Which laws do SOFA status people follow?

[Muku]

DougP brought this up initially in the thread about the lockdown and I thought it deserved it's own place in history here.....ok jokes aside serious question.

Which countries laws do the base commanders have to follow in regards to the maintainence and management of the bases?

Ok let me clarify this a bit more here. I understand that any service that directly affects the country or people of Japan, road taxes, hazardous waste regulations, etc etc, as mentioned by ryukyuboi, are Japanese laws and the commander must follow them.

However, as an example here, vehicles that never leave the confines of the base are not subject to Japanese road tax, so the Japanese law would not apply would they?

Next crimminal law, if there is American on American crime on a base do the Japanese have jurisdiction in the matter if the accused are non-miilitary, but under SOFA status? Even traffic laws on base are somewhat different in that left turn on red is allowed correct? That is illegal off base.

Labor laws from what I have seen are different as well, people can, particularly PT, like plenty staff workers, can be fired for cause. That would be really hard to do in a Japanese company or business. I can give examples of where things like this have happened as well.

DougP wrote here that the base commander must(?) follow Japanese and American law in regards to this lockdown.

Any comments, thoughts, or opinions? Anyone here know what's up?

[DougP]

ARTICLE XVI

It is the duty of members of the United States armed forces, the civilian component, and their dependents to respect the law of Japan and to abstain from any activity inconsistent with the spirit of this Agreement, and, in particular, from any political activity in Japan.

I'd imagine that the General would fall under this one as well. Funny because to me this little embargo stunt of theirs feels a lot like a political activity, one I'm being forced to participate in.

2. (a) The military authorities of the United States shall have the right to exercise exclusive jurisdiction over persons subject to the military law of the United States with respect to offenses, including offenses relating to its security, punishable by the law of the United States, but not by the law of Japan.

(b) The authorities of Japan shall have the right to exercise exclusive jurisdiction over members of the United States armed forces, the civilian component, and their dependents with respect to offenses, including offenses relating to the security of Japan, punishable by its law but not by the law of the United States.

Still nothing that states the General can order people o be confined to their home and restrict their movement especially when they haven't broken the law.

Here's something interesting(a little off topic) about what the US is obliged to do when returning property, ie closure of a base.

ARTICLE IV

1. The United States is not obliged, when it returns facilities and areas to Japan on the expiration of this Agreement or at an earlier date, to restore the facilities and areas to the condition in which they were at the time they became available to the United States armed forces, or to compensate Japan in lieu of such restoration.

[DougP]

Another thing I wanted to address was I've heard quite a bit that US citizens lose their rights when coming here or when falling under the SOFA. For that I have a couple of questions to ask.

First, do service members, civilians etc have the right to practice their religion/ denomination of choice?

If so what would they be entitled to do if the General took away that right?

Do SOFA dependents(children) not have the right to an education?

What if one day they were not allowed to pursue an education?

Are what I just mentioned rights or privileges? If I or any other SOFA status person here DO NOT have any rights then how do others have the right to practice their religion here?

[Isaak Brodsky]

Muku, great questions. In the mid-nineties, a Kadena High School principal fled Okinawa because it was alleged that he had been collecting provacative photos of school girls. He'd apparently had hundreds of these shots in sexy poses. My memory of the exact events is sketchy, but I remember hearing that the Japanese police wanted him primarily. He was able to somehow slip away from the island. I'm sure the SOFA agreement spells out who has jurisdiction over what crimes, but I've yet to actually see the SOFA. One of my students has told me that all agreements like these between nations are part of the public record. I haven't done a great deal, though, to find the SOFA between Ameica and Japan.

[OCanadaOurHomeAndNativeLand]

Ian, this may be a good place to begin researching the SOFA between Japan and the USA.

http://www.niraikanai.wwma.net/pages/archive/sofa.html

[P_chan]

I've got a sofa question. Let's say your in the military, and you want to take a trip to japan. You fly commerical and get your civilian passport stamped. Even though you're military, and not here on orders, do you still fall under sofa? I don't think you would, but I'm sure.

