US embassy cable - 05ASUNCION526

C O N F I D E N T I A L ASUNCION 000526 
 
SIPDIS 
 
SENSITIVE 
 
STATE FOR A/S NORIEGA, A/S RADEMAKER, PDAS DERHAM, AND PM P 
MURRAY AND W BROOKS 
STATE ALSO FOR T 7208 HST FRANCIS BOLTON 
STATE PASS TO USAID LAC/AA 
DOD FOR OUSD(P)/ISP/NP/ICC COL TIA JOHNSON 
NSC FOR KIMBERLY BREIER 
SOUTHCOM FOR POLAD DAN JOHNSON 
 
E.O. 12958: DECL: 04/19/2015 
TAGS: MARR, PGOV, PREL, PINR, PA, KICC 
SUBJECT: PARAGUAY ARTICLE 98 DISCUSSIONS REACH DEADLOCK 
 
REF: ASUNCION 00305 
 
Classified By: PolOff Mark Stamilio, reasons 1.4(b) and (d). 
 
1. (C) As follow-up to the April 6 meeting between A/S 
Rademaker and FM Rachid in Washington, DC, on April 15, DOD 
attorney COL Tia Johnson and PolOff met with MFA legal 
advisor Ernesto Velasquez to discuss the latest versions of 
draft texts that would provide Article 98 protections in 
Paraguay (reftel).  The meeting indicated that the GOP lacks 
the political will to deliver the protections we seek.  The 
discussions have reached deadlock. 
 
2. (C) The main issues in contention are as follows: 
 
-- The MFA continues to adhere to a restrictive 
interpretation of Article 98(2), arguing that its provisions 
apply only to agreements entered into prior to becoming a 
State Party to the ICC, and that signing an Article 98 
agreement with the U.S. would, therefore, be inconsistent 
with Paraguay's obligations under the Treaty of Rome. 
 
-- Although the concept of an exchange of Notes referring 
back to the Extradition Treaty between the U.S. and Paraguay 
remains theoretically feasible, the MFA will not agree to an 
exchange of Notes that includes an express statement or 
declaration by the GOP that it will apply the same consent 
procedures required by the Extradition Treaty to cases of 
requests for surrender to non-state entities such as the ICC; 
nor will the GOP agree to a final Note from the U.S. to the 
GOP that includes a specific reference to the ICC. 
 
-- Similarly, the MFA is willing to accept references to 
non-state entities in the Notes, but only if such references 
are limited by language that refers back to the Extradition 
Treaty and the protections afforded to U.S. personnel 
participating in military exercises/exchanges. 
(Alternatively, Velasquez indicated that eliminating the 
entire phrase "to any state or other entity" might be an 
acceptable solution on this particular point.) 
 
3. (C) Velasquez said he would review the drafts again 
without the phrase "to any state or other entity" and consult 
with Rachid.  However, his bottom line remains that the MFA 
cannot agree to provide the protections we seek without the 
approval of Congress.  He asserted that Congress would 
impeach Rachid if she agreed to more without its approval, 
and that it was inconceivable that Congress would approve the 
sort of agreement we seek.  (Comment: Velasquez's assertions 
were inconsistent with the positions advanced by Rachid 
during her April 6 meeting with Rademaker.  Rachid proposed 
using the "procedures" approach as a way to afford the 
protections the U.S. seeks without the GOP having to enter 
into an agreement.) 
 
4. (U) This cable was cleared by COL Johnson. 
KEANE