C O N F I D E N T I A L ZAGREB 001400

SIPDIS


E.O. 12958: DECL: 06/16/2013
TAGS: PREL PARM MARR HR KICC
SUBJECT: LINO DELEGATION VISIT: CROATIA WILL NOT SIGN
ARTICLE 98 AGREEMENT

REF: A. ZAGREB 1298


B. ZAGREB 1364

Classified By: Ambassador Lawrence Rossin for Reasons 1.5 (B and D)

Summary
--------------


1. (C) Citing both political and legal reasons, the GoC told
PM/B's Ambassador Marisa Lino on June 12 that Croatia cannot
now sign an Article 98 Agreement. EU pressure, Croatia's
status as a signatory of the Rome Statute and a "sensitive"
domestic political environment were the main reasons cited by
the GoC's high-level inter-agency delegation which met with
Lino. The Croatian side claimed that agreements now in force
-- like the PFP SOFA and protections for NATO forces built
into the Dayton Accords -- provide most of the protections
the U.S. is seeking. Nevertheless, the GoC proposed that it
might be possible to include the provisions of a
non-surrender agreement into a broader document on bilateral
legal cooperation. Lino expressed skepticism, but said the
U.S. would be pleased to review any proposal.


2. (C) During and after the visit, the GoC sought to spin
its engagement with the Lino delegation as proof that it is
doing its part to improve U.S. - Croatia bilateral relations.
In the press, however, the GoC crowed about turning down the
USG in an apparent effort to make political hay with voters
at home and to curry favor with the EU, which is now
considering Croatia's application for membership. End
Summary.

Croatia Takes Talks Seriously
--------------


3. (C) On June 12, PM/B Senior Negotiator Ambassador Marisa
Lino led an inter-agency delegation to Zagreb to encourage
Croatia to move closer to signing an Article 98 non-surrender
agreement with the U.S. Lino's delegation included top-level
legal and policy experts from both State and DoD. The
Croatian delegation was authoritative, led by Deputy Foreign
Minister Ivan Simonovic, and included Deputy Defense Minister
Gareljic and legal and policy experts from the Foreign
Affairs, Defense and Justice Ministries. Also present was
Ivo Josipovic, formally a professor of Law at Zagreb

University, but informally PM Racan's top legal advisor; he
was Croatia's representative at the prepcon for the Rome
Statute.

PM Racan Message: Work With Us, Please
--------------


4. (C) Simonovic sought a private meeting with Ambassadors
Lino and Rossin in advance of the meeting of the two
delegations. In it he outlined the Croatian positions that
would be expanded upon in the larger session. Conveying a
"personal message" from PM Racan, Simonovic said Croatia
understands U.S. concerns about the Rome statute and
recognizes the U.S. vulnerability to politically motivated
indictments. Croatia will "do all it can" to work with the
USG, Simonovic continued, but only within its "limited
maneuvering space." Simonovic pointed out that, because of
existing agreements, there is no possibility that any member
of the U.S. armed forces could be extradited to the ICC.
Simonovic acknowledged that the GoC's legal arguments against
signing a non-surrender agreement as proposed by the U.S. are
"not unique," and focused instead on Croatia's "special
political circumstances."
ICC/ICTY Issue Toughest Nut to Crack
--------------


5. (C) The most difficult issue will continue to be the
association of the ICC with ICTY. Technically, Simonovic
told Lino, Croatia voluntarily accepted the jurisdiction of
the ICTY, but the reality is that it was imposed by the
international community; Croatia had no choice in the matter.
If the GoC were to sign an exemption for Americans, it would
be impossible to convince Croatia's voters that this was not
a double standard. Simonovic did not mention EU pressure (we
have assured him and others that this argument carries little
weight with us), but he insisted that Croatia cannot be a
"showcase signatory," and that more EU countries would have
to sign non-surrender agreements before Croatia could
consider signing the text as we proposed it. Simonovic
underscored Croatia's "unique position" by describing its
three categories of neighbors:

- countries which are already signatories of Article 98
agreements (and do not have immediate EU aspirations);
- countries which are not signatories and do not receive
military assistance from the U.S.; and
- countries which are either already in NATO or soon will be.