[Muku]

I've got a sofa question. Let's say your in the military, and you want to take a trip to japan. You fly commerical and get your civilian passport stamped. Even though you're military, and not here on orders, do you still fall under sofa? I don't think you would, but I'm sure.

If you are here in the military you are presumed to be sofa I would think. I have met active duty military that have come here on leave before. SOFA covers all US Military personel while in Japan, from what I understand of it.

Could be wrong though.

[Muku]

Another thing I wanted to address was I've heard quite a bit that US citizens lose their rights when coming here or when falling under the SOFA. For that I have a couple of questions to ask.

First, do service members, civilians etc have the right to practice their religion/ denomination of choice?

If so what would they be entitled to do if the General took away that right?

Do SOFA dependents(children) not have the right to an education?

What if one day they were not allowed to pursue an education?

Are what I just mentioned rights or privileges? If I or any other SOFA status person here DO NOT have any rights then how do others have the right to practice their religion here?
Why wouldnt they be able to practice their religion of choice Doug?

SOFA dependants for education would fall under the juristiction of Dodds wouldnt it?

[DoctorP]

Here's a better question (maybe I need a thread for this). How do military members choose which regs to follow?

Seems that most of them are following the lock down, but I still see them PT with Ipods on, drive while talking with their cell phone on their ear, I mean damn people you can't follow simple damn instructions?

[DougP]

Why wouldnt they be able to practice their religion of choice Doug?

SOFA dependants for education would fall under the juristiction of Dodds wouldnt it?

Why? because I've been told that we have NO rights while we are here under SOFA. I was just trying to point out what a crock that statement really is because obviously we do have rights. Although those are slowly being stripped from us.

[Muku]

Why? because I've been told that we have NO rights while we are here under SOFA. I was just trying to point out what a crock that statement really is because obviously we do have rights. Although those are slowly being stripped from us.

That I agree is a crock, or at least the person that told you that is a crock.

Except what is your definition of a right vs a privledge? I think that is where the root of the problem is in my opinion.

[Tanimaga]

If you are here in the military you are presumed to be sofa I would think. I have met active duty military that have come here on leave before. SOFA covers all US Military personel while in Japan, from what I understand of it.

Could be wrong though.

I believe you have to be on orders, or be sponsered though. Without orders, a tourist visa is all you will recieve.

[Muku]

Here's a better question (maybe I need a thread for this). How do military members choose which regs to follow?

Seems that most of them are following the lock down, but I still see them PT with Ipods on, drive while talking with their cell phone on their ear, I mean damn people you can't follow simple damn instructions?

Do they have a choice? I think just about everyone here, myself included at one time or another "break" the law.

[DougP]

That I agree is a crock, or at least the person that told you that is a crock.

Except what is your definition of a right vs a privledge? I think that is where the root of the problem is in my opinion.

My definition of a right is what is covered in the constitution and protected by US law. As long as its not in conflict with Japanese law I don't see how any of those rights could have been just washed away without there being something in writing about it. Haven't seen anything in the SOFA or on any document that I have signed to date stating the military has the right to issue an illegal order violating my constitutional rights. Nor have I seen anything in writing granting anyone the authority to confine me to my residence when I have not violated any laws. Punsihment without crime... hmm something doesn't seem right.

[Muku]

My definition of a right is what is covered in the constitution and protected by US law. As long as its not in conflict with Japanese law I don't see how any of those rights could have been just washed away without there being something in writing about it. Haven't seen anything in the SOFA or on any document that I have signed to date stating the military has the right to issue an illegal order violating my constitutional rights. Nor have I seen anything in writing granting anyone the authority to confine me to my residence when I have not violated any laws. Punsihment without crime... hmm something doesn't seem right.

Doug are you subject to military law?

[DoctorP]

Doug are you subject to military law?

He has been since he took the job on base!

[Muku]

(a) "members of the United States armed forces" means the personnel on active duty belonging to the land, sea or air armed services of the United States of America when in the territory of Japan.

