ICC: ARTICLE 98 DISCUSSIONS WITH ITALY

C O N F I D E N T I A L SECTION 01 OF 03 ROME 005018 SIPDIS STATE FOR T, PM, PM/B AND S/WCI E.O. 12958: DECL: 10/15/2012 TAGS: PREL PREL PREL IT KICC ITKICC ITKICC SUBJECT: ICC: ARTICLE 98 DISCUSSIONS WITH ITALY REF: COPENHAGEN 3183 CLASSIFIED BY: POLITICAL MINISTER COUNSELOR THOMAS COUNTRYMAN FOR REASO CONFIDENTIAL PAGE 02 ROME 05018 01 OF 03 151619Z NS 1.5 (B) AND (D) -------------- SUMMARY -------------- ¶1. (C) IN MEETINGS AT THE PRIME MINISTER'S OFFICE AND THE FOREIGN MINISTRY, THE ICC/ARTICLE 98 AGREEMENT NEGOTIATING TEAM PRESENTED A DETAILED EXPLANATION OF THE U.S. POSITION AND RATIONALE FOR OUR DRAFT ARTICLE 98 AGREEMENT TEXT. ITALIAN COUNTERPARTS UNDERSCORED THEIR COMMITMENT TO THE EU GUIDELINES WHILE STATING THEIR WILLINGNESS TO STRETCH THOSE GUIDELINES AS FAR AS POSSIBLE TO MEET U.S. NEEDS, A WILLINGNESS DERIVING FROM PM BERLUSCONI'S DETERMINATION TO WORK WITH US TO SOLVE THIS ISSUE. BOTTOM LINE: AVOIDING COVERAGE OF ALL U.S. NATIONALS IS THE ONLY REDLINE FOR THE GOI; THE ITALIANS STATED ART. 98 (1) ALREADY COVERS CURRENT OFFICIALS AND THIS COVERAGE COULD BE STRETCHED TO COVER FORMER OFFICIALS. ART. 98 (2),THEY ADDED, MIGHT BE EXTENDED TO ANYONE WHO COULD BE DEFINED AS HAVING AN OFFICIAL LINK TO THE USG (I.E., WHO IS THEREFORE "SENT" IN SOME WAY). THEY SUGGESTED THESE ISSUES COULD BE WORKED OUT IN THE TEXT OF A BILATERAL PROTOCOL OR AGREEMENT THAT WOULD SUPPLEMENT EXISTING ACCORDS. THE ITALIANS STATED THE NATO SOFA, FOR EXAMPLE, WAS AN EXISTING AGREEMENT THAT PROTECTED U.S. FORCES, THE CIVILIAN COMPONENT, AND THEIR DEPENDENTS, FROM SURRENDER TO THE ICC. IN CLOSING, THE ITALIAN SIDE WELCOMED FURTHER DETAILED DISCUSSIONS, AFTER THE CONCLUSION OF THIS ROUND OF TALKS IN EUROPE. END SUMMARY. -------------- CONFIDENTIAL PAGE 03 ROME 05018 01 OF 03 151619Z REAFFIRMATION OF BERLUSCONI'S COMMITMENT -------------- ¶2. (C) IN A MEETING AT PALAZZO CHIGI OCT. 10, PM BERLUSCONI'S DIPLOMATIC ADVISOR AMBASSADOR GIOVANNI CASTELLANETA REITERATED THE ITALIAN LEADER'S COMMITMENT TO HELP THE U.S. FIND A WAY FORWARD ON THE ISSUE OF THE ICC THAT PRESERVES THE INTEGRITY OF THE COURT AND YET MEETS THE NEEDS OF THE U.S. WITH RESPECT TO OUR CONCERNS REGARDING THE COURT AND ITS JURISDICTION. CASTELLANETA, WHO WAS ACCOMPANIED IN THE MEETING BY POLITICAL DIRECTOR GIANCARLO ARAGONA AND OTHER AIDES, TOOK PAINS TO OUTLINE TO PM ADVISOR LINO AND DEPUTY CHIEF OF MISSION SKODON