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