This record is a partial extract of the original cable. The full text of the original cable is not available.

C O N F I D E N T I A L SECTION 01 OF 03 ROME 005018 
 
SIPDIS 
 
STATE FOR T, PM, PM/B AND S/WCI 
 
E.O. 12958: DECL: 10/15/2012 
TAGS: PREL PREL PREL IT KICC ITKICC ITKICC
SUBJECT: ICC: ARTICLE 98 DISCUSSIONS WITH ITALY 
 
REF: COPENHAGEN 3183 
 
CLASSIFIED BY: POLITICAL MINISTER COUNSELOR THOMAS COUNTRYMAN FOR REASO 
                       CONFIDENTIAL 
 
PAGE 02        ROME  05018  01 OF 03  151619Z 
NS 1.5 (B) AND (D) 
 
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SUMMARY 
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¶1. (C) IN MEETINGS AT THE PRIME MINISTER'S OFFICE AND THE 
FOREIGN MINISTRY, THE ICC/ARTICLE 98 AGREEMENT NEGOTIATING 
TEAM PRESENTED A DETAILED EXPLANATION OF THE U.S. POSITION 
AND RATIONALE FOR OUR DRAFT ARTICLE 98 AGREEMENT TEXT. 
ITALIAN COUNTERPARTS UNDERSCORED THEIR COMMITMENT TO THE EU 
GUIDELINES WHILE STATING THEIR WILLINGNESS TO STRETCH THOSE 
GUIDELINES AS FAR AS POSSIBLE TO MEET U.S. NEEDS, A 
WILLINGNESS DERIVING FROM PM BERLUSCONI'S DETERMINATION TO 
WORK WITH US TO SOLVE THIS ISSUE.  BOTTOM LINE: AVOIDING 
COVERAGE OF ALL U.S. NATIONALS IS THE ONLY REDLINE FOR THE 
GOI; THE ITALIANS STATED ART. 98 (1) ALREADY COVERS CURRENT 
OFFICIALS AND THIS COVERAGE COULD BE STRETCHED TO COVER 
FORMER OFFICIALS.  ART. 98 (2), THEY ADDED, MIGHT BE EXTENDED 
TO ANYONE WHO COULD BE DEFINED AS HAVING AN OFFICIAL LINK TO 
THE USG (I.E., WHO IS THEREFORE "SENT" IN SOME WAY).  THEY 
SUGGESTED THESE ISSUES COULD BE WORKED OUT IN THE TEXT OF A 
BILATERAL PROTOCOL OR AGREEMENT THAT WOULD SUPPLEMENT 
EXISTING ACCORDS.  THE ITALIANS STATED THE NATO SOFA, FOR 
EXAMPLE, WAS AN EXISTING AGREEMENT THAT PROTECTED U.S. 
FORCES, THE CIVILIAN COMPONENT, AND THEIR DEPENDENTS, FROM 
SURRENDER TO THE ICC.  IN CLOSING, THE ITALIAN SIDE WELCOMED 
FURTHER DETAILED DISCUSSIONS, AFTER THE CONCLUSION OF THIS 
ROUND OF TALKS IN EUROPE.  END SUMMARY. 
 
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PAGE 03        ROME  05018  01 OF 03  151619Z 
REAFFIRMATION OF BERLUSCONI'S COMMITMENT 
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¶2. (C)  IN A MEETING AT PALAZZO CHIGI OCT. 10, PM 
BERLUSCONI'S DIPLOMATIC ADVISOR AMBASSADOR GIOVANNI 
CASTELLANETA REITERATED THE ITALIAN LEADER'S COMMITMENT TO 
HELP THE U.S. FIND A WAY FORWARD ON THE ISSUE OF THE ICC THAT 
PRESERVES THE INTEGRITY OF THE COURT AND YET MEETS THE NEEDS 
OF THE U.S. WITH RESPECT TO OUR CONCERNS REGARDING THE COURT 
AND ITS JURISDICTION.  CASTELLANETA, WHO WAS ACCOMPANIED IN 
THE MEETING BY POLITICAL DIRECTOR GIANCARLO ARAGONA AND OTHER 
AIDES, TOOK PAINS TO OUTLINE TO PM ADVISOR LINO AND DEPUTY 
CHIEF OF MISSION SKODON THE SERIOUSNESS WITH WHICH THE 
ITALIAN GOVERNMENT HAS CONSIDERED THIS ISSUE.  HE ALSO NOTED 
-- A THEME REPEATED BY ARAGONA THE NEXT DAY -- THE EXTENT TO 
WHICH ITALY WAS KEY IN HELPING TO ENSURE THE EU DECISION AT 
THE GAC SEPTEMBER 30 PERMITTED A CERTAIN AMOUNT OF 
FLEXIBILITY IN DEALING WITH THE U.S. PROPOSAL.  LINO 
EXPRESSED APPRECIATION FOR ITALY'S RECENT OFFER OF ALPINI 
TROOPS FOR OEF AND FOR THE ITALIAN INTERCESSION WITHIN THE EU 
TO ACHIEVE THE BEST RESULT POSSIBLE. 
 
