US embassy cable - 03ZAGREB1400

C O N F I D E N T I A L  ZAGREB 001400 
 
SIPDIS 
 
 
E.O. 12958: DECL: 06/16/2013 
TAGS: PREL, PARM, MARR, HR, KICC 
SUBJECT: LINO DELEGATION VISIT: CROATIA WILL NOT SIGN 
ARTICLE 98 AGREEMENT 
 
REF: A. ZAGREB 1298 
 
     B. ZAGREB 1364 
 
Classified By: Ambassador Lawrence Rossin for Reasons 1.5 (B and D) 
 
Summary 
------- 
 
1.  (C) Citing both political and legal reasons, the GoC told 
PM/B's Ambassador Marisa Lino on June 12 that Croatia cannot 
now sign an Article 98 Agreement.  EU pressure, Croatia's 
status as a signatory of the Rome Statute and a "sensitive" 
domestic political environment were the main reasons cited by 
the GoC's high-level inter-agency delegation which met with 
Lino.  The Croatian side claimed that agreements now in force 
-- like the PFP SOFA and protections for NATO forces built 
into the Dayton Accords -- provide most of the protections 
the U.S. is seeking.  Nevertheless, the GoC proposed that it 
might be possible to include the provisions of a 
non-surrender agreement into a broader document on bilateral 
legal cooperation.  Lino expressed skepticism, but said the 
U.S. would be pleased to review any proposal. 
 
2.  (C) During and after the visit, the GoC sought to spin 
its engagement with the Lino delegation as proof that it is 
doing its part to improve U.S. - Croatia bilateral relations. 
 In the press, however, the GoC crowed about turning down the 
USG in an apparent effort to make political hay with voters 
at home and to curry favor with the EU, which is now 
considering Croatia's application for membership.  End 
Summary. 
 
Croatia Takes Talks Seriously 
----------------------------- 
 
3.  (C) On June 12, PM/B Senior Negotiator Ambassador Marisa 
Lino led an inter-agency delegation to Zagreb to encourage 
Croatia to move closer to signing an Article 98 non-surrender 
agreement with the U.S.  Lino's delegation included top-level 
legal and policy experts from both State and DoD.  The 
Croatian delegation was authoritative, led by Deputy Foreign 
Minister Ivan Simonovic, and included Deputy Defense Minister 
Gareljic and legal and policy experts from the Foreign 
Affairs, Defense and Justice Ministries.  Also present was 
Ivo Josipovic, formally a professor of Law at Zagreb 
University, but informally PM Racan's top legal advisor; he 
was Croatia's representative at the prepcon for the Rome 
Statute. 
 
PM Racan Message: Work With Us, Please 
-------------------------------------- 
 
4.  (C) Simonovic sought a private meeting with Ambassadors 
Lino and Rossin in advance of the meeting of the two 
delegations.  In it he outlined the Croatian positions that 
would be expanded upon in the larger session.  Conveying a 
"personal message" from PM Racan, Simonovic said Croatia 
understands U.S. concerns about the Rome statute and 
recognizes the U.S. vulnerability to politically motivated 
indictments.  Croatia will "do all it can" to work with the 
USG, Simonovic continued, but only within its "limited 
maneuvering space."  Simonovic pointed out that, because of 
existing agreements, there is no possibility that any member 
of the U.S. armed forces could be extradited to the ICC. 
Simonovic acknowledged that the GoC's legal arguments against 
signing a non-surrender agreement as proposed by the U.S. are 
"not unique," and focused instead on Croatia's "special 
political circumstances." 
ICC/ICTY Issue Toughest Nut to Crack 
------------------------------------ 
 
5.  (C) The most difficult issue will continue to be the 
association of the ICC with ICTY.  Technically, Simonovic 
told Lino, Croatia voluntarily accepted the jurisdiction of 
the ICTY, but the reality is that it was imposed by the 
international community; Croatia had no choice in the matter. 
 If the GoC were to sign an exemption for Americans, it would 
be impossible to convince Croatia's voters that this was not 
a double standard.  Simonovic did not mention EU pressure (we 
have assured him and others that this argument carries little 
weight with us), but he insisted that Croatia cannot be a 
"showcase signatory," and that more EU countries would have 
to sign non-surrender agreements before Croatia could 
consider signing the text as we proposed it.  Simonovic 
underscored Croatia's "unique position" by describing its 
three categories of neighbors: 
 
- countries which are already signatories of Article 98 
agreements (and do not have immediate EU aspirations); 
- countries which are not signatories and do not receive 
military assistance from the U.S.; and 
- countries which are either already in NATO or soon will be. 
 
