CONGRESS CALLS FOR TERMINATION/RENEGOTIATION OF

C O N F I D E N T I A L SECTION 01 OF 04 MANILA 000283 SIPDIS DEPT FOR EAP, EAP/MTS, L/EAP, EAP/PD E.O. 12958: DECL: 01/19/2016 TAGS: PREL MARR KCRM CASC RP SUBJECT: CONGRESS CALLS FOR TERMINATION/RENEGOTIATION OF VRA; GRP SEEKS MORE DIALOGUE REF: A. MANILA 241 ¶B. MANILA 218 ¶C. MANILA 192 AND PREVIOUS Classified By: Acting Pol/C Joseph L. Novak for reasons 1.4 (b) and (d). ¶1. (C) Summary: The Philippine Congress' Legislative Oversight Committee on the Visiting Forces Agreement (VFA) unanimously passed a non-binding resolution on January 19 calling for the termination of the VFA within six months and its renegotiation into a Status of Forces Agreement (SOFA). Apparently as a pre-emptive move, the Philippine Department of Foreign Affairs (DFA) separately reiterated in a new diplomatic note its earlier position on custody and expressed desire for continued discussion with the USG on the issue of custody. Rhetoric is high and politicians are clearly seeking some political mileage, albeit in the absence of much public emotion or interest. Embassy does not recommend a response to this note at this time, although we should prepare for an eventual discussion of possible exchange of notes or even renegotiation of the VFA. Embassy would also welcome formal guidance on seeking written assurances from GRP that it will not try to obtain custody once the Marines appear in judicial proceedings. We are also attempting to determine why the GRP did not sent for COM signature as usual at year-end the annual approval from the Council of Ministers for the exercise and activity program recommended by the Mutual Defense Board earlier in the year. End Summary. ¶2. (U) The Legislative Oversight Committee on the VFA met on January 19 to discuss a non-binding resolution calling for the termination of the VFA in the next six months and its renegotiation into a SOFA that would contain "provisions on local custody similar to those of the SOFA with Japan and Korea." The resolution was unanimously approved by the committee, but still requires full approval of the House and Senate. (Full text in para 8.) ¶3. (SBU) The DFA on January 19 sent Embassy a new diplomatic note reiterating its position on custody, noting serious concern over difference in treatment of US military personnel here vis-a-vis under agreements with other countries, and expressing a wish to "continue discussions on this matter." (Full text in para 9.) ¶4. (C) DFA Undersecretary for Special Concerns Rafael Seguis separately told Charge on January 19 that the diplomatic note was at the behest of Foreign Secretary Romulo in Washington. Seguis indicated that the diplomatic note was an attempt to deal with the mounting political pressure from senators and others demanding that the GRP pursue the custody matter again. Seguis noted that he had been called to testify before the Oversight Committee during the afternoon of January 19. CDA conveyed his hope that Seguis would use his testimony as an opportunity to remind the Committee that the VFA is working as designed. CDA further suggested, and Seguis agreed, that it was important for the GRP to educate the Philippine public and Congress as to how the VFA actually works. CDA stressed that this case so far should be seen as a "success story" for the VFA. Seguis said that he would like to explore with the Oversight Committee additional access to the Marines if the U.S. maintains custody. CDA explained that the Embassy had offered in December to arrange a meeting for Committee members, which they then postponed until January, and have now postponed further until February ¶9. He noted that the Embassy would consider requests from the Committee as well as VFA Commission and other relevant GRP or court officials. He emphasized, however, that the Embassy also had an obligation to protect the rights of the accused, who were presumed innocent until proven guilty. and would have to consult with their defense counsels as well, before approving any visits. CDA assured U/S Seguis that the Embassy remained fully willing to continue discussions with the DFA and others in the GRP on this and all other matters, while reiterating our expectation that diplomatic discussions and communications should remain private. ¶5. (U) Olongopo City Regional Trial Court Judge Renato Dilat told the media that "as far as I'm concerned the trial should not be delayed just because the U.S. Embassy refused to turn over custody of the accused," admitted