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Arrested Overseas? How the SOFA Decides Who Prosecutes You in Japan, Korea, Germany and Italy

When a U.S. service member is accused of a crime in Japan, South Korea, Germany or Italy, a status of forces agreement (SOFA) decides whether the host nation or the U.S. military has the primary right to prosecute. Under these agreements, the U.S. military has the primary right for offenses that arise from official duty and for offenses solely against U.S. property or security, or solely against another U.S. service member, civilian employee or dependent. The host nation has the primary right for other offenses that are crimes under both countries' laws. Either country can waive its primary right.

I spent two years as Senior Defense Counsel for the Army Trial Defense Service, Pacific Rim, and about 75% of my firm's cases today are overseas. The same question comes first in almost every one of them: which country has the case? Here is how the agreements answer it, country by country, and what it means for you in the first days after an allegation.

One allegation, two legal systems

Stationed overseas, you live under two criminal codes at once. The UCMJ follows you everywhere. The host nation's criminal law applies in its territory, and its police can arrest you.

The agreements sort cases in three ways:

  • Only U.S. law makes it a crime (a purely military offense, such as unauthorized absence): the U.S. military has exclusive jurisdiction.

  • Only host-nation law makes it a crime: the host nation has exclusive jurisdiction.

  • Both countries' laws make it a crime (assault, sexual assault, drug offenses, theft, a fatal traffic accident): jurisdiction is concurrent, and the primary-right rules decide who goes first.

The test is the offense and whose interests it affects. Whether it happened on or off the installation does not decide it.

Who has the primary right

In concurrent cases, the U.S. military has the primary right for:

  1. offenses solely against the property or security of the United States;

  2. offenses solely against the person or property of another member of the U.S. forces, the civilian component or a dependent;

  3. offenses arising out of an act or omission done in the performance of official duty.

The host nation has the primary right in every other concurrent case. That is the off-duty bar fight with a local national, the off-base sexual assault allegation involving a host-nation civilian, the drunk-driving crash in town.

The country with the primary right can decide not to use it. It then notifies the other country. It also must give "sympathetic consideration" to a request to waive its right when the other country considers the waiver to be of particular importance.

These rules appear in Article XVII of the U.S.-Japan SOFA and Article VII of the NATO SOFA (Germany and Italy). The U.S.-Korea SOFA, Article XXII, follows the same structure (USFK Regulation 1-44, paragraph 2-2).

Japan

Custody. If Japan has the primary right and you are already in U.S. hands, the U.S. keeps custody until Japan charges you (SOFA Article XVII, paragraph 5(c)).

The exception. Since a 1995 Joint Committee agreement, the U.S. gives "sympathetic consideration" to a Japanese request for custody before indictment in specific cases of murder or rape. Japan may also raise other specific cases in the Joint Committee.

If Japanese police arrest you first, Japanese criminal procedure applies from that moment.

More on Japan: Japan court martial defense and Okinawa court martial defense.

South Korea

Korea's custody rules differ from Japan's. Under USFK Regulation 1-44 (26 April 2021), which implements Article XXII:

  • Custody normally stays with the U.S. until all judicial proceedings are complete, with three exceptions:

    • Korean security offenses;

    • a murder or egregious rape suspect arrested by Korean authorities at the scene, in immediate flight from it, or before returning to U.S. control;

    • a list of serious offenses for which Korea can obtain custody when it indicts and requests transfer. The list includes murder, rape, kidnapping for ransom, drug trafficking and manufacturing for distribution, arson, armed robbery, assault resulting in death, drunk driving resulting in death, and fleeing after a fatal traffic accident.

  • Questioning by Korean authorities. A U.S. representative must be present whenever Korean authorities question a SOFA-status suspect.

    • That representative is an impartial observer, not your advisor.

    • You must be told that you have the right not to make statements that could incriminate you, that what you say may be used against you, and that you have the right to legal counsel and an interpreter.

    • You should not sign any statement written in a language you cannot understand.

    • The right to counsel exists from the moment of arrest or detention.

  • Waiver. When the U.S. asks Korea to waive its primary right, Korea's Ministry of Justice has 28 days to say whether it will exercise jurisdiction. An extension is normally no more than 14 days.

More on Korea: South Korea court martial defense.

Germany

Germany starts from the NATO SOFA but adds a general waiver.

The waiver. Under Article 19 of the Supplementary Agreement to the NATO SOFA, Germany waives its primary right in favor of a sending State that requests it. Army in Europe Regulation 550-56 refers to U.S. cases "falling under the general waiver of primary German jurisdiction."

Recall. German authorities can take a case back. They may recall the waiver within 21 days of being notified of the case when "interests of German administration of justice make imperative the exercise of German jurisdiction."

The cases most likely to be recalled. The Protocol of Signature lists the cases where that is most likely, in particular:

  • offenses causing a death;

  • robbery;

  • rape, unless directed against a member of the force, the civilian component or a dependent;

  • attempts at or participation in those offenses.

If Germany prosecutes, U.S. trial observers attend German trials as U.S. Government representatives. You can apply for U.S. Government-retained counsel (Army in Europe Regulation 550-56).

More on Germany: Germany court martial defense.

Italy

The NATO SOFA rules apply in Italy as written. When Italy holds the primary right, the U.S. can ask Italy to waive it. Italian authorities decide whether to grant the waiver, and they must give the request sympathetic consideration (NATO SOFA Article VII, paragraph 3(c)).

More on Italy and the rest of Europe: Europe court martial defense.

What you say to host-nation police can be used at your court martial

Article 31(b) of the UCMJ requires military investigators to warn you before questioning: the nature of the accusation, that you do not have to make a statement, and that anything you say can be used against you at a court martial.

Host-nation police are not bound by Article 31. Under Military Rule of Evidence 305(f)(2), they are not required to give those warnings when they question you overseas, unless U.S. military personnel conduct, instigate or participate in the interrogation. A statement you give them is admissible at your court martial unless it was obtained through coercion, unlawful influence or unlawful inducement. A U.S. representative's presence, or a U.S. interpreter's, does not by itself count as participation.

In practice:

  • Do not discuss the allegation with anyone, host-nation police included, until you have spoken with a lawyer.

  • Ask for counsel.

  • Do not sign anything you cannot read.

  • In Korea, remember that the U.S. representative in the room is not your lawyer.

If the host nation prosecutes

The Japan and NATO agreements guarantee specific rights to a U.S. service member prosecuted by the host nation:

  • a prompt and speedy trial;

  • to be told the specific charges in advance of trial;

  • to confront the witnesses against you;

  • compulsory process for witnesses in your favor within the host nation's jurisdiction;

  • legal representation of your choice;

  • an interpreter if you need one;

  • to communicate with a representative of the U.S. Government.

In Korea and Germany, the U.S. regulations also provide for applying for U.S. Government-retained counsel in host-nation proceedings, under set criteria.

A host-nation criminal case needs a lawyer admitted in that country. My firm defends the military side: the investigation, the command and Special Trial Counsel decisions, any administrative action and the court martial. We work alongside host-nation counsel so that a statement or decision in one system does not decide the other.

One trial, not two, with one caveat

Under the Japan and NATO agreements, the rule is the same. If one country tries you and you are acquitted, or convicted and you serve or have served the sentence, or you are pardoned, the other country cannot try you again for the same offense in that territory. The caveat: the U.S. military can still pursue a violation of the rules of discipline arising from the same act or omission.

Where to start

The first decisions in an overseas case are made in the first days, often before anyone has decided which country will prosecute. If you are stationed overseas and under investigation, call us before you give any statement. See how we defend service members stationed overseas, or call (813) 669-3500.