US embassy cable - 02COLOMBO1840

C O N F I D E N T I A L SECTION 01 OF 02 COLOMBO 001840 
 
SIPDIS 
 
DEPARTMENT FOR SA, SA/INS, PM/B, L, T, IO; NSC FOR E. 
MILLARD 
 
E.O. 12958: DECL: 10-03-2002 
TAGS: PREL, PGOV, CE 
SUBJECT:  ICC Article 98 agreement:  Sri Lanka update 
 
Refs:  Colombo 1814, and previous 
 
(U) Classified by Ambassador E. Ashley Wills.  Reasons 
1.5 (b,d). 
 
1.  (U) This is an Action Request -- Please see Para 4. 
 
2.  (C) Foreign Secretary Rodrigo sent Mission a letter 
today containing a proposed alteration to the U.S. draft 
ICC Article 98 agreement.  (Note:  The text of the 
letter is contained in para 5 below; it is also being 
faxed to SA/INS.)  The MFA proposes replacing the 
current para 5 of the U.S. draft with a new text.  This 
text states, in part, that "(E)ach party will enter into 
immediate consultations in the event of any difficulties 
arising with regard to the interpretation or application 
of this agreement..." 
 
3.  (C) Mission's sense was that the GSL proposal 
effectively undermined the purpose of our original 
para 5 (which essentially commits the two parties to 
non-cooperation with the ICC).  The Ambassador called 
Rodrigo and underscored that point.  Rodrigo replied 
that he agreed that the MFA's draft was "a bit open- 
ended" and could use tightening.  The MFA would welcome 
a counter-draft by the U.S.  Asked for an explanation of 
the MFA's concerns, Rodrigo related that there were 
apprehensions that the U.S. draft of para 5 could be 
problematic for "a small guy," i.e., Sri Lanka.  As 
written, the draft text could conceivably put the GSL in 
the position of violating a UNSC resolution, for 
example.  Other countries, such as EU members, could 
then place pressure on the GSL, charging it with non- 
compliance with its international obligations.  The 
Ambassador replied that he would send the MFA's proposal 
back to Washington for review, but he did not think the 
proposed alteration by the MFA was acceptable in that it 
seemed to envisage a fundamental change of direction 
from the original text.  Rodrigo noted that MFA Legal 
Adviser Rohan Perera was in New York until October 12 
and could be reached at the Sri Lankan Mission there for 
discussions on this issue. 
 
4.  (C) Action Request:  Mission will continue to press 
the case for unaltered agreement to our original 
proposal with Minister Milinda Moragoda and other high- 
level GSL interlocutors.  In the meantime, we would 
appreciate Washington's analysis of the MFA's proposal. 
We wonder, for example, whether it is possible for the 
U.S. to come up with any language that would meet MFA 
concerns that the draft as written potentially could put 
Sri Lanka at odds with the UN.  Sri Lanka is a moderate- 
sized country, easily buffeted by international 
pressures, and its concerns are comprehensible in that 
light.  That said, we do not know whether any alternate 
U.S. construction is feasible on this matter.  We would 
also appreciate seeing the Para 5 equivalent signed with 
Romania and other countries if the U.S. has agreed to 
language different than the original U.S. draft. 
(Note:  We do not recommend contacting Rohan Perera in 
New York; we think his work on this matter is probably 
over-complicating efforts to wrap up an agreement.)  End 
Action Request. 
 
5.  (U) The text of the Foreign Secretary's letter 
follows: 
 
Begin text: 
 
Further to the discussion we have had on the above 
matter. 
 
As you know, the matter was also taken up in New York 
last month with Ms. Christina Rocca, US Assistant 
Secretary of State, and in subsequent consultations in 
 
SIPDIS 
Washington between Minister Milinda Moragoda and Deputy 
Secretary of State Richard Armitage. 
 
SIPDIS 
 
The Ministry has since considered the matter further and 
we would propose certain amendments to the text of the 
draft Agreement. 
 
In paragraphs 1, 2, and 4 of the draft, we believe US 
interests, in ensuring non-surrender of its nationals to 
the ICC, are fully met.  Reciprocally, paragraph 3 
requires consent of the Government of Sri Lanka in the 
event of a Sri Lankan national being called upon to be 
surrendered to the Court. 
 
However, with regard to paragraph 5, it is felt that the 
language could create difficulties for Sri Lanka 
considering the wide powers conferred on the Court under 
the ICC Statute even in respect of non-State parties to 
the Statute.  It is therefore suggested that paragraph 5 
in the US draft be replaced by the following which would 
bring in consultative/review procedures: 
 
"Each party will enter into immediate consultations in 
the event of any difficulties arising with regard to the 
interpretation or application of this Agreement and 
where necessary Parties may review the provisions of the 
Agreement.  If an understanding is reached on any matter 
relating to this Agreement, after such review, such 
understanding shall be confirmed through an exchange of 
diplomatic notes." 
 
We would be happy to discuss the matter further with you 
here in Colombo, or arrangements could be made, since 
Legal Adviser Rohan Perera is currently in the US, for 
discussions to take place either in New York or 
Washington early next week. 
 
End text. 
 
6.  (U) Minimize considered. 
 
WILLS