that the VFA was "part of the law of the land," and suggested the trial could begin in February. Malacanang spokesman Ignacio Bunye publicly urged that "we should not turn this into an emotional issue against an old-time friend and ally." ¶6. (U) Embassy prepared and used the following press guidance: ¶Q. Any reaction to vote in the Legislative Oversight Committee of the Visiting Forces Agreement to terminate the Visiting Forces Agreement? -- The VFA is a mutually beneficial and useful framework that clarifies the legal status of visiting U.S. military personnel. The Agreement enables the U.S. and the Philippines to conduct joint training exercises and naval ship visits that help advance the national security of the Philippines, and have helped train tens of thousands of Philippine military personnel. -- The U.S. will continue to cooperate with the Philippine authorities as this case moves to trial under Philippine jurisdiction, in accordance with the Visiting Forces Agreement. ¶7. (C) Comment: Rhetoric remains high -- growing briefly -- as politicians seek to assert their nationalist credentials. Public emotions nonetheless remain muted, apart from small groups of leftist demonstrators. Even in Congress, attention is much more focused on the issues of wiretapping accusations, charter change, passage of the 2006 budget, and the recent escape of some of the key Oakwood mutineers of ¶2003. The newest diplomatic note appears to be only a placeholder and as such Embassy sees no real value in formal response at this time. In the absence of formal quashing of the arrest warrants, however, we would still welcome formal guidance from Washington on whether or not to seek formal assurances from the GRP that its law enforcement agents will not attempt to serve any arrest warrants, before we allow the four accused Marines off the Embassy compound. We should also begin to prepare to an eventual discussion on possible exchange of notes on controversial provisions of the VFA, or even possible renegotiation at some future date. The VFA remains a vital document in our military partnership and is the backbone for our counterterrorism cooperation, including under the proposed new Security Engagement Board. We note with some concern that the GRP has not yet forwarded for the Chief of Mission's signature (on behalf of the Council of Ministers, along with Foreign Secretary Romulo) the formal approval of the exercise and activity program recommended by the Mutual Defense Board (Admiral Fallon and then AFP COS General Abu) to the Council of Ministers in June 2005. We are discreetly trying to find out if this is deliberate or an oversight. ¶8. (U) Text of the resolution introduced by Senator Santiago, which we understood is the version approved by the full Oversight Committee: quote THIRTEENTH CONGRESS OF THE REPUBLIC) OF THE PHILIPPINES ) Second Regular Session ) SENATE ¶S. Ct., Res No. Introduced by Senator MIRIAM Defensor Santiago CONCURRENT RESOLUTION EXPRESSING THE SENSE OF CONGRESS THAT NOTICE OF TERMINATION SHOULD BE SERVED, TO PAVE THE WAY FOR THE RENEGOTIATION OF THE VFA WHEREAS, the R.P.-U.S. Visiting Forces Agreement (VFA) was signed in Manila on 16 February 1998, and was subsequently concurred in by the Philippine Senate; although no similar action was taken by the U.S. Senate, reportedly because the U.S. considers the VFA not as a treaty, but as an executive agreement; WHEREAS, the VFA, Article 5, Section 6 provides: "The custody of any U.S. personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with U.S. military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings;" WHEREAS, the above provision of the VFA is a marked difference from the Japan-U.S. Status of Forces Agreement (SOFA),which provides in Article 17, Section 5 (c): "The custody of an accused member of the United States armed forces or the civilian component over whom Japan is to exercise jurisdiction shall, if he is in the hands of the United States, remain with the United States, until he is charged by Japan;" WHEREAS, the above provision of the VFA is also a marked difference to the Korea-U.S. SOFA, as amended, which provides in Article 22, Section 5 (c): "The custody of an accused member of the United States armed forces or civilian component, or of a dependent, over whom the Republic of Korea is to exercise jurisdiction shall remain with the military authorities of the United States until he is indicted by the Republic of Korea;" WHEREAS, the VFA, Article 5, Section 6 