U.S.-INDONESIA SOFA TALKS LAY BASIS FOR POSSIBLE

C O N F I D E N T I A L JAKARTA 012547 SIPDIS SIPDIS DEPARTMENT FOR PM/LOFTIS, PM/SNA, EAP/MTS E.O. 12958: DECL: 10/13/2016 TAGS: MARR MASS MOPS PREL ID SUBJECT: U.S.-INDONESIA SOFA TALKS LAY BASIS FOR POSSIBLE NEGOTIATIONS REF: STATE 153063 Classified By: DCM John A. Heffern, for reasons 1.4 (b) and (d). ¶1. (C) Summary: U.S. delegation's exploratory talks with the Indonesian government on October 5 in Jakarta made considerable headway in establishing a basis of understanding for possible formal negotiation of a bilateral Status of Forces Agreement (SOFA). Embassy shared a draft template text (reftel) with GOI in advance and USDEL addressed GOI concerns over the rationale for a SOFA as well as specific provisions in the draft text. The Indonesians were represented by the Department of Foreign Affairs, but other agencies are expected to be included in future discussions. USDEL met separately with the Indonesian Department of Defense. GOI interlocutors expressed interest in receiving a revised text addressing Indonesian concerns, preferred an agreement as opposed to an exchange of notes and were open to further talks. Key issues are expected to be criminal jurisdiction, the carrying of weapons and the scope of the agreement, primarily because of their sensitivity among the Indonesian public. Embassy proposes to use the upcoming visit of President Bush to secure high-level agreement to begin formal negotiations. End summary. ¶2. (C) Political-Military Affairs Senior Adviser Ambassador Robert G. Loftis and his delegation, accompanied by Embassy Jakarta Charge d'Affaires, conducted exploratory talks with Indonesian officials on October 5 as a prelude to possible negotiations. The talks succeeded in laying out for the GOI the basic elements of a SOFA, clarifying terminology and the practical application of these elements and addressing GOI policy concerns. Nonetheless, substantive reservations on specific issues will need to be overcome. By the end of the talks, GOI interlocutors were ready to receive a revised U.S. text for further discussion. ¶3. (C) The Indonesians were well prepared and had read carefully the draft text provided in advance. The main discussion took place at DEPLU and consisted solely of DEPLU representatives from the Americas Desk and DEPLU offices for international security, legal affairs and consular affairs. The Indonesian side was led by Director General Eddi Hariyadhi, supplemented by Americas Desk Director Harry Purwanto. DEPLU acknowledged other agencies would need to participate directly at later stages but said the DEPLU presentation reflected interagency views. OPENING STATEMENTS: HUMANITARIAN ASSISTANCE ONLY? ¶4. (C) Loftis opened by explaining that the text was being used worldwide for SOFA arrangements where troops might be deployed temporarily and noted the United States had approximately 80 such agreements. GOI should see the SOFA as a "framework document" setting forth respective terms, conditions and responsibilities for military cooperation, as a means of strengthening cooperation. Although the USG had certain conditions it needed to meet within each SOFA, the text was negotiable in order to accommodate the specific needs of the relationship. ¶5. (C) In the initial GOI statement, Hariyadhi said Indonesia saw the chief benefit of a SOFA in humanitarian disaster relief. Indonesia was grateful for assistance rendered by the United States and the international community in response to the 2004 tsunami, the Yogjakarta earthquake and other disasters. A SOFA could provide a basis for such cooperation in the future. Indonesia had offered a counterproposal to the U.S.-proposed text during the Yogjakarta earthquake relief effort but Washington had not responded. Ship visits were an additional area GOI was willing to consider, but this lay outside humanitarian relief. The carrying of weapons, which had been tolerable during tsunami relief operations in Aceh because of the extensive Indonesian military presence there, had not been appropriate for Yogjakarta, a seat of traditional culture in the heart of Java where no armed hostilities were present. Indonesia could not grant blanket permission to carry weapons anywhere in the country. Indonesia also did not see the need to include Pentagon contractors under the agreement. The Yogjakarta counteroffer remained on the table as a potential starting point for negotiations, Hariyadhi said. ¶6. (C) Purwanto added that the stationing of foreign troops on Indonesian soil was incompatible with Indonesia's long-standing policy of non-alignment. He also questioned the need for a broader standing arrangement, since humanitarian emergencies were only temporary. Indonesia must remain in control of all military operations on its territory, he stressed, and the settlement of disputes must be consistent with Indonesian law and regulations. Indonesia was trying to open its door to many countries and wanted to offer equal terms and conditions to all partners. The legislature would need to be involved in any agreement, which must be defensible before Indonesian public sensitivities. DISCUSSION OF INDIVIDUAL COMPONENTS ¶7. (C) Responding to these initial points, Loftis walked through the text of the agreement and clarified each component in turn. The United States did not question or intend to change Indonesia's nonaligned status, he stressed, and the SOFA was not designed to put the United States in control of activities: each event must be approved by the GOI and would not occur if the GOI did not concur. The SOFA simply provided standardized rules and procedures for a range of military cooperation activities. The same rules and procedures governed all activities, humanitarian assistance or otherwise. ¶8. (C) Discussion of the individual components of the SOFA template stressed the following U.S. rationales toward allaying GOI concerns: -- Administrative and Technical Status: military personnel are deployed abroad at the direction of the government: they have a status different from that of tourists or other travelers and are subject to the Uniform Code of Military Justice (UCMJ) at all times; because most U.S. military personnel do not have passports, we request they be allowed to enter the host country with their military identification and official