(b) "civilian component" means the civilian persons of United States nationality who are in the employ of, serving with, or accompanying the United States armed forces in Japan, but ex-cludes persons who are ordinarily resident in Japan or who are mentioned in paragraph 1 of Article XIV. For the purposes of this Agreement only, dual nationals, United States and Japanese, who are brought to Japan by the United States shall be considered as United States nationals.
(c) "dependents" means
Spouse, and children under 21;
Parents, and children over 21, if dependent for over half their support upon a member of the United States armed forces or civilian component.


Doug are you not a part of the civilian component written here in the SOFA?


. In cases where the right to exercise jurisdiction is concurrent the following rules shall apply:

(a) The military authorities of the United States shall have the primary right to exercise jurisdiction over members of the United States armed forces or the civilian component in relation to

(i) offenses solely against the property or security of the United States, or offenses solely against the person or prop erty of another member of the United States armed forces or the civilian component or of a dependent;

(ii) offenses arising out of any act or omission done in the performance of official duty.

4. The foregoing provisions of this Article shall not imply any right for the military authorities of the United States to exercise jurisdiction over persons who are nationals of or ordinarily resident in Japan, unless they are members of the United States armed forces.


6. (a) The military authorities of the United States and the authorities of Japan shall assist each other in the carrying out of all necessary investigations into offenses, and in the collection and production of evidence, including the seizure and, in proper cases, the handing over of objects connected with an offense. The handing over of such objects may, however, be made subject to their return within the time specified by the authority delivering them.



SOFAgreement (http://www.niraikanai.wwma.net/pages/archive/sofa.html)

Next in regards to orders, are they not also covered under the SOFA as well? and seeing as you are under the SOFA the military has the right to enforce the law, in this case being the general's orders.

[Tanimaga]

Muku..

This sounds similiar to my situation.

"but ex-cludes persons who are ordinarily resident in Japan or who are mentioned in paragraph 1 of Article XIV"

[Muku]

Muku..

This sounds similiar to my situation.

"but ex-cludes persons who are ordinarily resident in Japan or who are mentioned in paragraph 1 of Article XIV"
Isnt that the reason that people have to give up their residency status when taking a SOFA status job, purely because you would ultimately fall through the cracks.

[Tanimaga]

I think I'm wedged into a crack now!

Isn't there a more updated version of the SOFA agreement? The link you provided is the most current?

[DougP]

Doug are you subject to military law?

This is still a gray area. Its been proven that we are not but suggested that we can be. Most of those stipulations and situation where we could be punished under UCMJ is when we violate a "law" or "lawful" order in a war/combat zone. Clearly Okinawa is neither. The prosecution of civilian contractors under the UCMJ can be subject to challenge on constitutional grounds. There's been a few cases like Supreme Court in Reid v. Covert (354 U.S. 1) (1957) and several others that have shown the Constitution prohibits the prosecution of civilians by courts-martial because it would violate the right to a fair trial, including trial by jury.

UCMJ is only extended jurisdiction over those(contractors) “in the field” a term which also has been interpreted to include areas of actual fighting or where real hostilities are an occurrence.

The use of military courts to try civilians/contractors raises serious human rights concerns. The United Nations Human Rights Committee has stated that the trial of civilians by military courts should be very exceptional and occur only under conditions that genuinely afford full due process.

Hope that clears things up a bit.:thumbup1:

[DougP]

He has been since he took the job on base!

Not exactly read above:thumbup1:

[Muku]

This is still a gray area. Its been proven that we are not but suggested that we can be. Most of those stipulations and situation where we could be punished under UCMJ is when we violate a "law" or "lawful" order in a war/combat zone. Clearly Okinawa is neither. The prosecution of civilian contractors under the UCMJ can be subject to challenge on constitutional grounds. There's been a few cases like Supreme Court in Reid v. Covert (354 U.S. 1) (1957) and several others that have shown the Constitution prohibits the prosecution of civilians by courts-martial because it would violate the right to a fair trial, including trial by jury.

UCMJ is only extended jurisdiction over those(contractors) “in the field” a term which also has been interpreted to include areas of actual fighting or where real hostilities are an occurrence.