--------------------------------------------- -- 
U.S. PRESENTATION ON ARTICLE 98 AGREEMENT DRAFT 
--------------------------------------------- -- 
 
¶3. (U) A HALF-DAY MEETING AND WORKING LUNCH OCT. 11 COMPLETED 
THE TALKS WITH THE GOI.  POLITICAL DIRECTOR ARAGONA LED THE 
ITALIAN SIDE; HE WAS ACCOMPANIED BY UMBERTO LEANZA (HEAD OF 
THE MFA LEGAL OFFICE,) AND RAFFAELE DE LUTIO (HEAD OF THE MFA 
UN OFFICE.) ON THE U.S. SIDE, AMBASSADOR LINO WAS ACCOMPANIED 
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PAGE 04        ROME  05018  01 OF 03  151619Z 
BY LARA BALLARD (L/PM,) CDRS. DAVE GROGAN (OSD) AND PATRICK 
MCCARTHY (OFFICE OF THE GENERAL COUNSEL, DOD.) 
 
¶4. (C)  THE U.S. TEAM'S PRESENTATION ADDRESSED THE EU'S 
GUIDING PRINCIPLES IN AN EFFORT TO DETERMINE IF THE GOI FELT 
IT HAD SUFFICIENT LATITUDE TO AGREE TO THE DRAFT U.S. ARTICLE 
98 AGREEMENT.  WITH RESPECT TO EXISTING AGREEMENTS, THE 
ITALIANS AGREED THAT THE NATO SOFA CONSTITUTED AN AGREEMENT 
CONTEMPLATED UNDER ARTICLE 98(2) AND THAT AS A RESULT, U.S. 
FORCES, THE CIVILIAN COMPONENT, AND THEIR DEPENDENTS WOULD 
NOT BE SUBJECT TO SURRENDER TO THE ICC.  THEY ALSO NOTED THAT 
THE TWO SIDES SHOULD CONTINUE TO EXPLORE THE EXTENT TO WHICH 
OTHER AGREEMENTS, SUCH AS EXTRADITION AGREEMENTS, PROVIDE THE 
PROTECTIONS THE U.S. SEEKS.  WITH RESPECT TO THE EU POINT 
REGARDING "IMPUNITY," THE GOI STATED EMPHATICALLY THAT THIS 
WAS NOT AN ISSUE, AS NO ONE WITHIN THE EU DOUBTED THE U.S. 
COMMITMENT TO PROSECUTE WAR CRIMINALS.  THE U.S. TEAM ALSO 
RAISED THE ISSUE OF RECIPROCITY, INDICATING THAT WHILE THERE 
WAS NO PROBLEM CONCLUDING A NON-RECIPROCAL AGREEMENT, 
CONCERNS EXISTED WITH THE WAY THE EU PHRASED ITS 
NON-RECIPROCAL GUIDELINE BECAUSE THE U.S. HAS APPROXIMATELY 
 
                       CONFIDENTIAL 
 
                           CONFIDENTIAL     PTQ2764 
 
PAGE 01        ROME  05018  02 OF 03  151619Z 
ACTION T-00 
 
INFO  LOG-00   NP-00    AMAD-00  CIAE-00  PERC-00  DS-00    EUR-00 
      VC-00    TEDE-00  INR-00   IO-00    JUSE-00  VCE-00   NSAE-00 
      OIC-02   PM-00    IRM-00   SSO-00   SS-00    PMB-00   DSCC-00 
      PRM-00   NFAT-00  SAS-00   SWCI-00    /002W 
                  ------------------F792C2  151619Z /38 
O 151539Z OCT 02 
FM AMEMBASSY ROME 
TO SECSTATE WASHDC IMMEDIATE 6324 
SECDEF WASHDC IMMEDIATE 
USMISSION USUN NEW YORK IMMEDIATE 
NSC WASHDC IMMEDIATE 
INFO EUROPEAN POLITICAL COLLECTIVE IMMEDIATE 
AMCONSUL FLORENCE 
AMCONSUL MILAN 
AMCONSUL NAPLES 
 