THE SERIOUSNESS WITH WHICH THE ITALIAN GOVERNMENT HAS CONSIDERED THIS ISSUE. HE ALSO NOTED -- A THEME REPEATED BY ARAGONA THE NEXT DAY -- THE EXTENT TO WHICH ITALY WAS KEY IN HELPING TO ENSURE THE EU DECISION AT THE GAC SEPTEMBER 30 PERMITTED A CERTAIN AMOUNT OF FLEXIBILITY IN DEALING WITH THE U.S. PROPOSAL. LINO EXPRESSED APPRECIATION FOR ITALY'S RECENT OFFER OF ALPINI TROOPS FOR OEF AND FOR THE ITALIAN INTERCESSION WITHIN THE EU TO ACHIEVE THE BEST RESULT POSSIBLE. -------------- -- U.S. PRESENTATION ON ARTICLE 98 AGREEMENT DRAFT -------------- -- ¶3. (U) A HALF-DAY MEETING AND WORKING LUNCH OCT. 11 COMPLETED THE TALKS WITH THE GOI. POLITICAL DIRECTOR ARAGONA LED THE ITALIAN SIDE; HE WAS ACCOMPANIED BY UMBERTO LEANZA (HEAD OF THE MFA LEGAL OFFICE,) AND RAFFAELE DE LUTIO (HEAD OF THE MFA UN OFFICE.) ON THE U.S. SIDE, AMBASSADOR LINO WAS ACCOMPANIED CONFIDENTIAL PAGE 04 ROME 05018 01 OF 03 151619Z BY LARA BALLARD (L/PM,) CDRS. DAVE GROGAN (OSD) AND PATRICK MCCARTHY (OFFICE OF THE GENERAL COUNSEL, DOD.) ¶4. (C) THE U.S. TEAM'S PRESENTATION ADDRESSED THE EU'S GUIDING PRINCIPLES IN AN EFFORT TO DETERMINE IF THE GOI FELT IT HAD SUFFICIENT LATITUDE TO AGREE TO THE DRAFT U.S. ARTICLE 98 AGREEMENT. WITH RESPECT TO EXISTING AGREEMENTS, THE ITALIANS AGREED THAT THE NATO SOFA CONSTITUTED AN AGREEMENT CONTEMPLATED UNDER ARTICLE 98(2) AND THAT AS A RESULT, U.S. FORCES, THE CIVILIAN COMPONENT, AND THEIR DEPENDENTS WOULD NOT BE SUBJECT TO SURRENDER TO THE ICC. THEY ALSO NOTED THAT THE TWO SIDES SHOULD CONTINUE TO EXPLORE THE EXTENT TO WHICH OTHER AGREEMENTS, SUCH AS EXTRADITION AGREEMENTS, PROVIDE THE PROTECTIONS THE U.S. SEEKS. WITH RESPECT TO THE EU POINT REGARDING "IMPUNITY," THE GOI STATED EMPHATICALLY THAT THIS WAS NOT AN ISSUE, AS NO ONE WITHIN THE EU DOUBTED THE U.S. COMMITMENT TO PROSECUTE WAR CRIMINALS. THE U.S. TEAM ALSO RAISED THE ISSUE OF RECIPROCITY, INDICATING THAT WHILE THERE WAS NO PROBLEM CONCLUDING A NON-RECIPROCAL AGREEMENT, CONCERNS EXISTED WITH THE WAY THE EU PHRASED ITS NON-RECIPROCAL GUIDELINE BECAUSE THE U.S. HAS APPROXIMATELY CONFIDENTIAL CONFIDENTIAL PTQ2764 PAGE 01 ROME 05018 02 OF 03 151619Z ACTION T-00 INFO LOG-00 NP-00 AMAD-00 CIAE-00 PERC-00 DS-00 EUR-00 VC-00 TEDE-00 INR-00 IO-00 JUSE-00 VCE-00 NSAE-00 OIC-02 PM-00 IRM-00 SSO-00 SS-00 PMB-00 DSCC-00 PRM-00 NFAT-00 SAS-00 SWCI-00 /002W -------------- F792C2 151619Z /38 O 151539Z OCT 02 FM AMEMBASSY ROME TO SECSTATE WASHDC IMMEDIATE 