The use of military courts to try civilians/contractors raises serious human rights concerns. The United Nations Human Rights Committee has stated that the trial of civilians by military courts should be very exceptional and occur only under conditions that genuinely afford full due process.

Hope that clears things up a bit.:thumbup1:

Then are you suggesting here that you would be subject to Japanese law offbase if you committed a crime on base against another American, heaven forbid that would ever happen.

Also are you not subject to the orders of the military commanders as you are a part of the civilian component of the armed services as stated in the SOFA itself.

I can not honestly believe that the base would knowingly allow any contractor to work on the base that they knew they would have no control over would you?

[DougP]

Doug are you not a part of the civilian component written here in the SOFA?




SOFAgreement (http://www.niraikanai.wwma.net/pages/archive/sofa.html)

Next in regards to orders, are they not also covered under the SOFA as well? and seeing as you are under the SOFA the military has the right to enforce the law, in this case being the general's orders.

The military has the right to enforce the law, if and when it is lawful and within the limits of the constitution which the military leader have sworn to uphold and protect. If it is found that an order(like this one) is in violation then they would not have any grounds to prosecute any civilian on. There is I'm sure(and currently looking into) a statute of limitations as to what the General can and cannot order civilians to do, regardless of his command status. For instance I'd imagine he could not threaten the removal of my SOFA status and loss of my job if I didn't convert to Christianity. Why is that? Perhaps because it would be a violation of one of my constitutional rights.

I may be SOFA but that doesn't mean that I could get a court martial for refusing to make the General coffee at 3 am.

[Muku]

I think I'm wedged into a crack now!

Isn't there a more updated version of the SOFA agreement? The link you provided is the most current?

I honestly dont know if there is an updated one or if that is the most current. I know that the Japanese Government has been discussing this issue recently and wants to changed or ammend it, however I dont know if it ever has been.

SOFA Japanese/English Version (http://www.mofa.go.jp/mofaj/area/usa/sfa/pdfs/fulltext.pdf)

[Muku]

The military has the right to enforce the law, if and when it is lawful and within the limits of the constitution which the military leader have sworn to uphold and protect. If it is found that an order(like this one) is in violation then they would not have any grounds to prosecute any civilian on. There is I'm sure(and currently looking into) a statute of limitations as to what the General can and cannot order civilians to do, regardless of his command status. For instance I'd imagine he could not threaten the removal of my SOFA status and loss of my job if I didn't convert to Christianity. Why is that? Perhaps because it would be a violation of one of my constitutional rights.

I may be SOFA but that doesn't mean that I could get a court martial for refusing to make the General coffee at 3 am.

Has this order actually been found to be in violation of the law?

[DougP]

(1) Then are you suggesting here that you would be subject to Japanese law offbase if you committed a crime on base against another American, heaven forbid that would ever happen.

(2)Also are you not subject to the orders of the military commanders as you are a part of the civilian component of the armed services as stated in the SOFA itself.

(3)I can not honestly believe that the base would knowingly allow any contractor to work on the base that they knew they would have no control over would you?

(1) Actually that is covered under the SOFA

(2) If they are in compliance with my contract and lawful. Don't have to drop and give the General ten if he tells me to now do I? I sure hope the hell I don't

(3) They have control over us to some extent that why there is a contract put into place with the private company.

I also am surprised you or anyone else feels as though the General is in every right to tell everyone what they can and can't do with their off time or where they can and cannot shop and that the constitution does not apply to him.

[Tanimaga]

Clearly this is a battle only won or lost in a court.

[DougP]

Has this order actually been found to be in violation of the law?

These things take time and as you can imagine not everyone wants to stick their neck out in a time like this. The proper steps are being taken and its being looked into.

[Tanimaga]

Muku..

I believe the SOFA was updated within the past few years or so, at least in the legal aspects of prosecution resulting from the 1995 rape.

[Muku]

Muku..

I believe the SOFA was updated within the past few years or so, at least in the legal aspects of prosecution resulting from the 1995 rape.
Could find it anywhere, maybe some other google commano can find it.

