BRAZIL: PURSUIT OF ARTICLE 98 AGREEMENT

C O N F I D E N T I A L BRASILIA 001748

SIPDIS

E.O. 12958: DECL: 07/13/2013
TAGS: MARR PREL BR KICC POL MIL
SUBJECT: BRAZIL: PURSUIT OF ARTICLE 98 AGREEMENT

REF: (A) STATE 145167 (B) BRASILIA 1291

Classified By: DepPolCouns Lawrence Cohen, reasons: 1.4 (b & d)


1. (U) In separate meetings, poloff delivered ref A points
outlining continued USG interest in concluding an Article 98
agreement with Brazil to Ministry of Foreign Relations (MRE)
U.S.-Canada Division Chief Paulo Alvarenga and to MRE United
Nations Division Chief Carlos Duarte. Both Alvarenga and
Duarte had participated in the May U.S.-Brazil Pol-Mil
bilaterals (ref B) and were familiar with the Article 98
issue. Alvarenga deferred comment to Duarte, whose office has
the lead on Article 98.


2. (C) Referring to the Article 98 discussions during the May
bilaterals, Duarte reiterated Brazil's strong support for the
ICC -- a position reflected, he said, in domestic public
opinion. Because of this depth of commitment, Brazil would
not undermine its "ICC membership obligations." However,
Brazil's own loyalty to the ICC, Duarte felt, did not
preclude the possibility that a mutually-acceptable
alternative to an Article 98 agreement could be found.
Repeating a long-standing GOB position, Duarte commented that
neither he nor his superiors could conceive of any occasion
where Brazil would subject U.S. citizens on Brazilian soil to
ICC jurisdiction. He added that there was a perception in
Brazil of excessive USG militancy towards the ICC, although
USG concerns that led to this position were clearly
understood by the GOB. He said he hoped the United States, in
the future, would be less confrontational towards the Court.


4. (C) Brazil, he emphasized, remained eager to work out a
solution. He suggested the USG consider submission of
another proposal with a modified text referring exclusively
to U.S. military and official personnel rather than American
citizens. Poloff responded that, with ninety Article 98
agreements already signed with various nations the USG
probably would not consider much alteration of the standard
Article 98 agreement text. Poloff added that senior USG
policymakers remained keenly focused on this issue and would
not be reluctant to raise it in meetings with their Brazilian
counterparts.


5. (C) Comment: Brazil's commitment to the ICC is genuine
and robust, but MRE officials do not want conflict with us
over the Article 98 issue -- they understand clearly our
specific national concerns and also worry about a U.S.
withdrawal over time from international peacekeeping because
of those concerns. Duarte's comments above suggest the GOB
wants to leave the door open to some sort of compromise, and
GOB assurances that under no imaginable scenario would
American citizens be extradited from Brazil to the ICC appear
sincere. The question then emerges as to what form a
compromise might take -- options might include a specific
bilateral agreement that accomplishes our goals but does so
outside the standard Article 98 format, or inserting
non-extradition language into a broader DCA or SOFA document
were Brazil to demonstrate openess to negotiating such
bilateral agreements. Such options would not be easy, quick
or certain to succeed, but they may merit further
consideration.

Duddy