DARFUR ACCOUNTABILITY: AMB. PROSPER'S DISCUSSION

C O N F I D E N T I A L SECTION 01 OF 02 PARIS 001039

SIPDIS

E.O. 12958: DECL: 02/17/2015
TAGS: PREL KJUS KAWC SU FR
SUBJECT: DARFUR ACCOUNTABILITY: AMB. PROSPER'S DISCUSSION
WITH FRENCH MFA


Classified By: Political Minister Counselor Josiah Rosenblatt
for reasons 1.4 (b) and (d).


1. (C) SUMMARY: France remains committed to referring those
responsible for violations of international humanitarian and
human rights law in Darfur to the International Criminal
Court (ICC). The USG proposal for a hybrid UN/AU tribunal
raises French concerns over universal standards of justice,
cost and feasibility. END SUMMARY.


2. (C) S/WCI Ambassador Pierre-Richard Prosper met for 90
minutes February 17 with MFA IO Deputy Director Pascal
Texeira da Silva (IO Director Ripert was in Washington).
Expressing concern that the USG and supporters of the ICC
were heading for a train wreck, Prosper stressed that the USG
wanted to see accountability for crimes committed in Darfur
but, as a matter of policy and by law, was unable to provide
funding or evidence to the ICC. Prosper laid out the USG
proposal for a hybrid UN/AU tribunal which would have the
advantage of the strength of the UN and the involvement of
Africa in the tribunal's administration, prosecution, and
policy oversight. Building on the facilities in place in
Arusha for the ICTR, the tribunal he said, could evolve into
a permanent AU tribunal. The USG proposal, he said, would
build the capacity of the AU to address crimes in Sudan and
elsewhere. In addition, Prosper said, there was a need for a
regional tribunal as the ICC would be overburdened by adding
Darfur to the investigations currently begun regarding DRC
and Uganda, and contemplated for CAR. Ambassador Prosper
noted that all the ICC's work was currently focused on
Africa, sending a message to Africa that the continent was
unable to manage its problems and that justice had to be
exported to Europe. Prosper expressed concern that the GoS
would seize on divisions over the ICC as an opportunity to
avoid accountability. The USG proposal, he said, supported
the rule of law in Africa. Ambassador Prosper requested that
the GoF consider our idea, by recognizing its merits, and
asked whether there was any flexibility in the GoF position.


3. (C) Texeira said that France, as a matter of principle,
placed importance on addressing issues of impunity and
post-conflict justice. In the case of Darfur, he continued,
the appalling crimes committed were well-documented.
Following the signing of the comprehensive peace agreement
between the GoS and the SPLA, it was important not to send
the wrong signal that the west viewed the issue of impunity
as unimportant. Texeira noted that the USG's draft UNSC
resolution contained many references to north/south issues
and to Darfur, but only one paragraph on impunity, something
which was not commensurate with the challenge. The UNSC, he
said, needed to be more proactive as there would be no peace
without justice.


4. (C) Texeira said that the GoS was opposed to any
intervention by the international community, claiming that
they could provide justice themselves. This, he said, was
unacceptable as it was clear that Khartoum was not able and
not willing to try criminals. Sudan, he noted, was using
allies in the UNSC (Russia and China) to support their
position, but if the UNSC could reach consensus, Sudan would
have to comply.


5. (C) Texeira said that the case for referral to the ICC was
firmly based on the recommendation of the international
commission of inquiry and had the support of the UNSYG and
High Commissioner for Human Rights Arbour, as well as the
majority of Council members.


6. (C) Responding on the issue of African involvement,
Texeira said that France was also interested in gauging the
Africans on the fight against impunity. He described the
concept of regionalization as worrying, saying that war
crimes and genocide should be judged according to
international norms. He said that the DRC and Uganda cases
currently under consideration by the ICC had been referred at
the request of Africans. Twenty-six African countries, he
noted were ICC signatories and there were African judges and
an African deputy prosecutor. Accordingly, he said, he did
not accept that Africans regarded the ICC as something alien
or imposed by the north.


