The opinion of the court was delivered by: CURRAN
On May 3, 1968, petitioner, a Specialist Fourth Class in the United States Army stationed in the Republic of Korea, was permitted to file in this court in forma pauperis a pro se petition for a writ of habeas corpus. Petitioner alleges that he is being illegally detained by officials of the United States Army in the Republic of Korea. He was initially placed in pretrial confinement on February 29, 1968, after having been implicated in the murder of a female Korean national which occurred off post in the early morning hours of February 28, 1968. Prior to his arrest, petitioner had been identified at a line-up by two eye-witnesses, who claimed he was the victim's companion at the approximate time of her death. Petitioner had also reportedly violated the curfew regulations when he returned to the post in the early morning hours of February 28, 1968.
On March 11, 1968, pursuant to the provisions of the present Status of Forces Agreement between the Republic of Korea and the United States, the Korean Minister of Justice notified the Commander, United States Forces, Korea, that the Korean Government intended to exercise its primary right of jurisdiction over Specialist Smallwood on charges of murder and arson. On March 21, 1968, petitioner was also formally charged by the United States military authorities with violating Article 118(2) (unpremeditated murder) and Article 92 (failure to obey lawful general regulation) of the Uniform Code of Military Justice. Thereafter, on April 25, 1968, petitioner was indicted by the Seoul District Prosecutor, Republic of Korea. While awaiting trial by the Korean authorities, petitioner has been incarcerated at the United States Army Stockade at ASCOM City, Korea. Proceedings in the Korean courts began on June 4, 1968. Pursuant to the terms of the existing Status of Forces Agreement, petitioner will remain in the custody of the American military authorities pending final disposition of the criminal charges in the Korean court.
Petitioner asserts that respondents do not have legitimate authority to release him to the Republic of Korea for trial by a Korean court. His argument to this end may be summarized as encompassing two major points:
1. The United States-Republic of Korea Status of Forces Agreement of 1966
was not approved by the United States Government in a constitutionally acceptable manner;
2. The fair trial guarantees in the United States-Republic of Korea Status of Forces Agreement are insufficient in law and practice to protect the petitioner against violations of his Fourteenth Amendment due process rights.
Under his first major point, petitioner maintains that the internal law of the United States requires that international agreements regarding foreign jurisdiction over American forces stationed abroad be approved either expressly or impliedly by the Senate, and that the Senate did not so approve the United States-Republic of Korea Status of Forces Agreement of 1966. He further asserts that the President and the Secretary of State exceeded their authority by approving the Status of Forces Agreement without Senatorial consent, and that when both the Constitution and the Uniform Code of Military Justice provide the method of trial of servicemen abroad, this method cannot be altered by Executive Agreement. Finally, petitioner claims that neither the Uniform Code of Military Justice nor the Manual for Courts-Martial makes any provision for the delivery of an American serviceman to a foreign government for trial.
Under his second major argument that the fair trial guarantees of the Status of Forces Agreement are insufficient, petitioner asserts that the nature of the Korean system of criminal justice is such that trial before a Korean court is inherently violative of the Fourteenth Amendment requirements of due process. Additionally, the petitioner asserts that the recommendation by the Article 32 Investigating Officer
that the charges be dismissed for lack of evidence may preclude trial by a Korean court under authority of Article XXII, Paragraph 8, of the Status of Forces Agreement itself.
In order to resolve the questions presented by this petition, it is necessary to examine the background of the United States-Republic of Korea Status of Forces Agreement. Following the outbreak of hostilities in the summer of 1950, the United States and Korea entered into the Taejon Agreement (July 12, 1950) which provided that "the United States courts-Martial may exercise exclusive jurisdiction over members of the United States Military Establishment in Korea".
The Korean Mutual Defense Treaty, signed October 1, 1953, and ratified by the United States Senate on January 26, 1954, states:
Finally, the United States-Republic of Korea Status of Forces Agreement signed by representatives of both governments on July 9, 1966, provides that Korea will retain jurisdiction over American servicemen accused of offenses committed within its territory and punishable by its laws. Exceptions to this general rule are found when the event also constitutes an offense solely involving United States citizens or property, or an offense arising out of an act or omission done in the performance of official duty.
The question before the Court is whether the Status of Forces Agreement is valid and binding on both countries in view of the Taejon Agreement of 1950 grant of exclusive jurisdiction to the United States over servicemen in Korea.
It should be stated at the outset that under the applicable principles of international law, Korea should have exclusive jurisdiction to punish offenses committed within its territory, unless it expressly or impliedly consents to surrender its jurisdiction.
Thus, the Status of Forces Agreement embodied the consent of the Korean government to a diminished role in the enforcing of its territorial laws. The United States did not waive any jurisdiction over crimes committed within its territory. The Agreement constituted a unilateral waiver by Korea of criminal jurisdiction in certain limited cases. Where a crime falls outside the area covered by this limited waiver, primary jurisdiction is maintained by the nation within which the crime occurred.