One of the key characteristics of a state’s sovereignty is its ability to control people and events over its national territory (including its territorial waters and airspace).
This power to control whatever happens within its territory is considered to be one of the most important expressions of a state’s sovereignty and is referred to in law as jurisdiction. This power is easily understood in the context of the jurisdiction which a state exercises through its courts.
Most pertinently, the Maltese criminal courts have the power to determine the criminal responsibility of persons who are alleged to have committed crimes in Malta. In the context of criminal proceedings a state almost always exercises jurisdiction over crimes committed on its territory. Exceptions to this principle do exist but are principally the long standing exceptions found in international law in the sphere of diplomatic privileges and immunities, which are always of a reciprocal nature.
Status of Forces Agreements (SOFA) are most commonly bilateral treaties that may have a number of different conditions included within its provisions regulating the status of members of the armed forces of the sending state within the territory of the state hosting these armed forces.
The details of every SOFA will inevitably vary from one treaty to another. However, one of the most common characteristics of these treaties is that the state receiving or hosting the members of the armed forces of the sending state agrees not to either not exercise criminal jurisdiction over the members of such armed forces or to share jurisdiction with the sending state.
The reports in the newspapers concerning the possible SOFA between the US and Malta suggest that the issue of criminal jurisdiction over members of the US armed forces will be dealt with through shared (or concomitant) jurisdiction. This would mean that Malta and the US would both have jurisdiction to try members of the US armed forces for any criminal offences they commit on Maltese territory.
While this may be seen to be a preferred option compared to granting the equivalent of diplomatic immunity to US armed forces while on Maltese territory (which would be the case if Malta were to grant exclusive jurisdiction to the US), the practical distinctions may be more apparent than real.
If a US serviceman or woman were to commit a criminal offence in Malta and take refuge in the US embassy or US military vessel Malta would be effectively unable to get custody of the person concerned as both are covered by immunities that prohibit Maltese enforcement agents from forcibly entering either without the consent of the US. These are not just theoretical considerations. The US has entered into SOFA arrangements with numerous countries and such issues have arisen before. In 2002, two US army servicemen crushed to death two teenage South Korean girls as a military convoy was passing through their village.
Will all criminal offences, including murder, manslaughter and rape, be covered by the proposed SOFA?- Omar Grech
Under the terms of the SOFA between South Korea and the US, the two servicemen were tried by a US court martial which found them not guilty of negligent homicide.
In 1998, a US Marines aircraft flying low near the northern Italian town of Cavalese cut a cable supporting a ski lift killing 20 people. As per the NATO treaty which the US and Italy are parties to, the pilot of the aircraft was tried by the US authorities and found not guilty of negligent homicide.
Without entering into the merits of the US judicial system and particularly its military justice system, granting effective immunity from the Maltese criminal justice system to US army personnel may be taking Malta on a slippery slope.
Will all criminal offences, including murder, manslaughter and rape, be covered by the proposed SOFA? What modes of shared jurisdiction will be implemented in practice? Who will decide on the exercise of jurisdiction in each situation?
Will this concomitant jurisdiction over US armed forces personnel be confined to crimes committed during the exercise of their duties or will it be extended to all crimes they may commit even when not on active service (for example during a night out in Paceville)?
Finally, how will this SOFA impact upon Malta’s obligations in the realm of international criminal law? Particularly, how will the SOFA bear upon Malta’s duty to cooperate with the International Criminal Court in cases relating to so-called core crimes (genocide, crimes against humanity, etc) if they concern US personnel?
SOFA inevitably risks diluting Malta’s cooperation with an international institution it has long been party to. Considerable perils lie on this SOFA. Perils affecting Malta’s sovereignty, the safety of its citizens and their right to access justice as well as its international obligations.
Omar Grech served as co-chair of the EU Council’s Working Group on International Law during Malta’s presidency of the European Council.