orders; We request that the host government recognize U.S. driving and professional licenses; this eases host country customs and regulatory burden; -- Criminal jurisdiction: in order to maintain good order and discipline and have the same standards of justice for all U.S. military personnel no matter where they are in the world, USG seeks to exercise criminal jurisdiction over its forces; this reflects USG's responsibility to host governments and citizens, as well as to its own personnel; jurisdiction does not apply to contractors; a SOFA provides a clear, agreed way to handle incidents before the fact rather than once an incident has occurred; granting U.S. jurisdiction does not imply immunity; -- Contractors: USG relies on contractors to perform many support functions; this allows soldiers to focus on military duties; contractors are integrated into military deployments; SOFA covers contractors only for official activities and not for any activities unconnected with activities carried out under the agreement; given that contractors can be an integral part of U.S. military deployments, U.S. seeks to have the same conditions regarding taxation, import/export privileges and the same respect for professional and drivers' licenses as for U.S. military personnel; -- Taxes, tolls, charges and local contracting: exemption from taxes and similar charges is consistent with standard international principle that sovereigns do not tax sovereigns; troops and contractors have a legitimate need to import equipment and supplies; USG will pay reasonable charges for services requested and received on terms no less favorable than those afforded to the host nation's military; USG should not pay for right of use; U.S. military property is an extension of USG; where possible, U.S. will hire U.S. local contractors if they meet our price and quality requirements; however, U.S. must contract in accordance with U.S. law; -- Telecommunications equipment and frequencies: is a legitimate need during operations; deconflicting is advantageous to both sides: both have mutual interest in avoiding interference; only establishes the right to use available frequencies; specific frequencies to be agreed for each visit; -- Claims: governments normally do not seek damages from the other. BENEFITS FOR MILITARY RELATIONSHIP ¶9. (C) USDEL explained the U.S. considered SOFAs as an essential framework document for building a durable and stable military-to-military relationship, such as we hoped to have with Indonesia. The host government still decided which activities it would undertake with the United States on its territory, but the SOFA set the rights and obligations of both parties whenever such activities took place. Long experience had shown that having such a "rules of the road" agreement in place made such cooperation run more smoothly, prevented problems from arising and helped resolve issues much easier. In response to a question, USDEL explained that SOFAs were not reciprocal, as they only covered the activities of the U.S. military in Indonesia. USDEL also explained that the two sides could develop implementing arrangements which laid out specific procedures on such matters as import and export, assigning telecommunications frequencies and the like. We preferred not to include them in the SOFA itself because any procedural changes would then have to be reflected in an amendment. KEY ISSUES FOR FUTURE DISCUSSION ¶10. (C) The discussion of the specific components helped allay Indonesian concerns. GOI interlocutors appreciated the the explanations presented, though they did not suggest agreement. Hariyadhi in particular indicated willingness to pursue all the issues. Both he and Purwanto, however, expressed doubt that the Indonesian legislature would accept all SOFA provisions. The most significant issues which would need to be addressed in future discussions appeared to be the following: -- Arms: DEPLU tended to see this as an infringement of Indonesian sovereignty and an indictment of Indonesia's ability to protect its "guests." The optics were problematic in view of the media's tendency to seize on it. (Although the Indonesians had almost a visceral reaction against a provision allowing carriage of weapons, USDEL believed further discussion, including the applicability of implementing arrangements, should help overcome this difficulty.) -- Criminal jurisdiction: DEPLU did not make this a major issue, but they were categorical in not being prepared to concede the point without closer inspection, particularly with other agencies. In a separate discussion at the Department of Defense (DEPHAN),BG Dadi Susanto emphasized this concern above all others. He noted that Singapore was seeking the same provision in its defense cooperation agreement and would not succeed. Susanto said in practice Indonesia would not likely prosecute foreign soldiers but the legislature would not accept such a provision in writing. -- Purwanto suggested on several occasions that certain elements, such as weapons, troop levels and the like, be removed from the SOFA and treated in separate agreements or handled informally, largely to avoid legislative scrutiny. USDEL indicated USG was not interested in pursuing such options. STRATEGY FOR STARTING NEGOTIATIONS ¶11. (C) USDEL proposes to reformat the current diplomatic note into a formal bilateral agreement. This will allow the addition of preambular language about basic principles, in an effort to satisfy Indonesian concerns on sovereignty and nonalignment. The new text would be recirculated and cleared interagency, with the goal of forwarding it to Embassy Jakarta for consideration by the GOI before President Bush's visit in late November. Embassy proposes to use the visit to obtain President Yudhoyono's public imprimatur on the idea of an agreement, to provide momentum for formal negotiations and help to overcome bureaucratic resistance. ¶12. (U) Ambassador Loftis was accompanied by John A. Heffern, Charge d'Affaires, Embassy Jakarta; Christopher C. French, Deputy Legal Counsel, OJCS; Raul Antonio Francisco Pedrozo, Staff Judge Advocate, USPACOM; and by Daniel E. Turnbull, Deputy PolCouns, Embassy Jakarta. Col. Kevin E. Richards, Defense Attache, Embassy Jakarta joined USDEL for the meeting at DEPHAN. ¶13. (U) This message has been cleared by Ambassador Loftis. PASCOE