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Vigils in Korea: US alliances on
trial
By Jaewoo Choo
SEOUL -
Please spare a moment to recollect a movie featuring Tom
Cruise, Jack Nicholson, Demi Moore, and Kevin Bacon,
A Few Good Men (1992). What comes to your mind
first as you recall the movie? Perhaps a hard-fighting
defense lawyer, played by Cruise, winning the murder
case of two US marines against a regional marine corps
and its codes, known as "Code Red", a hushed-up military
practice of covering up military accidents. Or maybe a
ferocious head-to-head showdown in a martial courtroom
with an immovable force in a witness stand, the
irascible commander played by Nicholson. Or the way
justice and belief in US military judicial system were
upheld may ring a bell.
Receiving three Academy
Award nominations, the movie, when released in South
Korea in 1992, drew a big attendance. America's value of
its judicial system, as portrayed in the movie, "was not
imposed ... but was accepted", in Henry Kissinger's
words, by the Korean people with great emotion.
That was then. Now belief in the US judicial
system is viewed with much skepticism by the Korean
public as a consequence of the trial over the deaths of
two junior-high-school girls who were run over by a
60-ton armored tracked vehicle operated by two American
soldiers. The two soldiers, charged with two counts of
negligent homicide, were acquitted in November, sparking
a continuing candlelight vigil to protest for a retrial
and for revision of the Status of Forces Agreement
(SOFA), a bilateral agreement with the United States
that establishes the legal rights and responsibilities
of US troops in Korea, which is now being perceived as
the root cause if unfair and unjust practice of the US
military judicial system.
Having seen such a
great movie in which truth was depicted as the best
possible sword in a fight against justice, one may ask:
What would have the Tom Cruise character done with the
Korean case? Here is the synopsis for the plot: "On June
13, US Army vehicles rumbled down a narrow, two-lane
road through small villages near the Twin Bridges
Training Area. Around a curve and up a small hill in
Hyochon Village, a convoy of seven military vehicles,
including a 60-ton tracked bridge carrier, moved toward
a line of Bradley fighting vehicles approaching from the
direction. And somewhere in the middle two 13-year-old
South Korean girls walked along the roadway, head to a
friend's birthday party.
"As the first two
vehicles passed the girls, military officials said
soldiers in the convoy, as well as those in the
approaching Bradleys, motioned for the bridge carrier to
stop. Army officials say the driver, Sergeant Mark
Walker, couldn't see the girls because of a blind spot
created by equipment mounted on the vehicle. They also
say the bridge carrier's commander, Sergeant Ferdinando
Nino, was unable to contact Walker on his headset to
warn him about their presence because of heavy radio
traffic. By the time Walker heard Nino's final warning
and stopped, it was too late. Two girls lay crushed
under the track." (Stars & Stripes, November 17,
2002)
In accordance with the above synopsis,
could anyone possibly accept that Sergeants Walker and
Nino had no responsibility at all, not to mention their
company commander? It is in this sense that the
observation report of the trial compiled by Korean
non-governmental organizations (NGOs) and press charged
that the entire process and the outcomes of the trial of
two American GIs was unfair and unjust, for three
reasons in general.
First, there is the question
of whether the soldiers were "on duty" when the incident
happened. If so, jurisdiction is clearly in the hands of
the US military, according to SOFA. However, the
question was hardly raised. These tanks and tracked
vehicles were in the midst of a transfer from or to
their military exercise sites, which is not regarded to
be an "on duty" action during a military exercise as
defined in SOFA.
Second, the communication
problem was not due to heavy radio traffic, according to
the original investigation report presented at the
court. When helmets were inspected on June 14, "Williams
couldn't communicate from Nino's helmet to Walker's
helmet via the internal communications system. When [the
inspector] unplugged Walker's helmet from the connection
and plugged it into another connection, it worked,
leading [the inspector] to believe that either the cable
wasn't tightened correctly or dirt or moisture had
caused problems with the connections" (Stars &
Stripes, November 24, 2002). However, prosecutors did
not use these facts to support a charge of negligence.
Third, the prosecuting party merely accepted the
court's dismissal for unavailability reasons of its
request to call the company commander, a Captain Mason,
to the witness stand. It was later reported that Mason
was at the time still in South Korea at Camp Howze,
where he was stationed. The court accepted his
invocation of his right to silence in order to avoid
self-incrimination if called to testify. Although
prosecutors called nine witnesses in an attempt to prove
the guilt of the accused, the defense called none and
offered only written testimony from a communication
specialist who inspected the helmets. To the dismay of
the audience, which was mostly composed of Korean NGO
members and press, prosecutors did not contest the
written statement, which was entered as a stipulation of
fact.
Sorrow and remorse toward the innocent
young girls are now brightened by candlelight vigils
that have been held during the subsequent months in
front of Seoul City Hall and the US Embassy. Apologies
by the United States Forces Korea (USFK) commander and
from Washington, including assistant secretary of state
James Kelly and President George W Bush, were made soon
after the incident and the vigils. Yet they have failed
to stop the protests. Instead, they have only served to
transform Koreans' sense of helplessness and despair
into what is now dubbed "anti-Americanism".
