US embassy cable - 04KUWAIT367

S E C R E T KUWAIT 000367 
 
SIPDIS 
 
STATE FOR PM, PM/B, L/PM, T, NEA, NEA/ARP, NEA/NGA 
 
E.O. 12958: DECL: 02/03/2014 
TAGS: PREL, MARR, KU, IZ 
SUBJECT: ARTICLE 98 
 
 
Classified By: CDA FRANK C. URBANCIC.  REASON:  1.4 (B) AND (D). 
 
1.  This is an action cable.  See para 4. 
 
2.  (S) During his January 27, 2004 meeting with visiting 
Assistant Secretary Lincoln Bloomfield Jr. and Principal 
Deputy Assistant Secretary of Defense for International 
Security Affairs Peter C.W. Flory, the Kuwait Minister of 
Foreign Affairs, Dr. Mohammed Al-Sabah told his guests that 
the GOK has decided not to participate in the ICC.  He said 
that the legal committee has reviewed the ICC legislation 
carefully, and decided that it conflicted with Kuwait's 
constitution.  Therefore, he said, on the advice of Foreign 
Ministry legal counsel, the Article 98 Agreement with the 
United States had been pulled back before undergoing 
ratification in Parliament.  Dr. Mohammed added that since 
Kuwait would not be a signatory to the ICC, signing the 
Article 98 Agreement with the U.S. becomes moot. 
 
3.  (S)  Bloomfield responded that while he was not able to 
address the Ministry's legal rationale for concluding that 
ratification is unnecessary, the U.S. was bringing agreements 
into force with Rome Statute parties and non-parties alike. 
Flory told Dr. Mohammed that several countries were in 
similar situations and the U.S. preferred to proceed with the 
agreement, despite the GOK decision against the ICC.  This 
was because without the agreement it was still possible that 
some of these countries could decide to refer Americans to 
the ICC, even though they were not obliged to.  Bloomfield 
said the U.S. would come back to the Minister with an 
authoritative view on ratification and entry into force.  Dr. 
Mohammed commented, as an aside, that he did not think the 
Parliament would consider the agreement controversial. 
 
4.  (C)  Action requested:  Request Department provide 
Embassy a legal view, to be shared with Dr. Mohammed, on the 
importance and value of the Article 98 Agreement even between 
non-parties to the Rome Statute, and on the necessity of 
Parliamentary ratification in order to bring the agreement 
into force, if indeed this is the case. 
 
5.  (U)  Assistant Secretary Bloomfield has cleared this 
message. 
 
URBANCIC