US embassy cable - 05PARIS1039

C O N F I D E N T I A L SECTION 01 OF 02 PARIS 001039 
 
SIPDIS 
 
E.O. 12958: DECL: 02/17/2015 
TAGS: PREL, KJUS, KAWC, SU, FR 
SUBJECT: DARFUR ACCOUNTABILITY: AMB. PROSPER'S DISCUSSION 
WITH FRENCH MFA 
 
 
Classified By: Political Minister Counselor Josiah Rosenblatt 
for reasons 1.4 (b) and (d). 
 
1. (C) SUMMARY:  France remains committed to referring those 
responsible for violations of international humanitarian and 
human rights law in Darfur to the International Criminal 
Court (ICC).  The USG proposal for a hybrid UN/AU tribunal 
raises French concerns over universal standards of justice, 
cost and feasibility.  END SUMMARY. 
 
2. (C) S/WCI Ambassador Pierre-Richard Prosper met for 90 
minutes February 17 with MFA IO Deputy Director Pascal 
Texeira da Silva (IO Director Ripert was in Washington). 
Expressing concern that the USG and supporters of the ICC 
were heading for a train wreck, Prosper stressed that the USG 
wanted to see accountability for crimes committed in Darfur 
but, as a matter of policy and by law, was unable to provide 
funding or evidence to the ICC.  Prosper laid out the USG 
proposal for a hybrid UN/AU tribunal which would have the 
advantage of the strength of the UN and the involvement of 
Africa in the tribunal's administration, prosecution, and 
policy oversight.  Building on the facilities in place in 
Arusha for the ICTR, the tribunal he said, could evolve into 
a permanent AU tribunal.  The USG proposal, he said, would 
build the capacity of the AU to address crimes in Sudan and 
elsewhere.  In addition, Prosper said, there was a need for a 
regional tribunal as the ICC would be overburdened by adding 
Darfur to the investigations currently begun regarding DRC 
and Uganda, and contemplated for CAR.  Ambassador Prosper 
noted that all the ICC's work was currently focused on 
Africa, sending a message to Africa that the continent was 
unable to manage its problems and that justice had to be 
exported to Europe.  Prosper expressed concern that the GoS 
would seize on divisions over the ICC as an opportunity to 
avoid accountability.  The USG proposal, he said, supported 
the rule of law in Africa.  Ambassador Prosper requested that 
the GoF consider our idea, by recognizing its merits, and 
asked whether there was any flexibility in the GoF position. 
 
3. (C) Texeira said that France, as a matter of principle, 
placed importance on addressing issues of impunity and 
post-conflict justice.  In the case of Darfur, he continued, 
the appalling crimes committed were well-documented. 
Following the signing of the comprehensive peace agreement 
between the GoS and the SPLA, it was important not to send 
the wrong signal that the west viewed the issue of impunity 
as unimportant.  Texeira noted that the USG's draft UNSC 
resolution contained many references to north/south issues 
and to Darfur, but only one paragraph on impunity, something 
which was not commensurate with the challenge.  The UNSC, he 
said, needed to be more proactive as there would be no peace 
without justice. 
 
4. (C) Texeira said that the GoS was opposed to any 
intervention by the international community, claiming that 
they could provide justice themselves.  This, he said, was 
unacceptable as it was clear that Khartoum was not able and 
not willing to try criminals.  Sudan, he noted, was using 
allies in the UNSC (Russia and China) to support their 
position, but if the UNSC could reach consensus, Sudan would 
have to comply. 
 
5. (C) Texeira said that the case for referral to the ICC was 
firmly based on the recommendation of the international 
commission of inquiry and had the support of the UNSYG and 
High Commissioner for Human Rights Arbour, as well as the 
majority of Council members. 
 
6. (C) Responding on the issue of African involvement, 
Texeira said that France was also interested in gauging the 
Africans on the fight against impunity.  He described the 
concept of regionalization as worrying, saying that war 
crimes and genocide should be judged according to 
international norms.  He said that the DRC and Uganda cases 
currently under consideration by the ICC had been referred at 
the request of Africans.  Twenty-six African countries, he 
noted were ICC signatories and there were African judges and 
an African deputy prosecutor.  Accordingly, he said, he did 
not accept that Africans regarded the ICC as something alien 
or imposed by the north. 
 
