US may have made immunity request for visiting military personnel to Malta

Foreign Minister Tonio Borg has told MaltaToday that informal discussions had taken place with the United States embassy on a Status of Forces Agreement (SOFA) under NATO auspices, but no agreement was reached.

“The matter then stopped three months ago,” Borg, who was speaking from China, said. “Even if we were to reach an agreement this would need parliamentary approval.”

Borg has also indicated that Malta may have refused the SOFA over questions of immunity for visiting US personnel to the island.

“A SOFA regulates questions of jurisdiction when an offence is committed by visiting military personnel. Malta always insisted that when Maltese property or personnel were involved, Maltese jurisdiction should always prevail,” Borg said.

It is not yet clear whether the Maltese government resisted signing a bilateral immunity agreement, which is included in SOFAs as a clause to protect American military personnel from the jurisdiction of the International Criminal Court (ICC).

Malta has ratified the Rome Statute of the ICC, but under the Bush administration it lost out on regular military funding for not signing an immunity agreement. The United States – which has not ratified the Rome Statute – says American citizens are not protected from ICC prosecution, and could be extradited to the ICC by any state that has not signed an immunity agreement wit the USA.

The Bush Administration claimed BIAs were drafted out of concern that SOFAs did not sufficiently protect Americans from the jurisdiction of the ICC. According to the Coalition for the International Criminal Court, 54 countries rejected US efforts to sign BIAs despite US pressure.

Malta lost its US foreign financing in 2004 because it did not sign the BIA.

Borg is actually described by US embassy cables published on the Wikileaks website as having been “a sceptic” of the US proposal for a SOFA, but later dropped his opposition – according to a conversation between former US ambassador Douglas Kmiec and the Prime Minister’s personal assistant Edgar Galea-Curmi .

Galea-Curmi told Kmiec that Lawrence Gonzi was “ready to go forward” on a United States request to consider a SOFA, two years after rejoining the Partnership for Peace. “What remained to be determined was what parameters the SOFA needed, and how Malta could met U.S. ‘expectations’,” Kmiec paraphrased Galea-Curmi as saying.

The cables strongly hinted that Lawrence Gonzi would “move broad SOFA legislation quietly through parliament without formal debate”or increase NATO presence gradually through diplomatic notes.

The OPM has not denied the contents of the cables, but said it had not opened the SOFA negotiations: “Our position has always been of remaining open to considering all opportunities that are in the national interest,” the OPM told MaltaToday.

A SOFA determines what privileges, facilities and immunities will apply to military forces when they are present on Maltese territory but does not necessarily imply hosting a military base.

While Borg told MaltaToday that a SOFA has to be approved by parliamentary resolution, Malta’s head of defence Vanessa Frazier is said to have proposed to Douglas Kmiec a gradual approach:

“The best course would be to execute SOFA incrementally by means of dip notes” – suggesting that any military presence could be built-up incrementally, perhaps with frequent visits by US ships.

Kmiec welcomed this tactic as a “useful interim” step, since NATO’s Supreme Allied Commander James Stavridis had requested at least six ship visits “to reacquaint Malta with [their] economic and associational value” while SOFA discussions were kept alive.

News that the Cabinet was actively considering a SOFA raises the question of the meaning of Malta’s superpower-era neutrality, which says the island must “refuse to participate in any military alliance”and cannot be used be used as a military base except for its defence or enforce UN Security Council decrees.

No military base

Gonzi has told MaltaToday there was no standard SOFA and that it had nothing to do with the establishment of a military base. “Malta for example could enter into negotiations over a SOFA for its forces serving on peace support operations abroad; it will not imply, however, that Malta intends to open a military base in the countries with which it negotiates such a SOFA.”

He also said that Malta’s present involvement in PfP is in search and rescue and anti-pollution operations, as well as planning for UN peacekeeping and humanitarian operations. “As discussed in Parliament’s European and Foreign Affairs standing committee, all aspects of Malta’s PfP participation are fully in line with Malta’s Constitutional requirements.”