SUDAN: DEMARCHE REQUEST ON POTENTIAL ARTICLE 16

UNCLAS STATE 012900

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: UNSC PREL PHUM SU XA XW
SUBJECT: SUDAN: DEMARCHE REQUEST ON POTENTIAL ARTICLE 16
SECURITY COUNCIL RESOLUTION


1. (U)Posts are instructed to demarche host countries at an
appropriate level regarding the United States
Government's strong desire not to see an Article 16
resolution tabled in the Security Council that would defer
the probable International Criminal Court (ICC) arrest
warrant for Sudanese President Omar Hassan al-Bashir. Post
may draw from the appropriate objectives and background below
in delivering this demarche. Embassies London,
Paris, and San Jose please inform host governments we are
delivering this demarche in select UNSC capitals.

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Objectives for Mexico, Japan, Austria, Croatia, and Turkey
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2. (SBU) Posts should pursue the following objectives:

-- obtain firm commitments from host countries that they will
not support an Article 16 resolution following the
likely issuance of an ICC arrest warrant for President Bashir;

-- request that host countries clearly state to the
proponents of this resolution they will not support an
Article 16 resolution;

-- inform host countries of the United States Government's
position that we support the ICC in its pursuit of those
who have perpetrated war crimes; it is in our country's
interest that the most heinous criminals, like the
perpetrators of genocide in Darfur, are held accountable; and
we see no reason to support deferral of the indictment
of Bashir;

-- relay to host countries that we feel a low-key response
from the UN Security Council following the ICC indictment
would be the best approach. We do not plan on seeking or
supporting any Council statement or action following the
announcement of an arrest warrant unless the situation in
Sudan escalates out of control.

-- relay to host countries our position that any violence
perpetrated against foreign interests, humanitarian aid
workers or UNAMID encouraged or permitted by the Government
of Sudan after the issuance of an arrest warrant would be
wholly unacceptable, and that we believe
this message should be clearly communicated to Sudan by all
Council members.

-- For Turkey: note we understand Turkey's concerns with the
ICC. Underscore that we share some of the same
concerns. Emphasize, however, supporting a deferral
resolution would be a vote for impunity in Darfur. Note
that if a resolution is tabled and a vote occurs even an
abstention would be preferable to a vote for
such a resolution, as long as the intent to abstain is made
perfectly clear to the proponents of this resolution.

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Objectives for Burkina Faso
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3. (SBU) Embassy Ouagadougou should pursue the following
objectives:

-- obtain from Burkina Faso a commitment to reconsider their
position on an Article 16 deferral due to the
serious situation and lack of progress on the ground in
Darfur;

-- request that Burkina Faso ask the proponents not to bring
the resolution to the Council as it will surely fail
to garner the nine necessary affirmative votes without a P5
veto to adopt the resolution;

-- inform Burkina Faso of the United States Government's
position that we support the ICC in its pursuit of those
who have perpetrated war crimes; it is in our country's
interest that the most heinous criminals, like the
perpetrators of genocide in Darfur, are held accountable; and
we see no reason to support deferral of the indictment
of Bashir;

-- relay to host country that we feel a muted response from
the Council following the ICC indictment would be the
best approach. We do not plan on seeking or supporting any
Council statement or action following the announcement
of an arrest warrant, unless the situation in Sudan escalates
out of control.

-- relay to host country our position that any violence
perpetrated against foreign interests, humanitarian aid
workers or UNAMID encouraged or permitted by the Government
of Sudan after the issuance of an arrest warrant would be
wholly unacceptable, and we believe this
message should be clearly communicated to Sudan by all
Council members.


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Reporting Deadline
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4. (U) Post should demarche host countries and report back
to the department by 5pm Eastern Standard Time on
Friday, February 13, 2009.

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Background
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5. (U) Security Council Resolution 1593 (2005) referred the
situation in Darfur to the Prosecutor of the ICC.
Despite well known U.S. concerns with the ICC, the United
States did not veto the resolution (but abstained). The
resolution was adopted by the Council 11-0-4 (U.S., Algeria,
Brazil, China). The resolution also required
Sudan to fully cooperate with the ICC investigation.


