611.94/4–2853
No. 639
The Ambassador in Japan (Murphy) to the Director
of the Office of Northeast Asian Affairs (Young)1
official–informal
Dear Ken: You will recall that during your recent visit to Japan you had an opportunity to discuss with some of my officers the over-all problem of criminal jurisdiction, to speak to Japanese Government officials about this matter, and to observe one of our frequent meetings with the Commonwealth Chiefs of Missions in Tokyo, where the subject was also discussed in connection with the current negotiations for an agreement to cover the United Nations forces in Japan. As a result of your talks with those persons in the [Page 1401] field intimately concerned with this problem, I feel sure you left Tokyo with a greater understanding of the seriousness of the situation and its possible significance on future United States–Japanese relations. You will undoubtedly be kept informed of the situation as it develops, particularly with regard to Japanese reactions which should make themselves known during the election campaign in Japan. I wish, however, on the eve of my departure to set forth several considerations which have occurred to me in the hope that they may serve some useful purpose in dealing with the problem as we approach the April 28 deadline,2 when the Japanese are certain to request reconsideration of Article 17 of the Administrative Agreement.
In the first place we are faced with the Japanese emotional factor. The Japanese, and I refer to various levels of responsible Japanese opinion in and out of government, do not always approach the problem realistically. They will admit quite frankly that the jurisdiction issue is a question of “national sentiment,” and do not appear able to face the issue on a practical basis. Persons who should know better talk in terms of extra-territoriality and loss of sovereignty even though we have repeatedly pointed out that these concepts are not involved. Nevertheless, the press and Diet members are disinclined to re-orient their thinking.
Second, the Japanese are convinced that the present state of international law supports their position for split jurisdiction along the lines of the NATO formula, and they refer constantly to the NATO Agreement as their authority for this view. Even though the NATO Agreement may never come into force, they contend that it still represents the prevailing views and considered judgments of those statesmen who signed that treaty. They feel that they can accept this internationally-approved formula without loss of prestige and without injury to their “national sentiment”. They are familiar with the fact that the Truman Administration supported the NATO formula and that the present Administration on February 27 also urged Senate ratification. This situation makes it difficult for us to discuss with the Japanese the international law on the subject, which is by no means uniform.
Third, criminal jurisdiction in Japan is a political football, with the Japanese apparently more interested in kicking the ball than in running with it. If there is any one thing that all political parties [Page 1402] are agreed upon it is the desire for the NATO split jurisdiction arrangement. I would venture to say that if a Japanese in political affairs should undertake to espouse United States exclusive jurisdiction, his career would be in jeopardy. Thus, at a time when Yoshida appeared to have complete control of a majority in the Diet, he did not dare to take to the Diet the issue of exclusive jurisdiction for the U.N. forces in Japan; and I have yet to see any evidence that any political or governmental group is prepared to sponsor such jurisdiction at this time or in the future. It is my impression also that many important Japanese bureaucrats, including those dealing with the Administrative Agreement, feel strongly that Japan should fight for the split jurisdiction formula.
As a final consideration, I need not remind you that the die was cast in the Administrative Agreement negotiations when we promised to give the Japanese NATO treatment upon Senate ratification or else to reconsider the subject after April 28 of this year. This they consider an implied promise to turn over some jurisdiction to them, and they would undoubtedly consider a refusal to give way as a breach of good faith.
There may be a number of explanations for these Japanese attitudes. I would explain them by saying that they are the reaction to the many years of occupation, and also a reassertion of the national pride of a sensitive people. Okazaki recognizes this, and I am sure others in government office have the same feelings. Last fall Okazaki told me, with reference to the question of jurisdiction, that the Japanese are a people suffering from an inferiority complex which is reflected in their strong desire to exercise jurisdiction in the present instance.
What then is the solution—what should we do? Obviously the simplest answer is U.S. ratification of the NATO Agreement. In the event, however, that the Senate does not ratify NATO, or else tables the treaty indefinitely, we will be faced with a decision which will have to be measured in terms of the relative merits of military exigence versus political prudence. At this point, I don’t believe that the Japanese will give up easily, and I think it would be dangerous for us to apply such pressure on them as might conceivably obtain our objectives on criminal jurisdiction at the expense of alienating the friendly Japanese relationships and popular support, which are so essential for the successful mission of our forces in Japan. I can think of nothing short of re-enactment of the Asiatic exclusion law that would be more calculated to arouse the resentment of all classes of Japanese.
