VZCZCXYZ0016
OO RUEHWEB

DE RUEHC #2900 0430156
ZNR UUUUU ZZH
O 120140Z FEB 09
FM SECSTATE WASHDC
TO RUEHAK/AMEMBASSY ANKARA IMMEDIATE 0000
RUEHME/AMEMBASSY MEXICO IMMEDIATE 0000
RUEHOU/AMEMBASSY OUAGADOUGOU IMMEDIATE 0000
RUEHKO/AMEMBASSY TOKYO IMMEDIATE 0000
RUEHVI/AMEMBASSY VIENNA IMMEDIATE 0000
RUEHVB/AMEMBASSY ZAGREB IMMEDIATE 0000
INFO RUEHLO/AMEMBASSY LONDON IMMEDIATE 0000
RUEHFR/AMEMBASSY PARIS IMMEDIATE 0000
RUEHSJ/AMEMBASSY SAN JOSE IMMEDIATE 0000
RUCNDT/USMISSION USUN NEW YORK IMMEDIATE 0000

UNCLAS STATE 012900 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: UNSC PREL PHUM SU XA XW
SUBJECT: SUDAN: DEMARCHE REQUEST ON POTENTIAL ARTICLE 16 
SECURITY COUNCIL RESOLUTION 
 
¶1.  (U)Posts are instructed to demarche host countries at an 
appropriate level regarding the United States 
Government's strong desire not to see an Article 16 
resolution tabled in the Security Council that would defer 
the probable International Criminal Court (ICC) arrest 
warrant for Sudanese President Omar Hassan al-Bashir.  Post 
may draw from the appropriate objectives and background below 
in delivering this demarche.  Embassies London, 
Paris, and San Jose please inform host governments we are 
delivering this demarche in select UNSC capitals. 
 
--------------------------------------------- ------------- 
Objectives for Mexico, Japan, Austria, Croatia, and Turkey 
--------------------------------------------- ------------- 
 
¶2.  (SBU) Posts should pursue the following objectives: 
 
-- obtain firm commitments from host countries that they will 
not support an Article 16 resolution following the 
likely issuance of an ICC arrest warrant for President Bashir; 
 
-- request that host countries clearly state to the 
proponents of this resolution they will not support an 
Article 16 resolution; 
 
-- inform host countries of the United States Government's 
position that we support the ICC in its pursuit of those 
who have perpetrated war crimes; it is in our country's 
interest that the most heinous criminals, like the 
perpetrators of genocide in Darfur, are held accountable; and 
we see no reason to support deferral of the indictment 
of Bashir; 
 
-- relay to host countries that we feel a low-key response 
from the UN Security Council following the ICC indictment 
would be the best approach.  We do not plan on seeking or 
supporting any Council statement or action following the 
announcement of an arrest warrant unless the situation in 
Sudan escalates out of control. 
 
-- relay to host countries our position that any violence 
perpetrated against foreign interests, humanitarian aid 
workers or UNAMID encouraged or permitted by the Government 
of Sudan after the issuance of an arrest warrant would be 
wholly unacceptable, and that we believe 
this message should be clearly communicated to Sudan by all 
Council members. 
 
-- For Turkey: note we understand Turkey's concerns with the 
ICC. Underscore that we share some of the same 
concerns.  Emphasize, however, supporting a deferral 
resolution would be a vote for impunity in Darfur. Note 
that if a resolution is tabled and a vote occurs even an 
abstention would be preferable to a vote for 
such a resolution, as long as the intent to abstain is made 
perfectly clear to the proponents of this resolution. 
 
--------------------------- 
Objectives for Burkina Faso 
--------------------------- 
 
¶3.  (SBU) Embassy Ouagadougou should pursue the following 
objectives: 
 
-- obtain from Burkina Faso a commitment to reconsider their 
position on an Article 16 deferral due to the 
serious situation and lack of progress on the ground in 
Darfur; 
 
-- request that Burkina Faso ask the proponents not to bring 
the resolution to the Council as it will surely fail 
to garner the nine necessary affirmative votes without a P5 
veto to adopt the resolution; 
 
-- inform Burkina Faso of the United States Government's 
position that we support the ICC in its pursuit of those 
who have perpetrated war crimes; it is in our country's 
interest that the most heinous criminals, like the 
perpetrators of genocide in Darfur, are held accountable; and 
we see no reason to support deferral of the indictment 
of Bashir; 
 
-- relay to host country that we feel a muted response from 
the Council following the ICC indictment would be the 
best approach.  We do not plan on seeking or supporting any 
Council statement or action following the announcement 
of an arrest warrant, unless the situation in Sudan escalates 
out of control. 
 
-- relay to host country our position that any violence 
perpetrated against foreign interests, humanitarian aid 
workers or UNAMID encouraged or permitted by the Government 
of Sudan after the issuance of an arrest warrant would be 
wholly unacceptable, and we believe this 
message should be clearly communicated to Sudan by all 
Council members. 
 
