents, except as provided in paragraph 2 of this Article.

8. A death sentence shall not be carried out in Japan by the United States armed forces if the legislation of Japan does not provide for such punishment in a similar case.

. . . . . . .

1. The source text is unsigned. A marginal note indicates that the memorandum was delivered to the White House on Jan. 18.
2. Text of Article XXII in the draft submitted to the President is the same as that in the extracts from a draft of Jan. 22, Document 482.
3. Gen. Thomas T. Handy, USA, Commander in Chief, Europe.
4. The Department of State draft of Article XV submitted to the President on this occasion is identical to that in the draft of Dec. 21 (revised Dec. 26) in Foreign Relations, 1951, vol. vi, Part 1, p. 1458.