US embassy cable - 03GUATEMALA967

C O N F I D E N T I A L SECTION 01 OF 03 GUATEMALA 000967 
 
SIPDIS 
 
E.O. 12958: DECL: 04/10/2013 
TAGS: PREL, GT, KICC 
SUBJECT: GUATEMALA: ICC/ARTICLE 98 AGREEMENT AND SOFA 
DISCUSSIONS 
 
Classified By: Ambassador Marisa Lino for reason 1.5 (b)(d) 
 
1. (C) Summary:  On the Article 98 Agreement, discussions 
with the GOG covered all the points where the GOG 
counterproposal differs from the US text.  New language was 
proposed by both sides ad ref.  If approved, and the 
negotiating team believes the proposed changes are workable, 
we would have an agreement. On the SOFA text, the GOG side, 
which has had the text to consider since January 2001 and has 
never offered any comment on it, said it would be preferable 
to have the text of the broader agreement reviewed for 
constitutionality by the Constitutional Court.  Estimate is 
this process might take about five months.  The US team 
pressed hard to obtain detailed GOG response on the text 
before that process begins, in order to see what other issues 
might be raised by the GOG side.  The GOG lead negotiator 
promised to provide a detailed response "very quickly."  End 
Summary. 
 
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Article 98 Agreement Discussions 
-------------------------------- 
 
2. (C) On April 10, 2003, the PM-led interagency team met 
with Guatemalan MFA officials to discuss the GOG 
counterproposal to our Article 98 text. Amb. Maritza Ruiz de 
Vielman (MFA Advisor and former FM) led the GOG team and was 
accompanied by Amb. Regina Martinez de Palencia (Legal 
Department Director), Minister Counselor Sara Solis 
(Bilateral Affairs Director) and Angela Chavez (Legal Advisor 
to the Treaty Department). PM Senior Advisor Marisa Lino was 
accompanied by Mary Catherine Malin (L/WHA), Col. Al 
Ringgenberg (DOD/GC), David Lindwall (Political Counselor) 
and Robert Copley (Poloff). 
 
3. (U) The Guatemalans had previously been provided with the 
Article 98 text that does not specifically mention the ICC. 
The discussion focused on three issues:  the new paragraphs 
proposed (3 and 4 in the GOG counterproposal) and the closing 
clause.  It was agreed that other minor discrepancies in the 
text between the English and Spanish versions would be worked 
out between the Embassy and the MFA subsequently. 
 
 
4. (C) Paragraph 3 of the GOG counterproposal reads as 
follows: 
 
Quote: Both Parties undertake to investigate and, if there 
are grounds for initiating a criminal complaint, to prosecute 
the alleged perpetrators, based on the national jurisdiction 
of each Party.  Unquote. 
 
The US side explained at some length the philosophy 
underpinning the US position on the Rome Statute and the 
concern we have for the potential for politically motivated 
allegations against US persons.  The team noted that in the 
case of a politically motivated case there might not be a 
formal investigation initiated if a preliminary evaluation 
indicated the case was politically motivated.  Thus, the 
GOG-proposed language for this paragraph was unacceptable. 
The GOG side noted that the importance of the paragraph was 
to avoid any possibility of impunity.  Ruiz also explained 
that in the Guatemalan system there is a procedure which 
occurs prior to judicial review for deciding if an allegation 
is politically motivated or not, based on a decision by a 
designated panel of peers of the accused. 
 
5.  (C) After much discussion, both sides worked to craft a 
paragraph that might take into account their respective 
concerns.  Lino emphasized that any language drafted would be 
strictly ad referendum and would be subject to a detailed 
review in Washington.  The compromise language reads as 
follows: 
 
Quote:  Except in cases where the Party concerned determines 
that the allegations are politically motivated, each Party 
shall, as appropriate, investigate and prosecute cases of war 
crimes, crimes against humanity and genocide, to the full 
extent permitted by its domestic law.  Unquote. 
 
The US negotiating team believes this rewrite of the GOG 
paragraph, which would appear as paragraph 3 in the operative 
section of the agreement, may be an acceptable solution that 
does not commit the United States beyond what our domestic 
legislation can provide.  A number of countries have raised 
the issue of putting similar text into the operative 
paragraphs, and for the GOG it appears to be an important 
issue.  Team recommends interagency consideration of this new 
operative paragraph text. 
 
6. (C) Paragraph 4 of the GOG counterproposal reads as 
follows: 
 
Quote: Nothing in this Agreement shall prevent the Parties 
from cooperating in any investigation by an international 
tribunal or from furnishing any evidence in their possession, 
even if said evidence was requested as part of a proceeding 
initiated against one of the persons referred to in this 
Agreement.  Unquote. 
 
