Why we need the Visiting Forces Agreement

The alleged murder of Jennifer Laude by a US Marine had brought the usual uproar over the VFA including calls for its abolition. The VFA is based on the  balance of power doctrine, an SOP in diplomatic practice from time immemorial.  Even on a personal level, some of us might have played a variation of this doctrine:  You live in a tough neighborhood, there is a bully throwing his weight around. Unless you ally yourself with a bigger bully, you will keep getting pushed around and even get beaten up from time to time.

Unfortunately,  this is a  part of our historical experience that we had conveniently forgotten – that a small power cannot defeat a big power unless it can get the support of a another major power.  The American revolutionaries won their independence from Britain in 1776 because of French support.  The Vietnamese defeated the French and the Americans after WW II because of the support of the USSR and China. However, in 1898 we lost our independence to the Americans because we did not get the support of any big power.  Our founding fathers fought just as valiantly as the American Minutemen  and the Vietminh,  nonetheless, they ended up in the losing end. Consequently,  unless we align ourselves with the United States and keep the VFA, we will end up as the 23rd province of China ahead of Taiwan. We cannot take on China one on one and survive.

Our foreign policy now is based on the commonly used threat assessment approach.  Under this method, a country assesses the threats to its national security as remote, potential, immediate and actual. On this basis, China constitutes the highest threat – actual – to our national security since it has seized territory that belongs to us under the UNCLOS regime. Refining this assessment further, the SOP of China in its territorial dispute with its neighbors follows a pattern:  China initiates hostilities, grabs disputed territory, and then  when the inevitable cease fire happens, China just the same keeps the territory it had seized.  This has been the case in the Chinese incursion into Tibet, in the border areas with India (over the Curzon line) and in the dispute with Vietnam over the Paracels Island. 

This Chinese approach explains why we must have the VFA.  It is essential that an infrastructure to support a military operation be already in place in our country, so we could repel any incursion into our national territory.  The case of Kuwait in the  First Gulf War illustrates this point clearly.  Kuwait had a British RAF Base in its territory.  However, it asked the British to leave.  The Kuwaitis must have regretted this decision.

Had the British been present in Kuwait in 1991,  this presence alone would have served as a deterrent to Saddam Hussein’s invasion of the country.  Even if Hussein had dared invade, it would have been far easier to simply reinforce the British presence, with a functional base and its facilities already available.  The way it developed, the Coalition forces had to stage the liberation of Kuwait from Saudi Arabia. Had the Saudis not allowed its territory to be used as an invasion base, the Gulf War I would have been even more prolonged. Even then, the devastation on Kuwait and its oil fields wrought by the war was enormous.

One should note from the lessons of the First Gulf War, that it is very difficult and more costly to wage a war of liberation, rather than just expel a would be aggressor before he could establish a lodgement in a nation’s territory. As noted earlier, this is exactly what the VFA is all about. We would prefer to repel an invading force in the beaches rather than let them occupy our national territory. But we must have the infrastructure to support military operations with vital war materiel already prepositioned in case of need. It will be too late to develop base facilities and bring in military supplies when we are already under attack, like what happened to Kuwait in 1990.

This also explains why we have the “ambiguous provision” on jurisdiction over erring military personnel. The VFA, like all defence treaties, is based on the worst case scenario that the agreement will be invoked in case of a shooting war. Under wartime conditions, the issue of jurisdiction takes  on a different meaning because of the sheer numbers of military personnel involved.

Just before the fall of Germany in World War II, there were four million allied personnel in Western Europe fighting in a frontline that extends from Italy in the Mediterranean  Sea to Germany in the North Sea. In World War I, there were three million allied troops in France and Belgium. In each instance, the host countries conceded jurisdiction to the allied military powers over most cases involving military personnel. The reason is obvious, with such big numbers involved, the local courts will be swamped with cases.

 Moreover, while the crime of murder as in the Jennifer Laude case  is  a heinous offense, nonetheless, during times of war, there are other higher priority cases. Usually, these are crimes against the state such as treason, espionage and sabotage – offenses which could imperil national survival. Simply stated, you do not want to clog your court dockets with the innumerable sex  cases involving foreign military personnel and local ladies of the night, to the prejudice of prosecuting cases that affect national security.

 In the First Gulf War, there were about 1.5  million troops of the Coalition Forces in Saudi Arabia. The Saudis had to waive certain provisions of the Sharia law, otherwise the female combatants of the Coalition forces would not have been able to perform their duties. In short, under conditions of war, winning the war takes precedence over civilian concerns.

Consequently, the provision on jurisdiction in the VFA is something we will  have to live with because as is the case with  most defence pacts, the worst case scenario of a shooting war was taken into account when the agreement was concluded.  However, it devolves now on the Americans to show good faith in complying with the VFA provisions under conditions of peace.  Certainly, the  provisions of the VFA will work so long as there is good faith compliance by the U.S.  On the other hand, we must keep the VFA if only for its deterrent effect against Chinese aggression.

(The author is a retired career officer of the DFA. He served as chief of the American Division in the defunct Office of Political Affairs.) - Ambassador Hermenegildo C. Cruz