C O N F I D E N T I A L SECTION 02 OF 03 ROME 005018 
 
SIPDIS 
 
STATE FOR T, PM, PM/B AND S/WCI 
 
E.O. 12958: DECL: 10/15/2012 
TAGS: PREL PREL PREL IT KICC ITKICC ITKICC
SUBJECT: ICC: ARTICLE 98 DISCUSSIONS WITH ITALY 
 
20,000 SERVICEMEMBERS WHO ARE NOT U.S. CITIZENS.  (NOTE: THE 
EU GUIDELINES STATE THAT ONLY NATIONALS OF NON-PARTY STATES 
CAN BE THE SUBJECT OF AN ARTICLE 98 AGREEMENT, A RESULT THAT 
                       CONFIDENTIAL 
 
PAGE 02        ROME  05018  02 OF 03  151619Z 
WOULD BE INCONSISTENT WITH THE COMMITMENT UNDER THE NATO SOFA 
BECAUSE OF THE FOREIGN NATIONALS IN THE U.S. ARMED FORCES. 
END NOTE.)  THE U.S. SIDE ALSO RAISED THE POINT THAT OTHER 
USG EMPLOYEES OR CONTRACTORS MIGHT NOT BE U.S. CITIZENS.  THE 
ITALIAN SIDE INDICATED THAT THIS ISSUE WAS WORKABLE BUT 
FOCUSED EXCLUSIVELY ON U.S. SERVICEMEMBERS. 
 
¶5. (C) THE DISCUSSION THEN FOCUSED ON THE MEANING AND EFFECT 
OF ART. 98(2) WITH REGARD TO "SCOPE."  THE ITALIAN SIDE 
SEEMED FAMILIAR WITH THE U.S. ARGUMENTS ABOUT THE MEANING OF 
"SENDING STATE."  THE U.S. SIDE PRESENTED AND ELABORATED ON 
THE RATIONALE PRESENTED IN COPENHAGEN (REFTEL): ART. 98(2) 
WAS NOT RESTRICTED TO THE MEANING ASCRIBED IN THE NATO SOFA, 
THE PRESENCE OF THE TERM "SENDING STATE" IN ART. 98(2) DID 
NOT RESTRICT THE SCOPE OF PERSONS WHO COULD BE COVERED BY AN 
ART. 98 AGREEMENT, AND THERE WAS NO COMMON UNDERSTANDING OF 
WHAT MIGHT CONSTITUTE A "SENT" PERSON UNDER THE EU'S READING 
OF ART. 98(2).  THE U.S. TEAM ADDITIONALLY RAISED THE POINT 
THAT THE FOUR 1949 GENEVA CONVENTIONS CREATED A REGIME UNDER 
WHICH EACH HIGH CONTRACTING PARTY UNDERTOOK TO EITHER BRING 
ACCUSED WAR CRIMINALS BEFORE THEIR OWN COURTS OR TURN OVER 
SUCH INDIVIDUALS TO OTHER HIGH CONTRACTING PARTIES FOR TRIAL. 
 ANY SURRENDER TO ANOTHER ENTITY, SUCH AS THE ICC, IS NOT 
PROVIDED FOR IN THE GENEVA CONVENTIONS.  THUS, THE EU 
INTERPRETATION OF ART. 98 (2) COULD PUT THE EU COUNTRIES IN 
CONFLICT WITH THEIR OBLIGATIONS UNDER THE GENEVA CONVENTIONS. 
 