provides further: "In extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account;" WHEREAS, Senate Resolution No. 18, promulgated in 1999, concerning "exceptional cases," provides that the Philippines has the right "to reject a U.S. request for waiver of Philippine primary jurisdiction in cases of particular importance (to the host state),such as heinous crimes and violations of the Dangerous Drugs Act, and Anti-Child Abuse Law;" WHEREAS, at the close of 2005, after preliminary investigation, the state prosecutor in Olongapo City issued a resolution to file in court an information for rape - which is a heinous crime - against four U.S. Marines; WHEREAS, after the information was filed in court, the Philippine secretary of foreign affairs, in a diplomatic note of 16 November 2005, citing the exception for "extraordinary cases," requested from the U.S. Embassy actual physical custody of the accused Marines; WHEREAS, in its Note Verbale No. 0060 of 16 January 2006, the U.S. Embassy rejected the Philippine request for custody; WHEREAS, it appears that the U.S. government has failed to properly take into account the high level of sensitivity with which the Filipino public views the custody of U.S. servicemen on Philippine territory accused of crimes such as rape; WHEREAS, the VFA does not contain a provision for revision or renegotiation; WHEREAS, the VFA, Article 9 provides: "This agreement shall remain in force until the expiration of 180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement;" WHEREFORE, BE IT HEREBY RESOLVED by the Senate of the Philippines, the House of Representatives concurring to express the sense that notice of termination of the VFA should be issued, in order to pave the way in the next six months, for a renegotiation of the VFA into a SOFA, with provisions on local custody similar to those of the SOFA with Japan and Korea. Adopted, MIRIAM DEFENSOR SANTIAGO end quote ¶9. (C) Text of Diplomatic Note received on January 19: quote No. 06-0103 The Department of Foreign Affairs presents its compliments to the Embassy of the United States of America and, with reference to the Embassy's Note No. 0060 dated 16 January 2006, has the honor to reiterate the position of the Philippine Government as conveyed through the Department's Note No. 05-2662 dated 16 November 2005, as follows: "Pursuant to the exercise by the Philippines of its primary right of Jurisdiction over the case as conveyed through the Department's Note Verbale No.05-2579 and in view of the non-receipt of a formal request for initial United States custody over the United States military personnel involved in the alleged rape relative to Article V. Paragraph 6 of the Agreement and the extraordinary nature of the case, being a heinous crime, the Department (Agreement between the Republic of the Philippines and the United States of America Regarding the Treatment of United States Armed Forces Personnel Visiting the Philippines) requests the Embassy of the United States to turn over custody of said U.S. military personnel to Philippine authorities as soon as practicable." On the specific issue of what constitutes an extraordinary case in the context of Article V, Paragraph 6 of the Agreement, the Department wishes to convey that by any precepts of civilized society, rape, particularly under the circumstances as alleged in the Subic Case, cannot be considered as simply an "ordinary case" and should, by law, by policy and by good conscience, be properly understood as an "extraordinary case," as was the intent that governed when the Philippines agreed to the inclusion of this formulation in the Agreement. This intent was further amplified in Philippine Senate Concurrence Resolution No.18, s. 1999. In addition, while aware of the differences between the Agreement and similar agreements entered into by the United States, the Philippine Government is seriously concerned over the patent disparity in the treatment of US military personnel in other countries on the issue of custody in criminal cases. In the light of the decision of the United States Government to maintain its position on the issue of custody during trail, the Department of Foreign Affairs wishes to continue discussions on this matter between the Philippine Government and the United States Government. The Department of Foreign Affairs avails itself of this opportunity to renew to the Embassy of the United States the Assurances of its highest consideration. Pasay City, 17 January 2006 end quote Bellard