6324 SECDEF WASHDC IMMEDIATE USMISSION USUN NEW YORK IMMEDIATE NSC WASHDC IMMEDIATE INFO EUROPEAN POLITICAL COLLECTIVE IMMEDIATE AMCONSUL FLORENCE AMCONSUL MILAN AMCONSUL NAPLES C O N F I D E N T I A L SECTION 02 OF 03 ROME 005018 SIPDIS STATE FOR T, PM, PM/B AND S/WCI E.O. 12958: DECL: 10/15/2012 TAGS: PREL PREL PREL IT KICC ITKICC ITKICC SUBJECT: ICC: ARTICLE 98 DISCUSSIONS WITH ITALY 20,000 SERVICEMEMBERS WHO ARE NOT U.S. CITIZENS. (NOTE: THE EU GUIDELINES STATE THAT ONLY NATIONALS OF NON-PARTY STATES CAN BE THE SUBJECT OF AN ARTICLE 98 AGREEMENT, A RESULT THAT CONFIDENTIAL PAGE 02 ROME 05018 02 OF 03 151619Z WOULD BE INCONSISTENT WITH THE COMMITMENT UNDER THE NATO SOFA BECAUSE OF THE FOREIGN NATIONALS IN THE U.S. ARMED FORCES. END NOTE.) THE U.S. SIDE ALSO RAISED THE POINT THAT OTHER USG EMPLOYEES OR CONTRACTORS MIGHT NOT BE U.S. CITIZENS. THE ITALIAN SIDE INDICATED THAT THIS ISSUE WAS WORKABLE BUT FOCUSED EXCLUSIVELY ON U.S. SERVICEMEMBERS. ¶5. (C) THE DISCUSSION THEN FOCUSED ON THE MEANING AND EFFECT OF ART. 98(2) WITH REGARD TO "SCOPE." THE ITALIAN SIDE SEEMED FAMILIAR WITH THE U.S. ARGUMENTS ABOUT THE MEANING OF "SENDING STATE." THE U.S. SIDE PRESENTED AND ELABORATED ON THE RATIONALE PRESENTED IN COPENHAGEN (REFTEL): ART. 98(2) WAS NOT RESTRICTED TO THE MEANING ASCRIBED IN THE NATO SOFA, THE PRESENCE OF THE TERM "SENDING STATE" IN ART. 98(2) DID NOT RESTRICT THE SCOPE OF PERSONS WHO COULD BE COVERED BY AN ART. 98 AGREEMENT, AND THERE WAS NO COMMON UNDERSTANDING OF WHAT MIGHT CONSTITUTE A "SENT" PERSON UNDER THE EU'S READING OF ART. 98(2). THE U.S. TEAM ADDITIONALLY RAISED THE POINT THAT THE FOUR 1949 GENEVA CONVENTIONS CREATED A REGIME UNDER WHICH EACH HIGH CONTRACTING PARTY UNDERTOOK TO EITHER BRING ACCUSED WAR CRIMINALS BEFORE THEIR OWN COURTS OR TURN OVER SUCH INDIVIDUALS TO OTHER HIGH CONTRACTING PARTIES FOR TRIAL. ANY SURRENDER TO ANOTHER ENTITY, SUCH AS THE ICC, IS NOT PROVIDED FOR IN THE GENEVA CONVENTIONS. THUS, THE EU INTERPRETATION OF ART. 98 (2) COULD PUT THE EU COUNTRIES IN CONFLICT WITH THEIR OBLIGATIONS UNDER THE GENEVA CONVENTIONS. -------------- -------------- ITALIAN REBUTTAL FOCUSES ON LIMITS OF EU GUIDELINES -------------- -------------- CONFIDENTIAL PAGE 03 ROME 05018 02 OF 03 151619Z ¶6. (C) THE GOI SIDE REITERATED MOST OF THE ARGUMENTS PREVIOUSLY ADVANCED BY THE EU WITH REGARD TO ART. 98(2) AND THE DEFINITION OF "SENDING STATE," INDICATING IT SIMPLY COULD NOT