7. (C) Texeira questioned the feasibility of the USG 
proposal, claiming that the ICC had the advantage of being 
ready to work.  Its current caseload, he said, had not 
overburdened it and a third investigation could be conducted 
within the existing budget.  Noting that the issue of ad 
litem judges for the ICTY and ICTR had been problematic, 
Texeira wondered where the funding and resources for the USG 
proposal would come from, and how long it would take to set 
up. 
 
8. (C) Texeira asked whether there was any flexibility in the 
USG position which would enable Darfur crimes to be referred 
to the ICC if protections designed to ensure that U.S. 
citizens were not subject to the court's jurisdiction were 
established. 
 
9.  (C) Ambassador Prosper replied that legitimation of the 
court was impossible for the U.S. as long as our fundamental 
concerns remained unaddressed.  At the suggestion of UNSC 
members, we had sought to obtain Article 98 agreements, but 
had encountered difficulty with European supporters of the 
ICC whose political desire not to conclude such agreements 
was a problem for us.  Prosper said that it would be helpful 
to have creative discussions on how to resolve the ICC issue. 
 He noted that some were using the Darfur issue as a means to 
legitimize the court rather than to address the issue of 
crimes committed.  Prosper noted that the ICC had failed to 
follow its own complementarity principles on the Uganda case 
as there had been no showing that Uganda was not willing to 
undertake prosecutions.  He reminded Texeira that the ICC's 
own budget committee had expressed concern about the 
under-representation of Africans on the court.  He disagreed 
that the ICC was ready to deal with Darfur, noting that the 
ICTY and ICTR had both averaged a hundred investigations 
relating to one conflict, whereas the ICC had 54 prosecutors 
and was looking at four conflicts (DRC, Uganda, CAR, and, 
possibly, Sudan).  Prosper pressed Texeira to state whether 
France would support the USG proposal if it was seen as 
feasible and what the French position would be if the AU 
expressed support for a hybrid court. 
 
10. (C) After again insisting that the ICC could handle 
referral of Darfur within existing resources, Texeira said 
the details of the USG proposal were unclear on who would 
create it, what its statute would be, how it would be funded 
and for how long it would operate.  He said that using the 
Arusha facilities would complicate the ICTR's completion 
strategy.  On funding, he said that voluntary contributions 
raised problems of stability and predictability and the 
political agendas of the funding countries.  Assessed 
contributions, he said, meant that ICC signatory countries 
would be paying twice, once for the ICC and once for the new 
court.  With France now having to justify the efficiency of 
its expenditures on international organizations to 
parliament, he said that this double payment would be 
difficult to explain. 
 
11. (C) Ambassador Prosper suggested that whatever the 
details of the hybrid court, it was ultimately a policy 
question for the GoF as to whether it would support it, 
particularly if the Africans wanted it.  Texeira replied that 
the USG proposal would be a dead end for the ICC.  Again 
referring to a need to address the larger issue of the ICC 
separately, Prosper suggested that the USG proposal was a way 
to address the immediate issue of Darfur while a global 
solution to the ICC issue was sought.  He noted that the Rome 
treaty would be reopened at the seven-year mark and that 
France had had sufficient concerns about the ICC to be the 
only country to take advantage of the exemption under Article 
124. 
 
12. (C) Referring to majority support in the UNSC for 
referring Darfur to the ICC, Texeira noted that the USG was 
the only member opposing referral.  He asked why, if USG 
concerns could be addressed to ensure that there was no 
possibility of investigation or prosecution of a U.S. 
citizen, it was so difficult to accede to the majority of 12 
UNSC members and abstain on the issue of referral. 
 
13. (C) Ambassador Prosper said that USG concerns over the 
ICC had been ignored by ICC supporters.  We had wanted a 
loaf, and were being offered crumbs.  The USG proposal on 
Darfur, he suggested, was a means to bypass the larger 
problem for now to allow time to work on finding a permanent 
solution in order to avoid this dispute in future.  In 
closing, Ambassador Prosper noted that a U.S. veto on Darfur 
referral would not only affect the issue of justice in Sudan, 
but would also have serious consequences for the ICC. 
 
14. (U) KHARTOUM MINIMIZE CONSIDERED 
Leach