Identifier
Created
Classification
Origin
02ROME5018
2002-10-15 15:39:00
CONFIDENTIAL
Embassy Rome
Cable title:  

ICC: ARTICLE 98 DISCUSSIONS WITH ITALY

Tags:  PREL IT KICC 
pdf how-to read a cable
This record is a partial extract of the original cable. The full text of the original cable is not available.
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
-------

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