That, he said, left only Croatia. Surely it was not our
intent nor in our interest to single Croatia out for special
penalty?

Can Non-Surrender Be Part of Broader Agreement?
-------------- --


6. (C) Simonovic said Croatia will propose that the
provisions of the U.S. non-surrender agreement be included in
a broader document covering legal cooperation, but he said
that the USG's precise language on non-surrender could not be
included in such an agreement. Lino was skeptical that an
MLAT or an extradition treaty could be crafted to address USG
concerns, but the U.S. would be pleased to consider any
proposal from the Croatian side; we rejected no
counterproposal in advance.

Lino: Why We Are Here
--------------


7. (C) At the broader meeting, Amb. Lino explained the USG's
motivation for seeking a non-surrender agreement. We seek
neither immunity nor impunity, but rather protection from
politically motivated indictments. Recent cases in Belgium
reinforce our concern that the U.S., because of its role in
world affairs, will be an early target of ICC indictments.
Lino explained in detail the variations we are willing to
accept in a non-surrender agreement; but the essence of all
are the same: a promise not to surrender U.S. nationals
without our consent.

Croatia Values Cooperation with the U.S.
--------------


8. (C) Simonovic welcomed the Lino delegation, and pointed
out that the authoritative nature of the GoC delegation
demonstrated the seriousness with which Croatia took this
issue. Croatia is very interested in good relations with the
U.S., he continued; "we owe you a lot, and we expect more
from our future cooperation." He expressed regret that
Croatia could not have been more supportive on Iraq, but said
that was changing. The Racan Cabinet was meeting as the
delegations talked to approve the deployment of a number of
Croatian troops to Iraq, Simonovic reported (ref b). (During
the discussion, an aide handed Simonovic a note; he
theatrically announced Cabinet approval for the offer for
Iraq; Ambassador Rossin expressed appreciation but noted that
military-to-military talks would determine if the proposed
Croatian contingent to the Coalition Forces would be useful.)


9. (C) Deputy Defense Minister Gareljic underscored the
value Croatia places on the bilateral military relationship.
Representing the branch of the GoC which will feel the impact
of ASPA provisions most directly, Gareljic explained the
importance of U.S. military assistance in Croatia's efforts
to reform its military into a highly-trained, well-equipped
force that would be interoperable with NATO. Gareljic
outlined Croatia's contributions to ongoing operations,
including the deployment of a Croatian MP platoon to
Afghanistan in support of ISAF and the donation of surplus
weapons for the fledgling Afghan National Army.
Lino: "Your Troops in ISAF Are Protected By Article 98"
-------------- --------------


10. (C) Lino thanked Gareljic for his presentation, but
pointed out that Croatia's troops are in fact operating in
Afghanistan with far greater protection from ICC prosecution
than the U.S. seeks in the proposed non-surrender agreement.
The ISAF agreement (which inter alia protects Croatia's MPs)
is considered an Article 98 agreement under the Rome Statute.
Further, there are four Croatian citizens who currently
serve as members of the U.S. armed forces; without
protection, they are potential victims of political
prosecutions.

Existing Agreements Provide Partial Protection
-------------- -


11. (C) Andreja Metelko-Zgombic, head of the Foreign
Ministry's International Law Department, described a number
of existing legal instruments that, she said, already provide
the protections we seek in an Article 98 agreement to U.S.
servicemembers. Multilateral agreements, like the PFP SOFA
and the Dayton Agreements (which covers NATO forces
participating in SFOR) provide full immunity, not just a
non-surrender agreement. Three bilateral agreements, one
dating from 1994 protecting U.S. assistance providers, one
from 2001 (recently extended through 2003) on law enforcement
cooperation, and now one covering workers implementing a WMD
assistance instruction, provide protections similar to those
to administrative and technical workers as described by the
Vienna Conventions.