7. (C) Texeira questioned the feasibility of the USG
proposal, claiming that the ICC had the advantage of being
ready to work. Its current caseload, he said, had not
overburdened it and a third investigation could be conducted
within the existing budget. Noting that the issue of ad
litem judges for the ICTY and ICTR had been problematic,
Texeira wondered where the funding and resources for the USG
proposal would come from, and how long it would take to set
up.


8. (C) Texeira asked whether there was any flexibility in the
USG position which would enable Darfur crimes to be referred
to the ICC if protections designed to ensure that U.S.
citizens were not subject to the court's jurisdiction were
established.


9. (C) Ambassador Prosper replied that legitimation of the
court was impossible for the U.S. as long as our fundamental
concerns remained unaddressed. At the suggestion of UNSC
members, we had sought to obtain Article 98 agreements, but
had encountered difficulty with European supporters of the
ICC whose political desire not to conclude such agreements
was a problem for us. Prosper said that it would be helpful
to have creative discussions on how to resolve the ICC issue.
He noted that some were using the Darfur issue as a means to
legitimize the court rather than to address the issue of
crimes committed. Prosper noted that the ICC had failed to
follow its own complementarity principles on the Uganda case
as there had been no showing that Uganda was not willing to
undertake prosecutions. He reminded Texeira that the ICC's
own budget committee had expressed concern about the
under-representation of Africans on the court. He disagreed
that the ICC was ready to deal with Darfur, noting that the
ICTY and ICTR had both averaged a hundred investigations
relating to one conflict, whereas the ICC had 54 prosecutors
and was looking at four conflicts (DRC, Uganda, CAR, and,
possibly, Sudan). Prosper pressed Texeira to state whether
France would support the USG proposal if it was seen as
feasible and what the French position would be if the AU
expressed support for a hybrid court.


10. (C) After again insisting that the ICC could handle
referral of Darfur within existing resources, Texeira said
the details of the USG proposal were unclear on who would
create it, what its statute would be, how it would be funded
and for how long it would operate. He said that using the
Arusha facilities would complicate the ICTR's completion
strategy. On funding, he said that voluntary contributions
raised problems of stability and predictability and the
political agendas of the funding countries. Assessed
contributions, he said, meant that ICC signatory countries
would be paying twice, once for the ICC and once for the new
court. With France now having to justify the efficiency of
its expenditures on international organizations to
parliament, he said that this double payment would be
difficult to explain.


11. (C) Ambassador Prosper suggested that whatever the
details of the hybrid court, it was ultimately a policy
question for the GoF as to whether it would support it,
particularly if the Africans wanted it. Texeira replied that
the USG proposal would be a dead end for the ICC. Again
referring to a need to address the larger issue of the ICC
separately, Prosper suggested that the USG proposal was a way
to address the immediate issue of Darfur while a global
solution to the ICC issue was sought. He noted that the Rome
treaty would be reopened at the seven-year mark and that
France had had sufficient concerns about the ICC to be the
only country to take advantage of the exemption under Article

124.


12. (C) Referring to majority support in the UNSC for
referring Darfur to the ICC, Texeira noted that the USG was
the only member opposing referral. He asked why, if USG
concerns could be addressed to ensure that there was no
possibility of investigation or prosecution of a U.S.
citizen, it was so difficult to accede to the majority of 12
UNSC members and abstain on the issue of referral.


13. (C) Ambassador Prosper said that USG concerns over the
ICC had been ignored by ICC supporters. We had wanted a
loaf, and were being offered crumbs. The USG proposal on
Darfur, he suggested, was a means to bypass the larger
problem for now to allow time to work on finding a permanent
solution in order to avoid this dispute in future. In
closing, Ambassador Prosper noted that a U.S. veto on Darfur
referral would not only affect the issue of justice in Sudan,
but would also have serious consequences for the ICC.


14. (U) KHARTOUM MINIMIZE CONSIDERED
Leach