Government, Opposition united against United States proposal for S.O.F.A.

Government and Labour are seemingly on the same wavelength when it comes to protecting Malta's national interests with regards to visiting foreign servicemen.

Both Foreign Minister Tonio Borg and Labour's shadow minister for foreign affairs George Vella have reacted with a clear refusal to
cede jurisdiction on crimes and offences committed by visiting United States military personnel.

Reacting to comments made by newly appointed US ambassador to Malta Gina Abercombie-Winstanley, who in an interview says that "the US would love to have a Status of Forces Agreement with Malta," the foreign minister and his shadow minister were adamant on insisting on a refusal.

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.

Although the ambassador made it clear that "this is a decision to be taken entirely by government and the Maltese people", Borg replied that he would not cede jurisdiction over any offences committed on Maltese soil by foreign nationals.

"Government's position is the one which I expressed in a public statement to the effect that Malta should not cede any jurisdiction over incidents relating to Maltese nationals or involving damage done to property in Malta," Borg told MaltaToday.

On his part, George Vella said that the matter will 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 - who has not yet met with the new US ambassador - augured for a good relationship with the new US envoy to the island.

A Status of Forces Agreement is an agreement between a host country and a foreign nation stationing forces in that country. SOFAs are often included, along with other types of military agreements, as part of a comprehensive security arrangement.

Discussions on a SOFA had taken place in 2011. Foreign Minister Tonio Borg had told MaltaToday that informal discussions had taken place but no agreement was reached. “Even if we were to reach an agreement this would need parliamentary approval.”

When Malta ratified the Rome Statute of the International Criminal Court, the Bush administration suspended its regular military funding to the Armed Forces of Malta, for not signing an immunity agreement to protect servicemen. So called bilateral immunity agreements (BIAs) are drafted out of concern that SOFAs don't sufficiently protect Americans from the jurisdiction of the ICC.

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.

Malta’s then head of defence - today ambassador to Belgium - 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 diplomatic 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.

A SOFA does not constitute a security arrangement - it establishes the rights and privileges of foreign personnel present in a host country in support of the larger security arrangement .The SOFA is mostly focused on legal issues associated with military individuals and property.

For civil matters, SOFAs provide for how civil damages caused by the forces will be determined and paid. Criminal issues vary, but the typical provision in US SOFAs is that US courts will have jurisdiction over crimes committed either by a service member against another service member or by a service member as part of his or her military duty, though the host nation retains jurisdiction over other crimes.

Part of the notoriety of the SOFA stems from cases such as when US Marine Michael Brown was accused in 2002 of the attempted rape of a Filipina bartender while stationed in Okinawa, Japan. Though the rape charges were eventually dropped, thanks to collaboration between Japan and the US, Brown was charged with attempted indecent assault and the destruction of public property.