CHILE: GOC UNWILLING/UNABLE ON ARTICLE 98;

C O N F I D E N T I A L SANTIAGO 000130

SIPDIS

SIPDIS

E.O. 12958: DECL: 01/20/2016
TAGS: PREL MARR MASS CI
SUBJECT: CHILE: GOC UNWILLING/UNABLE ON ARTICLE 98;
PROPOSES SOFA LANGUAGE

REF: A. CORBETT/KAMIAN 1/17/2006 EMAIL


B. SANTIAGO 91

C. 05 SANTIAGO 2573

D. 05 SANTIAGO 2544

E. 05 STATE 225438

Classified By: Ambassador Craig Kelly for reasons 1.4(b) and (d).


1. (C) Summary: U.S. and GOC officials conducted a digital
video conference (DVC) on January 18 to explore ideas towards
managing relations after Chile ratifies the Rome Statutes
creating the International Criminal Court (ICC).
International Security and Nonproliferation Assistant
Secretary Rademaker reiterated the U.S. priority of

SIPDIS
concluding an Article 98-type agreement and discussed
options. Chilean Foreign Ministry Director General Portales
stated that an Article 98 agreement was not politically
possible. Portales suggested President Bush and Lagos had
"agreed" in November to find a creative solution to the
issue. (Note: Portales clearly had the impression the
November meeting gave Chile more of a blank check than is our
understanding. End Note.) He said the GOC had submitted two
proposals for reaching this objective by deepening mil-mil
cooperation through a durable SOFA. A/S Rademaker cautioned
Chile against believing the USG would grant Chile a waiver of
American Servicemember's Protection Act (ASPA) prohibitions,
noting other allies had taken the decision to enter into
Article 98 agreements with the U.S. Both sides agreed to
continue exploring options toward resolving the Article 98
issue. End Summary.

2 (U) Director General for Foreign Affairs Ambassador Carlos
Portales was accompanied by Gonzalo Garcia, Under Secretary
of the Navy; Ambassador Claudio Troncoso, Director, MFA Legal
Affairs Directorate; Alejandra Quezada, Lawyer, Legal Affairs
Directorate; Maria Inez Ruz, Advisor to the Minister of
Defense; and Rodrigo Nieto, Chief of Staff to Portales.


3. (C) During the discussions, Assistant Secretary Rademaker
laid down the following markers:

-- The United States priority is to conclude an Article 98
with Chile at the earliest possible date.

-- The U.S. is prepared to explore creative options to this
end, including a stand-alone agreement, developing an
existing agreement, or through a protocol to an existing
agreement. (Ref A point paper submitted to GOC January 17.)

-- Chile should not count on a Presidential waiver of ASPA
sanctions: the only historical precedent not related to an
Article 98 agreement was for new NATO members, at least one
of which had previously concluded an Article 98 agreement.
MNNA has never been used as a tool to avoid sanctions for a
country subject to the ASPA prohibition.

-- Several other countries, notably Colombia in the
hemisphere, have faced political difficulties in deciding to
enter into an Article 98 agreement with the U.S. Granting a
national interest waiver for Chile now could harm our
relations with those countries.

-- A/S Rademaker acknowledged our receipt of and interest in
the Chilean proposals. He noted the Chilean-proposed SOFA
language grants broad protections to a limited class of
Americans, while the USG seeks narrow protection
(non-surrender to the ICC) for a broader class of persons, to
include U.S. nationals, current and former government
officials, employees, and military personnel.

-- Ambassador Kelly noted that Article 98 had been
consistently misrepresented in the Chilean press as a
non-reciprocal agreement. In fact, Article 98 agreements are
commonly reciprocal, and this fact, if more widely known,
might reduce some of the legislative resistance to an Article
98 agreement.


4. (C) Portales, for his part, laid out the following points:

-- Chilean President Lagos had conveyed to the MFA that
President Bush wished to avoid damage to U.S.-Chile relations
from Chile's ratification of the ICC. In this spirit, and
given increasing instability in the region, Chile had
advanced proposals for closer mil-to-mil relations.

-- Chile was not in a position to go beyond the proposals
presented to Ambassador Kelly on January 13 (ref B). Lagos
explained this to President Bush during their meeting in
November. Chile does not now see the possibility of
concluding an Article 98-type agreement.

-- Portales believes that ASPA has several options for
exemptions, and different criteria for different countries.
The U.S. does have some flexibility as to whether to apply
the ASPA prohibitions.

-- The GOC and the Chilean Congress were philosophically
committed to the universal jurisdiction of the ICC. Chile
was in line with the EU common position on the ICC.

-- Congress' February recess means the ICC would not be
ratified before the new Congress takes office in March.
However, the new Congress would share the same commitment and
the ICC would eventually be ratified.

-- Portales noted the Defense Consultative Committee meetings
scheduled in Santiago on January 24 and 25, and said he hoped
the U.S. and Chile could continue to discuss the Chilean
proposals for increased military cooperation in that venue.
(Note: Neither the Article 98 negotiators nor the SOFA
negotiators will be present at the DCC talks. End Note.)

The Way Forward
--------------


5. (C) Portales said he and U/S Garcia would report the
results of the meeting back to their ministries and a report
would also go to President Lagos. A/S Rademaker suggested
the GOC could consider delaying action on ICC ratification
until our governments could agree on a way forward. Portales
agreed to study the Janaury 17 point paper in more depth.
KELLY