[Muku]

(1) Actually that is covered under the SOFA

(2) If they are in compliance with my contract and lawful. Don't have to drop and give the General ten if he tells me to now do I? I sure hope the hell I don't

(3) They have control over us to some extent that why there is a contract put into place with the private company.

I also am surprised you or anyone else feels as though the General is in every right to tell everyone what they can and can't do with their off time or where they can and cannot shop and that the constitution does not apply to him.
I never said he was nor have I stated anywhere that he wasnt. However I think it is rather easy to guess that the General has a legal staff advising him on whether or not his orders are legal or not. Oh and with regards to active duty members he has every right in the world to tell them where they can or can not go. The military as you know is not a 9 to 5 job. Not saying he will, just that he can.


These things take time and as you can imagine not everyone wants to stick their neck out in a time like this. The proper steps are being taken and its being looked into.

However until that the time comes that it is found to be illegal are you not bound to follow it or face the consequences?

If you were found breaking the order you would be forced to drop your sofa status at the least, and your only recourse to further future action would rest totally on the findings of the legality of the order correct?

Plus if and when the order is found to be illegal, do you expect some type of compensation from the government for your being inconvenienced?

[OCanadaOurHomeAndNativeLand]

Muku..

I believe the SOFA was updated within the past few years or so, at least in the legal aspects of prosecution resulting from the 1995 rape.
From what I've read elsewhere, SOFA has never been changed. The US agreed in principle to hand over suspects in so-called heinous crimes (rape & murder), but has not done so in every case since 1995. I got the impression that the agreement about handing over suspects was outside the original SOFA, and more of a "gentlemen's agreement" (thought the US has not lived up to even that).

[Jack Baretz]

Has this order actually been found to be in violation of the law?

This question came up before and they asked the USFJ Staff Judge Advocate for the answer. This is what he said:

http://www.stripes.com/article.asp?section=104&article=33677&archive=true

The answer is that the Commander can order civilians to reasonable measures to stop specific behavior or conduct which is damaging bilateral relations.

However, this time, the measures (House Arrest for civilians and dependents) are not reasonable and they fail to address specific behavior which caused the problem. A reasonable measure would have been curfew and a restriction of certain areas off base (like Gate 2 and American Village). I also believe that lockdown of active duty military would have been reasonable, since it contributes to good discipline.

It appears that the General is not following the policy which was stated by his own legal advisor, and is therefore in violation of it.

[DougP]

I never said he was nor have I stated anywhere that he wasnt. However I think it is rather easy to guess that the General has a legal staff advising him on whether or not his orders are legal or not. Oh and with regards to active duty members he has every right in the world to tell them where they can or can not go. The military as you know is not a 9 to 5 job. Not saying he will, just that he can.

However until that the time comes that it is found to be illegal are you not bound to follow it or face the consequences?

If you were found breaking the order you would be forced to drop your sofa status at the least, and your only recourse to further future action would rest totally on the findings of the legality of the order correct?

Plus if and when the order is found to be illegal, do you expect some type of compensation from the government for your being inconvenienced?

I'm definitely going to comply and so is my wife. Which also raises the concern of if he had the legal staff working hard on advising him before he wrote the order then why did he violate the SOFA and restrict local citizens? Just because they are dependents of SOFA personnel doesn't mean they aren't Japanese citizens any more. I wonder which one trumps which.

If I am in line to receive compensation then so be it. My main concern is that steps are taken to ensure that we are not having our rights violated. Instead of just having one command tell us something or other people regurgitating what they've been told I would like to have a legal representative with a real law degree spell it out in writing as to what my and many others in my boat, legally rights truly are. And to also have in writing just how far the area commander is allowed to go. If it turns out he can in fact do anything he wants be it force me to go to church or restrict my wife's movement in her own country I will put in for a transfer.

This current situation is beyond the point of repair. My concern is to make sure the ground rules are clear and set in place in the event this happens again. The next commander may decide to do the same thing without any regards to whether or not it is in violation of contracts or rights and I would like something in writing protecting others and myself against unlawful treatment and coercion. I would like to know one way or another what my rights are. The constitution clearly isn't enough.

