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

611.94/9–1053: Telegram

No. 685
The Ambassador in Japan (Allison) to the Department of State

confidential

Tokyo, September 10, 1953—8 p.m.

647. Reference Criminal Jurisdiction.¹ Reference Department telegram 589² and Embassy telegram 646.³ In meeting on September 8 and 9 with Foreign Office and Justice Ministry ad referendum agreement reached on waiver, notification of waiver, and on hostilities. Verbatim texts in following telegram.⁴ Agreements on custody and official duty per Embassy telegrams 611 and 612⁵ still stands. Japanese not expected propose further changes these items.

Commentary on verbatim text.

1. Waiver and notification of waiver:

(a) We reached agreement on waiver only after lengthy discussions over three day period with frequent referrals to Justice Ministry. We resisted to last inclusion word “normally” and accepted it ad referendum when clear no other way to get “material importance”. Japanese insisted “normally” essential to make paragraph politically palatable, although we considered it superfluous since paragraph as whole explicitly gave Japanese unilateral discretion to determine whether a specific case is of “material importance”. Believe Japanese accepted this and believe addition word “normally” will not in practice make any difference in implementation waiver paragraph.

(b) “Material importance” considered substantially equivalent to “particular importance”. In view difficulty negotiations on waiver issue, we felt fortunate obtain any modifier. Word “material” suggested by FEC representative.

(c) Notification of waiver also deemed acceptable, although addition of sentence referring to principles of protocol paragraph 3 may raise possible ambiguities. However, in view US commitments paragraph one, Article 17 administrative agreement, we felt it impossible refuse to accept Japanese suggestion of sentence regarding principles of paragraph three, in return for Japanese agreeing substance our proposals on notification. We construe sentence regarding principle as going only to fact that Japanese will have discretion to choose what particular off-duty cases they will try, and not as requiring US military authorities to await notice of waiver of jurisdiction before going ahead with preparation for trial and trial of off-duty offender. FEC representatives feel pressing for clarification this point would endanger understandings.

(d) Regarding your 589 this point, we have had general understandings with Japanese for some time, subject to reaching agreement on final language, that time limitation on notification by them will be time it takes us to reach verdict on case. We have further requested and they have orally agreed that as a matter of course we would be notified before trial commences and we have informed them that in all serious cases, involving general courtmartial, it will take generally 20 to 25 days to bring case to trial. FEC representatives would prefer to leave any more definite time limitation understandings to be worked out in the joint committee, if and when that becomes necessary. We have all assumed original instructions do not preclude type of understandings described above.⁶

2. Classification issue: Japanese still willing to have waiver arrangements unclassified if recorded only in the records of jurisdiction subcommittee of joint committee, and if distribution is restricted. They propose make their policy known to procurators in conference scheduled next month. Furthermore they state flatly that any decision by local procurator that case is of “material importance” will be referred to Justice Ministry in Tokyo for decision whether to take jurisdiction. We believe this is acceptable handling of waiver agreements. If arrangements do in fact leak, opposition parties should not be able to make much of “secret agreement” argument since subcommittee records are definitely unclassified. Question of what Japanese (or joint US-Japanese release) will tell press after these arrangements are concluded still to be worked out. When we discuss this with Japanese issues in your 545, September 2,⁷ will be raised.

3. Hostilities: Believe hostilities language both self explanatory and acceptable. Japanese state no difference from US text intended. Recommend acceptance.⁸

4. Rules of court: Unexpected difficulty arisen this issue. Several solutions being tentatively considered and expect wire shortly proposed settlement. Japanese have explicitly stated in writing that if they agree delete “when the rules of court permit”, position of Japanese Government this issue is reserved regarding proposed UN forces agreement. We will inform Commonwealth here this development, as in past, and then prepare reply to Japanese statement.

5. Observers: Japanese finally agreed yesterday presence of Commonwealth observers would be palatable in formal meeting. We have so notified Commonwealth representatives.

6. Retroactive clause: Japanese finally agreed to our original minute regarding effective date protocol.

FEC and Henderson concur.

Allison

1. The Protocol to Amend Article XVII of the Administrative Agreement was signed in Tokyo on Sept. 29. For text, see 4 UST (pt. 2) 1847. The brief selection of documentation printed here on the negotiation of this Protocol is designed to be read in conjunction with it.
2. Dated Sept. 9, not printed. (611.94/9–2353)
3. In telegram 646, dated Sept. 10, the Embassy transmitted the texts of statements by Japanese and U.S. members of the criminal justice subcommittee of the Joint Committee under the Administrative Agreement. The telegram included a Japanese undertaking that, in cases where it had a primary right of jurisdiction over U.S. personnel affected by the Protocol, as a matter of policy Japan did not normally intend to exercise that right except in cases which it determined to be of material importance to Japan. See also footnote 2, Document 700.
4. Apparent reference to telegram 646, cited in footnote 3 above, which was sent at the same hour as telegram 647.
5. These telegrams, both dated Sept. 5, concerned the negotiations for the sections of the Protocol and accompanying statements which treated custody and offenses arising out of acts done in the performance of official duty. (611.94/9–553)
6. Pertinent information concerning final negotiations on technical arrangements regarding notification of waiver, including Japanese commitments on the subject, is in telegram 646, cited in footnote 3 above, telegrams 664 and 665 from Tokyo, both dated Sept. 11, and telegram 583 to Tokyo, dated Sept. 15. In telegram 664, the Embassy interpreted the result of these negotiations to mean that United States authorities “may proceed to process and try cases where Japan has primary jurisdiction subject to Japan’s notification of intention to exercise its primary jurisdiction. However, if this notification is not received within time limit to be set in joint committee, it is understood United States jurisdiction becomes absolute, and double jeopardy provisions will apply after United States verdict.” (Telegrams 664 and 665, 611.94/9–1153; telegram 683, 611.94/9–1553)
7. In this telegram the Department discussed issues raised by the decision arrived at by the negotiators to keep some of the arrangements on jurisdiction classified. (494.944/8–2753)
8. Telegram 646 included the text of a statement by a U.S. representative on the criminal jurisdiction subcommittee regarding the provisions of paragraph 11 of the Protocol: “In connection with this provision I wish to state on behalf of my government that the US declares its intention in the event of hostilities to which the provisions of Article XXIV of this agreement apply, to seek exclusive jurisdiction over its forces in Japan.”