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Commentary: SOFA exempts U.S. forces from Japan’s laws, as it does its COVID safety measures

While Prime Minister Kishida has not formally declared a sixth wave, it is apparent that the nation is now in the midst of one.

 

A pre-emergency is in effect for Okinawa, Yamaguchi and Hiroshima prefectures due to a surge in new hospitalizations. Most of the new cases are the omicron variant. What distinguishes them from other prefectures is they are home to major U.S. military bases. On Jan, 11, “U.S. Forces, Japan” (USFJ) announced 3,638 “current active cases” across 19 major bases in Japan. Over 2300 news cases were reported by USFJ in Okinawa alone. The total number of cases, the percentage of omicron, and details by specific location are unknown.

 

The initial confirmed cases of omicron in Japan were Japanese nationals and foreign residents arriving at international airports, and the first was a Namibian diplomat on Nov. 30. But the first significant community infections were reported in Okinawa by civilian workers at U.S. Marine Corps base Camp Hansen and their Japanese family members.

 

In mid-2020, there was concern over the containment protocols applied at U.S. military bases in Japan. As The Japan Times reported on Aug. 3, 2020, after requests from Japanese authorities, U.S. Forces Japan agreed to require PCR testing before arrival in the country, mask-wearing for new arrivals and when any personnel left the base. When the various COVID-19 containment measures were eliminated in the U.S. in 2021, they also ended for U.S. military personnel coming to Japan, unbeknownst to Japanese authorities.

 

As omicron spread rapidly in the United States from November, all major U.S. military bases in Japan have also been experiencing a significant surge in new infections. During that period, U.S. military personnel could directly fly into bases in Japan without following the testing or quarantine protocols applicable to all other arrivals, nor were they included in the 3500 maximum arrivals per day at Japanese borders.

 

For U.S military personnel, civilian workers and their dependents, there was no requisite PCR test 72 hours before arrival, no PCR test administered upon arrival in Japan, no quarantine and no requirement for complete vaccinations before arriving.

 

After urgent requests from Japanese defense and foreign ministers to their U.S. counterparts on Dec. 22, U.S. Forces Japan issued orders requiring new arrivals to be tested 72 hours before arriving in Japan and within 24 hours after the arrival. After additional requests to strengthen containment measures, new orders were issued by the USFJ commander on Jan. 7 and Jan. 10 mandating mask-wearing both on and off bases and restricting movement outside of bases to essential activities only. USFJ also agreed to start sharing relevant case information with Japanese authorities.

 

So how is that possible?

 

Japan and the United States have a well-known security treaty signed on Jan. 19, 1960. A less prominent second agreement signed on the same day is now directly impacting the ability of the Japanese government to contain the COVID-19 situation: the Status of U.S. Forces Agreement, commonly called “SOFA.”

 

The government’s SOFA arrangement with the United States sets forth its access to bases in Japan; the rights and responsibilities to operate them; and the legal status of U.S. military personnel, U.S. civilian workers and their dependents in Japan (“U.S. SOFA personnel”).

 

During the post-war occupation period up to 1951, U.S. military forces in Japan operated under the authority of the surrender arrangements and Gen. Douglas Macarthur. With the signing of the peace treaty in San Francisco in 1952 and the return of sovereignty to Japan (except for Okinawa that did not revert until May 1972), a U.S.-Japan security treaty was implemented. The security treaty was renewed and extended in 1960, and SOFA in Japan was then added.

 

Similar SOFAs exist in Europe, South Korea, Australia and elsewhere. The SOFA with the EU has been amended four times since it was signed in 1959. A supplementary SOFA was added with Germany in 1998. Other SOFAs have either been amended or are of more recent times.

 

The Japan SOFA, which was never amended, albeit some tinkering around the edges, continues to provide occupation-era rights of extraterritoriality to U.S. military bases in Japan and all U.S. SOFA personnel.

 

The best way to explain this is to compare it to the SOFA in effect since 1998 for U.S. forces in Germany. The U.S. Army Affairs Office in Stuttgart, Germany, states: “Although SOFA determines your legal status, it is important to understand that German law applies to U.S. personnel both off and on bases. U.S. installations are not U.S. soil.” Other U.S. military publications caution U.S. active-duty personnel and their dependents that they are “subject to German criminal laws including jail and substantial fines.”

 

In contrast, U.S. military bases in Japan are not Japanese soil, and Japanese laws do not prevail there, including criminal laws. Japanese police or other authorities need permission from the base commander to enter a U.S. military installation — even to investigate a criminal offense by U.S. SOFA personnel stationed there.

 

U.S. military personnel do not need visas or even a passport to enter Japan, just a valid U.S. military ID card. They must follow USFJ orders concerning vaccinations, testing and documentation, not those mandated for Japanese and foreign resident arrivals. If base orders permit, they can leave the base as they wish regardless of the rules in place for the local communities. And while all other foreign nationals who reside in Japan for more than 90 days need to register at their local town or ward, U.S. SOFA personnel are also exempt from that requirement. Local communities, therefore, do not know how many are living in their communities.

 

Beyond the issues associated with the U.S. military’s lax containment measures, SOFA has a long history of incidents.

 

Under SOFA, it is Japan that compensates for the following: environmental damage done on or by U.S. bases in Japan; civil judicial awards to Japanese victims of sexual assault; power harassment, drunk driving and murder perpetrated by U.S. SOFA personnel; compensation to civilian populations suffering from extreme noise and so on.

 

Japan and the U.S. have just signed an increased “sympathy budget” now recast as the “alliance solidifying budget” for the next five years for $9.1 billion. Japan and the U.S. are increasing technology exchanges and joint development into next-generation defensive systems such as electromagnetic pulse systems against hypersonic missiles.

 

Washington continually advocates for Japan to act more like an equal partner, spend more for its own defense and engage more aggressively in interoperability planning and exercises. Japan is increasing its annual defense budget beyond the 1% of GDP that had been in place for decades with a view to doubling it. And Japan will use that new funding to align Japanese defensive capabilities to fill gaps that the U.S. Forces Indo-Pacific have and to improve interoperability.

 

All of this is hugely positive for the future of the U.S.-Japan security relationship. Those efforts are essential, given the growing security threat that Japan faces. But one area has been essentially kicked down the road and continues to periodically damage the relationship and subvert the objective of equality — SOFA. The growing COVID-19 embarrassment clearly dictates it must now be promptly addressed.

 

There is no rational basis in 2022 for Japan’s SOFA to be so materially different from what is in place with Germany, the EU, or elsewhere.

 

Edo Naito is a commentator on Japanese politics, law and history. He is a retired international business attorney and has held board of director and executive positions at several U.S. and Japanese multinational companies.

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