 
That, he said, left only Croatia.  Surely it was not our 
intent nor in our interest to single Croatia out for special 
penalty? 
 
Can Non-Surrender Be Part of Broader Agreement? 
--------------------------------------------- -- 
 
6.  (C) Simonovic said Croatia will propose that the 
provisions of the U.S. non-surrender agreement be included in 
a broader document covering legal cooperation, but he said 
that the USG's precise language on non-surrender could not be 
included in such an agreement.  Lino was skeptical that an 
MLAT or an extradition treaty could be crafted to address USG 
concerns, but the U.S. would be pleased to consider any 
proposal from the Croatian side; we rejected no 
counterproposal in advance. 
 
Lino: Why We Are Here 
--------------------- 
 
7.  (C) At the broader meeting, Amb. Lino explained the USG's 
motivation for seeking a non-surrender agreement.  We seek 
neither immunity nor impunity, but rather protection from 
politically motivated indictments.  Recent cases in Belgium 
reinforce our concern that the U.S., because of its role in 
world affairs, will be an early target of ICC indictments. 
Lino explained in detail the variations we are willing to 
accept in a non-surrender agreement; but the essence of all 
are the same: a promise not to surrender U.S. nationals 
without our consent. 
 
Croatia Values Cooperation with the U.S. 
---------------------------------------- 
 
8.  (C) Simonovic welcomed the Lino delegation, and pointed 
out that the authoritative nature of the GoC delegation 
demonstrated the seriousness with which Croatia took this 
issue.  Croatia is very interested in good relations with the 
U.S., he continued; "we owe you a lot, and we expect more 
from our future cooperation."  He expressed regret that 
Croatia could not have been more supportive on Iraq, but said 
that was changing.  The Racan Cabinet was meeting as the 
delegations talked to approve the deployment of a number of 
Croatian troops to Iraq, Simonovic reported (ref b).  (During 
the discussion, an aide handed Simonovic a note; he 
theatrically announced Cabinet approval for the offer for 
Iraq; Ambassador Rossin expressed appreciation but noted that 
military-to-military talks would determine if the proposed 
Croatian contingent to the Coalition Forces would be useful.) 
 
9.  (C) Deputy Defense Minister Gareljic underscored the 
value Croatia places on the bilateral military relationship. 
Representing the branch of the GoC which will feel the impact 
of ASPA provisions most directly, Gareljic explained the 
importance of U.S. military assistance in Croatia's efforts 
to reform its military into a highly-trained, well-equipped 
force that would be interoperable with NATO.  Gareljic 
outlined Croatia's contributions to ongoing operations, 
including the deployment of a Croatian MP platoon to 
Afghanistan in support of ISAF and the donation of surplus 
weapons for the fledgling Afghan National Army. 
Lino: "Your Troops in ISAF Are Protected By Article 98" 
--------------------------------------------- ---------- 
 
10.  (C) Lino thanked Gareljic for his presentation, but 
pointed out that Croatia's troops are in fact operating in 
Afghanistan with far greater protection from ICC prosecution 
than the U.S. seeks in the proposed non-surrender agreement. 
The ISAF agreement (which inter alia protects Croatia's MPs) 
is considered an Article 98 agreement under the Rome Statute. 
 Further, there are four Croatian citizens who currently 
serve as members of the U.S. armed forces; without 
protection, they are potential victims of political 
prosecutions. 
 
Existing Agreements Provide Partial Protection 
--------------------------------------------- - 
 
11. (C) Andreja Metelko-Zgombic, head of the Foreign 
Ministry's International Law Department, described a number 
of existing legal instruments that, she said, already provide 
the protections we seek in an Article 98 agreement to U.S. 
servicemembers.  Multilateral agreements, like the PFP SOFA 
and the Dayton Agreements (which covers NATO forces 
participating in SFOR) provide full immunity, not just a 
non-surrender agreement.  Three bilateral agreements, one 
dating from 1994 protecting U.S. assistance providers, one 
from 2001 (recently extended through 2003) on law enforcement 
cooperation, and now one covering workers implementing a WMD 
assistance instruction, provide protections similar to those 
to administrative and technical workers as described by the 
Vienna Conventions. 
 