[ryukyuboi]

Muku, great questions. In the mid-nineties, a Kadena High School principal fled Okinawa because it was alleged that he had been collecting provacative photos of school girls. He'd apparently had hundreds of these shots in sexy poses. My memory of the exact events is sketchy, but I remember hearing that the Japanese police wanted him primarily. He was able to somehow slip away from the island. I'm sure the SOFA agreement spells out who has jurisdiction over what crimes, but I've yet to actually see the SOFA. One of my students has told me that all agreements like these between nations are part of the public record. I haven't done a great deal, though, to find the SOFA between Ameica and Japan.


Ian - The Kadena High School Vice Principal left the island after he was first cleared by the Japanese police. The Japanese police concluded that he could not be charged under Japanese law for anything illegal. The photos were not considered to be pornographic by Japanese standards. He then resigned/retired, and left Okinawa.

[Muku]

Which also raises the concern of if he had the legal staff working hard on advising him before he wrote the order then why did he violate the SOFA and restrict local citizens?
Doug I dont know where it was, but somewhere here in the past few days there was a post, along with a FAQ list or something that stated...

The only Japanese that would or could be restricted are those that have American citizenship. Japanese nationals would have free movement and would not be subject to this order.

However it was also written, somewhere else, sorry there are just too many damn posts saying too many conflicting things here to find it, that had a request that even those Japanese who are allowed freedom of movement to follow the spirit of the order and attempt to restrict their movements.

Doug to me at least it sounds like your wife, who is not an American citizen is free to come and go as she wants.

Doug call the base legal office or go visit them and get a straight answer to give you some peace of mind, and firepower to tell any asshole that tells you different at the gate for example to f'off.

[DougP]

Doug I dont know where it was, but somewhere here in the past few days there was a post, along with a FAQ list or something that stated...

The only Japanese that would or could be restricted are those that have American citizenship. Japanese nationals would have free movement and would not be subject to this order.

However it was also written, somewhere else, sorry there are just too many damn posts saying too many conflicting things here to find it, that had a request that even those Japanese who are allowed freedom of movement to follow the spirit of the order and attempt to restrict their movements.

Doug to me at least it sounds like your wife, who is not an American citizen is free to come and go as she wants.

Doug call the base legal office or go visit them and get a straight answer to give you some peace of mind, and firepower to tell any asshole that tells you different at the gate for example to f'off.

I called base legal and I called the IG office, my self. IG says no way no how.. your wife is SOFA and cannot go about her business as she pleases without written consent from someone who is at the O6 level. The unit our contract falls under is III MEF. They told us specifically that what Kadena put out(which is the exemption letter you are referring to) does not apply. Later today around COB it appeared as though they "may" change it. But the military side(III MEF) says you still need written permission and it has to be specific. This is the guidance I'm getting straight from the horses mouth.

Trust me I feel as though my wife should be free to do as she pleases in her own country. But one exemption to policy letter written by the CG of Kadena does not cover the Marine Corp and their civilian Contractors. Until I see otherwise (in writing) From the III MEF or Zilmer himself, I'm on stand by to stand by.:)

[Ammoyankee]

We have laws? Hmmm, I wish I would have known that years ago!!!

[Oki alumni]

So MUCH written ABOUT it, but it seems that very few people have ever actually READ it. Didn't take much to Google® search and find http://www.mofa.go.jp/region/n-america/us/security/agree0009.html. Whether the military likes it or not, the MILITARY is under CIVILIAN control, and not vice-versa. Civilians are NOT subject to the UCMJ. Thank GOD this is no longer a real issue for me, since I'm not SOFA status in any event. I'd think that regardless of the "Commander's orders", and the good intentions thereof, they couldn't truely be "enforced" with civilians. I only wish that some LN spouse had challenged "the commander". As long as these issues go unchallenged, the commanders are, in effect, dictators, and can and WILL do ("order") whatever they please.

I'm just WAITING for some idiot in a U.S. Armed Forces uniform to ask for my ID when I'm downtown in a curfew situation! UNLESS they've been authorized by GOJ, their authority ends at the base confines.

-Oki Alumni:old: