Using Mediation to Resolve Disputes Between U.S. Military Bases and Foreign Hosts: A Case Study in Japan

The U.S. military presence in Japan has provided great stability in a region of uncertainty. In recent years, the importance of the U.S. military in Asia has been underscored by continuing volatility in North Korea, the growth of terrorist organizations and pirates, and expanded human trafficking.[1] A continued relationship between the Japanese and the U.S. military is vital to regional stability, the protection of maritime commerce routes, and the countering of proliferation of weapons of mass destruction, terrorism, piracy, and human trafficking.[2]

In the last thirty years, relations between local Japanese communities and the U.S. military have been strained, largely due to incidents occurring in the local communities involving off-duty military personnel. According to one source, over 4700 crimes have been committed in Japan by U.S. military personnel since 1972, causing extensive anti-American sentiment throughout the country.[3] The conflicts between U.S. military bases and local Japanese communities have found resolution at the highest levels of government. In the process, the interests of several parties have been lost. Perhaps a new method of dispute resolution should be considered: namely, mediation.

The situation between the United States military and local communities in Japan is quite complicated, stricken with many legal and cultural issues. At the heart of many of the disputes between local Japanese communities and U.S. military bases stationed in Japan is the Status of Forces Agreement (SOFA),[4] which defines the legal status of U.S. service members serving overseas. In response to many of the incidents involving U.S. service members stationed in Japan, many Japanese citizens have called for the revision of the SOFA.[5] In particular, the Japanese seem particularly offended with Article 17, paragraph 5(c) of the Treaty of Mutual Cooperation and Security, which leaves disciplinary discretion to the United States rather than Japan.[6] Article 17, paragraph 5(c) of the SOFA states: “Custody of an accused member of the United States armed forces or the civilian component over whom Japan is to exercise jurisdiction shall, if he is in the hands of the United States, remain with the Unites States until he is charged by Japan.”[7] Accordingly, the U.S. government has not turned over many service members suspected of crimes in Japan to Japanese authorities.

The Japanese have expressed disdain for this provision of the SOFA because it appears to strike at Japanese sovereignty.[8] Primarily, Japan views Article 17, paragraph 5(c), as an attempt by the U.S. government to undercut Japan’s primary jurisdiction over criminal matters occurring in Japan.[9] In addition, Japan feels slighted by the fact that the NATO SOFA gives European countries much greater control over U.S. service members accused of crimes than the Japan SOFA gives Japan.[10] Many Japanese citizens have viewed this difference as a clear bias in favor of European nations and against Japan.[11]

Inherent cultural differences found in the Japanese and U.S. legal systems have also complicated the issues at hand. In Japanese culture, confession is considered good for the soul.[12] Confession plays a key role in the rehabilitation of suspects and, accordingly, is highly encouraged.[13] To further this goal of confession, Japan utilizes different interrogation procedures than are used in the United States. Unlike in the United States, in Japan, the sole purpose of interrogation is to demand and obtain a confession.[14] In the Japanese criminal justice system, suspects can be detained for a total of twenty-three days without being formally charged.[15] During this time, a suspect can be isolated from all outside contact and can be subject to unrestricted police interrogation. During interrogation, suspects have had to barter with investigators for “privileges” such as food, water, or bathroom visits.[16] Japanese prosecutors rely heavily on confessions rather than extrinsic evidence gathered through investigations.[17]

In addition, many rights afforded to U.S. citizens simply are not a part of Japanese law or custom. The U.S. government’s attempts to protect the rights of service members serving overseas to the greatest extent possible has given rise to many of the disputes.

Perhaps unseen or not fully realized by many of the decision-makers in disputes between U.S. military personnel and local Japanese communities are the collateral effects caused by such high-level authorities resolving the disputes. When issues get pushed to the highest levels of government, the interests of the people on the ground often are ignored or even harmed. In the case of local communities and U.S. service members in Japan, both groups stand much to lose if these disputes are continually pushed to the highest levels of government.

U.S. Navy Mediation

In 1996, the Department of Defense called for the increased use of Alternative Dispute Resolution (ADR) to resolve conflicts involving any branch of the military. All services have implemented some form of ADR to meet this goal; however, the ADR program in the Navy appears to be the most comprehensive and developed of all services. The Navy employs a full range of dispute resolution models, including unassisted negotiation, arbitration, and litigation. For a variety of reasons, the Navy has chosen mediation as its primary ADR mechanism.

