SUDAN: DEMARCHE REQUEST ON ICC ARREST WARRANT FOR

UNCLAS SECTION 01 OF 02 STATE 019213

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: UNSC PREL PHUM SU XA XW
SUBJECT: SUDAN: DEMARCHE REQUEST ON ICC ARREST WARRANT FOR
SUDANESE PRESIDENT BASHIR

REF: A. STATE 12900

B. STATE 19203


1. (SBU) As they deem appropriate and useful, action
addressees are instructed to approach host countries at an
appropriate level regarding the International Criminal
Court's (ICC) likely announcement of an arrest warrant for
Sudanese President Omar al-Bashir on Wednesday, March 4.
Libya is likely to call for a UN Security Council briefing on
the issue sometime after the announcement and may seek a UN
Security Council Press Statement. The United States
Government remains strongly opposed to the tabling of a UNSC
resolution calling for an Article 16 Resolution deferral of
the anticipated ICC arrest warrant of Sudanese President Omar
Hassan al-Bashir. We also remain opposed to any other
Council document on the announcement, unless such a document
is necessary in response to significant violence or other
events in Sudan in response to the ICC decision (e.g. the
Government of Sudan expels the UN or Western diplomats).


2. (SBU) We continue to believe a low-key response from the
UN Security Council following the ICC indictment would be the
best approach. We understand Libya plans to convene a
Security Council meeting on the ICC arrest warrant soon after
the announcement (possibly by Friday, March 6). Libya will
likely seek Council members' support for a UN Security
Council Press Statement. We do not support such a statement
under the present circumstances and doubt the Council could
come to consensual agreement on a text. Post may draw from
the appropriate reftels or background below to obtain U.S.
objectives.

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Objectives
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3. (SBU) Posts should pursue the following objectives:

-- obtain or reaffirm host country's commitment to oppose an
Article 16 resolution following the anticipated issuance of
an ICC arrest warrant for President Bashir;

-- obtain host country's concurrence on a muted response to
the likely ICC announcement, including opposing a Security
Council statement unless a statement is necessary in response
to significant violence or other events in Sudan in response
to the ICC decision (e.g. the Government of Sudan expels UN
or Western diplomats).

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Reporting Deadline
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4. (U) As appropriate and useful, posts should approach host
countries and report back to the Department by 12pm Eastern
Standard Time on Wednesday, March 4, 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).


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
two counts of war crimes, three counts of genocide, and five

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counts of crimes against humanity. The PTC has announced it
will make its decision on Ocampo's request on March 4 at
14:00 (The Hague).


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, Sudan's allies, including
China, the African Union (AU),the Organization of the
Islamic Conference (OIC),and the Arab League, began to push
for an Article 16 resolution.


8. (SBU) So far, no UNSC member has introduced an Article 16
deferral resolution in the UNSC. We suspect this is most
likely because no more than six or 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, as well as 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 are even close to nine votes they
may bring the resolution forward as a political gesture to
signify 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. All action
addresses have indicated they are not likely to support an
Article 16 resolution, but with the announcement pending,
we would like to ensure this is still the case. In the case
of Turkey, both in Washington and at post we continue to
raise the issue at a high level with Turkish officials in the
hopes of securing at least a commitment to abstain.


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). To a certain extent these fears have been fed by some
actors within the Government of Sudan who have made 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). We have underscored 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 justice and peace are not
mutually exclusive. We cannot allow events at the ICC to
impact our focus on other key areas of concern with respect
to Sudan, including ensuring the Government of Sudan uphold
its international and national legal obligations, working
with UN-AU Joint Chief Mediator Bassole to find a durable
peace in Darfur, implementing the Comprehensive Peace
Agreement, and achieving full deployment of of the UN/African
Union Mission in Darfur (UNAMID).


10. (SBU) The U.S., UK, and France have all argued a
deferral is not warranted by events on the ground. 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 demonstrate 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.


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Point of Contact
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11. (U) For further information, please contact Joseph J.
FitzGerald at IO/UNP (fitzgeraldjj@state.sgov.gov).
CLINTON