Issue link: https://maltatoday.uberflip.com/i/573382
14 Despite its comfortable-sounding acronym, 'SOFA' has so far proved to be anything but accommodating for the successive US ambassadors who have tried to secure one with Malta over the years. 'Status of Forces Agreements' ex- ist between the United States and a host of other countries – includ- ing Russia, as US Ambassador Gina Abercrombie-Winstanley will soon remind me – and are primarily tai- lored to determine what privileges, facilities and immunities (if any) would apply to American military personnel stationed in or visiting that particular country. Here in Malta, however, repeated attempts to secure such an agree- ment have succeeded only in unit- ing an otherwise unbridgeable po- litical divide: with both Nationalist and Labour governments rejecting the proposal with equal emphasis. Abercrombie-Winstanley first floated the idea in a press interview in May 2012, shortly after her ap- pointment as ambassador. But then Foreign Minister Tonio Borg flatly insisted that "Malta should not cede any jurisdiction over incidents relating to Maltese nationals or in- volving damage done to property in Malta". On his part, then shadow minister George Vella said that the matter would be subject to an internal dis- cussion and decision by the Labour Party. "But I can tell you from now that my advice to the party is not to give in to any issues related to juris- diction." Vella's advice does not seem to have changed since stepping into Borg's shoes a year later; and in 2015 SOFA remains one of those rare issues on which there is locally unambiguous political consensus. Yet there are indications that efforts to reach this kind of agreement are still taking place behind the scenes, and that pressure is piling on the government from other areas, too. The last known discussions on the subject between Malta and the US took place in 2011, and got nowhere. Yet the US embassy cables pub- lished by Wikileaks later revealed that Minister Borg had softened his position, and that Prime Minister Lawrence Gonzi was "ready to go forward" with a SOFA agreement. The cables even hinted that Gonzi would "move broad SOFA legisla- tion quietly through parliament without formal debate". The 2013 election however got in the way, and the incoming La- bour government had been even more forthright in its opposition to SOFA. But while there has been no apparent change of heart, Labour has since climbed down from its previous position that membership in Partnership for Peace violated Malta's constitutional neutrality… an argument that could very eas- ily be extended to SOFA, seeing as specific agreements exist for PfP countries. More recently still, the General Workers' Union – which, in dec- ades gone by, had mounted fierce resistance to dockyard contracts involving US navy vessels – has hinted that it might reconsider that position. Reacting to a news article in which the Palumbo shipyards claimed to have missed on business worth €30 million over the past five years, GWU secretary general Tony Zarb called on the government to hold a wide-ranging consultation process over the matter. "A solution needs to be found so that revenue is not lost," he said. Meanwhile, the US ambassa- dor has once again reiterated that reaching this agreement is a 'top priority' for her government. All of which raises the questions: why is this form of agreement so crucial for the United States? And why all this renewed talk about it precisely now… with the security situation in the central Mediterranean reaching critical levels? But first things first: what is a SOFA agreement, anyway? We've all heard local political percep- tions – how it might 'cede' to the States jurisdiction over US military personnel; how it might (but then again, might not) violate Malta's Constitutional neutrality; how it would enable the Malta dockyard to compete with other Mediterra- nean ports for spectacularly lucra- tive contracts… How about the American per- spective? What is SOFA, in so far as the US Ambassador is concerned? "I think it's important to clarify what a Status of Forces Agreement is, and what it isn't… and why, in our view, it is worthy of serious and informed discussion," Abercrom- bie-Winstanley replies. "The word 'informed' is very important. But let's start with what it isn't. SOFA does not constitute a loss of sover- eignty for Malta; it does not impose on Malta restrictions or require- ment for military actions, or to host military bases. I know that has been discussed from time to time, but it's not what SOFA does…" What does it do, then? "It is a legal framework that would cover any military cooperation that is mutually agreed upon, or visits by military forces – which in Malta's case concerns ship visits, of which there have been large numbers in the past. Having an agreement in place would determine how any is- sues that arise from that would be handled." But isn't that exactly what sceptics are concerned about? How such is- sues are handled? The experience of other countries suggests that US military personnel might be handled very differently to other categories… possibly even escaping justice for crimes… "Every US military person is re- quired 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 discussion, 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…" The reference is to a Chilean navy officer wanted for attempted mur- der 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 requests 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 points out. And yet similar cases have arisen in other countries where SOFA was, in fact, regarded as a get out of jail free card. South Korea, for instance, requested a revision of its SOFA after a case in which a US serviceman was accused of raping a woman, and the local authorities proved powerless to intervene… However, the US ambassador ar- gues that such agreements are not uniform, and vary from country to country. "SOFA is not a one size fits all. It's different from state to state, de- pending on the needs and priorities of each nation. For instance, there is an ongoing case between the USA and the Philippines, involving the alleged murder of a Filipino na- tional by a member of the US mili- tary. The sailor initially returned to the ship; but because of the SOFA agreement, the ship could not leave until the sailor had been returned to the Philippines. He is now in the custody of the Filipino authorities; the investigation is being carried out under local law, and if he is found guilty he will serve his sen- tence in the Philippines. The agree- ment varies from state to state; it is something negotiated between two sovereign nations…" Ultimately, however, the jurisdic- tion issue forms only part of the re- sistance to what is ultimately a mili- tary agreement. There is also a legal argument, concerning Malta's sta- tus as a neutral, non-aligned coun- try. Admittedly the Constitutional proviso is open to a degree of inter- pretation on this point; but many have argued that SOFA would in itself be unconstitutional. Unlike her immediate predeces- sor, Douglas Kmiec – who ques- tioned Malta's neutrality in 2010 – the present incumbent is reluctant to comment directly on whether the agreement would, in fact, vio- late Malta's Constitution. "Ultimately this is a matter for Malta to decide. But it is also a fact that Malta's membership in Part- nership for Peace has now been agreed by both governments; and there are a number of PfP countries that are traditionally neutral. Aus- tria, Finland, Switzerland – not an EU member, 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. Such agreements are not identical, either. "Each country determines which parts of that agreement meet its needs and priorities; and makes its own reservations to the parts where they don't agree. All together there are six neutral nations that are part of PfP and have status of forces agreements with the USA…" At the same time, however, there is a perception locally that this sort of agreement would bring Malta a step closer to broader military agreements of the kind that would certainly pose Constitutional prob- lems. The possibility of a US base in Malta has, in fact, been raised as a concern… Abercrombie-Winstanley reiter- ates that – as with the jurisdiction – signing a SOFA agreement does not imply hosting a military base. Nor would it substantially alter the conditions of Malta's PfP member- ship. "The PfP agreement is in place; a SOFA is simply a legal framework to manage the activities that are mutually agreed. It doesn't take the existing PfP agreement any step be- yond. It simply regulates issues such as: do military personnel wear uni- forms? Do they pay taxes, or not pay taxes? If they get into trouble, how is that managed? Who does the first thing, who does the second thing; where are they tried, where are they held? It's a legal framework… not Interview By Raphael Vassallo maltatoday, SUNDAY, 20 SEPTEMBER 2015 So near and yet SOFA We believe that Malta brings a great deal to the table, quite frankly. There should not be any discussions on Mediterranean security that Malta is not involved in SECURITY TALKS Every US military person is required to abide by local laws. A SOFA agreement is not a 'get out of jail free' card JURISDICTION