Unpacking Okinawa's “Suitcase Murder”: Revisiting Extraterritoriality
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Unpacking Okinawa’s “Suitcase Murder”: Revisiting Extraterritoriality Protections for Military Contractors Under the U.S.-Japan SOFA Supplementary Agreement Brandon Marc Higa* I. INTRODUCTION ..................................................................................... 2 II. “THE SUITCASE MURDER”: 2016 RAPE AND MURDER OF RINA SHIMABUKURO ..................................................................................... 9 A. Arrest and Prosecution of Kenneth Franklin Gadson .................11 B. Gadson’s Petition for a Trial in Tokyo to Escape Okinawan Lay Judges’ “Victim’s Mindset” ................................................. 14 C. Gadson’s Confessions Reveal Detachment from the Host Community and a Desire to Commit Sexual Violence Against Okinawan Women ....................................................................... 19 D. Conflicting Priorities of Bilateral U.S.-Japan Security Alliance and Preserving Human Security for Okinawan Women ........................................................................................ 22 III. FEMINIST ALTERNATIVE TO TRADITIONAL SECURITY PARADIGMS .... 24 A. Militarization and Hypermasculinity Separates U.S. Servicemen from Host Communities ........................................... 25 B. Geopolitics and Gendered Hierarchies ...................................... 28 C. Negative Impacts of Militarization and Hypermasculinity on Host Communities: Separation of Cultures and Objectification of Locals ..................................................................................... 29 1. U.S. Military Operations Creates a “Need” for Institutionalized Prostitution as a Form of Recreation ........ 30 2. Abuse of Women and Children in Host Communities ........ 32 IV. FEMINIST CRITIQUE OF U.S.-JAPAN SOFA ......................................... 34 A. National Rhetoric Fails to Address Crimes in Host * Brandon Marc Higa, J.D., William S. Richardson School of Law, The University of Hawaiʻi at Manoa. B.A. & M.A., University of Southern California. This research was supported by the Sam and Helen Piesner Endowed Scholarship for Japanese Legal Studies, Judge Martin Pence Abota Scholarship, and Frank Boas Award. Thank you to Professors Mark A. Levin and Tae-Ung Baik for supervising my research on human rights issues in Okinawa. I would also like to express my appreciation for support from Dr. Kelli Nakamura and Pete Shimazaki Doktor, who continue to serve as inspiration for my research on contemporary Okinawa issues. This article would not be possible without the editorial contributions of Brian Wild, Zack Naqvi, Rachel Goldberg, Ashllyn Melo-Pang, and Norman Capinpin. This article is dedicated to my beloved Aunty Kazu who is among the many resilient Okinawan women who built a new life for future generations of Okinawan Americans in Hawaiʻi. 2 Asian-Pacific Law & Policy Journal [Vol. 21:2 Communities ............................................................................... 35 B. Where Are the Numbers? Lack of Accurate Reporting of Acts of Sexual Violence against Local Women Obfuscate the Problem ...................................................................................... 37 V. SECURITY FOR WHOM? CALL FOR REVISION OF THE SECURITY OF FORCES AGREEMENT .......................................................................... 39 A. 2017 SOFA Supplemental Agreement Responds to Okinawa Women’s Movement .................................................................... 40 1. Legal Loopholes Protecting U.S. Servicemen and Civilian Components for Crimes Committed while Off Duty .......... 40 2. 2017 SOFA Supplemental Agreement Eliminates Legal Loophole by Expanding Legal Jurisdiction to Military Contractors .......................................................................... 42 3. 2017 SOFA Supplemental Agreement Includes New Data Reporting Requirements to Improve Crime Statistics ......... 45 B. Due Process Concerns for U.S. Servicemen Stationed Overseas ..................................................................................... 46 VI. CONCLUSION ...................................................................................... 49 I. INTRODUCTION The U.S.-Japan Security Alliance and Status of Forces Agreement (“SOFA”) 1 has been viewed as a lingering symbol of American imperialism,2 although it was initially conceived to facilitate the long-term bilateral alliance between the U.S. and Japan.3 Since the United States’ initial occupation of Japan at the end of World War II, 4 the SOFA has 1 Signed into effect on January 19, 1960 and formally recognized as the "Agreement under Article VI of the Treaty of Mutual Cooperation and Security between Japan and the United States of America, Regarding Facilities and Areas and the Status of United States Armed Forces in Japan." The SOFA replaced the 1951 San Francisco Treaty of Peace with Japan. 