NEW AUSTRALIAN/PHILIPPINE STATUS OF FORCES

C O N F I D E N T I A L SECTION 01 OF 02 MANILA 002121 SIPDIS SIPDIS E.O. 12958: DECL: 06/25/2017 TAGS: PREL MARR PTER AS RP SUBJECT: NEW AUSTRALIAN/PHILIPPINE STATUS OF FORCES AGREEMENT REF: MANILA 01814 Classified By: POL/C Scott Bellard, for reasons 1.4 (b) and (d) ¶1. (C) Summary: The Philippine-Australia Status of Forces Agreement (SOFA) signed in May currently awaits ratification by the Philippine Senate and the Australian parliament. The Australian SOFA differs from the U.S. Visiting Forces Agreement (VFA) in that it gives the host nation custody of visiting forces' personnel in criminal cases during the trial stage. A side-agreement affords Australia a say on the type of detention facility for its nationals, which must be in the Philippines. The Philippine ratification process in the Senate will be contentious and time-consuming, but has some likely supporters, even among the opposition majority. The eventual entry into force of the Australian SOFA would greatly complement our own counterterrorism efforts in the Philippines. End Summary. -------------- Key provisions of the SOFA -------------- ¶2. (U) President Arroyo presided over the signing of the Philippine-Australian Status of Forces Agreement (SOFA) during a May 30-31 visit to Australia (reftel). The SOFA would cover Australian military personnel engaged in counterterrorism exercises and training projects in the Philippines, along with their Philippine counterparts in Australia, and currently awaits ratification by the Australian Parliament and the Philippine Senate. ¶3. (C) The SOFA explicitly gives host nations the custody of visiting forces personnel during trial and after conviction in criminal cases for acts committed outside official duties. Philippine negotiators have acknowledged privately to emboffs that this was a key Philippine objective in the wake of the public outcry here over the U.S. custody of Lance Corporal Daniel Smith in the ongoing test case of the VFA, which explicitly provides that custody of U.S. soldiers lies with U.S. authorities until the conclusion of all judicial proceedings. According to Philippine authorities, an Australian refusal of this more stringent provision in the draft SOFA would have been an absolute deal-breaker for the Philippine government. ¶4. (C) Australian Embassy poloff Quinton Devlin told poloff that the question of custody had not been especially problematic and was actually almost standard for Australian SOFAs. However, he noted that the "type" of detention facility had been a larger Australian concern, and so Australian negotiators had successfully insisted that such facilities be "by agreement of the parties." The Philippine side successfully insisted that these facilities must be in the Philippines for cases over which the Philippines has criminal jurisdiction -- a requirement missing from the VFA. Devlin commented that the Australian government would likely push for the use of Philippine military -- rather than civilian -- facilities should such a criminal case arise involving Australian soldiers here. The "understanding" is missing, however, from the public text of the SOFA, although Devlin predicted that it would likely come to the fore during the Philippine ratification process. -------------- Tough Senate Road Ahead -------------- ¶5. (C) Both Philippine officials and Australian diplomats have admitted that the SOFA will face some tough sailing in the new Philippine Senate, in which the Opposition has a substantial majority. Many predicted that some of the Senate's expected 2010 Presidential candidates will use the debate on the SOFA as a "platform for grandstanding" against President Arroyo, regardless of their views on the SOFA itself. Some Philippine political analysts, however, foresee that the would-be candidates will also want to portray themselves as "Presidential" and genuinely concerned about national security, and for those reasons might vote for the SOFA, despite its association with President Arroyo and her "down under diplomacy." ¶6. (C) The Australians have identified a number of potential supporters among the opposition senators, including four graduates of the Philippine Military Academy: Senator Rodolfo G. Biazon; Senator Panfilo "Ping" M. Lacson; Senator-Elect Gregorio Honasan; and, Senator-Elect Antonio Trillanes (still on trial for the 2003 "Oakwood Mutiny" -- septel). Devlin noted that Trillanes has been to Australia MANILA 00002121 002 OF 002 several times for military training. Some Philippine contacts have underscored that the fate of the SOFA ratification may depend on who ends up as the new chairman of the Senate Foreign Relations Committee. Incumbent Miriam Defensor Santiago is staunchly pro-Administration and seeks to retain her chairmanship, but if current Senate President Manuel B. Villar fails to retain his slot and cedes to a more critical Opposition member, all bets may be off. Others have noted that developments in the appeal of Lance Corporal Smith -- notably, possible dismissal of his lower court conviction by the Court of Appeals in the next few months -- could make the political climate for ratification almost impossible, at least for the short-term. However, both sides continue to see eventual ratification as the most likely course, without any predictable time-frame. -------------- Comment -------------- ¶7. (C) The eventual entry into force of the Australian SOFA -- assuming ratification in both capitals -- would greatly complement our own counterterrorism efforts in the Philippines and will be welcome news for our regional approach here in the Philippines. It will also enable active Australian participation in Balikatan and other U.S.-Philippine exercises. Its ratification would additionally pave the way for Philippine plans to conclude SOFAs with its ASEAN partners and more meaningfully expand its regional counterterrorism and mil-to-mil cooperation. Visit Embassy Manila's Classified website: http://www.state.sgov.gov/p/eap/manila/index. cfm KENNEY