6. (U) In July 2008, ICC Chief Prosecutor Luis
Moreno-Ocampo applied for an arrest warrant with the ICC's
Pre-Trial Chamber (PTC) for Sudanese President Omar Hassan
al-Bashir. The indictment application charged Bashir with
ten counts of war crimes, three counts of genocide, and five
counts of crimes against humanity. The PTC will
likely make a decision on the case before the end of the
month. We are aware of media reports indicating that an
arrest warrant was issued on February 11, 2009, but we have
not received confirmation of these reports.


7. (SBU) Soon after the arrest warrant application was
announced Sudan launched an international campaign to
invoke Article 16 of the Rome Statute, which allows the
Security Council (via a resolution) to defer for up to one
year a case pending in the ICC. Bashir enlisted the support
of China, the African Union (AU),the Organization
of the Islamic Conference (OIC),and several African and
Muslim states in his push for an Article 16 resolution.


8. (SBU) So far, no UNSC member has introduced such a
resolution in the UNSC. This is most likely because no
more than seven Security Council countries have expressed
support for an Article 16 deferral. In order for a UNSC
resolution to be approved, it must receive at least nine
supporting votes with no vetoes by any of the P5. While
it is doubtful the proponents of the resolution will obtain
the nine necessary votes, we fear if the proponents
think they have nine votes they will bring the resolution
forward as a political gesture (i.e. that a majority of
the Security Council supports the action). Therefore, the
USG would like to ensure firm commitments from at least six
other
UNSC members to oppose or abstain on an Article 16 deferral
resolution. The UK, Costa Rica, and France have
publicly stated that they oppose a deferral. Mexico and
Japan are both members of the ICC and, therefore, are likely
to oppose such a deferral. We
expect Austria and Croatia to follow the UK and French lead
and oppose a deferral. Turkey shares many of our
concerns about the ICC and may only be able to abstain on an
ICC resolution. Burkina Faso so far supports a
deferral but may be open to persuasion.


9. (U) Proponents of deferring the ICC case argue the
indictment of Bashir could affect stability on the ground
in Darfur and scuttle the Comprehensive Peace Agreement
(CPA). These fears have been fed by the Government of
Sudan's veiled threats to the international community should
an arrest warrant be issued for President Bashir
(e.g. we cannot guarantee the safety of westerners, all
options are on the table, the rebels will use the
indictment to create chaos in Darfur). The United States has
delivered the message to the GOS that any retaliatory
measures against the UN, humanitarian organization, or other
westerners would not serve the interests of the GOS
and will not be tolerated by the international community.
The United States believes that justice and peace are not
mutually exclusive. We will continue to insist following a
possible issuance of an ICC arrest warrant for President
Bashir that the Government of Sudan uphold all their
international and national legal obligations, work with
the UN-AU negotiator to find a durable peace in Darfur,
implement their CPA responsibilities, and to allow
uninhibited the full deployment of UNAMID.


10. (SBU) In contrast, the U.S., UK, and France argue that a
deferral is not warranted. For seven
months the Government of Sudan has been aware of the
proceedings filed by the ICC's Prosecutor Luis
Moreno-Ocampo. During this time the Government of Sudan has
done little to indicate that a deferral of the ICC
indictment would lead to progress on the Darfur Peace
Agreement, improvement in the lives of the Darfuri people,
or more rapid implementation of the CPA.


11. (SBU) Background on Burkina Faso: As an AU member,
Burkina Faso is in a difficult predicament on this issue.
However, the U.S. has very much appreciated and admired
Burkina Faso's leadership and independent thinking thus
far on the Security Council, as demonstrated in its vote for
the Zimbabwe Sanctions resolution last year. Burkina
Faso knows this issue better than most, due to the exemplary
leadership of its former Foreign Minister Djibrille
Bassole.

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Point of Contact
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12. (U) For further information, please contact Rebecca
Goldenberg (goldenbergra@sgov.gov) or Joseph J. FitzGerald
(fitzgeraldjjo@state.sgov.go at IO/UNP.
CLINTON