 
------------------ 
Reporting Deadline 
------------------ 
 
¶4.  (U) Post should demarche host countries and report back 
to the department by 5pm Eastern Standard Time on 
Friday, February 13, 2009. 
 
---------- 
Background 
---------- 
 
¶5.  (U) Security Council Resolution 1593 (2005) referred the 
situation in Darfur to the Prosecutor of the ICC. 
Despite well known U.S. concerns with the ICC, the United 
States did not veto the resolution (but abstained).  The 
resolution was adopted by the Council 11-0-4 (U.S., Algeria, 
Brazil, China).  The resolution also required 
Sudan to fully cooperate with the ICC investigation. 
 
¶6.  (U)  In July 2008, ICC Chief Prosecutor Luis 
Moreno-Ocampo applied for an arrest warrant with the ICC's 
Pre-Trial Chamber (PTC) for Sudanese President Omar Hassan 
al-Bashir. The indictment application charged Bashir with 
ten counts of war crimes, three counts of genocide, and five 
counts of crimes against humanity.  The PTC will 
likely make a decision on the case before the end of the 
month.  We are aware of media reports indicating that an 
arrest warrant was issued on February 11, 2009, but we have 
not received confirmation of these reports. 
 
¶7.  (SBU) Soon after the arrest warrant application was 
announced Sudan launched an international campaign to 
invoke Article 16 of the Rome Statute, which allows the 
Security Council (via a resolution) to defer for up to one 
year a case pending in the ICC.  Bashir enlisted the support 
of China, the African Union (AU), the Organization 
of the Islamic Conference (OIC), and several African and 
Muslim states in his push for an Article 16 resolution. 
 
¶8.  (SBU) So far, no UNSC member has introduced such a 
resolution in the UNSC.  This is most likely because no 
more than seven Security Council countries have expressed 
support for an Article 16 deferral.  In order for a UNSC 
resolution to be approved, it must receive at least nine 
supporting votes with no vetoes by any of the P5.  While 
it is doubtful the proponents of the resolution will obtain 
the nine necessary votes, we fear if the proponents 
think they have nine votes they will bring the resolution 
forward as a political gesture (i.e. that a majority of 
the Security Council supports the action).  Therefore, the 
USG would like to ensure firm commitments from at least six 
other 
UNSC members to oppose or abstain on an Article 16 deferral 
resolution.  The UK, Costa Rica, and France have 
publicly stated that they oppose a deferral.  Mexico and 
Japan are both members of the ICC and, therefore, are likely 
to oppose such a deferral.  We 
expect Austria and Croatia to follow the UK and French lead 
and oppose a deferral.  Turkey shares many of our 
concerns about the ICC and may only be able to abstain on an 
ICC resolution.  Burkina Faso so far supports a 
deferral but may be open to persuasion. 
 
¶9.  (U) Proponents of deferring the ICC case argue the 
indictment of Bashir could affect stability on the ground 
in Darfur and scuttle the Comprehensive Peace Agreement 
(CPA).  These fears have been fed by the Government of 
Sudan's veiled threats to the international community should 
an arrest warrant be issued for President Bashir 
(e.g. we cannot guarantee the safety of westerners, all 
options are on the table, the rebels will use the 
indictment to create chaos in Darfur).  The United States has 
delivered the message to the GOS that any retaliatory 
measures against the UN, humanitarian organization, or other 
westerners would not serve the interests of the GOS 
and will not be tolerated by the international community. 
The United States believes that justice and peace are not 
mutually exclusive.   We will continue to insist following a 
possible issuance of an ICC arrest warrant for President 
Bashir that the Government of Sudan uphold all their 
international and national legal obligations, work with 
the UN-AU negotiator to find a durable peace in Darfur, 
implement their CPA responsibilities, and to allow 
uninhibited the full deployment of UNAMID. 
 
¶10.  (SBU) In contrast, the U.S., UK, and France argue that a 
deferral is not warranted.  For seven 
months the Government of Sudan has been aware of the 
proceedings filed by the ICC's Prosecutor Luis 
Moreno-Ocampo.  During this time the Government of Sudan has 
done little to indicate that a deferral of the ICC 
indictment would lead to progress on the Darfur Peace 
Agreement, improvement in the lives of the Darfuri people, 
or more rapid implementation of the CPA. 
 
¶11.  (SBU) Background on Burkina Faso:  As an AU member, 
Burkina Faso is in a difficult predicament on this issue. 
However, the U.S. has very much appreciated and admired 
Burkina Faso's leadership and independent thinking thus 
far on the Security Council, as demonstrated in its vote for 
the Zimbabwe Sanctions resolution last year.  Burkina 
Faso knows this issue better than most, due to the exemplary 
leadership of its former Foreign Minister Djibrille 
Bassole. 
 
---------------- 
Point of Contact 
---------------- 
 
¶12. (U) For further information, please contact Rebecca 
Goldenberg (goldenbergra@sgov.gov) or Joseph J. FitzGerald 
(fitzgeraldjjo@state.sgov.go at IO/UNP. 
CLINTON