US embassy cable - 02ROME3849

C O N F I D E N T I A L ROME 003849 
 
SIPDIS 
 
E.O. 12958: DECL: 08/04/2012 
TAGS: PREL, MARR, IT, KICC 
SUBJECT: ITALY'S SUPPORT FOR ARTICLE 98 AGREEMENT 
CONSTRAINED BY PUBLIC OPINION 
 
REF: ROME 3796 
 
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CLASSIFIED BY: ACTING DCM THOMAS COUNTRYMAN FOR REASONS 1.5(B)(D) 
 
1. (C)  AT AN AUGUST 5 WORKING LUNCH WITH U/S JOHN BOLTON AND 
EMBASSY, MFA AND MOD OFFICIALS ON THE INTERNATIONAL CRIMINAL 
COURT (ICC) AND OTHER ISSUES (REPORTED SEPTEL), MFA DIRECTOR 
GENERAL GIANCARLO ARAGONO REITERATED ITALY'S WILLINGNESS TO 
ASSIST THE US WITH EFFORTS TO SIGN AN ARTICLE 98 AGREEMENT 
BUT ADDED THAT ITALIAN PUBLIC AND PARLIAMENTARY SUPPORT FOR 
THE ICC WOULD LIMIT THE EXTENT OF GOI SUPPORT.  HE NOTED THAT 
THE EU CONSULTATIVE PROCESS NOW UNDERWAY IS NOT GOING IN THE 
USG'S FAVOR, IN PART BECAUSE SEVERAL COUNTRIES NEED TO 
DEMONSTRATE TO THEIR PUBLICS AN UNYIELDING SUPPORT FOR THE 
COURT.  ARAGONA ASSURED U/S BOLTON THAT THE GOI IS WORKING 
WITHIN EU DISCUSSIONS TO ENSURE AN OUTCOME FLEXIBLE ENOUGH TO 
ACOMMODATE THE USG REQUEST FOR ARTICLE 98 AGREEMENTS.  ONCE 
EU CONSULTATIONS HAVE FINISHED, PROBABLY BY THE END OF THE 
MONTH, ITALY WILL BE ABLE TO DECIDE HOW BEST TO ACT 
BILATERALLY, ARAGONA SAID. 
 
2. (C) U/S BOLTON EXPLAINED THAT A RECIPROCAL AGREEMENT WOULD 
PRESERVE WHAT ITALY ALREADY HAS AS A STATE PARTY TO THE ROME 
TREATY - THE RIGHT TO PROSECUTE AN ITALIAN SUSPECT UNDER 
ITALIAN LAW OR TURN THE SUSPECT OVER TO THE ICC.  IT WOULD 
RECOGNIZE THE US'S RIGHT NOT TO BE A PARTY TO THE TREATY, 
JUST AS THE USG RECOGNIZES ITALY'S AND OTHERS' RIGHT TO 
RATIFY IT.  THE USG IS NOT CRITICIZING THE ICC BY SEEKING 
ARTICLE 98 AGREEMENTS, U/S BOLTON CLARIFIED; WE ARE 
EXPLAINING WHY THE USG BELIEVES SUCH AGREEMENTS, WHICH ARE 
PROVIDED FOR IN THE TREATY, ARE NEEDED. 
 