Pursuant to the Alternative Dispute Resolution Act, the Secretary of the Navy issued Instruction 5800.13A in 2005, mandating the use of Alternative Dispute Resolution “to the maximum extent practicable.”[18] The instruction sets the goal of resolving disputes and conflicts “at the earliest stage feasible, by the fastest and least expensive method possible, and at the lowest possible organization level.”[19] The instruction establishes broad applicability, describing “every issue in controversy, regardless of the subject matter” as a candidate for mediation.[20]

The Navy mediation program has enjoyed a high level of success. In 2001, the Department of the Navy’s employment of ADR (primarily mediation) in over 1840 matters achieved an 86 percent rate of resolution.[21] Further, a Government Accounting Office study revealed that 84 percent of disputants found mediation to be “good or excellent.”[22] Between the 2001 and 2005, the Department of the Navy saved over $3 million in process costs alone by using mediation rather than other forms of dispute resolution.[23]

The Navy’s current involvement in mediation is mostly limited to health care law, employment law, acquisition law, and environmental law. The Navy has never used mediation in criminal matters. This decision is arguably contrary to Secretary of the Navy Instruction 5800.13, which calls for the use of mediation in “all circumstances.”[24] This notion is further supported by Department of Defense Directive 5145.5, which establishes a framework for encouraging the expanded use of mediation within the entire Department of Defense.[25] The Navy’s successes with mediation in other contexts, and its directive to try mediation in all cases, indicates that the Navy may best be served by expanding mediation to criminal contexts–and Japan provides an ideal opportunity to do so.

Proposed Solution

Mediation may be an ideal means to smooth some of the issues in dispute between the local Japanese communities and the U.S. military bases situated in these communities. Mediation appears to be useful in at least two circumstances. First, mediation could be used to redraft the Status of Forces Agreement. Second, mediation could be used routinely to resolve local disputes.

Using Mediation to Redraft the Status of Forces Agreement.

Using mediation to revise the SOFA could both ameliorate some of the tension and provide a prime opportunity to ensure the use of mediation to resolve disputes in the future. The SOFA appears to be a recurring point of contention in many of the disputes. In order for local disputes to be resolved through mediation, the SOFA could be amended to mandate mediation procedures. This will be no easy task, as selecting an appropriate dispute resolution procedure for the effective resolution of a particular conflict is more art than science, possibly involving a number of intangible factors including the cultural differences of the parties, the parties’ familiarity with ADR, and the power dynamics between the parties.[26]

One option would be to create an escalation clause that would encourage the resolution of disputes at the lowest possible level.[27] First, the clause could require an ombudsman from the local community to engage in good faith, face-to-face negotiations with a representative from the chain-of-command of the offending service member. Second, if face-to-face negotiations fail, the clause could require mediation by a third-party neutral. The mediation would be voluntary, non-binding, and confidential. Media access to the discussion would be severely limited in light of the past controversies ignited by overblown coverage. If mediation fails, the clause could call for further escalation, including, perhaps, arbitration and the involvement of high level officials from both sides of the dispute.

Alternatively, the SOFA could contain a process-of-choice clause, mandating the use of mediation before all other forms of formal dispute resolution. Such a clause would acknowledge that mediation would be the favored process to resolve the disputes between U.S. military bases and local Japanese communities.

In addition to the generic benefits of any mediation, mandating the resolution of the disputes in question through mediation may reap specific benefits. The specific benefits of mediation to the issues in controversy here are plentiful, including helping clarify the issues in dispute; helping channel or control anger or other negative emotions; providing an opportunity for an apology; providing a confidential setting in which to explore each other’s interests and needs; and helping to further educate the decision-makers on either side.[28]

Mediating Local Disputes.

Provided that the SOFA is updated, local disputes could routinely be resolved through mediation. Of course, the exact structure of the mediation would be dependent on the case or controversy at issue. Nevertheless, mediation could help avoid many of the collateral effects that have occurred in the past while resolving disputes between U.S. military bases and local Japanese communities.

