ITALY'S SUPPORT FOR ARTICLE 98 AGREEMENT

C O N F I D E N T I A L ROME 003849

SIPDIS

E.O. 12958: DECL: 08/04/2012
TAGS: PREL MARR ITALY'>IT KICC
SUBJECT: ITALY'S SUPPORT FOR ARTICLE 98 AGREEMENT
CONSTRAINED BY PUBLIC OPINION

REF: ROME 3796

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CLASSIFIED BY: ACTING DCM THOMAS COUNTRYMAN FOR REASONS 1.5(B)(D)


1. (C) AT AN AUGUST 5 WORKING LUNCH WITH U/S JOHN BOLTON AND
EMBASSY, MFA AND MOD OFFICIALS ON THE INTERNATIONAL CRIMINAL
COURT (ICC) AND OTHER ISSUES (REPORTED SEPTEL),MFA DIRECTOR
GENERAL GIANCARLO ARAGONO REITERATED ITALY'S WILLINGNESS TO
ASSIST THE US WITH EFFORTS TO SIGN AN ARTICLE 98 AGREEMENT
BUT ADDED THAT ITALIAN PUBLIC AND PARLIAMENTARY SUPPORT FOR
THE ICC WOULD LIMIT THE EXTENT OF GOI SUPPORT. HE NOTED THAT
THE EU CONSULTATIVE PROCESS NOW UNDERWAY IS NOT GOING IN THE
USG'S FAVOR, IN PART BECAUSE SEVERAL COUNTRIES NEED TO
DEMONSTRATE TO THEIR PUBLICS AN UNYIELDING SUPPORT FOR THE
COURT. ARAGONA ASSURED U/S BOLTON THAT THE GOI IS WORKING
WITHIN EU DISCUSSIONS TO ENSURE AN OUTCOME FLEXIBLE ENOUGH TO
ACOMMODATE THE USG REQUEST FOR ARTICLE 98 AGREEMENTS. ONCE
EU CONSULTATIONS HAVE FINISHED, PROBABLY BY THE END OF THE
MONTH, ITALY WILL BE ABLE TO DECIDE HOW BEST TO ACT
BILATERALLY, ARAGONA SAID.


2. (C) U/S BOLTON EXPLAINED THAT A RECIPROCAL AGREEMENT WOULD
PRESERVE WHAT ITALY ALREADY HAS AS A STATE PARTY TO THE ROME
TREATY - THE RIGHT TO PROSECUTE AN ITALIAN SUSPECT UNDER
ITALIAN LAW OR TURN THE SUSPECT OVER TO THE ICC. IT WOULD
RECOGNIZE THE US'S RIGHT NOT TO BE A PARTY TO THE TREATY,
JUST AS THE USG RECOGNIZES ITALY'S AND OTHERS' RIGHT TO
RATIFY IT. THE USG IS NOT CRITICIZING THE ICC BY SEEKING
ARTICLE 98 AGREEMENTS, U/S BOLTON CLARIFIED; WE ARE
EXPLAINING WHY THE USG BELIEVES SUCH AGREEMENTS, WHICH ARE
PROVIDED FOR IN THE TREATY, ARE NEEDED.


3. (C) ARAGONA ASSURED U/S BOLTON THAT ITALY IS CAREFULLY
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CONSIDERING THE US REQUEST TO SIGN AN ARTICLE 98 AGREEMENT
(REFTEL). HOWEVER, WHATEVER ACTION THE GOI TAKES MUST BE
CONSISTENT WITH ITALY'S COMMITMENT TO THE ICC OR THERE WOULD
BE A "POLITICAL STORM" WITHIN THE PARLIAMENT AND PUBLIC
OPINION, HE EXPLAINED. WHILE ENTERING INTO A RECIPROCAL
AGREEMENT MIGHT SEEM LIKE A PRACTICAL SOLUTION, ARAGONA SAID
IT WOULD BE POLITICALLY DIFFICULT FOR ITALY. THE ITALIAN
PUBLIC, AS IN EUROPE GENERALLY, IS VERY COMMITTED TO THE ICC,
ARAGONA SAID, PARTICULARLY BECAUSE THE TREATY CREATING THE
COURT WAS SIGNED IN ROME. HE NOTED DOUBTS WITHIN THE EU
COMMUNITY ABOUT THE INCLUSION OF ARTICLE 98 IN THE TREATY, AS
WELL AS THE USG'S CLAIMS THAT FURTHER PROTECTIONS ARE NEEDED.
US EFFORTS TO SIGN ARTICLE 98 AGREEMENTS ARE SEEN IN EUROPE
AS ANOTHER WAY TO DISTANCE THE US FROM THE ICC, RATHER THAN A
MEANS OF HELPING THE US TO ACCEPT THE COURT, ARAGONA
EXPLAINED. THE UN DEBATE ON RENEWING THE BOSNIA POLICE FORCE
(UNMIBH) MANDATE ONLY STRENGTHENED EU COHESION AND SUPPORT
FOR THE ICC, ARAGONA STATED.


4. (C) COMMENT. ARAGONA'S ANSWER WAS CLEARER, BUT LESS
POSITIVE, THAN THE ONE WE RECEIVED FROM PRIME MINISTER
BERLUSCONI'S ADVISOR ON AUGUST 1 (REFTEL). HIS MOST VALUABLE
COMMENT WAS HIS STATEMENT (SHORT OF A FIRM COMMITMENT) THAT
ITALY WOULD WORK TO ENSURE THAT ANY EU DECISION LEFT ROOM FOR
ITALY AND OTHER STATES TO PROCEED WITH BILATERAL AGREEMENTS.
WHILE REITERATING BERLUSCONI'S WILLINGNESS TO HELP, ARAGONA
COULDN'T RESIST RECOUNTING THE CRITICISM OF THE USG POSITION
THAT PREVAILS AMONG EU (AND ITALIAN) LEGAL ADVISORS. FROM
OUR POINT OF VIEW, WHAT THE LEGAL TYPES FAIL TO APPRECIATE IS
THAT AN EU CONSENSUS AGAINST ARTICLE 98 AGREEMENTS WILL SERVE
NO PURPOSE EXCEPT TO MAKE THEM FEEL RIGHTEOUS. IT WOULD NOT
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MAKE ANY DENT IN THE USG POSITION, AND WOULD ONLY BECOME A
MAJOR IRRITANT IN OUR RELATIONS WITH THE EU AND WITH EU
MEMBERS. BUT IF THE DECISION IS LEFT TO THE MFA LEGAL
ADVISERS (NOT UNLIKELY IF THE DECISION IS TO BE MADE IN
AUGUST),THAT IS THE OUTCOME WE RISK. EVEN AS BERLUSCONI AND
HIS TEAM BEGIN THEIR AUGUST VACATIONS, WE WILL CONTINUE TO
PUSH THIS ARGUMENT AT THE POLITICAL LEVEL. IT WOULD BE
HELPFUL IF WE COULD ASSURE THE GOI THAT THEY WILL NOT BE
STANDING ALONE IN RESISTING A NEGATIVE EU CONSENSUS ON
ARTICLE 98. EMBASSY ROME WOULD GREATLY APPRECIATE DEPARTMENT
AND OTHER EU POSTS KEEPING US CLOSELY INFORMED ON WHICH OTHER
EU GOVERNMENTS ARE LEANING IN OUR DIRECTION ON THIS ISSUE.
END COMMENT.


5. (U) THIS CABLE HAS BEEN CLEARED BY U/S BOLTON.
SEMBLER

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2002ROME03849 - Classification: CONFIDENTIAL