Croatia's Top Lawyer: A Political, Not Legal Decision 
 
 
--------------------------------------------- -------- 
12.  (C) Ivo Josipovic, one of Croatia's leading jurists and 
a participant at the preparatory conference which finalized 
Qe Rome Statute, outlined the GoC's legal objections to 
signing an agreement as proposed by the USG.  Croatia will 
interpret paragraph 2 of Article 98 in accordance with the EU 
guidelines; that means the language proposed by the U.S. is 
too broad.  After an extensive, detailed discussion with Lino 
about how the term "sending" can be variously interpreted, 
Josipovic admitted that in the final analysis, lawyers can 
argue valid points from both sides; he agreed (as did 
Simonovic in the pre-meeting), that the decision to choose 
one or the other interpretation is a political decision, 
given the absence of any negotiating record. 
 
Possible GoC Counterproposal 
---------------------------- 
 
13. (C) Josipovic pointed out that the spirit of the proposed 
non-surrender agreement might be embedded in a broader 
document covering legal cooperation; Croatia and the U.S. 
have no current MLAT, and the extradition treaty in force 
dates from 1904.  Josipovic said that the GoC had approached 
him to draft a document which would fit such a description 
and hoped to have it ready soon. 
 
14.  (C) Lino explained that there are serious problems with 
using either MLATs or Extradition Treaties to prevent 
politically-motivated indictments.  Nevertheless, the U.S. 
would be willing to examine any proposal.  Lino agreed that 
the decision to sign a non-surrender agreement is in fact a 
political decision, and she stressed how important these 
agreements are to the President, the Secretary and to the 
Congress.  She urged the Croatians not to lose themselves in 
the technical details of the legal argument, but to focus on 
the broader principles.  Ambassador Rossin added that, the 
GoC side having acknowledged that the whole issue was 
political, not legal, we would watch whether the GoC chose to 
sign or not, i.e. to stick with the EU guidelines and ICTY 
prallels it acknowledged not to be valid, and assess the 
impact on our relations accordingly.  (The Ambassador made 
this point again, even more directly, to Josipovic during a 
luncheon following the meeting.  Josipovic, a close Racan 
confidant, agreed to convey the message.) 
 
15.  (C) Simonovic expressed hope that the U.S. and the EU 
would soon reach agreement on how to move forward with 
Article 98 agreements, and opined that "this disagreement 
will be exploited by countries which do not share our 
values."  Emphasizing the role Croatia plays in promoting 
stability in the region, Simonovic asked about the likelihood 
of a national interest waiver.  Lino was straightforward; 
there has been no decision on any waivers of ASPA provisions 
and Croatia should certainly not count on one. 
 
GoC Manipulates Press Coverage 
------------------------------ 
 
16.  (C) Press interest in the Lino delegation's visit was 
high.  Despite the lack of progress, Simonovic declared 
victory for the Croatian side, announcing that Croatia had 
said "no to the treaty (an Article 98 Agreement), but yes to 
further dialogue."  In one instance, his statement bordered 
on fabrication: he claimed that the GoC had actually made a 
proposal whereby accused Americans would be extradited to the 
U.S. and not to the ICC "in line with both the Rome Statute 
and the EU guidelines."  Croatia's raucous press picked up 
the theme; one headline read: "Croatia's 'No' to America," 
and leading columnists declared the Lino delegation visit a 
"diplomatic victory" for the GoC, since they were able to 
find a way forward.  In the absence of responsible briefings, 
the press is drifting even farther afield, with some 
speculating that a deal trading leniency for ICTY fugitive 
Ante Gotovina for a "yes" on an Article 98 Agreement was on 
the table. 
 
Comment 
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17.  (C) The GoC took the visit of Amb. Lino's delegation 
seriously, but the reality is that we are no closer to 
signing an Article 98 agreement than before the June 12 
discussions.  Nor was there any real indication that a GoC 
counterproposal will take into account our fundamental 
desideratum.  We were impressed by the Croatian delegation's 
preparation and focus on substantive issues without raising a 
litany of justifications for a waiver.  But we were 
disappointed (predictably) with their spin of the press and 
public opinion.  While they talked and acted seriously, we 
assess that the GoC's main aim, to make the public think it 
has put relations with the U.S. back on track, was largely 
attained.  That may of course be ephemeral; July 1 is only 
two weeks away.  But clearly the domestic objective was more 
 
important that the discussion with us, which was foreordained 
to be Kabuki since the GoC had already decided "no."  Until 
the EU changes its stance, we should expect Croatia to remain 
solidly in the "no" column; even if the EU changes its 
position, PM Racan's ICTY timidity may stall a GoC "yes." 
 
18.  (U) Ambassador Lino's delegation cleared this telegram. 
MOON 
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