ACCEPT THAT ARTICLE 98(2) COULD ALLOW FOR THE EXEMPTION OF PRIVATE INDIVIDUALS WHO WERE NOT SENT BY A GOVERNMENT IN SOME OFFICIAL CAPACITY. HOWEVER, THE ITALIAN SIDE LATER NOTED THAT THE GOI WOULD BE WILLING TO CONSTRUE THE DEFINITION OF "SENT" AS BROADLY AS POSSIBLE SO AS TO ENCOMPASS, FOR INSTANCE, OLYMPIC ATHLETES, PEACE CORPS VOLUNTEERS, INDIVIDUALS SENT ON CULTURAL EXCHANGES, AND ANY PERSON WHO HAD SOME SORT OF OFFICIAL LINK WITH THE GOVERNMENT. WHAT THE GOI COULD NOT DO WAS EXTEND COVERAGE TO A PRIVATE INDIVIDUAL WITH NO OFFICIAL "LINK" WHATSOEVER. ¶7. (C) ARAGONA EXPLAINED THAT THE GOI'S PROBLEM WITH THE SCOPE OF COVERAGE SOUGHT BY OUR DRAFT AGREEMENT IS AS MUCH POLITICAL AS LEGAL. THE ITALIAN PUBLIC WOULD PERCEIVE SUCH AN AGREEMENT AS A USG ATTEMPT TO DEFEAT THE ICC OR PLACE US CITIZENS ABOVE THE LAW. PARLIAMENTARY APPROVAL FOR ANY SUCH AGREEMENT WOULD BE VERY DIFFICULT IF NOT IMPOSSIBLE TO OBTAIN, INSISTED ARAGONA. WITH REGARD TO THE REFERENCES TO THE GENEVA CONVENTIONS, THE ITALIAN RESPONSE WAS THAT THE ROME STATUTE CHANGED THE CONTRACTING PARTIES' OBLIGATION WITH RESPECT TO SURRENDER OF PERSONS ACCUSED OF GRAVE BREACHES TO OTHER CONTRACTING PARTIES. ¶8. (C) WITH REGARD TO FORMER GOVERNMENT OFFICIALS, THE ITALIAN SIDE SUGGESTED THAT THEY WOULD ALREADY ENJOY "FUNCTIONAL IMMUNITY" UNDER ART. 98(1),AND THUS, IN PRINCIPLE, THE GOI DID NOT HAVE A PROBLEM WITH THE CONCEPT OF CONFIDENTIAL PAGE 04 ROME 05018 02 OF 03 151619Z ARTICLE 98 COVERAGE FOR FORMER OFFICIALS. ITALIAN LEGAL ADVISOR LEANZA POINTED OUT THAT MOST OF THE INTERNATIONAL CRIMES LISTED IN THE ROME STATUTE, BY DEFINITION, WOULD BE CRIMES DIRECTED BY OFFICIALS. WHEN THE U.S. SIDE ASKED HOW FUNCTIONAL IMMUNITY COULD PROTECT FORMER USG OFFICIALS IF THERE WERE SOME DISAGREEMENT AS TO WHETHER SUCH A CRIME HAD BEEN COMMITTED IN AN OFFICIAL CAPACITY, THE ITALIAN SIDE SUGGESTED THAT THE SCOPE OF ART. 98(1) COULD BE "CLARIFIED" TO ADDRESS OUR CONCERNS. -------------- ARAGONA SUMMARIZES THE ITALIAN POSITION -------------- ¶9. (C) AT THE CLOSE OF THE SESSION, ARAGONA SUMMARIZED HOW FAR THE GOI COULD BE EXPECTED TO GO AND STILL REMAIN CONSISTENT WITH ITS OBLIGATIONS UNDER THE ICC TREATY AND THE GUIDING PRINCIPLES OF THE ICC. HE REITERATED THAT, IN ESSENCE, THE ONLY EU GUIDING PRINCIPLE AT ISSUE IS SCOPE. HE AGREED THAT IN ADDITION TO ALL THOSE PERSONS COVERED UNDER THE NATO SOFA, THE GOI COULD AGREE TO ARTICLE 98 COVERAGE FOR CONFIDENTIAL