US embassy cable - 04YEREVAN94

UNCLAS SECTION 01 OF 02 YEREVAN 000094 
 
SIPDIS 
 
SENSITIVE 
 
DEPT FOR EUR/CACEN ESIDEREAS, FOR T JCORBETT 
 
E.O. 12958: N/A 
TAGS: PREL, PARM, PGOV, AM 
SUBJECT:  GOAM REVISED PROPOSED TEXT FOR AN "ARTICLE 98" 
AGREEMENT 
 
 
1. (U) Sensitive But Unclassified.  Not for Internet 
Distribution. 
 
2. (SBU) The GOAM presented us with a diplomatic note 
January 13 containing their new proposed text for an 
"Article 98" agreement.  We have faxed the full text to the 
Department for consideration. 
 
3. (SBU) Begin text of the GOAM proposal: 
 
Agreement Between the United States of America and the 
Republic of Armenia Regarding the Surrender of Persons of 
the United States of America to the International Criminal 
Court 
 
The United States of America and the Republic of Armenia, 
hereinafter "the Parties," 
 
Reaffirming the importance of bringing to justice those who 
commit genocide, crimes against humanity and war crimes; 
 
Recalling the Rome Statute of the International Criminal 
Court, done at Rome on July 17, 1998, by the United Nations 
Diplomatic Conference of Plenipotentiaries on the 
Establishment of an International Criminal Court (the "Rome 
Statute") is intended to complement and not supplant 
national criminal jurisdiction; 
 
Considering that the Parties have each expressed their 
intention to evaluate or investigate available information 
regarding the facts and where appropriate prosecute acts 
within the jurisdiction of the International Criminal Court 
alleged to have been committed by their officials, 
employees, military personnel or other nationals; 
 
Bearing in mind the Article 2 of the Agreement between the 
Government of the United States of America and Government of 
the Republic of Armenia regarding cooperation to facilitate 
the provision of humanitarian and technical economic 
assistance of December 15, 1992, and Article 8 of the 
Agreement between the Government of the United States of 
America and the Government of the Republic of Armenia 
concerning cooperation in the area of counterproliferation 
of weapons of mass destruction of July 24, 2000, as well as 
other agreements (Agreements) currently in force between the 
Parties that establish privileges, and the norms of 
international law applicable in this matter; 
 
Bearing in mind as well Article 98 of the Rome Statute; 
 
Noting that in conformity with the Agreements the persons 
covered thereunder, including military and civilian 
personnel, are accorded status equivalent to that accorded 
to administrative and technical personnel under Vienna 
Convention on Diplomatic relations of April 18, 1961 and 
enjoy immunity from Armenian criminal jurisdiction, as a 
result of which their surrender, by any means, to the 
International Criminal Court, requires the express consent 
of the United States of America; 
 
Noting that under international law, persons of the United 
States of America who enjoy immunity from Armenian criminal 
jurisdiction, including functional immunity, are not 
subject, within the terms of that immunity, to Armenia 
jurisdiction, as a result of which their surrender, by any 
means, to the International Criminal Court, requires the 
express consent of the United States of America; 
 
Noting that the term "Sending State" has been used in 
treaties such as the Vienna Convention on Consular Relations 
of 1963 and in international law to distinguish among states 
referenced; 
 
Noting that the provisions of Section 2007 (c) of the 
American Servicemembers' Protection Act, which states, "The 
President may, without prior notice to Congress, waive the 
prohibition of subsection (a) with respect to a particular 
country if he determines and reports to the appropriate 
congressional committees that such country has entered into 
an agreement with the United States pursuant to Article 98 
of the Rome Statute preventing the International Criminal 
Court from proceeding against the United States personnel 
present in such country"; 
 
Have herein agreed as follows, with the purpose both to 
restate existing obligations in this matter and to reach 
agreement contemplated in Article 98 (2) of the Rome 
Statute: 
 
Article 1. 
 
For purposes of this Agreement, the term "person of the 
United States of America" means the nationals of the United 
States, any current or former United States government 
official, employee (including any contractor), or member of 
the military, or any United States person who enjoys 
immunity from criminal jurisdiction under international law 
or who is subject in any manner to the jurisdiction under 
international law or who is subject in any manner to the 
jurisdiction of the Sending State (the United States of 
America). 
 
Article 2. 
 
A person of the United States of America, the Sending State, 
shall not, absent the express consent of the United States 
of America: 
 
a) be surrendered or transferred by any means to the 
International Criminal Court for any purpose, or 
 
b) be surrendered or transferred by any means to any entity 
or third country, or expelled to a third country, for the 
purpose of surrender to or transfer to the International 
Criminal Court. 
 
Article 3. 
 
When the Republic of Armenia extradites, surrenders, or 
otherwise transfers a person of the United States of America 
to a third country, the Republic of Armenia will not agree 
to the surrender or transfer of that person to the 
International Criminal Court by the third country, absent 
the express consent of the United States of America. 
 
Article 4. 
 
This agreement shall enter into force upon the exchange of 
notes confirming that each Party has completed the necessary 
domestic legal requirements to bring the Agreement into 
force. 
 
It will remain in force until one year after the date on 
which either Party notifies the other of its intent to 
terminate this Agreement. 
 
The provisions of this Agreement shall continue to apply 
with respect to any act occurring or any allegation, 
arising, before the effective date of termination. 
 
Done in duplicate in the English and Armenian languages at 
.... this .... day of .... 2004, both texts being equally 
authentic. 
 
For the United States of America 
For the Republic of Armenia 
 
End text. 
WALKER