Cablegate: Sudan: P-3 Discussions On Sudan - Icc Issues

DE RUEHLO #2195/01 2401208
P 271208Z AUG 08

C O N F I D E N T I A L SECTION 01 OF 03 LONDON 002195


E.O. 12958: DECL: 08/26/2018

REF: PARIS POINTS - 8/21/2008

Classified By: Political Counselor Richard Mills, reasons 1.4 (b/d).

1.(C/NF) Summary. On August 22, UK, French, and U.S. representatives met in London to discuss ICC - Sudan issues. Capitals said their governments had not made final decisions on a possible Article 16 deferral in advance of a potential ICC indictment of Sudanese President Bashir and that this decision would be based on facts on the ground. If "played right," the UK assessed the leverage of an Article 16 deferral could provide an opportunity to ameliorate conditions in Darfur and possibly the Comprehensive Peace Agreement (CPA). Exploring options, the French said they "had given some ideas to the Sudanese" and would further the discussions in a coming visit by Presidential Deputy Diplomatic Advisor Bruno Joubert. The U.S. delegation underscored that a decision will be driven by "events on the ground" and "not by USG policy on the ICC." U.S. representatives also stressed that it is important not to communicate that the international community is "in the market for an Article 16 deferral deal" because that is not where the USG is. (Full delegations listed in paragraph 12.) End summary.

UK Thinking -----------

2.(C/NF) The UK delegation said HMG rejects any suggestion that an Article 16 deferral of Bashir's indictment de-legitimized the ICC. Article 16 was a provision in the Rome Statute, and the UNSC first referred the Bashir case to the ICC. If "played right," an Article 16 deferral has potential leverage for progress in Darfur and possibly in CPA implementation. HMG has considered including progress on CPA implementation as not to "miss an opportunity" and because the CPA's failure would make the situation in Darfur more acute. Although HMG does not want to be seen as having "made a deal" or to be politicizing the work of the ICC, any deferral would have to mean serious improvement in the situation in Sudan.

3.(C/NF) In HMG estimation, the time at which the international community has the maximum leverage is just before the pre-trial ruling on the ICC Chief Prosecutor's application for indictment. If a decision on an Article 16 is made after the ICC's pre-trial ruling, the potential leverage could be lost if the judges determine that the indictment is unfounded. Or, if Bashir is indicted, the Sudanese could "simply decide not to play ball," ejecting the UN, NGOs, UNAMID, and others from Sudan and intensifying military campaigns in Darfur.

4.(C/NF) If an Article 16 does go forward, the UK will want it to be reviewed every four to six months (less than the 12-month maximum period of a UNSC deferral in the Rome Statute) and to apply only to Bashir (not the other two ICC indictees, Ahmed Haroun and Ali Kushayb). The frequent review of the Article 16 deferral would enable the international community to force progress in Sudan over the long-term and maintain leverage. HMG also thinks that the Sudanese may feel a sense of false confidence because of the support they have received from the Arab League and African Union. The Sudanese need to understand that this is a "real issue" and it is an issue for the Security Council, not the General Assembly.

5.(C/NF) HMG has not made any decisions regarding an Article 16 deferral; a final decision will be taken by Foreign Secretary Miliband, Development Secretary Alexander, and possibly the Prime Minister. If HMG decides to support a deferral, one of the requirements would be "official and formal Sudanese engagement with the ICC," as ICC Chief Prosecutor Ocampo has requested and to include sending lawyers to the Hague to discuss the Haroun and Kushayb indictments. In addition, and at a minimum, there would have to be significant progress in Darfur, probably not based on "specifics asks" as that would "simply give the Sudanese room to play games" on what has actually been achieved.

French Thinking ---------------

6.(C/NF) The French delegation also confirmed that the GOF had not come to a decision, but said it was actively exploring options for an Article 16 deferral. The GOF "had given some ideas" to the Sudanese, in the form of a two-page non-paper. Presidential Deputy Diplomatic Advisor Bruno Joubert plans to make a trip to Sudan to further discussions LONDON 00002195 002 OF 003 (reftel). In French thinking, the P-3 should try to reach consensus quickly in order to maximize leverage and because once an indictment is made, it will be too late. According to French information, the potential indictment was putting significant stress on the National Congress Party (NCP), and Bashir has been weakened within the regime. There is also serious potential that the situation in Darfur could become significantly worse if the indictment goes forward.