CONFIDENTIAL PTQ2765 PAGE 01 ROME 05018 03 OF 03 151620Z ACTION T-00 INFO LOG-00 NP-00 AMAD-00 CIAE-00 PERC-00 DS-00 EUR-00 VC-00 TEDE-00 INR-00 IO-00 JUSE-00 VCE-00 NSAE-00 OIC-02 PM-00 IRM-00 SSO-00 SS-00 PMB-00 DSCC-00 PRM-00 NFAT-00 SAS-00 SWCI-00 /002W -------------- F792D5 151620Z /38 O 151539Z OCT 02 FM AMEMBASSY ROME TO SECSTATE WASHDC IMMEDIATE 6325 SECDEF WASHDC IMMEDIATE USMISSION USUN NEW YORK IMMEDIATE NSC WASHDC IMMEDIATE INFO EUROPEAN POLITICAL COLLECTIVE IMMEDIATE AMCONSUL FLORENCE AMCONSUL MILAN AMCONSUL NAPLES C O N F I D E N T I A L SECTION 03 OF 03 ROME 005018 SIPDIS STATE FOR T, PM, PM/B AND S/WCI E.O. 12958: DECL: 10/15/2012 TAGS: PREL PREL PREL IT KICC ITKICC ITKICC SUBJECT: ICC: ARTICLE 98 DISCUSSIONS WITH ITALY ALL OF THE OTHER INDIVIDUALS FOR WHOM THE U.S. SEEKS PROTECTION UNDER THE US ARTICLE 98 MODEL TEXT, WITH THE EXCEPTION OF COVERAGE FOR "ALL U.S. NATIONALS." HE ADDED CONFIDENTIAL PAGE 02 ROME 05018 03 OF 03 151620Z THAT, IN PRINCIPLE, THE GOI COULD AGREE THAT CURRENT AND FORMER USG OFFICIALS WOULD BE COVERED, PROVIDED THEY HAVE AN OFFICIAL LINK TO THE USG SO THAT THEY CAN BE REGARDED AS "SENT," AND THE ACT GIVING RISE TO THE ALLEGATIONS ARISES OUT OF THE PERSON'S OFFICIAL FUNCTIONS. HE CONCLUDED BY STATING THAT THE GOI DID NOT HAVE A PROBLEM WITH THE US TERMINATION CLAUSE AND THAT ANY ARTICLE 98 AGREEMENT, WOULD, BY NECESSITY, HAVE TO BE SENT TO THE ITALIAN PARLIAMENT FOR APPROVAL. -------------- COMMENT -------------- ¶10. (C) DISCUSSIONS REMAINED POSITIVE AND FRIENDLY THROUGHOUT THE VISIT, WITH THE ITALIANS CLEARLY COMMITTED TO FINDING A MUTUALLY ACCEPTABLE SOLUTION THAT WOULD ADDRESS U.S. CONCERNS. THE U.S. TEAM TOOK AN IMPORTANT STEP FORWARD WITH THE GOI'S CONCURRENCE THAT FORMER USG OFFICIALS CAN BE COVERED. HOWEVER, GIVEN THE ITALIANS' SUGGESTION THAT SUCH COVERAGE BE LINKED TO ART 98(1),AS AMBASSADOR ARAGONA SAID, "THE DEVIL MAY BE IN THE DETAILS." THE GOI UNAMBIGUOUSLY AFFIRMED THAT THE NATO SOFA ALREADY PROTECTS U.S. FORCES, THE CIVILIAN COMPONENT AND THEIR DEPENDENTS FROM SURRENDER TO THE ICC, AND THE GOI REITERATED THE COMMENT MADE BY THE DANES SEVERAL WEEKS AGO THAT NO ONE QUESTIONS THE USG'S COMMITMENT TO PROSECUTE WAR CRIMINALS. BOTH OF THESE AFFIRMATIONS ARE POSITIVE STEPS FORWARD. END COMMENT. ¶11. (U) AMBASSADOR LINO CLEARED THIS CABLE. CONFIDENTIAL PAGE 03 ROME 05018 03 OF 03 151620Z SEMBLER CONFIDENTIAL > 2002ROME05018 - Classification: CONFIDENTIAL