2 See Tyler J. Hill, Revision of the U.S.-Japan Status of Forces Agreement (SOFA): Relinquishing U.S. Legal Authority in the Name of American Foreign Policy, 32 UCLA PAC. BASIN L.J. 105, 110 (2015) [hereinafter Hill] (arguing that the “SOFA has devolved into one of the most contentious issues confronting the U.S.-Japan security alliance … [and] has been recast as a symbol of American imperialism); Gwyn Kirk and Carolyn Bowen Francis, Redefining Security: Women Challenge U.S. Military Policy and Practice in East Asia, 15 BERKELEY WOMEN'S L.J. at 229 (2000) [hereinafter Kirk & Francis] (arguing that SOFAs in Japan and other parts of East Asia compromise the security of local people). 3 See generally Robert D. Eldridge, THE ORIGINS OF THE BILATERAL OKINAWA PROBLEM: OKINAWA IN POSTWAR U.S.-JAPAN RELATIONS, 1945-1952 (Edward Beauchamp, ed. 2016). 4 See generally JOHN W. DOWER, EMBRACING DEFEAT: JAPAN IN THE WAKE OF WORLD WAR II, (1999); see also GAVAN MCCORMACK, CLIENT STATE: JAPAN IN THE 2020] Higa 3 remained intact as the legal framework legitimizing forward deployment of troops5 and operations in Japan for nearly six decades.6 Although the U.S. military bases in Okinawa are integral to advancing the U.S. and Japan’s geopolitical interests in the Asia-Pacific, military activities pose a threat to the human security of host communities.7 Okinawan women’s groups seek a definition of national security inclusive of protections from environmental AMERICAN EMBRACE 1-28 (2007) (characterizing Japan’s willingness to continue fulfilling its obligations under the SOFA as an unquestioning ally of the United States willing to sacrifice national identity in pursuit of technological, capital, and economic development); Makoto Iokibe, WHAT WAS JAPANESE POST-WAR DIPLOMACY, IN THE DIPLOMATIC HISTORY OF POSTWAR JAPAN 210-236 (Makoto Iokibe, ed., Robert D. Eldridge trans., Routledge, 2011)(characterizing U.S. occupation of Japan as “indirect” to facilitate Japan’s transition from a military empire to the first non-Western state to successfully modernize following the Unconditional Surrender placed by former U.S. President Franklin D. Roosevelt). 5 See Tim O’Connor, North Korea Crisis: Japan Is Growing Its Military for the First Time Since World War II Because of Kim Jong Un, NEWSWEEK (Sep. 21, 2017) http://www.newsweek.com/north-korea-crisis-japan-bigger-military-role-ashes-war- 669217 (quoting Japanese Foreign Minister Taro Kono’s announcement that “Japan is assuming more responsibility in the area of security and defense than ever before, Japan has increased its defense budget for five consecutive years, upgrading our defense capability, such as Japan's ballistic missile defense system”); see also Anna Fifield, Japan Warns Citizens They Might Only Have 10 Minutes to Prepare for a North Korean Missile, WASH. POST (Apr. 25, 2017), https://www.washingtonpost.com/news/worldviews/wp/2017/04/25/nervous-over-north- korea-japan-issues-guidelines-for-missile-attack/; Choe Sang-Hun, North Korea Cancels Investigation into Abductions of Japanese Citizens, N.Y. TIMES (Feb. 13, 2016), https://www.nytimes.com/2016/02/14/world/asia/north-korea-japan-abductions.html. 6 See Scott Neuman, Trump, During Visit to Japan, Talks Trade and North Korea (Nov. 6, 2017), NATIONAL PUB. RADIO, https://www.npr.org/sections/thetwo- way/2017/11/06/562269137/trump-during-visit-to-japan-talks-trade-and-north-korea (reporting President Donald Trump and Prime Minister Shinzo Abe's mutual commitment to providing regional security by increasing international pressure on North Korea to end its nuclear ambitions and ballistic missile development). 7 See generally, Miyume Tanji, MYTH, PROTEST AND STRUGGLE IN OKINAWA (2006); Matthew Allen, IDENTITY AND RESISTANCE IN OKINAWA (2002); see also Gavan McCormack & Satoko Norimatsu, RESISTANT ISLANDS: OKINAWA CONFRONTS JAPAN AND THE UNITED STATES (2012); Carolyn Bowen Francis, “Women and Military Violence”, in OKINAWA: COLD WAR ISLAND (Chalmers Johnson, ed. 1999). 4 Asian-Pacific Law & Policy Journal [Vol. 21:2 harms, 8 drunk driving incidents, 9 military aircraft crashes into civilian areas, 10 and acts of sexual violence against Okinawan women and children.11 Okinawa became one of the most politically explosive hosts of U.S. military bases 12 following the abduction and rape of a twelve-year old schoolgirl. On September 4, 1995, three U.S. servicemen 13 abducted a 8 See U.S. Court Revives Suit Seeking to Protect Dugong Habitat at Okinawa Base Site (Aug. 22, 2017), JAPAN TIMES, https://www.japantimes.co.jp/news/2017/08/22/national/crime-legal/9th-u-s-circuit-court- appeals-revives-suit-protect-dugong-habitat-okinawa-base-site/