So near, yet SOFA: a short history of America’s 20-year chase for Malta’s consent

News that Malta had edged closer to a controversial Status of Forces Agreement was already making headlines in July 2020, when MaltaToday broke the story of a pending agreement between the two countries.

American Defence Secretary Mark Esper will be in Malta on Wednesday for talks on the SOFA, even though lingering doubts on the agreement are shared privately by a few members of the Abela Cabinet.

Malta’s relations with the United States have always been momentarily punctuated by the misgivings of national leaders on a Status of Forces Agreement with the superpower.

With constitutional neutrality embedded in 1986, and the Labour Party’s history of anti-colonialism and non-alignment, the debate on a SOFA has been peppered by unwillingness or suspicion towards American interests. And 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. Repeated attempts to secure such an agreement succeeded only in uniting an otherwise unbridgeable political divide: with both Nationalist and Labour governments rejecting the proposal with equal emphasis.

For the past 20 years, Washington has been putting out feelers with Maltese leaders on the establishment of a SOFA – an agreement that establishes the rights and privileges of U.S. personnel in Malta as support of the larger security arrangement.

Douglas Kmiec, whose attempt to directly engage the country on its constitutional neutrality, backfired

But the question of neutrality apart (famously described as a form of equidistance from the American and Russian superpowers of the Cold War), Malta’s problems in a growing world of international crime that increasingly uses the high seas for smuggling drugs and military-grade weaponry are about to take centre-stage.

Malta is now ready for a SOFA that would see the small island facilitating a stronger American presence to tackle crime aboard Malta-flagged ships as well as operating on the ‘Wild West’ that is Hurd’s Bank.

Misgivings on jurisdiction

Always present in the discussions on SOFA in the Maltese press has been the scale of the agreement and questions about immunity for US personnel in Malta. As diplomatic cables from 2010 show, Washington analysts have always been “very interested” in the views of Maltese leaders on a possible status of forces agreement – one of them requested biographical information on then President George Abela, Prime Minister Lawence Gonzi, Opposition leader Joseph Muscat, foreign minister Tonio Borg, European Commissioner John Dalli, and also Gonzi’s personal assistant Edgar Galea Curmi to learn “who are they close to personally and professionally? What important alliances, business or political, should analysts be aware of involving these individuals?”

The request had not found any warmth a few years earlier in 2007, when it was raised informally by US ambassador Anthony Goia with Michael Frendo. Frendo had ruled out any discussions for the Malta Shipyards to be designated for Home Port Status to the United States government.

On 2 February 2010, Foreign Minister Tonio Borg told US ambassador Douglas Kmiec that Lawrence Gonzi was “prepared to go forward” on a PfP SOFA to establish a military presence in Malta. Speaking outside of the presence of note-takers, indicating the secretiveness of the request, Borg indicated that Gonzi was ready to go ahead on the SOFA when Borg and Kmiec agree on terms. But earlier, Gonzi’s assistant Edgar Galea-Curmi had warned Kmiec that Borg “had been the primary opponent and chief skeptic of signing a SOFA (on political grounds)” but later dropped his opposition and agreed Malta should go for the SOFA “in some form of another”.

Kmiec replied to Galea-Curmi saying that this was an opportunity, “politically that Malta was in charge of the SOFA process and not doing the US’s bidding.”

Borg was later asked to execute the NATO/PfP SOFA even though he recognised that Malta had “concerns pertaining to sovereign jurisdiction and some national laws (e.g., relating to the wearing of uniforms, carrying of weapons, etc.), which are contrary to PfP SOFA provisions.”

Kmiec even urged Borg “not to make any gratuitous reservation or modification” to the standard document if at all possible. Borg was reported to have replied that he expected the Opposition to “stir up anger and suspicion among the public” through the PfP label; to which Kmiec replied that other neutral nations such as Switzerland and Sweden, had executed a version of the PfP SOFA, as had Russia.

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

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 discussion”.

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 incrementally by means of diplomatic notes, and indicated she would contact the Embassy with a proposal. Kmiec noted in this cable that the dip note could be a “useful interim step for Malta” by reacquainting Malta with the “value – economic and associational – of ship visits” and also compatible with NATO Admiral Stavridis’s request to grant SOFA waivers for 5 or 6 ship visits.

Warmer with Labour

Under Joseph Muscat’s Labour administration however, SOFA talks intensified, especially when Carmelo Abela replaced George Vella as foreign minister when the latter was appointed President of the Republic.

Ambassador Gina Abercrombie-Winstanley 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 Opposition 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 related 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 General Workers’ Union – which, in decades gone by, had mounted fierce resistance to dockyard contracts involving US navy vessels – had hinted that it might reconsider 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 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,” Abercrombie 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 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 pointed out.

Unlike her immediate predecessor, Douglas Kmiec – who questioned Malta’s neutrality in 2010 – Abercrombie-Winstanley was reluctant to comment directly on whether the agreement would, in fact, violate Malta’s Constitution. Kmiec had already treaded on delicate political ground when he asked whether Malta’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 provoking 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 ambassador, American or otherwise), to tell you what your Constitution means or should mean.”

After Kmiec was unceremoniously recalled from Malta, Abercrombie-Winstanley, 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 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.

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 legal 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 immunity, which could prevent the host country from taking legal and criminal action against soldiers.

Malta will be hoping that it retains jurisdiction over crimes committee by US personnel on Maltese soil, instead of having to be engaged in diplomatic to-ing and fro-ing with its more powerful partner on deciding which forum would such a crime be prosecuted in.