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The
mortician's tale: Time for US to leave Korea
By David Scofield
SEOUL - The mortician's tale that follows is the legal nightmare of a civilian
morgue employee working for the United States military here. It is a small,
concrete example that illuminates the depth of resentment among South Koreans
toward the continuing US military presence in this strategically important
allied nation.
And it's one more piece of evidence that despite the North Korean nuclear
crisis, it's time for US forces to go, executing their long-planned East Asian
redeployment - elsewhere.
The US deploys about 37,000 active-duty military personnel, and about the same
number of civilian contractors, support staff and dependents, all of them
covered by an agreement between the US and South Korea known as the the Status
of Forces Agreement, or SOFA.
As part of a plan agreed upon in 1991, the United States plans to shift forces
south on the Korean Peninsula. The plan calls for a complete withdrawal from
Yongsan base in Seoul and from bases along the Demilitarized Zone (DMZ) by
2008. The forces will be structured around two bases: one by Osan-Pyongtaek
area and Daegu-Busan area. The move conforms to changes in US military planning
worldwide: creating a a lighter, more mobile force that can react faster to
problems elsewhere in the region.
Now to the mortician: In February of 2000, civilian mortician Albert McFarland,
employed by the US Forces in Korea (USFK), ordered his staff to dispose of
about 120 liters of embalming fluid down a drain in the mortuary at the US Army
base at Yongsan in the center of Seoul.
The fluid had been treated at two waste-treatment plants before reaching the
Han River, where this capital city gets its drinking water, and later
simulation tests indicated the fluid was not toxic when it reached the water.
Still, it created a furor.
Toxicity questions aside, McFarland did violate US military environmental
regulations while on duty. But similar and far more egregious violations by
Koreans have received relatively little notice and little or no punishment.
Accord grants US jurisdiction in cases of US personnel
The Status of Forces Agreement between the United States and the Republic of
Korea, a legally binding treaty first concluded in 1966, defines the rights and
obligations of both the US forces and the Korean host government. Article 23,
Paragraph 4 of that accord states that violations committed by on-duty
personnel under SOFA coverage shall fall under the exclusive jurisdiction of
the US military.
Prompted by the current emphasis on "independent" politics - greater
assertiveness and a relative distancing from the US - the South Korean Ministry
of Justice pursued the mortician's case, tried McFarland in his absence, and
ordered him to pay a fine of US$4,000. The fine was paid and the USFK suspended
McFarland for 30 days without pay.
Still not satisfied and seemingly undaunted by the law (giving jurisdiction to
the US and presumably containing protections against double trials and
jeopardy), the Seoul District Court and the Ministry of Justice pressed on,
concluding that McFarland and the USFK should be punished further. A retrial
was ordered.
This January 9, almost four years after the original incident, McFarland was
sentenced, once again in absentia, to six months in prison. The second trial
and sentencing underscored what observers call South Korea's penchant for the
rule by law rather than the rule of law. The handling of this case presents a
serious legal challenge to the US military, dependants, contractors and others
affiliated with US forces in Korea.
McFarland has filed an appeal of the South Korean decision, though the US
doesn't recognize Korean jurisdiction. He remains closeted in Seoul; he isn't
talking; his only contact is through his lawyer.
The agreed-upon Status of Forces Agreement puts specific protections in place
so that justice in foreign countries cannot be arbitrarily or politically
applied to US military personnel - but this legalistic nicety does not seem to
resonate in South Korean officialdom. Similar agreements are in place in other
countries, and elsewhere the US is more confident in entrusting some legal
affairs to national governments, given their degree of juridical sophistication
and genuine independence from governments and political pressure. South Korea
hasn't made it to the club of Japan, Britain and Germany when it comes to
accords of mutual trust concerning US forces.
Alleging US 'poisoning' of Seoul's water
South Korean officials and figures in Korea's ubiquitous non-governmental
organizations (NGOs) have railed against the mortician, McFarland, citing what
they called his "attempt to poison Seoul's water supply" - as it has been
described in local news reports.
However, as evidence of a double standard, there has been strikingly little
coverage or discussion of the 15 Korean men arrested just last November for
dumping 270 tons of formaldehyde into the Han River. The dumping site was less
than three kilometers from where Seoul's drinking water is collected.
This sounds like a witch-hunt, but why?
This tide of anti-Americanism, known as "independencism", that President Roh
Moo-hyun rode to power slightly more than a year ago was largely - though not
exclusively - predicated on the deaths of two middle-school girls. They were
struck on June 13, 2002, by a large armored vehicle driven by two US servicemen
near the village of Donggucheon.
The accident investigation fell within the jurisdiction of the USFK, but the
United States involved the Korean National Police at every stage of the
investigation.
But the Korean people, all too familiar with their own nation's less than
impartial approach to law and justice, became convinced that a cover-up was
taking place. Although the US and South Korea made public much of the evidence
and allowed coverage by the Korean press at an inquest, the belief in cover-up
persisted and still persists. It is perpetuated by the press and by
independence-minded Internet users.
Five months after the girls' deaths and the conclusion by the Korean National
Police and USFK that the tragedy had been an unavoidable accident, the USFK,
under its new four-star General Leon LaPorte, initiated a formal court martial
at an infantry base in Dongducheon, near the accident site. Those proceedings
were open to the victim's families, concerned NGOs and the press - in an effort
to demonstrate further the transparency and fairness of US judicial proceedings
guaranteed by SOFA.
The US forces, however, gave little consideration to how the trial would be
interpreted by Koreans, especially in the run-up to a presidential election.
Choi Woon-sang, a former Korean ambassador and Seoul-based professor of
international law, said in an interview: "The worst thing the US can do is dig
this all up again [with a court martial]. It's not the Korean way and it won't
be understood." He was right.