Croatia's Top Lawyer: A Political, Not Legal Decision


-------------- --------------

12. (C) Ivo Josipovic, one of Croatia's leading jurists and
a participant at the preparatory conference which finalized
Qe Rome Statute, outlined the GoC's legal objections to
signing an agreement as proposed by the USG. Croatia will
interpret paragraph 2 of Article 98 in accordance with the EU
guidelines; that means the language proposed by the U.S. is
too broad. After an extensive, detailed discussion with Lino
about how the term "sending" can be variously interpreted,
Josipovic admitted that in the final analysis, lawyers can
argue valid points from both sides; he agreed (as did
Simonovic in the pre-meeting), that the decision to choose
one or the other interpretation is a political decision,
given the absence of any negotiating record.

Possible GoC Counterproposal
--------------


13. (C) Josipovic pointed out that the spirit of the proposed
non-surrender agreement might be embedded in a broader
document covering legal cooperation; Croatia and the U.S.
have no current MLAT, and the extradition treaty in force
dates from 1904. Josipovic said that the GoC had approached
him to draft a document which would fit such a description
and hoped to have it ready soon.


14. (C) Lino explained that there are serious problems with
using either MLATs or Extradition Treaties to prevent
politically-motivated indictments. Nevertheless, the U.S.
would be willing to examine any proposal. Lino agreed that
the decision to sign a non-surrender agreement is in fact a
political decision, and she stressed how important these
agreements are to the President, the Secretary and to the
Congress. She urged the Croatians not to lose themselves in
the technical details of the legal argument, but to focus on
the broader principles. Ambassador Rossin added that, the
GoC side having acknowledged that the whole issue was
political, not legal, we would watch whether the GoC chose to
sign or not, i.e. to stick with the EU guidelines and ICTY
prallels it acknowledged not to be valid, and assess the
impact on our relations accordingly. (The Ambassador made
this point again, even more directly, to Josipovic during a
luncheon following the meeting. Josipovic, a close Racan
confidant, agreed to convey the message.)


15. (C) Simonovic expressed hope that the U.S. and the EU
would soon reach agreement on how to move forward with
Article 98 agreements, and opined that "this disagreement
will be exploited by countries which do not share our
values." Emphasizing the role Croatia plays in promoting
stability in the region, Simonovic asked about the likelihood
of a national interest waiver. Lino was straightforward;
there has been no decision on any waivers of ASPA provisions
and Croatia should certainly not count on one.

GoC Manipulates Press Coverage
--------------


16. (C) Press interest in the Lino delegation's visit was
high. Despite the lack of progress, Simonovic declared
victory for the Croatian side, announcing that Croatia had
said "no to the treaty (an Article 98 Agreement), but yes to
further dialogue." In one instance, his statement bordered
on fabrication: he claimed that the GoC had actually made a
proposal whereby accused Americans would be extradited to the
U.S. and not to the ICC "in line with both the Rome Statute
and the EU guidelines." Croatia's raucous press picked up
the theme; one headline read: "Croatia's 'No' to America,"
and leading columnists declared the Lino delegation visit a
"diplomatic victory" for the GoC, since they were able to
find a way forward. In the absence of responsible briefings,
the press is drifting even farther afield, with some
speculating that a deal trading leniency for ICTY fugitive
Ante Gotovina for a "yes" on an Article 98 Agreement was on
the table.

Comment
--------------


17. (C) The GoC took the visit of Amb. Lino's delegation
seriously, but the reality is that we are no closer to
signing an Article 98 agreement than before the June 12
discussions. Nor was there any real indication that a GoC
counterproposal will take into account our fundamental
desideratum. We were impressed by the Croatian delegation's
preparation and focus on substantive issues without raising a
litany of justifications for a waiver. But we were
disappointed (predictably) with their spin of the press and
public opinion. While they talked and acted seriously, we
assess that the GoC's main aim, to make the public think it
has put relations with the U.S. back on track, was largely
attained. That may of course be ephemeral; July 1 is only
two weeks away. But clearly the domestic objective was more

important that the discussion with us, which was foreordained
to be Kabuki since the GoC had already decided "no." Until
the EU changes its stance, we should expect Croatia to remain
solidly in the "no" column; even if the EU changes its
position, PM Racan's ICTY timidity may stall a GoC "yes."


18. (U) Ambassador Lino's delegation cleared this telegram.
MOON
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