--------------------------------------------- ------ 
ITALIAN REBUTTAL FOCUSES ON LIMITS OF EU GUIDELINES 
--------------------------------------------- ------ 
                       CONFIDENTIAL 
 
PAGE 03        ROME  05018  02 OF 03  151619Z 
 
¶6. (C)  THE GOI SIDE REITERATED MOST OF THE ARGUMENTS 
PREVIOUSLY ADVANCED BY THE EU WITH REGARD TO ART. 98(2) AND 
THE DEFINITION OF "SENDING STATE," INDICATING IT SIMPLY COULD 
NOT ACCEPT THAT ARTICLE 98(2) COULD ALLOW FOR THE EXEMPTION 
OF PRIVATE INDIVIDUALS WHO WERE NOT SENT BY A GOVERNMENT IN 
SOME OFFICIAL CAPACITY.  HOWEVER, THE ITALIAN SIDE LATER 
NOTED THAT THE GOI WOULD BE WILLING TO CONSTRUE THE 
DEFINITION OF "SENT" AS BROADLY AS POSSIBLE SO AS TO 
ENCOMPASS, FOR INSTANCE, OLYMPIC ATHLETES, PEACE CORPS 
VOLUNTEERS, INDIVIDUALS SENT ON CULTURAL EXCHANGES, AND ANY 
PERSON WHO HAD SOME SORT OF OFFICIAL LINK WITH THE 
GOVERNMENT.  WHAT THE GOI COULD NOT DO WAS EXTEND COVERAGE TO 
A PRIVATE INDIVIDUAL WITH NO OFFICIAL "LINK" WHATSOEVER. 
 
¶7. (C) ARAGONA EXPLAINED THAT THE GOI'S PROBLEM WITH THE 
SCOPE OF COVERAGE SOUGHT BY OUR DRAFT AGREEMENT IS AS MUCH 
POLITICAL AS LEGAL.  THE ITALIAN PUBLIC WOULD PERCEIVE SUCH 
AN AGREEMENT AS A USG ATTEMPT TO DEFEAT THE ICC OR PLACE US 
CITIZENS ABOVE THE LAW. PARLIAMENTARY APPROVAL FOR ANY SUCH 
AGREEMENT WOULD BE VERY DIFFICULT IF NOT IMPOSSIBLE TO 
OBTAIN, INSISTED ARAGONA. WITH REGARD TO THE REFERENCES TO 
THE GENEVA CONVENTIONS, THE ITALIAN RESPONSE WAS THAT THE 
ROME STATUTE CHANGED THE CONTRACTING PARTIES' OBLIGATION WITH 
RESPECT TO SURRENDER OF PERSONS ACCUSED OF GRAVE BREACHES TO 
OTHER CONTRACTING PARTIES. 
 
¶8.  (C) WITH REGARD TO FORMER GOVERNMENT OFFICIALS, THE 
ITALIAN SIDE SUGGESTED THAT THEY WOULD ALREADY ENJOY 
"FUNCTIONAL IMMUNITY" UNDER ART. 98(1), AND THUS, IN 
PRINCIPLE, THE GOI DID NOT HAVE A PROBLEM WITH THE CONCEPT OF 
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PAGE 04        ROME  05018  02 OF 03  151619Z 
ARTICLE 98 COVERAGE FOR FORMER OFFICIALS.  ITALIAN LEGAL 
ADVISOR LEANZA POINTED OUT THAT MOST OF THE INTERNATIONAL 
CRIMES LISTED IN THE ROME STATUTE, BY DEFINITION, WOULD BE 
CRIMES DIRECTED BY OFFICIALS.  WHEN THE U.S. SIDE ASKED HOW 
FUNCTIONAL IMMUNITY COULD PROTECT FORMER USG OFFICIALS IF 
THERE WERE SOME DISAGREEMENT AS TO WHETHER SUCH A CRIME HAD 
BEEN COMMITTED IN AN OFFICIAL CAPACITY, THE ITALIAN SIDE 
SUGGESTED THAT THE SCOPE OF ART. 98(1) COULD BE "CLARIFIED" 
TO ADDRESS OUR CONCERNS. 
 
--------------------------------------- 
ARAGONA SUMMARIZES THE ITALIAN POSITION 
--------------------------------------- 
 
¶9. (C) AT THE CLOSE OF THE SESSION, ARAGONA SUMMARIZED HOW 
FAR THE GOI COULD BE EXPECTED TO GO AND STILL REMAIN 
CONSISTENT WITH ITS OBLIGATIONS UNDER THE ICC TREATY AND THE 
GUIDING PRINCIPLES OF THE ICC.  HE REITERATED THAT, IN 
ESSENCE, THE ONLY EU GUIDING PRINCIPLE AT ISSUE IS SCOPE.  HE 
AGREED THAT IN ADDITION TO ALL THOSE PERSONS COVERED UNDER 
THE NATO SOFA, THE GOI COULD AGREE TO ARTICLE 98 COVERAGE FOR 
 
