Biased or Just?: Law Enforcement Procedures for S.O.F.A. status Personnel in Republic of Korea

Miraslov, Enzo

It is an undeniable fact that SOFA (Republic of Korea – United States Status of Forces Agreement) status personnel in South Korea enjoy a differentiated treatment by local law enforcement officers in comparison to that of local nationals. Prevalent perception among U.S. military personnel stationed in Korea is that the local police forces are shamelessly discriminatory and biased against foreigners, especially U.S. citizens. Here we will put this myth to test by examining the exact range and types of manifest discriminate practices revealed through a cross-analysis of legal texts including ROKUS SOFA, Unites States Forces in Korea Regulations (USFK REG), local Criminal Procedure Code, and the Provost Marshal Office Standard of Procedure (PMO SOP) and their application in real life cases. This study demonstrates that …

  • Let us assume, for example, the following incident occurred:
    • Case #1
    • At 0300 HRS, 16 Feb 15, ANDERSON, Paul Thompson (Staff Sergeant, U.S. Army, Area II) was approached by local law enforcement officer KIM, Jae Dong (Yongsan Main KNP) adjacent Forest Club, Itaewon-dong. Anderson has been drinking for some time and was aware of the fact that he was breaking the USFK-wide curfew (0100 HRS – 0500 HRS) for Soldiers. Also, Anderson vaguely remembered being involved in a mild confrontation with a local national at Drink Me Bar, Itaewon-dong around 0200 HRS. Kim seemed to be in uniform and requested in broken English to Anderson to accompany him to the police station. Kim, however, failed to identify himself and the purpose and reason for his request due to the language barrier.

Foremost, easily overlooked by SOFA status personnel is the conspicuous absence of detaining power in local law enforcement officers over natural persons in drastic contrast to U.S. LE forces. Pursuant to Article 3 of Code on Execution of Duty by Police Officers (警察官職務執行法, Republic of Korea), given some exceptions, local police officers cannot detain a natural person or compel answers to a line of questioning without a warrant. A police officer may simply ask for one’s consent to accompany him or her to the station (任意同行) which one is free to decline. Anderson has the right to simply and clearly state “no” and walk away.

Moreover, sub-paragraph 1 and 2 of Article 5 requires that police officers (1) present identification, (2) state his or her unit, rank, and name, and (3) explain the purpose and reason for request when approaching a civilian. One critical conundrum on the KNP’s side is that even stations such as Yongsan where a major U.S. Military Installation is repsent fail to employ officers with English proficiency. To a SOFA status member, should the KNP Officer fail to speak and communicate in English, there is even less of a reason to accompany him or her to any other location.

Lastly, USFK-wide Curfew is a military regulation one of which local police officers have no authority and jurisdiction over to execute. Only Military Police (MP) from the Provost Marshal’s Office (PMO) may apprehend Soldiers for military regulation violations both on and off post. Given some exceptions, Civilians should contact the USAG Yongsan PMO (0503-324-6695) for any U.S. Military Personnel found possibly breaking curfew. In any case neither should Anderson be outdoors, however, nor should he adhere to any of the KNP Officer’s request.

Therefore, theoretically, it should be impossible for a non-English speaking KNP Officer to bring a SOFA status Member to the KNP Station legally without arresting him or her on scene of or immediately after a crime. Even if one had followed the KNP Officer to a station, he or she may, at any time, express his or her will to leave and walk away.

  • Now, let us assume, in the alternative, for example, the following incident occurred:
    • Case #2
    • At 0030 HRS, 16 Feb 15, ANDERSON, Paul Thompson (Staff Sergeant, U.S. Army, Area II), while driving Vehicle #1 (2011, black in color, Chevrolet Camero, L/P #23-9483), was pulled over to the side of the road by local law enforcement officer KIM, Jae Dong (Yongsan Main KNP) adjacent Forest Club, Itaewon-dong. This was not a standard drunk-driving check point. Anderson had had one twelve once beer in Gangnam from where he started driving to Itaewon. Kim exited from a local police vehicle, was in uniform, and requested in broken English to Anderson to accompany him to the police station. Kim failed to identify himself and the purpose and reason for his request clearly due to the language barrier. Kim also did not have a breathalyzer machine on him. Kim, however, audibly mentioned “DUI” and “you drink Sir” to Anderson. When Anderson asked Kim, “Am I being arrested? Are you arresting me?”, Kim replied, “No Arrest. No Arrest.”