3. (C) ARAGONA ASSURED U/S BOLTON THAT ITALY IS CAREFULLY 
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CONSIDERING THE US REQUEST TO SIGN AN ARTICLE 98 AGREEMENT 
(REFTEL).  HOWEVER, WHATEVER ACTION THE GOI TAKES MUST BE 
CONSISTENT WITH ITALY'S COMMITMENT TO THE ICC OR THERE WOULD 
BE A "POLITICAL STORM" WITHIN THE PARLIAMENT AND PUBLIC 
OPINION, HE EXPLAINED.  WHILE ENTERING INTO A RECIPROCAL 
AGREEMENT MIGHT SEEM LIKE A PRACTICAL SOLUTION, ARAGONA SAID 
IT WOULD BE POLITICALLY DIFFICULT FOR ITALY.  THE ITALIAN 
PUBLIC, AS IN EUROPE GENERALLY, IS VERY COMMITTED TO THE ICC, 
ARAGONA SAID, PARTICULARLY BECAUSE THE TREATY CREATING THE 
COURT WAS SIGNED IN ROME.  HE NOTED DOUBTS WITHIN THE EU 
COMMUNITY ABOUT THE INCLUSION OF ARTICLE 98 IN THE TREATY, AS 
WELL AS THE USG'S CLAIMS THAT FURTHER PROTECTIONS ARE NEEDED. 
 US EFFORTS TO SIGN ARTICLE 98 AGREEMENTS ARE SEEN IN EUROPE 
AS ANOTHER WAY TO DISTANCE THE US FROM THE ICC, RATHER THAN A 
MEANS OF HELPING THE US TO ACCEPT THE COURT, ARAGONA 
EXPLAINED.  THE UN DEBATE ON RENEWING THE BOSNIA POLICE FORCE 
(UNMIBH) MANDATE ONLY STRENGTHENED EU COHESION AND SUPPORT 
FOR THE ICC, ARAGONA STATED. 
 
4. (C) COMMENT.  ARAGONA'S ANSWER WAS CLEARER, BUT LESS 
POSITIVE, THAN THE ONE WE RECEIVED FROM PRIME MINISTER 
BERLUSCONI'S ADVISOR ON AUGUST 1 (REFTEL).  HIS MOST VALUABLE 
COMMENT WAS HIS STATEMENT (SHORT OF A FIRM COMMITMENT) THAT 
ITALY WOULD WORK TO ENSURE THAT ANY EU DECISION LEFT ROOM FOR 
ITALY AND OTHER STATES TO PROCEED WITH BILATERAL AGREEMENTS. 
WHILE REITERATING BERLUSCONI'S WILLINGNESS TO HELP, ARAGONA 
COULDN'T RESIST RECOUNTING THE CRITICISM OF THE USG POSITION 
THAT PREVAILS AMONG EU (AND ITALIAN) LEGAL ADVISORS.  FROM 
OUR POINT OF VIEW, WHAT THE LEGAL TYPES FAIL TO APPRECIATE IS 
THAT AN EU CONSENSUS AGAINST ARTICLE 98 AGREEMENTS WILL SERVE 
NO PURPOSE EXCEPT TO MAKE THEM FEEL RIGHTEOUS.  IT WOULD NOT 
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MAKE ANY DENT IN THE USG POSITION, AND WOULD ONLY BECOME A 
MAJOR IRRITANT IN OUR RELATIONS WITH THE EU AND WITH EU 
MEMBERS.  BUT IF THE DECISION IS LEFT TO THE MFA LEGAL 
ADVISERS (NOT UNLIKELY IF THE DECISION IS TO BE MADE IN 
AUGUST), THAT IS THE OUTCOME WE RISK.  EVEN AS BERLUSCONI AND 
HIS TEAM BEGIN THEIR AUGUST VACATIONS, WE WILL CONTINUE TO 
PUSH THIS ARGUMENT AT THE POLITICAL LEVEL.  IT WOULD BE 
HELPFUL IF WE COULD ASSURE THE GOI THAT THEY WILL NOT BE 
STANDING ALONE IN RESISTING A NEGATIVE EU CONSENSUS ON 
ARTICLE 98.  EMBASSY ROME WOULD GREATLY APPRECIATE DEPARTMENT 
AND OTHER EU POSTS KEEPING US CLOSELY INFORMED ON WHICH OTHER 
EU GOVERNMENTS ARE LEANING IN OUR DIRECTION ON THIS ISSUE. 
END COMMENT. 
 
5. (U) THIS CABLE HAS BEEN CLEARED BY U/S BOLTON. 
SEMBLER 
 
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 2002ROME03849 - Classification: CONFIDENTIAL