ICC Article 98 agreement: Sri Lanka update

C O N F I D E N T I A L SECTION 01 OF 02 COLOMBO 001840

SIPDIS

DEPARTMENT FOR SA, SA/INS, PM/B, L, T, IO; NSC FOR E.
MILLARD

E.O. 12958: DECL: 10-03-2002
TAGS: PREL PGOV CE
SUBJECT: ICC Article 98 agreement: Sri Lanka update

Refs: Colombo 1814, and previous

(U) Classified by Ambassador E. Ashley Wills. Reasons
1.5 (b,d).


1. (U) This is an Action Request -- Please see Para 4.


2. (C) Foreign Secretary Rodrigo sent Mission a letter
today containing a proposed alteration to the U.S. draft
ICC Article 98 agreement. (Note: The text of the
letter is contained in para 5 below; it is also being
faxed to SA/INS.) The MFA proposes replacing the
current para 5 of the U.S. draft with a new text. This
text states, in part, that "(E)ach party will enter into
immediate consultations in the event of any difficulties
arising with regard to the interpretation or application
of this agreement..."


3. (C) Mission's sense was that the GSL proposal
effectively undermined the purpose of our original
para 5 (which essentially commits the two parties to
non-cooperation with the ICC). The Ambassador called
Rodrigo and underscored that point. Rodrigo replied
that he agreed that the MFA's draft was "a bit open-
ended" and could use tightening. The MFA would welcome
a counter-draft by the U.S. Asked for an explanation of
the MFA's concerns, Rodrigo related that there were
apprehensions that the U.S. draft of para 5 could be
problematic for "a small guy," i.e., Sri Lanka. As
written, the draft text could conceivably put the GSL in
the position of violating a UNSC resolution, for
example. Other countries, such as EU members, could
then place pressure on the GSL, charging it with non-
compliance with its international obligations. The
Ambassador replied that he would send the MFA's proposal
back to Washington for review, but he did not think the
proposed alteration by the MFA was acceptable in that it
seemed to envisage a fundamental change of direction
from the original text. Rodrigo noted that MFA Legal
Adviser Rohan Perera was in New York until October 12
and could be reached at the Sri Lankan Mission there for
discussions on this issue.


4. (C) Action Request: Mission will continue to press
the case for unaltered agreement to our original
proposal with Minister Milinda Moragoda and other high-
level GSL interlocutors. In the meantime, we would
appreciate Washington's analysis of the MFA's proposal.
We wonder, for example, whether it is possible for the
U.S. to come up with any language that would meet MFA
concerns that the draft as written potentially could put
Sri Lanka at odds with the UN. Sri Lanka is a moderate-
sized country, easily buffeted by international
pressures, and its concerns are comprehensible in that
light. That said, we do not know whether any alternate
U.S. construction is feasible on this matter. We would
also appreciate seeing the Para 5 equivalent signed with
Romania and other countries if the U.S. has agreed to
language different than the original U.S. draft.
(Note: We do not recommend contacting Rohan Perera in
New York; we think his work on this matter is probably
over-complicating efforts to wrap up an agreement.) End
Action Request.


5. (U) The text of the Foreign Secretary's letter
follows:

Begin text:

Further to the discussion we have had on the above
matter.

As you know, the matter was also taken up in New York
last month with Ms. Christina Rocca, US Assistant
Secretary of State, and in subsequent consultations in

SIPDIS
Washington between Minister Milinda Moragoda and Deputy
Secretary of State Richard Armitage.

SIPDIS

The Ministry has since considered the matter further and
we would propose certain amendments to the text of the
draft Agreement.

In paragraphs 1, 2, and 4 of the draft, we believe US
interests, in ensuring non-surrender of its nationals to
the ICC, are fully met. Reciprocally, paragraph 3
requires consent of the Government of Sri Lanka in the
event of a Sri Lankan national being called upon to be
surrendered to the Court.

However, with regard to paragraph 5, it is felt that the
language could create difficulties for Sri Lanka
considering the wide powers conferred on the Court under
the ICC Statute even in respect of non-State parties to
the Statute. It is therefore suggested that paragraph 5
in the US draft be replaced by the following which would
bring in consultative/review procedures:

"Each party will enter into immediate consultations in
the event of any difficulties arising with regard to the
interpretation or application of this Agreement and
where necessary Parties may review the provisions of the
Agreement. If an understanding is reached on any matter
relating to this Agreement, after such review, such
understanding shall be confirmed through an exchange of
diplomatic notes."

We would be happy to discuss the matter further with you
here in Colombo, or arrangements could be made, since
Legal Adviser Rohan Perera is currently in the US, for
discussions to take place either in New York or
Washington early next week.

End text.


6. (U) Minimize considered.

WILLS