Issue link: https://maltatoday.uberflip.com/i/1268420
15 maltatoday | SUNDAY • 12 JULY 2020 NEWS SOFA: a 20-year saga such as Switzerland and Sweden, had ex- ecuted a version of the PfP SOFA, as had Russia. So sensitive was Borg to the use of the word SOFA, that he told Kmiec he wished the acronym SOFA to "be kept out as much as possible of the public dis- cussion". In a revealing cable, the OPM's head of defence Vanessa Frazier – today Malta's permanent representative to the United Nations – suggested that the best course would be to execute the SOFA incremen- tally by means of diplomatic notes, and indicated she would contact the Embassy with a proposal. Kmiec noted in this ca- ble that the dip note could be a "useful interim step for Malta" by reacquainting Malta with the "value – economic and as- sociational – of ship visits" and also com- patible with NATO Admiral Stavridis's request to grant SOFA waivers for 5 or 6 ship visits. Warmer with Labour Under Joseph Muscat's Labour admin- istration however, SOFA talks intensi- fied, especially when Carmelo Abela re- placed George Vella as foreign minister when the latter was appointed President of the Republic. Ambassador Gina Abercrombie-Win- stanley had first floated the idea in a press interview in May 2012, shortly after her appointment as ambassador. The red line for Labour, then in Oppo- sition but even when George Vella was foreign minister, was jurisdiction on the actions of US personnel in Malta. He warned that the matter would be subject to an internal discussion and decision by the Labour Party. "My advice to the party is not to give in to any issues re- lated to jurisdiction." His advice did not change when stepping into Borg's shoes a year later, even though Labour had since climbed down from its previous position that membership in Partnership for Peace violated Malta's constitutional neutrality. Even the Labour-aligned Gen- eral Workers' Union – which, in decades gone by, had mounted fierce resistance to dockyard contracts involving US navy vessels – had hinted that it might recon- sider that position. As a legal framework that would cover any military cooperation that is mutually agreed upon, the SOFA would determine how any issues that arise from that would be handled. This is exactly what sceptics are concerned about, with the experience of other countries suggesting that US military personnel might be handled very differently to other categories… possibly even escaping justice for crimes. "Every US military person is required to abide by local laws. A SOFA agreement is not a 'get out of jail free' card. That's why I think it's worthy of informed dis- cussion, because I know a lot of people talk about the sovereignty issue. For in- stance, I heard a reference to a case in the 1990s where a Chilean visitor who got into trouble in Paceville," Abercrom- bie Wistanley had told MaltaToday in 2015 – referring to a Chilean navy officer wanted for attempted murder of Paceville bouncer Joseph Spiteri (aka Il-Brodu) in 1999, but who absconded. It transpired that the visiting ship (The Esmeralda) enjoyed diplomatic immunity, and re- quests by the Maltese police to hand over the suspect and three other cadets were denied by the captain. "If there had been a SOFA in place, that visitor would not have been able to leave the island," Aber- crombie-Winstanley pointed out. Unlike her immediate predecessor, Douglas Kmiec – who questioned Malta's neutrality in 2010 – Abercrombie-Win- stanley was reluctant to comment direct- ly on whether the agreement would, in fact, violate Malta's Constitution. Kmiec had already treaded on delicate political ground when he asked whether Mal- ta's neutrality meant the country was also neutral to peace efforts around the world. In 2010 he told MaltaToday he wasn't going out of his remit by provok- ing a discussion on Malta's constitutional neutrality. "I do not think so. Sincerely, I wanted to get the best understanding of neutrality… Neutrality surely touches on the work of an ambassador in so far as it has an effect on diplomatic and external relations. But it is obviously not up to the American ambassador (or any ambassa- dor, American or otherwise), to tell you what your Constitution means or should mean." After Kmiec was unceremoniously re- called from Malta, Abercrombie-Win- stanley, like her successors, adopted a much more diplomatic strategy: "Ultimately this is a matter for Malta to decide. But it is also a fact that Malta's membership in Partnership for Peace has now been agreed by both governments; and there are a number of PfP countries that are traditionally neutral. Austria, Finland, Switzerland – not an EU mem- ber, but a neutral country all the same. All these countries are neutral, yet have adhered to a PfP SOFA. Even Russia has signed a PfP SOFA," she adds with a smile. Much like Abercrombie-Winstanley, her successor G. Kathleen Hill said the contentious agreement remained high on the agenda in 2016. Again the stumbling block was the le- gal immunity such an agreement grants to military personnel. Irrespective of the potential revenue visiting naval ships brings, a SOFA is controversial because it means granting US military personnel legal privileges and diplomatic immuni- ty, which could prevent the host coun- try from taking legal and criminal action against soldiers. Malta will be hoping that it retains ju- risdiction over crimes committee by US personnel on Maltese soil, instead of hav- ing to be engaged in diplomatic to-ing and fro-ing with its more powerful part- ner on deciding which forum would such a crime be prosecuted in. Get on the SOFA: a status of forces agreement with Malta has always been on the American agenda. From left: Douglas Kmiec, whose attempt to directly engage the country on its constitutional neutrality, backfired; Gina Abercrombie Winstanley worked to put SOFA back on the agenda with a more honest discussion on the benefits of such an agreement with Malta; below: Mark Schapiro, US chargé d'affaires, with President of the Republic George Vella. As foreign minister, Vella was known to be a sceptic on a SOFA but since then, talks have progressed under successors Carmelo Abela and now Evarist Bartolo