Justice for None

The South Koreans are asking to take jurisdiction over a soldier involved in a recent fatal traffic accident that killed a 51 year-old Korean woman pushing a yogurt cart along a street.

All available evidence suggests that the death, tragic as it may have been, was accidental. The soldier was driving an Army truck, and presumably was on duty at the time. Under the U.S.-Korea Status of Forces Agreement, Article XXII, para. 3(a)(iii), the U.S. military has primary jurisdiction over offenses committed while a military member is on duty. Under Paragraph 3(c) of the 2001 SOFA modifications, depending on whether the U.S. authorities formally notified the Korean authorities of the accident, and on whether the U.S. opted to exercise jurisdiction, a Korean request for jurisdiction may well be untimely.

Nor is there a political reason to “chasten” an “arrogant” America. The accident occurred the day before President Roh arrived in Washington, and both President Bush and the general staff were quick to offer their apologies. The victim’s family apparently has no interest in exploiting her death. And finally–and this is mostly based on personal experience as an Army prosecutor and defense attorney in Korea–the chance the the Koreans will give a U.S. soldier a fair trial (meaning competent counsel, an unbiased prosecution and investigation, and basic procedural safeguards) are extremely dubious. The Korean judiciary is of questionable competence and independence, and Korean rules of evidence and procedure are both underdeveloped and decrepit.

Under such circumstances, one has to wonder why the Korean authorities are making the request. There is no way this can end well. If the request is denied, or if the soldier is acquitted, there will be another spike of anti-Americanism. If the soldier is convicted for what is almost certainly an accident, the U.S. public may well write a wave of letters to Congress (a risk that admittedly depends on the media actually reporting this story). If my experience is a guide, the Korean authorities may seek the compromise of convicting the soldier and giving him a light sentence, but this is a result that should please no one. If the American public perceives that its soldiers who defend Korea are subject to hostile “revolutionary justice,” they will either demand that the soldiers be brought home or quietly discourage their sons and daughters from joining the military in the first place. A nation at war needs no more reasons for sentiments of that kind.

As with the Army’s decision to bring the Walker and Nino cases to trial in 2002, politics does not justify bringing soldiers to trial over an accident. This is a bad idea for absolutely everyone but those who want to exploit this woman’s death.