In the event the Senate ratifies NATO, the Japanese will most certainly ask for similar treatment, and, under the terms of the Administrative Agreement, apparently are entitled to get it. This [Page 1403] does not mean, however, that the Japanese may not be willing in certain situations to waive jurisdiction in our favor. Last September we had indications in the U.N. Agreement negotiations that the Japanese were interested in exercising jurisdiction only in a limited category of major offenses—five in all. Whether the Japanese would be so inclined if they had the NATO formula is hard to say. If the Japanese are given jurisdiction over our troops in Japan, they may make use of it for an initial period to assert their authority and satisfy their so-called inferiority complex. Nevertheless, I should expect that we would be in a position at the same time to arrive at some working arrangement with the Japanese whereby they would relinquish more and more of their jurisdiction on an informal basis, other than by means of a written commitment, perhaps on the Provost Marshal-Japanese police level.
Should the Senate disapprove of NATO or pigeon-hole it, we can no longer use the argument with the Japanese that the status quo must be maintained so as not to affect the chances of NATO’s ratification. The question then becomes wide open, and since the Japanese know that the President and the Secretary are behind the split jurisdiction formula, which can be granted in Japan without Senate approval, our position becomes even more untenable. I realize of course that a Senate rejection of the NATO formula would make it difficult to undertake any arrangements contrary to the Senate’s policy, but the Japanese may not see it that way, particularly when they learn that the United Kingdom will put into effect the NATO jurisdictional formula on April 30, as part of its internal legislation, whether or not NATO comes into force. I don’t think the Japanese will ever willingly continue to grant exclusive foreign jurisdiction if the NATO formula is in force in Europe. The most we can hope for is a watered-down version of the split jurisdiction, and I believe we can get it provided Europe takes it as well. At least we ought to try for it.
Apparently, there has been some thought given to taking the position that the existence of hostilities in Korea is cause for the retention of exclusive jurisdiction by one means or another. This position would have a great deal of merit if it were not for the fact that the Japanese would consider it as an obvious attempt to circumvent the provisions of the Administrative Agreement. These hostilities were in existence when the U.S. committed itself either to grant NATO treatment or to reconsider criminal jurisdiction after April 28, and although I was not present at the negotiations, I am reliably informed that the “hostilities” concept was never considered or discussed with the Japanese. Since the situation today is substantially what it was last year in this respect, I do not believe that the Korean hostilities offer us a sound basis for seeking retention [Page 1404] of exclusive jurisdiction. I doubt the Japanese would concede that the hostilities in Korea justify continued United States exclusive jurisdiction because of the implication that Japan would be admitting a status of belligerency. Under these circumstances, therefore, any attempt to hold on to exclusive jurisdiction on the basis of hostilities in Korea presents a situation of compounded difficulty.
In this discussion I wish to make my own position clear. Under the Administrative Agreement the Japanese owed us at least one year of exclusive jurisdiction without recrimination or regret in order that our forces could readjust to the changed situation resulting from the Peace Treaty. To this extent at least they had paid their debt although at times with evident distaste on the part of the press and politicians. However, in view of our present position and policy, both in Japan and in Europe, it is difficult to see how we can withdraw from our implied promise to split our jurisdiction with Japan. We might have obtained more favorable treatment last year when the Japanese were willing to give us a better version than NATO. We may even be able to do it now, but with less possibility of success. The Japanese consider criminal jurisdiction as one of the foremost problems between the U.S. and Japan. There seems little doubt that if we press for better treatment than we receive in Europe, we are in for trouble.
We were delighted to have you visit with us, and I hope you enjoyed your stay in Japan as much as we enjoyed having you. I look forward to our next visit.
With warm personal regards, I am
Yours sincerely,
- Filed as an attachment to a covering note dated Apr. 28, not printed, from Young to Charles A. Sullivan, Deputy for American, South Asian, and Far Eastern Affairs in the Office of Foreign Military Affairs, Department of Defense.↩
- Article XVII provided that if the NATO Status of Forces Agreement had not gone into effect within one year of the effective date of the Administrative Agreement, the United States would at the request of Japan reconsider the question of criminal jurisdiction over U.S. official personnel and their dependents. Documents in file 611.94 for 1953 indicate that the Japanese Government instead chose to await the entry into force of the NATO Agreement, which took place on Aug. 23, 1953.↩