                       CONFIDENTIAL 
 
                           CONFIDENTIAL     PTQ2765 
 
PAGE 01        ROME  05018  03 OF 03  151620Z 
ACTION T-00 
 
INFO  LOG-00   NP-00    AMAD-00  CIAE-00  PERC-00  DS-00    EUR-00 
      VC-00    TEDE-00  INR-00   IO-00    JUSE-00  VCE-00   NSAE-00 
      OIC-02   PM-00    IRM-00   SSO-00   SS-00    PMB-00   DSCC-00 
      PRM-00   NFAT-00  SAS-00   SWCI-00    /002W 
                  ------------------F792D5  151620Z /38 
O 151539Z OCT 02 
FM AMEMBASSY ROME 
TO SECSTATE WASHDC IMMEDIATE 6325 
SECDEF WASHDC IMMEDIATE 
USMISSION USUN NEW YORK IMMEDIATE 
NSC WASHDC IMMEDIATE 
INFO EUROPEAN POLITICAL COLLECTIVE IMMEDIATE 
AMCONSUL FLORENCE 
AMCONSUL MILAN 
AMCONSUL NAPLES 
 
C O N F I D E N T I A L SECTION 03 OF 03 ROME 005018 
 
SIPDIS 
 
STATE FOR T, PM, PM/B AND S/WCI 
 
E.O. 12958: DECL: 10/15/2012 
TAGS: PREL PREL PREL IT KICC ITKICC ITKICC
SUBJECT: ICC: ARTICLE 98 DISCUSSIONS WITH ITALY 
 
ALL OF THE OTHER INDIVIDUALS FOR WHOM THE U.S. SEEKS 
PROTECTION UNDER THE US ARTICLE 98 MODEL TEXT, WITH THE 
EXCEPTION OF COVERAGE FOR "ALL U.S. NATIONALS."  HE ADDED 
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PAGE 02        ROME  05018  03 OF 03  151620Z 
THAT, IN PRINCIPLE, THE GOI COULD AGREE THAT CURRENT AND 
FORMER USG OFFICIALS WOULD BE COVERED, PROVIDED THEY HAVE AN 
OFFICIAL LINK TO THE USG SO THAT THEY CAN BE REGARDED AS 
"SENT," AND THE ACT GIVING RISE TO THE ALLEGATIONS ARISES OUT 
OF THE PERSON'S OFFICIAL FUNCTIONS.  HE CONCLUDED BY STATING 
THAT THE GOI DID NOT HAVE A PROBLEM WITH THE US TERMINATION 
CLAUSE AND THAT ANY ARTICLE 98 AGREEMENT, WOULD, BY 
NECESSITY, HAVE TO BE SENT TO THE ITALIAN PARLIAMENT FOR 
APPROVAL. 
 
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COMMENT 
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¶10. (C) DISCUSSIONS REMAINED POSITIVE AND FRIENDLY THROUGHOUT 
THE VISIT, WITH THE ITALIANS CLEARLY COMMITTED TO FINDING A 
MUTUALLY ACCEPTABLE SOLUTION THAT WOULD ADDRESS U.S. 
CONCERNS.  THE U.S. TEAM TOOK AN IMPORTANT STEP FORWARD WITH 
THE GOI'S CONCURRENCE THAT FORMER USG OFFICIALS CAN BE 
COVERED.  HOWEVER, GIVEN THE ITALIANS' SUGGESTION THAT SUCH 
COVERAGE BE LINKED TO ART 98(1), AS AMBASSADOR ARAGONA SAID, 
"THE DEVIL MAY BE IN THE DETAILS."  THE GOI UNAMBIGUOUSLY 
AFFIRMED THAT THE NATO SOFA ALREADY PROTECTS U.S. FORCES, THE 
CIVILIAN COMPONENT AND THEIR DEPENDENTS FROM SURRENDER TO THE 
ICC, AND THE GOI REITERATED THE COMMENT MADE BY THE DANES 
SEVERAL WEEKS AGO THAT NO ONE QUESTIONS THE USG'S COMMITMENT 
TO PROSECUTE WAR CRIMINALS.  BOTH OF THESE AFFIRMATIONS ARE 
POSITIVE STEPS FORWARD.  END COMMENT. 
 
¶11. (U) AMBASSADOR LINO CLEARED THIS CABLE. 
 
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 2002ROME05018 - Classification: CONFIDENTIAL