So near and yet SOFA | Gina Abercrombie-Winstanley

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’ exist between the United States and a host of other countries – including Russia, as US Ambassador Gina Abercrombie-Winstanley will soon remind me – and are primarily tailored 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 agreement have succeeded only in uniting an otherwise unbridgeable political 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 appointment as ambassador. But then Foreign Minister Tonio Borg flatly insisted that “Malta should not cede any jurisdiction over incidents relating to Maltese nationals or involving damage done to property in Malta”.

On his part, then shadow minister George Vella said that the matter would be subject to an internal discussion 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 jurisdiction.”

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 published 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 legislation quietly through parliament without formal debate”.

The 2013 election however got in the way, and the incoming Labour 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 easily be extended to SOFA, seeing as specific agreements exist for PfP countries.

More recently still, the General Workers’ Union – which, in decades 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 ambassador 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 perceptions – 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 Mediterranean ports for spectacularly lucrative contracts…

How about the American perspective? 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,” Abercrombie-Winstanley replies. “The word ‘informed’ is very important. But let’s start with what it isn’t. SOFA does not constitute a loss of sovereignty for Malta; it does not impose on Malta restrictions or requirement 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 issues that arise from that would be handled.”

But isn’t that exactly what sceptics are concerned about? How such issues 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 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 discussion, because I know a lot of people talk about the sovereignty issue. For instance, 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 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 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,” Abercrombie-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 argues 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, depending 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 national by a member of the US military. 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 sentence in the Philippines. The agreement varies from state to state; it is something negotiated between two sovereign nations…”

Ultimately, however, the jurisdiction issue forms only part of the resistance to what is ultimately a military agreement. There is also a legal argument, concerning Malta’s status as a neutral, non-aligned country. Admittedly the Constitutional proviso is open to a degree of interpretation on this point; but many have argued that SOFA would in itself be unconstitutional.

Unlike her immediate predecessor, Douglas Kmiec – who questioned Malta’s neutrality in 2010 – the present incumbent is reluctant to comment directly on whether the agreement would, in fact, violate Malta’s Constitution.

“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 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 problems. The possibility of a US base in Malta has, in fact, been raised as a concern… 

Abercrombie-Winstanley reiterates 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 membership.

“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 beyond. It simply regulates issues such as: do military personnel wear uniforms? 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 an additional obligation.”

Perhaps, but other legal frameworks also exist. US citizens (or indeed any foreigners) who are not members of the military face existing legal procedures when accused of crimes committed overseas; there is international law, there are extradition agreements (where applicable), etc. Which raises the question of why an additional, special agreement would be considered necessary for the military…

“There’s been a long-standing tradition of these agreements since the beginning of NATO. They are not necessarily ‘special’ agreements; because depending on what is agreed between the two countries, what happens to a civilian may be very similar to what happens to a military person who gets into trouble. But traditionally, there is military justice as well as civilian justice. A military person may in fact face both; and there are times when the military justice is more severe, because the armed forces have additional responsibilities as public servants, as members of a country’s military. So it could be very different indeed. That’s why there are additional details that could have an impact on the military, as opposed to ordinary civilians.”

All along, however, we haven’t really touched on the question of why this issue is so important for America. That it would be a desirable objective is understandable; but why is it such a priority? 

The ambassador however counters that SOFA agreements are priority US objectives in themselves… not just with Malta.

“Most nations have some sort of agreement to cover the movement of their armed forces around the world. Whether it’s ship visits involving 100 sailors; whether it’s a smaller visit of four military trainers on a training programme, or doing a conference, etc… these agreements govern their visits to foreign countries. They are put in place to ensure that, regardless of where they go, US military personnel are going to meet what we consider to be a reasonable standard of justice and protection. Usually these agreements are very easy to reach with European nations, because we have similar standards. But they also protect military forces when they go to countries which don’t have such a robust, developed legal system. 

The original idea grew in fact out of concerns with the latter category of country. “Now we have a position that we do them wherever our military goes…”

And does it have nothing at all to do with the worsening security situation in the Mediterranean? It may be a coincidence, but calls for SOFA seem to have gained momentum since the deepening of the Libyan crisis, and the refugee emergency in Eastern Europe…

“Not specifically, no. This has been a priority for a while. We have been trying to reach this agreement for many years…”

She does however concede that the security issue has impacted the issue on at least one level. 

“There are discussions currently going on regarding Mediterranean security… on Libya, on other things that happen within the PfP/NATO realm… and the fact that Malta doesn’t have a Status of Forces Agreement also means that there are certain discussions that Malta is not privy to, or involved in. We believe that that is damaging to Mediterranean security for everyone. We believe that Malta’s long experience, expertise and intimate knowledge of the region is important to have in these discussions. 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…”

Lastly, Abercrombie-Winstanley suggests that SOFA is desirable for no other reason than that it enables more US military personnel to visit Malta.

“As for our military… we like to come to Malta. It is safe; it is English speaking, there is nothing better than Maltese hospitality. Our sailors like to come here a great deal; the two or three times we’ve had naval visits since I’ve been here have been overwhelmingly successful. The captains were thrilled to have their crews here. One of the things our military likes to do in Malta is what we call ‘community relations’: they might go out and do a clean-up; one time I know of they painted a shelter. It’s something they are thrilled to do because they are very happy to be here. They like to spend money here… the last time a ship came in, I was surrounded by sailors asking me about services, restaurants. They come and spend considerable amounts of money. And they try very hard to be good guests here: we haven’t heard about problems with American military on the times they come; and hundreds come at a time when the ships come in… 

Speaking of considerable amounts of money: there is also the small matter of Malta’s shipyards being unable to compete for US navy contracts for lack of a SOFA agreement. Palumbo has reportedly already lost out on over €30 million in ship repair contracts…

She nods. “I can’t comment on the Palumbo story except for what I read in the newspaper; but it is a fact that the US military spends between 2 and 3 million dollars a day in the Mediterranean. A day. That’s between visits, repairs… the last ship that came to Malta was the Mt Whitney, and the USA had just put out a contract – which Croatia bid for and won – worth between 20 and 30 million dollars, for a single ship…”

This indirectly raises another concern: it would seem that the promise of financial gain – or loss – is often a strategy used to gain leverage in international negotiations. I am reminded, for instance, of when Malta ratified the Rome Statute of the International Criminal Court. Malta refused to sign a similar agreement with the USA, this time offering immunity from action by the ICC.  

The response of the Bush-led US government was to suspend its regular military funding to the Armed Forces of Malta.

This in turn implies a ‘carrot and stick’ approach: with the carrot, in this case, taking the form of lucrative ship repair contracts… would she agree with that perception? 

“No, I don’t think so. That there are financial benefits involved is true, but I don’t think that’s the only reason we should be discussing this. There are other issues we believe are very important: full participation by Malta in discussions on Mediterranean security is one of them. We believe it’s important for our military to have access to Malta; and also that the increased training that could occur under a SOFA agreement would be beneficial to Malta. A lot of that is not happening because of the lack of an agreement. We believe that is important for the United States, but also for Malta and the region writ large. These are things that are going on throughout the region – in Italy, Greece, and all the countries around Malta. But not with Malta…”