The parties to the mediation in resolving local disputes would be quite limited in comparison to the parties in the mediation of the SOFA. From the local Japanese community, the people principally afflicted by the nature of the dispute would attend the mediation. For example, if a member of the local Japanese community was the victim of a crime at the hands of a U.S. service member, this victim would be a party to the mediation. Mediation would give the victim an opportunity to express how the crime has impacted his or her life.[29] Furthermore, mediation could provide a prime opportunity to express an apology and/or forgiveness.[30] Many of the disputes arising between local Japanese communities and U.S. military bases may be alleviated by a swift apology.[31]

In addition to the principal person afflicted by the dispute, the parties could invite a liaison from the local community. This would help ensure that the interests of the local communities are both heard and respected. Additionally, a member of the local community would be able to provide insight and on-the-ground knowledge of how to resolve the dispute—a perspective that simply would not be available from a high-level diplomat.

From the U.S. military, the mediation could be attended by members of the alleged offender’s chain-of-command. The chain-of-command could swiftly express an apology on behalf of the United States. Furthermore, the chain-of-command would provide the U.S. military with a human face, avoiding the depersonalization that occurs when disputes are resolved at the highest levels of government. Additionally, the chain-of-command could ensure that the majority of good service members are not unfairly punished for the acts of a very small amount of criminals. Finally, and perhaps most importantly, the chain-of-command could help foster creative solutions with members of the local communities to avoid similar incidents in the future.

Finally, it may be prudent for a military Judge Advocate General’s (JAG) corps officer to attend the mediation. Navy JAG lawyers are uniquely equipped to understand the tension between the tactical needs of military commanders, the morale and welfare interests of service members, and the legal limits of what the chain-of-command may agree to under the SOFA and other agreements and regulations.

The issues that arise between local Japanese communities and U.S. military bases would undoubtedly test any mediator. Nevertheless, the Navy ADR program seems well-suited to face these challenges. Indeed, Navy mediators already routinely assist in the resolution of many similar disputes. Furthermore, Navy guidance appears to allow Navy mediators to extend their services into the arenas encompassing the disputes between local Japanese communities and U.S. military bases.

Despite the appropriate fit of Navy mediators to face these disputes, several challenges still remain. For one, there may be some issues of perceived bias. Navy mediators are all U.S. citizens and employed by the U.S. Navy. The Model Standards of Conduct for Mediators clearly requires a mediator to “avoid conduct that gives the appearance of partiality,”[32] but even the most impartial mediators face the problem that their employer alone would cause potential parties to assume they might favor a member of the Navy over a local Japanese person. Perhaps Navy mediators would be well-served by co-mediating with mediators from the Japanese communities. The scope of the project poses another challenge. The Navy mediation program may require expansion in order to serve the local Japanese communities and the U.S. military bases in Japan.

Conclusion

Since the end of World War II, the Japanese communities and U.S. military bases situated in those communities have been involved in several serious disputes. Often, these disputes have been resolved at the highest levels of government, causing the interests of those most impacted to go by the wayside. Understandably, local Japanese communities have grown tired of their U.S. military guests. Nevertheless, a continued relationship between Japan and the United States is crucial to stability in the region and, in essence, global security. Accordingly, it is vital that the United States continues its military presence in Japan.

Mediation may provide the perfect mechanism to resolve disputes between local Japanese communities and U.S. military bases in Japan. Mediation focuses not only on the issues giving rise to the dispute but also on the continued relationship of the parties. Furthermore, mediation would provide a greater degree of attention to the interests of those most impacted by the resolution of disputes between local Japanese communities and U.S. military bases in Japan. Furthermore, mediation may help smooth some of the cultural differences between the United States and Japan by providing a more intimate forum to discuss issues.

The U.S. Navy ADR Program already has the basic framework in place to provide mediation services to resolve these disputes. Nevertheless, before these disputes can be mediated, the Status of Forces Agreement probably needs to be revisited by both governments. An escalation clause or process-of-choice clause in a revised Status of Forces Agreement could mandate the use of mediation. With this provision in place, U.S. Navy mediators could help resolve disputes at the lowest level possible, avoiding the involvement of high level military and government officials and improving relations between U.S. military personnel and their Japanese hosts.


For a more in-depth version of this article, see A Framework for Mediating Disputes Between U.S. Military Bases and Local Communities in Japan, 1 Nw. Interdisc. L. Rev. (forthcoming 2009).

Matthew Ivey is a Lieutenant in the United States Navy. The views expressed in this paper are the Author’s own. They do not necessarily represent the views of the Department of Defense, the United States Navy, or any of its components. The Author would like to thank Professor Ericka B. Gray for her outstanding support and advice on this article.

