Cablegate: Icc: Italy On Bilateral Agreement to Protect U.S. Citizens From the Icc

This record is a partial extract of the original cable. The full text of the original cable is not available.

C O N F I D E N T I A L ROME 003580

SIPDIS

E.O. 12958: DECL: 07/19/2012
TAGS: PREL IT KICC

SUBJECT: ICC: ITALY ON BILATERAL AGREEMENT TO PROTECT U.S. CITIZENS FROM THE ICC

REF: SECSTATE 135262

CLASSIFIED BY: CDA THOMAS COUNTRYMAN FOR REASONS 1.5 (B) AND (D) CONFIDENTIAL

1. (C) SUMMARY: WHILE MINDFUL THAT THE U.S. FACES A GREATER RISK OF ALLEGATIONS UNDER THE INTERNATIONAL CRIMINAL COURT (ICC) THAN DO OTHER STATES, THE GOI REMAINS COMMITTED TO THE ICC AND CRITICAL OF USG STEPS THAT APPEAR AIMED AT UNDERMINING THE COURT. THE GOI WILL STUDY CAREFULLY THE US PROPOSAL TO ENTER INTO A BILATERAL ARTICLE 98 AGREEMENT. END SUMMARY.

2. (C) ON JULY 19, CDA AND POLOFF DELIVERED REF DEMARCHE SEPARATELY TO GIANCARLO ARAGONA, THE MFA'S POLITICAL DIRECTOR, AND TO PAOLO DIONISI, DEPUTY DIPLOMATIC ADVISOR TO PM AND ACTING FM BERLUSCONI. ARAGONA ACKNOWLEDGED THAT THE U.S., DUE TO ITS SPECIAL POSITION IN THE WORLD, FACES A GREATER RISK OF ALLEGATIONS, INVESTIGATIONS, AND PROSECUTIONS UNDER THE ICC THAN DO MOST OTHER STATES. HE SAID, HOWEVER, THAT THE GOI AND THE EU DISAGREE WITH THE U.S. POSITION ON THE ICC. THERE ARE ENOUGH SAFEGUARDS IN THE ICC THAT THE POSSIBILITY OF A POLITICALLY-MOTIVATED PROSECUTION BY THE ICC AGAINST THE U.S. IS SO REMOTE AS TO BE PURELY HYPOTHETICAL, HE ARGUED. THE ITALIAN PUBLIC AND GOVERNMENT STRONGLY SUPPORT THE ICC AND THE GOI WOULD HAVE TO BE CAUTIOUS IN APPROACHING A BILATERAL AGREEMENT THAT COULD BE PERCEIVED AS UNDERMINING IT. THE U.S. HAS EVERY RIGHT TO PROTECT ITS CITIZENS, SAID ARAGONA, BUT ITS POSITION ON THE ICC IS PERCEIVED BY MANY AS AN IDEOLOGICAL ONE, AGAINST THE CONCEPT OF INTERNATIONAL LAW BEING UNIVERSALLY APPLICABLE. HE FOUND IT PARTICULARLY "INCOMPREHENSIBLE" THAT THE USG WAS GOING BEYOND MEASURES TO PROTECT ITS PERSONNEL, INTO AN ALL-OUT CAMPAIGN AGAINST THE COURT BY URGING STATES NOT TO SIGN OR RATIFY THE TREATY.

3. (C) THE CDA COUNTERED THAT OUR DESIRE TO HAVE A BILATERAL AGREEMENT WITH THE GOI UNDER ARTICLE 98 OF THE ROME STATUTE IS NOT MEANT TO UNDERMINE THE ICC BUT TO ADD A LAYER OF PROTECTION FOR U.S. PERSONNEL. REITERATING POINTS FROM REFTEL, HE STRESSED THAT THE U.S. IS COMMITTED TO PREVENTING AND PROSECUTING INTERNATIONAL WAR CRIMES AND SEES DOMESTIC JUDICIAL SYSTEMS AS THE PRIMARY MEANS TO DO SO. THE CONCLUSION OF ARTICLE 98 AGREEMENTS WITH A NUMBER OF OUR FRIENDS WOULD NOT ONLY HELP TO PROTECT U.S. CITIZENS DIRECTLY, BUT WOULD ALSO DETER POLITICAL MISUSE OF THE COURT AND - CONCEIVABLY - COULD LEAD TO A LESSENING OF THE GAP BETWEEN US AND EU PERCEPTIONS OF THE COURT.

4. (C) IN AN EARLIER CONVERSATION AT THE PRIME MINISTER'S OFFICE, DIONISI ALSO PROMISED THAT THE GOI WOULD STUDY THE USG REQUEST CAREFULLY. HE REFERRED TO BERLUSCONI'S JULY 17 SPEECH (BELOW) AND ITS EXPRESSION OF SYMPATHY FOR US CONCERNS.

5. (U) ON JULY 17, AT THE CEREMONY FOR THE FOURTH ANNIVERSARY OF THE SIGNING OF THE ICC STATUTE AT FAO HEADQUARTERS IN ROME, BERLUSCONI DESCRIBED THE CREATION OF THE ICC AS AN "HISTORICAL EVENT." HE SAID THAT CONCERNS OVER NATIONAL SOVEREIGNTY IN THE CONTEXT OF THE ICC ARE NORMAL AND THAT THE RESERVATIONS OF COUNTRIES "WITH GREATER INTERNATIONAL RESPONSIBILITIES" MUST BE RESPECTED. STILL, BERLUSCONI DESCRIBED THE ICC AS "AN EXTRAORDINARY EVOLUTION OF INTERNATIONAL LAW" AND SAID THAT ITALY WOULD MAKE EVERY EFFORT TO CONVINCE COUNTRIES WITH RESERVATIONS ABOUT THE ICC TO JOIN THE COURT. IN PARTICULAR, HE SAID HE WOULD WORK WITH COUNTRIES WHERE HE "HAS MANY FRIENDS" AND WHO LOOK AT "THIS CONFIDENTIAL INSTITUTION WITH HOSTILITY", BECAUSE HE THINKS THEIR FEARS ARE "UNFOUNDED".

5. (C) COMMENT: EMBASSY WILL FOLLOW UP WITH BOTH MFA AND THE PRIME MINISTER'S OFFICE AS A PRIORITY ISSUE. ALTHOUGH ARAGONA DID NOT MENTION IT, WE WOULD NOT BE SURPRISED IF THE EU DEBATES AND ADOPTS A COMMON POSITION ON THE USG REQUEST. ITALIAN OFFICIALS, PARTICULARLY THE PRIME MINISTER, ARE SYMPATHETIC TO USG CONCERNS THAT US OFFICIALS COULD BECOME THE PRIMARY TARGETS OF POLITICALLY MOTIVATED INVESTIGATIONS BY THE COURT. THAT IS OUR STRONGEST ASSET IN PRESSING FOR AN ARTICLE 98 AGREEMENT. WORKING AGAINST US IS THE PERCEPTION, ARTICULATED BY ARAGONA, THAT THE USG IS GOING BEYOND MEASURES TO PROTECT ITS PERSONNEL AND INTO A FULL-COURT PRESS AGAINST THE ICC'S SUCCESSFUL FUNCTIONING. END COMMENT.

COUNTRYMAN

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