36. Letter From Secretary of State Rusk to Secretary of Defense McNamara1
Dear Bob:
I am writing about our protracted negotiations with Korea and the Republic of China concerning status of forces arrangements for those countries. In each case, the negotiation is now centered upon the difficult and sensitive issue of criminal jurisdiction over our forces. Given the importance attached to the negotiations in these two countries, and the prolonged delay in reaching agreement, I believe that the way in which we now handle the criminal jurisdiction issue will have a significant bearing on our future political relationship with both governments.2
Our present position accepts in each case that the host government will have discretion to exercise some criminal jurisdiction over our personnel. We have designed our proposals, however, to take account of certain inadequacies in the local systems of judicial administration. First, we have insisted that our exposure to local jurisdiction be sharply reduced from the outset. We have demanded that these governments waive their primary jurisdiction in advance and agree that this waiver can be recalled (and their jurisdiction exercised) only in cases of major importance arising from certain types of offenses. Secondly, we are insisting on a variety of protections for those cases in which their jurisdiction might ultimately come to be exercised. These include an extensive list of fair trial guarantees, the presence of our trained observers at all proceedings, and U.S. custody of the accused throughout all proceedings.
Neither the Koreans nor the Chinese regard our proposals as reasonable, or as really consistent with their sovereignty. Both are clearly concerned that their acquiescence in these arrangements would not be defensible against internal or external criticism. The Koreans have rejected the waiver arrangement, although they have shown flexibility on the procedural safeguards and custody. The Chinese have accepted the waiver proposal (which gives them greater latitude than in the Korean case for recall of the waiver), but they have done so with obviously great reluctance and diffidence, and only subject to our making [Page 67] concessions in the important area of U.S. custody. The Chinese have told us that in their view they are being offered a composite of the worst of our status of forces and base rights arrangements world-wide.
Considering the long delay in reaching mutually satisfactory agreements with the Koreans and Chinese, and their reactions to our proposals, I have felt compelled to re-examine our position on the criminal jurisdiction issue. I certainly do not question that any formula we agree upon must offer adequate protection for our personnel. However, I think we should be careful not to overlook any more negotiable alternatives which would also provide such protection. I am particularly anxious to find an alternative because I do not believe our present position (even if it could be negotiated by some further application of pressure) would be politically viable. On the contrary, I believe it would leave a considerable residue of political bitterness affecting our broader national interests in these two countries. I have no doubt that the effects would be notable in the implementation of the status of forces agreements themselves. For example, we could expect to find both governments determined to exercise the full limit of the restricted jurisdiction available to them, rather than disposed to leave any of these cases in our hands.
I am convinced that in the circumstances we should propose to these two countries the same waiver formula we use in the Federal Republic of Germany. The effect would be to make illustrative, rather than definitive, the list of offenses in which the host government could exercise jurisdiction. However, the host government would still be bound by rigorous criteria in electing to exercise its jurisdiction. For example, it would still be necessary that the host country’s exercise of jurisdiction be required by major interests arising out of the special circumstances of a specific case. We would feel justified to intercede through diplomatic channels if the propriety of the host state’s action under this stringent criterion were questionable. In respect of jurisdiction actually exercised by these two governments, the accused would be afforded the protection of those fair trial guarantees we consider necessary and a U.S. observer would be present during the trial proceedings. The U.S. would retain custody of the accused throughout all judicial proceedings and would not surrender the accused in any case where the accused had not been accorded a fair trial. On this basis, I feel that the so-called “German formula” would adequately provide for the protection of our personnel.
We believe that the German formula would be negotiable with the Chinese and Koreans, and without establishing a residue of resentment and noncooperation, because it is in force with a major European ally and is appropriate to their forward-area location. Its justifiability on these grounds will be of great importance if our current discussions of [Page 68] criminal jurisdiction with the Philippines should produce an agreement there. In the Philippines, for a variety of reasons, we have proposed a formula which is much more favorable to the host state, and we will be pleased if we can get it. We must of course anticipate that there will be disparity between the Philippine settlement on the one hand, and the Chinese and Korean arrangements on the other. I believe this can be managed if the latter arrangements involve the German formula, because it can be justified by precedent and on the merits. If the disparity were to be greater, as our present position would make it, I can only anticipate that our difficulties with the Chinese and Koreans will be exacerbated sharply.
At this writing, we are uncertain how fast the Philippine negotiations will proceed, but there is some indication today that they may move rapidly. If so, this would compound the problem with the Chinese and Koreans. But that problem would exist in any case, even if the Philippine negotiations were delayed, as there is the greatest possible evidence that the Chinese and Koreans have been watching closely the progress in each other’s negotiations, and that both are well aware of the Philippine aspect.
I would therefore appreciate it if you could concur in our working out new instructions to Seoul and Taipei, embodying the German waiver formula.
With warm regards,
Sincerely,