[1] See generally Thomas A. Drohan, American-Japanese Security Agreements, Past and Present (2007); The Future of America’s Alliances in Northeast Asia (Michael H. Armacost & Daniel I. Okimoto eds., 2004)

[2] See generally, Drohan, supra note 1; Armacost & Okimoto, supra note 1.

[3] Adam B. Norman, The Rape Controversy: Is a Revision of the Status of Forces Agreement with Japan Necessary?, 6 Ind. Int’l & Comp. L. Rev. 717, 733 (1996).

[4] 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, Jan. 19, 1960, Japan-U.S., 373 UNTS 207 [hereinafter SOFA].

[5] See, e.g., Steven G. Hemmert, Peace-Keeping Mission SOFAs: U.S. Interests in Criminal Jurisdiction, 17 B.U. Int’l L.J. 215, 217 (1999); Norman, supra note 3, at 731; Colonel Richard J. Erickson, Status of Forces Agreements: A Sharing of Sovereign Prerogative, 37 A.F. L. Rev. 137, 137 (1994).

[6] See, e.g., Hemmert, supra note 3, at 217, Norman, supra note 3, at 731, Erickson, supra note 3, at 137.

[7] SOFA, supra note 2, art. 15, ¶ 5(c).

[8] Jaime M. Gher, Status of Forces Agreements: Tools to Further Effective Foreign Policy and Lessons to Be Learned from the United States-Japan Agreement, 37 U.S.F. L. Rev. 227, 229-30 (2002).

[9] Id.

[10] See Mark E. Eichelman, International Criminal Jurisdiction Issues for the United States Military, 2000 Army Law. 23 (Aug. 2000); Erickson, supra note 3, at 175.

[11] See Eichelman, supra note 10, at 23; Erickson, supra note 5, at 175.

[12] Christopher J. Neumann, Arrest First, Ask Questions Later: The Japanese Police Detention System, 7 Dick. J. Int’l L. 253, 257-58 (1989).

[13] Id.

[14] Neumann, supra note 13, at 257-58.

[15] See Eichelman, supra note 10, at 23; Erickson, supra note 5, at 175; Neumann, supra note 13, at 257-58.

[16] See Eichelman, supra note 10, at 23; Erickson, supra note 5, at 175; Neumann, supra note 13, at 257-58.

[17] Norman, supra note 3, at 727-29.

[18] Secretary Of The Navy, Instruction 5800.13A (Dec. 22, 2005). “ADR techniques shall be used as an alternative to litigation or formal administrative procedures to the maximum extent practicable. Use of these techniques may resolve the entire issue in controversy or a portion of the issue in controversy. The goal is to resolve disputes and conflicts at the earliest stage feasible, by the fastest and least expensive method possible, and at the lowest possible organizational level prior to litigation. Every issue in controversy, regardless of the subject matter, is a potential candidate for ADR.”

[19] Id.

[20] Id.

[21] Department of the Navy, Alternative Dispute Resolution, http://www.adr.navy.mil/ (last visited Nov. 22, 2008).

[22] Id.

[23] Id.

[24] Secretary Of The Navy, Instruction 5800.13A (Dec. 22, 2005).

[25] Department of Defense, Directive 5145.5 (Apr. 22, 1996).

[26] Frank E. A. Sander and Lukasz Rozdeiczer, Matching Cases and Dispute Resolution Procedures: Detailed Analysis Leading to a Mediation-Centered Approach, 11 Harv. Negotiation L. Rev. 1, 26 (2008).

[27] Terry L. Trantina, How to Design ADR Clauses That Satisfy Clients’ Needs and Minimize Litigation Risks, 19 Alternatives to High Cost Litigation 137, 145-46 (2001).

[28] Sander and Rozdeiczer, supra note 30, at 21-22.

[29] Mediation: Practice, Policy, and Ethics 458-59 (Carrie Menkel-Meadow et al. eds., 2006).

[30] See, e.g., Carrie Menkel-Meadow et al. eds., supra note 32, at 152-53, 534-36. See generally Max Bolstad, Learning from Japan: The Case for Increased Use of Apology in Mediation, 48 Clev. St. L. Rev. 545 (2000) (explaining the value of an apology in Japanese culture).

[31] See, e.g., Carrie Menkel-Meadow et al. eds., supra note 32, at 152-53, 534-36. See generally Max Bolstad, supra note 322.

[32] Model Standards of Conduct for Mediators, Standard II(B) (2005).

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