7.(C/NF) The French delegation said they consider a two-stage approach to an Article 16 deferral as the most viable: stage one, Sudanese commitments/actions; and then, stage two, a resolution in the Security Council. The French said a UNSCR would need to be binding and with clearly defined and assessable benchmarks. The GOF prefers asks that are "verifiable and concrete." The GOF will also want the Sudanese to hand over Haroun and Kushayb to the ICC.

8.(C/NF) Addressing ICC legitimacy, the French delegation said P-3 should "bear in mind" the potential ramifications a Bashir indictment would have on the ICC. The GOF understands a potential 32 African countries could withdraw from the Rome Statute if Bashir is indicted.

US Thinking -----------

9.(C/NF) USG representatives confirmed that no decisions had been made on a potential Article 16 deferral, and when the time comes to make the decision, it will be done at the highest level. The U.S. delegation underscored that a decision will be driven by "events on the ground" and "not by USG policy on the ICC." It is important not to communicate that the international community is "in the market for an Article 16 deferral deal" because that is not where the USG is. This is the reason the U.S. abstained on UNSCR 1828 on renewal of the UNAMID mandate, not, as some have suggested, because the U.S. is not a party to the Rome Statute. There should be no suggestions of negotiations with the Sudanese. The USG is committed to no impunity, and the ICC is thus far the best vehicle for delivering that in Darfur. If there is a deferral, the USG will want to see significant progress on the ground based on the GOS's own determinations of how to fix the situation. However, even with significant progress, there is no guarantee that the USG would support an Article 16 deferral. Although in consultation with partners like the UK and France, the USG's final decision will be independent.

Next Steps ----------

10.(C) The delegations agreed to remain in contact and to meet (possibly via video conference) in roughly two weeks. There was general consensus on the following public line: "At the present time, we see no justification for an Article 16 deferral." If pressed, "It would be for others to make the case for such an action."

Comment -------

11.(C/NF) The French are the most forward-leaning on an Article 16 deferral but they have the least experience in dealing with the NCP, as demonstrated by their suggestions that mere commitments from Khartoum would merit a deferral and that specific benchmarks in the UNSCR would ensure progress. Although UK, French, and U.S. thinking is still developing, it was beneficial to explain the USG's position on the potential Bashir indictment and the importance the U.S. places on accountability in Darfur, irregardless of the fact that the ICC is the venue. Both the UK and France appeared to have come into these discussions believing that they would be able to secure U.S. agreement on a package that could be presented to the Sudanese. At the conclusion of the talks, the UK and France had accepted that a much more cautious approach would have to be taken and that the Sudanese should not be led to believe that negotiations on a deal were opening.

12.(U) Delegations: UK: Michael O'Neill, FCO UK Special Representative for Sudan Harriet Moynihan, FCO Legal Adviser Paul Johnson, FCO International Security, Director Rachel Edis, FCO Sudan Unit, Head Darfur Team Angus McKee, FCO Sudan Research Analyst Lindy Cameron, Cabinet Office, Deputy Director of Trade and LONDON 00002195 003 OF 003 Development Team France: Jean Gliniasty, French MFA, Africa Director Helene Le Gal, French MFA, Deputy Africa Director Gurvan Le Bras, French MFA, UN/International Organizations Desk Officer US: S/WCI: Ambassador Clint Williamson SPG: Tim Shortley and Pamela Fierst (via video conference) L: John Bellinger (via video conference) L/UNA: Todd Buchwald (via video conference) L/AN: Christina Sanford (via video conference) S/E Sudan: Special Envoy Rich Williamson (via video conference) NSC: Cameron Hudson (via video conference) Embassy London: Peter Lord (note taker) Visit London's Classified Website: XXXXXXXXXXXX

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