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Implications of the Criminal Jurisdiction Article of the Visiting Forces Agreement between the United States and the Philippines

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The relationship between the United States and the Philippines spans centuries. Initially a colony turned commonwealth of the United States, the Philippines gained independence in 1946, but a number of American military bases were still maintained until 1991.[1] In the late 1990s, the countries signed a Visiting Forces Agreement (VFA), detailing the nature of military relations between them.[2] Article V of the VFA pertains to jurisdiction of American personnel in criminal investigations taking place in the Philippines.[3] In the wake of a recent criminal case, a paragraph of Article V has been the source of controversy, and raises questions regarding Philippine sovereignty in the context of an alliance with the United States.

On October 11, 2014, Jennifer Laud, a transgender woman, was found dead in an Olangapo City motel room after checking in the night before with Lance Corporal Joseph Scott Pemberton of the U.S. Marines.[4] Pemberton was in the Philippines for joint training exercises earlier that month.[5] The details of the incident and events that occurred afterwards bring implications of the VFA regarding its treatment of Philippine sovereignty.

Article V, paragraph 1 of the VFA defines which country has jurisdiction over personnel alleged to have committed a crime in the Philippines. Paragraph 1(a) of the article specifies, “Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines.”[6] Since Lance Corporal Pemberton met Jennifer Laude while he was at liberty from the USS Peleliu, he would be under the jurisdiction of the Philippines and its laws. Additionally, it is assumed that Lance Corporal Pemberton would be subject to criminal procedures in the Philippines just as any other American citizen acting outside of official duty capacity, including being detained in Philippine facilities.

Article V, paragraph 9 of the VFA, however, appears to contain procedures to the contrary. Specifically, the paragraph states that:

“The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities…from the commission of the offense until completion of all judicial proceedings. United States military authorities shall, upon formal notification by Philippine authorities and without delay, make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense in which the person has been charged. 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…”[7]

This particular provision seems to run opposite of paragraph 1(a), and is the cause of uproar among the Philippine domestic population. In accordance with Article V, paragraph 9, Lance Corporal Pemberton was detained on the Peleliu during the initial stages of the case rather than in a Philippine prison despite his at liberty status.[8] Although Pemberton was ultimately brought to and is detained at Camp Aguinaldo, a number of the Filipinos saw the refusal to hand Pemberton to Philippine authorities as an act against Philippine sovereignty.[9] Left-wing and nationalist Filipinos cite the similar case of Daniel Smith, a U.S. Marine who was found guilty of rape against a Filipino woman and charged with a life in prison sentence in 2005. Smith was detained at the U.S. Embassy in Manila, contrary to Article V, paragraph 1(a), until his case was overturned in 2009 and he was returned to the United States.[10] The fear that history will repeat itself and anti-colonialism sentiment have driven recent anti-U.S. protests at the U.S. Embassy in Manila since the beginning of Pemberton’s case.[11]

Maintaining ties with the Philippines and sustaining a military presence in the Pacific is crucial at this time. The Philippines plans to reopen the military base at Subic Bay, a strategically advantageous location in regards to the South China Sea where conflicting territorial claims between China and four other governments have caught American interest.[12] Additionally, a recent U.S.-Philippines pact giving the United States more access to Philippine military facilities is facing a constitutional challenge in the Philippine Supreme Court.[13] As Pemberton’s trial continues and the terms of the VFA are not discussed the alliance between the United States and the Philippines will continue to be tested.

[1] Philippines history: The period of U.S. influence, http://www.britannica.com/place/Philippines/Cultural-life#toc23717.

[2] Status of Forces: Agreement Between the United States of American and the Philippines, U.S. Department of State (1998), http://www.state.gov/documents/organization/107852.pdf.

[3] Id.

[4] Tim Macfarlan, Trial begins of U.S. Marine accused of murdering transgender woman in Philippines motel after he found out she was born a man—as family reject his $500,000 offer to have charge downgraded, Daily Mail (March 23, 2015, 5:16 AM), http://www.dailymail.co.uk/news/article-3007350/U-S-Marine-Joseph-Pemberton-arrives-court-trial-accused-murdering-transgender-woman-Philippines-motel-finding-born-man.html.

[5] Id.

[6] Supra, Note 2.

[7] Id.

[8] Supra, Note 4.

[9] Jim Gomez, Marine accused in Philippine killing tests US ties, Associated Press (October 20, 2014, 1:06 AM), http://bigstory.ap.org/article/ec52b0b941974a17b48a3f48316d2df3/marine-suspect-philippine-killing-tests-us-ties.

[10]Id.

[11] Id.

[12] Agence France-Presse, Philippines to Re-open Former US Military Base, Defense News (July 16, 2015, 10:28 PM), http://www.defensenews.com/story/defense/international/asia-pacific/2015/07/16/philippines-re-open-former-us-military-base/30273327/

[13] Id.


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