This
transformation of feelings could be attributed to many
factors. The protesters claim that it is out of
frustration toward what they regard as the unfair trial
and investigation of the incident that eventually was
followed by an unacceptable consequence, acquittal. It
can also be attributed to the South Korean government,
which could only observe the process helplessly, and to
the SOFA, a perpetuating force behind the current
judicial practice by the US military in cases of crimes
against the locals.
In a recent interview of a
29-year-old man who started the vigil with a simple
message on the Internet, he said he decided to withdraw
himself from the protest, as it was going in a direction
he had not intended nor foreseen, anti-Americanism. He
declared that his call to action for the vigil was out
of pure sympathy. However, to his dismay, he said,
others wanted to exploit the situation for political
aims, such as revision of SOFA, retrial of the acquitted
soldiers, and an official apology from President Bush.
In the midst of all this, the outbreak of the
North Korean nuclear issue in October and the subsequent
hard posture adapted by Bush only jump-started the
anti-Americanism that is now prevailing in today's
Korean society. It was then that the issue of the
withdrawal of US troops from the Korean Peninsula was
brought to the floor. According to a recent survey
revealed on New Year's Day in South Korea, 51 percent of
the South Korean populace thinks that the impasse on the
North Korean nuclear issue is a direct result of the
hardline attitude taken by the US government and its
leadership.
Under the circumstances, one may
wonder what is holding the US government, and Bush, from
issuing a formal and official apology? Why does the
United States not want to revise SOFA? If allies are so
vital in its campaign against terrorism, how can Bush
only stand by amid all these anti-Americanism sentiments
in one of his nation's most important allies? What is
the United States' official stance on the SOFA issue? Is
there one?
The answer is, unfortunately, yes,
there is. During his presidency, Bush will not agree to
any demand for modification either of the SOFA or his
position on the question of subjecting US military,
diplomatic and governmental personnel to any
jurisdiction other than his own nation's, not even an
international one such as the International Criminal
Court (ICC). By announcing last May 6 the withdrawal of
the United States' signature from the Rome Statute of
the ICC, an international statute designed to create a
permanent international court, Bush confirmed the US
position on the legal status of US citizens in the
international setting. In short, no international
institution or system can hold US citizens accountable.
The Bush administration justifies its stance by pointing
to the flaws detected by Bush's predecessor, Bill
Clinton, in the principles and philosophy of the statue.
It claims that US citizens cannot be held accountable
under a jurisdiction that lacks checks and balances but
has a great potential for "politicization of the
process".
In respect to US military personnel,
the United States went farther by showing its concern
toward the potential setbacks that the ICC might impose
on its mission against terrorism, as shown in a
statement issued on May 6 by Marc Grossman,
undersecretary for political affairs: " ... We believe
that by putting US officials, and our men and women in
uniform, at risk of politicized prosecutions, the ICC
will complicate US military cooperation with many
friends and allies who will now have a treaty obligation
to hand over US nationals to the court - even over US
objections. The United States has a unique role and
responsibility to help preserve international peace and
security. At any given time, US forces are located in
close to 100 nations around the world conducting
peacekeeping and humanitarian operations and fighting
inhumanity. We must ensure that our soldiers and
government officials are not exposed to the prospect of
politicized prosecutions and investigations. Our
president is committed to a robust American engagement
in the world to defend freedom and defeat terror; we
cannot permit the ICC to disrupt that vital mission."
As a part of this effort, on August 2, the US
Congress passed and Bush signed the American
Servicemembers Protection Amendment (ASPA) into law. The
legislation includes provisions that prohibit US
cooperation and intelligence-sharing with the ICC,
restrict US participation in United Nations
peacekeeping, prohibit military assistance to most
countries that ratify the ICC statue, and authorize the
president to use "all means necessary and appropriate"
to free from captivity any US or allied personnel held
by or on behalf of the ICC.
After these
developments regarding US policy on its servicemen's
legal status, the deaths of the two Korean schoolgirls
occurred. According to available sources, the Korean
case is the first of its kind that directly concerns
what worried the United States about the Rome Statute.
If a similar case recurs after the ICC is fully
implemented in the middle of 2003, not only will the US
not want to see the case go to the ICC, it will not
tolerate any demand for revision or modification of the
SOFA.
With the ICC and the Rome Statute having
entered into force last July 1, the time has arrived for
both the United States and its allies to conduct a
serious review the tie that binds them, SOFA, in
accordance with the Rome Statute and the ICC. Otherwise,
ASPA will prevail, and tragedies such as the one in
South Korea will affect America's relations with its
allies.
Jaewoo Choo, PhD, is a
research fellow with the Trade Research Institute,
Seoul. The opinions expressed in this article are his
own.
(©2003 Asia Times Online Co, Ltd. All
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