Court martial itself seen as proof of guilt
The trial was viewed by most Koreans as an acknowledgment of the Americans'
criminal guilt. Why, they reasoned, would the United States place its own
people on court martial unless it knew the defendants were criminally
responsible? The trial ended in acquittal for the soldiers - who many US-based
legal experts maintained should not have been put on trial in the first place.
The acquittal generated a flood of angry anti-US nationalism, and protesters
poured into the streets of Seoul and other South Korean cities.
Protesters charged that SOFA "allowed them to get away with murder", demanding
the arrest of the two US servicemen and the scrapping of the military
agreement.
"Pro-independence" feelings, which permeated the election campaign in the
autumn and winter of 2002, had been lying just beneath the surface for decades
and had begun surfacing in earnest after the North-South Summit in 2000.
After former South Korean president Kim Dae-jung's groundbreaking - and now
controversial - summit with North Korean leader Kim Jong-il in June 2000, and
their Joint Communique focusing on "peace, independence and national unity", a
fundamental policy and public relations shift was undertaken. It was a distinct
move away from the previous harsh depictions of the North and its leadership.
Official announcements also changed radically, presenting kinder, gentler
descriptions of the North, and these dominated the print media and airwaves.
School curriculums were "updated" to reflect the new, politically correct view
of North Korea and some of the nastier bits of recent history concerning North
Korea were excluded or extracted from their historical context. Within the
nation's universities, academics long quiet about their more tolerant views of
the North came loudly to the fore - some assuming the intellectual high ground
at South Korea's influential educational institutions.
Perceptions of North Korea began to change, and with them the perceptions of
the United States and the Status of Forces Agreement. These reordered
perceptions occurred especially among those in their 20s and 30s - a generation
that never knew the sufferings caused by North Korea's preemptive attack on the
nation 50 years ago.
Older Korean War veterans, young progressives, academics and others view the US
Forces in Korea with emotions ranging from reverence to envy to contempt. The
US presence is still viewed by many as a necessary evil, vital to the nation's
defense. Many others view it as the primary impediment to reunification of the
divided peninsula.
All but the most radical find common ground in the "economic necessity"
argument for the presence of the US forces, but few seriously support the US
presence beyond the pragmatic economic and security reasons.
Roh pledges to redress 'inequities' in US accord
In Roh's presidential election campaign, standing before tens of thousands of
Koreans demanding that the US give "pride" back to the Korean people, he
pledged to "redress" what he called the seriously prejudicial clauses of the
Status of Forces Agreement. Roh advocated a new understanding and model of
enlightened relations that would reconcile the presence of the United States
with the developed status of the country, and with the Korean people's
self-perception as an economically and politically important nation.
But the other side of the argument - the one that sees fundamental shortcomings
in South Korea - garners very little attention within the Korean press, even
among "conservative" dailies such as the Chosun Ilbo. Proponents of this
argument cite the domestic institutional weakness and cycles of corruption that
inhibit international faith and trust in South Korea's judicial and other
institutions.
Seoul's systemic problems, they say, make it impossible to relax and revise the
current Status of Forces Agreement with the US so that it more closely
resembles similar but more liberal US military agreements in Japan, Germany and
the United Kingdom.
In sharp contrast to the strident rhetoric of Roh's campaign, the previously
scheduled SOFA talks shortly after his inauguration produced no great changes,
and South Korea signed the treaty without fundamental changes or amendments.
The talks were held behind closed doors, but the implication leaked by Seoul to
the press was that the weak economy and the North Korean nuclear crisis gave
the South Korean authorities little choice but to acquiesce. This
interpretation has now become a victim drama play that has become a staple of
the country's political system.
South Korea's institutions could be shored up. This is a wealthy, well-educated
nation with abundant human capital. But the needed fundamental political and
judicial development and reforms are obstructed as lawmakers and officials
manipulate national institutions to further their narrow political agendas.
Underlying issues remain unresolved, ensuring they will come to the fore as
soon as it becomes politically expedient.
Tinkering with SOFA won't solve the problem
Tinkering with the Status of Forces Agreement won't settle the issue. If the US
Forces in Korea acknowledged the right of South Korean authorities to prosecute
in situations like the McFarland case there could be great US animosity toward
Korean "justice". McFarland's six-month sentence - one month longer than that
given a South Korean man recently convicted of sexually molesting a
five-year-old girl - could rightly generate charges of political influence and
prosecutorial bias, exacerbating dissent and animosity.
The only solution is to remove the distraction of the USFK: Remove the Status
of Forces Agreement as an issue by removing the US military presence on the
Korean Peninsula.
As long as the US military remains, so too will the nationalistic antagonism
generated by the troop presence. The very visible presence of the world's most
powerful military has been used for decades by political groups of all stripes
to deflect criticism from domestic leadership and domestic problems.
Many observers, both Korean and Western, say the US now has an obligation, in
support of South Korea's national development, to withdraw its military assets
from the country.
Removing troops might seem unwise given the North Korea nuclear threat, but the
changed socio-political environment on the peninsula has made it impossible for
the US forces effectively to project foreign-policy objectives. South Korea's
new policies of relative assertiveness and distancing itself from the United
States are increasingly at odds with Washington's strategies.
Indeed, recent surveys indicate that most South Koreans believe the US is a far
greater threat to their security than the North.
Recently announced US base closures and the southward movement of some troops
is an important first step, but in an effort to promote national development
and encourage the "equal" relationship the South Korean government and people
have been loudly demanding, it's time for the US Forces in Korea to go.
David Scofield is a lecturer at the Graduate Institute of
Peace Studies, Kyung Hee University, Seoul.
(Copyright 2004 Asia Times Online Co, Ltd. All rights reserved. Please contact
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