The US team took pains to explain why this language was 
unacceptable, referring to the previous discussion about lack 
of impunity, but also describing at length the US rationale 
for not ratifying the Rome Statute.  As non-Parties, neither 
side is obliged to cooperate with the ICC, but are not barred 
from doing so (Guatemala is a non-signatory, non-Party, and 
although the GOG has presented the Rome Statute to the 
Parliament for consideration, it is not expected to pass). 
The USG, however, would object to cooperation with the ICC if 
allegations were to be made against a US person.  The GOG 
side noted the importance politically of this issue, because, 
again, the GOG needs to avoid the appearance of providing 
conditions for impunity, not only for US persons but also for 
Guatemalan persons.  The Embassy believes this view may be 
the prevailing view in the MFA, but may not be shared within 
the Parliament. 
 
7. (C) However, the GOG team was insistent that such language 
was necessary for an agreement.  After much discussion, the 
US team tried to see if there might be a way to eliminate the 
perception, created by the proposed language that the United 
States would not object to cooperation with the ICC with 
respect to a US person under ICC investigation.  The proposed 
solution reads as follows: 
 
Quote:  Nothing in this Agreement shall prevent the Parties 
from cooperating in any investigation by an international 
tribunal established by the United Nations Security Council 
or from furnishing any evidence in their possession, even if 
said evidence was requested as part of a proceeding initiated 
against one of the persons referred to in this Agreement. 
Unquote. 
 
By using the same formulation used to avoid mention of the 
ICC, the team believes the additional phrase might make this 
paragraph acceptable. 
 
8. (C) The original closing clause had inadvertently been 
dropped from the text provided to the GOG.  The GOG team 
insisted that both the English and Spanish texts had to be 
equally authentic.  Lino noted that, in such a case, it would 
be all the more important for the Embassy and the MFA to work 
out the differences in the translation of the final text. 
 
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Status of Forces Agreement Discussion 
------------------------------------- 
 
9. (C) The second part of the meeting focused on the USG 
proposed text (C175 approved text for WHA countries) for a 
longer term status of forces agreement.  There was a pause 
while Ruiz was briefed on the subject by the other members of 
her team; she admitted she had not followed the issue.  The 
Embassy had briefed the negotiating team that this did not 
seem to be a high priority for the MFA Legal Department and 
it is clear that is indeed the case.  Lino pointed out that 
the enormous amount of work done by both sides to reach an 
agreement for each individual exercise - agreements that 
require Parliamentary approval - could be avoided by coming 
to terms on a longer term SOFA.  Given the approach of NEW 
HORIZONS 2004, it would be to the advantage of both sides to 
reach such an agreement in time for that sizable training 
exercise.  Ringgenberg added that the existence of a 
longer-term SOFA permits the DOD to have much more 
flexibility with respect to planning exercises and smaller 
scale activities with the GOG. 
 
10. (C) Ruiz said there had been complaints about the 
previous agreements signed for individual exercises and 
indications that such agreements were contrary to the 
constitution.  Since the proposed SOFA text is broader in 
scope and longer in terms of duration, the question of 
constitutionality could become even more prominent.  She 
suggested strongly that it would be best to obtain an opinion 
on the constitutionality of the agreement from the 
Constitutional Court before proceeding to present it to the 
Parliament. 
 
11. (C)  Lino pressed hard to obtain a detailed GOG response 
on the text before that process begins, in order to see what 
other issues might be raised by the GOG.  Ruiz said she would 
have the Legal Department provide the Embassy with a detailed 
response "very quickly."  She said there were probably three 
main objections on constitutional grounds, although she did 
not specify what those issues might be. When further pressed 
by Lino, Ruiz agreed that the Legal Department would list any 
other questions the GOG might have with the proposed longer 
term SOFA text.  With that the session ended. 
 
 
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COMMENT 
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12. (C) The April 10 discussions made clear the GOG's 
political will to negotiate a compromise agreement with us 
which would provide the protections we seek from the ICC. 
Technical issues remain, and ultimately any agreement will 
have to be sent to Guatemala's Congress for ratification. 
The Embassy will continue to press the MFA at the highest 
levels for expedited attention to our longer-term SOFA 
proposal, and will report the MFA's comments as soon as 
received.  Embassy welcomes Department's views of the 
compromise language to the Article 98 Agreement worked out 
with the MFA. 
HAMILTON