GOAM REVISED PROPOSED TEXT FOR AN "ARTICLE 98"

UNCLAS SECTION 01 OF 02 YEREVAN 000094

SIPDIS

SENSITIVE

DEPT FOR EUR/CACEN ESIDEREAS, FOR T JCORBETT

E.O. 12958: N/A
TAGS: PREL PARM PGOV AM
SUBJECT: GOAM REVISED PROPOSED TEXT FOR AN "ARTICLE 98"
AGREEMENT



1. (U) Sensitive But Unclassified. Not for Internet
Distribution.


2. (SBU) The GOAM presented us with a diplomatic note
January 13 containing their new proposed text for an
"Article 98" agreement. We have faxed the full text to the
Department for consideration.


3. (SBU) Begin text of the GOAM proposal:

Agreement Between the United States of America and the
Republic of Armenia Regarding the Surrender of Persons of
the United States of America to the International Criminal
Court

The United States of America and the Republic of Armenia,
hereinafter "the Parties,"

Reaffirming the importance of bringing to justice those who
commit genocide, crimes against humanity and war crimes;

Recalling the Rome Statute of the International Criminal
Court, done at Rome on July 17, 1998, by the United Nations
Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court (the "Rome
Statute") is intended to complement and not supplant
national criminal jurisdiction;

Considering that the Parties have each expressed their
intention to evaluate or investigate available information
regarding the facts and where appropriate prosecute acts
within the jurisdiction of the International Criminal Court
alleged to have been committed by their officials,
employees, military personnel or other nationals;

Bearing in mind the Article 2 of the Agreement between the
Government of the United States of America and Government of
the Republic of Armenia regarding cooperation to facilitate
the provision of humanitarian and technical economic
assistance of December 15, 1992, and Article 8 of the
Agreement between the Government of the United States of
America and the Government of the Republic of Armenia
concerning cooperation in the area of counterproliferation
of weapons of mass destruction of July 24, 2000, as well as
other agreements (Agreements) currently in force between the
Parties that establish privileges, and the norms of
international law applicable in this matter;

Bearing in mind as well Article 98 of the Rome Statute;

Noting that in conformity with the Agreements the persons
covered thereunder, including military and civilian
personnel, are accorded status equivalent to that accorded
to administrative and technical personnel under Vienna
Convention on Diplomatic relations of April 18, 1961 and
enjoy immunity from Armenian criminal jurisdiction, as a
result of which their surrender, by any means, to the
International Criminal Court, requires the express consent
of the United States of America;

Noting that under international law, persons of the United
States of America who enjoy immunity from Armenian criminal
jurisdiction, including functional immunity, are not
subject, within the terms of that immunity, to Armenia
jurisdiction, as a result of which their surrender, by any
means, to the International Criminal Court, requires the
express consent of the United States of America;

Noting that the term "Sending State" has been used in
treaties such as the Vienna Convention on Consular Relations
of 1963 and in international law to distinguish among states
referenced;

Noting that the provisions of Section 2007 (c) of the
American Servicemembers' Protection Act, which states, "The
President may, without prior notice to Congress, waive the
prohibition of subsection (a) with respect to a particular
country if he determines and reports to the appropriate
congressional committees that such country has entered into
an agreement with the United States pursuant to Article 98
of the Rome Statute preventing the International Criminal
Court from proceeding against the United States personnel
present in such country";

Have herein agreed as follows, with the purpose both to
restate existing obligations in this matter and to reach
agreement contemplated in Article 98 (2) of the Rome
Statute:

Article 1.

For purposes of this Agreement, the term "person of the
United States of America" means the nationals of the United
States, any current or former United States government
official, employee (including any contractor),or member of
the military, or any United States person who enjoys
immunity from criminal jurisdiction under international law
or who is subject in any manner to the jurisdiction under
international law or who is subject in any manner to the
jurisdiction of the Sending State (the United States of
America).

Article 2.

A person of the United States of America, the Sending State,
shall not, absent the express consent of the United States
of America:

a) be surrendered or transferred by any means to the
International Criminal Court for any purpose, or

b) be surrendered or transferred by any means to any entity
or third country, or expelled to a third country, for the
purpose of surrender to or transfer to the International
Criminal Court.

Article 3.

When the Republic of Armenia extradites, surrenders, or
otherwise transfers a person of the United States of America
to a third country, the Republic of Armenia will not agree
to the surrender or transfer of that person to the
International Criminal Court by the third country, absent
the express consent of the United States of America.

Article 4.

This agreement shall enter into force upon the exchange of
notes confirming that each Party has completed the necessary
domestic legal requirements to bring the Agreement into
force.

It will remain in force until one year after the date on
which either Party notifies the other of its intent to
terminate this Agreement.

The provisions of this Agreement shall continue to apply
with respect to any act occurring or any allegation,
arising, before the effective date of termination.

Done in duplicate in the English and Armenian languages at
.... this .... day of .... 2004, both texts being equally
authentic.

For the United States of America
For the Republic of Armenia

End text.
WALKER