Here, KNP Officer Kim is legally accurate in his answers, for he has yet not arrested Anderson whom Kim suspected of violating Article 37 of the Criminal Code (刑法, Republic of Korea) and sub-paragraph 1and 4, Article 44 of the Traffic Law (道路交痛法, Repulic of Korea) – Driving Under Influence. Although Kim may make a discretionary judgement as to whether probable cause to assume Anderson is in violation of a local law exists, Anderson still retains the right to deny Kim’s reqest to accompany him to a KNP Station. Kim’s failure to breathalyze Anderson on scene expunges any and all chances of Kim arresting Anderson as a criminal taken in an act of crime. In the above case, Anderson can not be legally detained by Kim. In the States, Anderson would have been booked in no time.

As a consequence, KNP Officers will attempt to be sneaky by not informing the SOFA status Member of his or her right to deny the Officer’s request to accompany him. This is to gather enough evidence at the police station to be issued a warrant which will provide him or her with the authority to arrest you. However, simply asking the Officer whether you are being arrested will be enough to (1) re-instate in the mind of the KNP Officer that he has no right to detain you and that (2) you are well-informed of your rights and cannot be flabbergasted into an investigation. With the given lack of evidence, there is minimum possibility of Anderson being arrested or prosecuted at a later time even if he does head back home and continue on with his life. KNP Officers seem to be reluctant to poke around in what-possibly-may-become a mayhem in foreign diplomacy

, should the crime at issue be of relatively less importance.

In contrast, despite the fact that it is his or her right to do so, should a Korean National be found in Anderson’s shoes, rarely will he or she deny the KNP Officer’s request. This is due to fear of retribution by and the widely perceived as truth corruption of Korean police.

  • Now let us assume, for example, the following incident occurred:
    • Case #3
    • At 0520 HRS, 22 Jan 16, PEREZ, San Antonio Murmilo (Captain, U.S. Army, Area I) was arrested by local law enforcement Officer KIM, Jae Dong (Yongsan Main KNP) while attempting to flee from the scene of a traffic accident involving his Vehicle #1 (2011, black in color, Chevrolet Camero, L/P #23-9483) and Vehicle #2 (2016, silver in color, Hyundai Avante, L/P #11-0932) operated by a Korean National adjacent Namyeong-dong. Perez, though mildly over the legal limit, was driving under influence and the Korean National claimed injuries. Revealing his or her intentions to receive medical attention at a later time, the Korean National left the scene and Perez was arrested and transported to Yongsan Main KNP Station for interrogation. Kim, however, at the time of arrest, failed to identify himself and the purpose and reason for Perez’ arrest due to the language barrier. Perez was not notified of his rights (Miranda).

Pursuant to

 

Indeed Article 5 Code on Execution of Duty by Police Officers (警察官職務執行法, Republic of Korea) above is a general rule and there are exceptions to it: Criminals arrested in Act of Crime – exactly this case.

sdfsdf 형사소송법 211조 제 1항 must be released within 48 hours.

  • Now, let us assume in the alternative, for example, the following incident occured :
    • Case #4
    • The Korean National operating Vehicle #2 in Case #3 died on scene soon after the traffic collision.

The once Violation of Traffic Law case #3 has become a possible homocide (case #4), exponentially increasing its gravity.

Pursuant to XXX XXXX, local law enforcement officers are void of the authority to detain

An important difference here is

PMO Operations 1-8 Custody

USFK REG 1-44 para 6 (g)

USFK SOFA CJ Form 2

 

Jurisdiction

 

 

 

MiraslovJoining in 2016, Enzo Miraslov is a Junior Editor at J&S Associates. The comment, writing, or column does not represent the official position of YULS.

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