VZCZCXRO7290
OO RUEHTRO
DE RUEHC #9213/01 0620037
ZNR UUUUU ZZH
O 030021Z MAR 09
FM SECSTATE WASHDC
TO RUEHAK/AMEMBASSY ANKARA IMMEDIATE 7383
RUEHLO/AMEMBASSY LONDON IMMEDIATE 2476
RUEHME/AMEMBASSY MEXICO IMMEDIATE 9031
RUEHFR/AMEMBASSY PARIS IMMEDIATE 3142
RUEHSJ/AMEMBASSY SAN JOSE IMMEDIATE 0207
RUEHKO/AMEMBASSY TOKYO IMMEDIATE 7941
RUEHVI/AMEMBASSY VIENNA IMMEDIATE 7501
RUEHVB/AMEMBASSY ZAGREB IMMEDIATE 2277
INFO RUEHBJ/AMEMBASSY BEIJING IMMEDIATE 6160
RUEHHI/AMEMBASSY HANOI IMMEDIATE 8756
RUEHKM/AMEMBASSY KAMPALA IMMEDIATE 5369
RUEHKH/AMEMBASSY KHARTOUM IMMEDIATE 7076
RUEHMO/AMEMBASSY MOSCOW IMMEDIATE 8160
RUEHOU/AMEMBASSY OUAGADOUGOU IMMEDIATE 8222
RUEHTRO/AMEMBASSY TRIPOLI IMMEDIATE 5887

UNCLAS SECTION 01 OF 02 STATE 019213 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: UNSC PREL PHUM SU XA XW
SUBJECT: SUDAN: DEMARCHE REQUEST ON ICC ARREST WARRANT FOR 
SUDANESE PRESIDENT BASHIR 
 
REF: A. STATE 12900 
     ¶B. STATE 19203 
 
¶1. (SBU) As they deem appropriate and useful, action 
addressees are instructed to approach host countries at an 
appropriate level regarding the International Criminal 
Court's (ICC) likely announcement of an arrest warrant for 
Sudanese President Omar al-Bashir on Wednesday, March 4. 
Libya is likely to call for a UN Security Council briefing on 
the issue sometime after the announcement and may seek a UN 
Security Council Press Statement. The United States 
Government remains strongly opposed to the tabling of  a UNSC 
resolution calling for an Article 16 Resolution deferral of 
the anticipated ICC arrest warrant of Sudanese President Omar 
Hassan al-Bashir.  We also remain opposed to any other 
Council document on the announcement, unless such a document 
is necessary in response to significant violence or other 
events in Sudan in response to the ICC decision (e.g. the 
Government of Sudan expels the UN or Western diplomats). 
 
¶2. (SBU) We continue to believe a low-key response from the 
UN Security Council following the ICC indictment would be the 
best approach.  We understand Libya plans to convene a 
Security Council meeting on the ICC arrest warrant soon after 
the announcement (possibly by Friday, March 6).  Libya will 
likely seek Council members' support for a UN Security 
Council Press Statement.  We do not support such a statement 
under the present circumstances and doubt the Council could 
come to consensual agreement on a text.  Post may draw from 
the appropriate reftels or background below to obtain U.S. 
objectives. 
 
---------- 
Objectives 
---------- 
 
¶3.  (SBU) Posts should pursue the following objectives: 
 
-- obtain or reaffirm host country's commitment to oppose an 
Article 16 resolution following the anticipated issuance of 
an ICC arrest warrant for President Bashir; 
 
-- obtain host country's concurrence on a muted response to 
the likely ICC announcement, including opposing a Security 
Council statement unless a statement is necessary in response 
to significant violence or other events in Sudan in response 
to the ICC decision (e.g. the Government of Sudan expels UN 
or Western diplomats). 
 
------------------ 
Reporting Deadline 
------------------ 
 
¶4.  (U) As appropriate and useful, posts should approach host 
countries and report back to the Department by 12pm Eastern 
Standard Time on Wednesday, March 4, 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). 
 
¶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 
two counts of war crimes, three counts of genocide, and five 
 
STATE 00019213  002 OF 002 
 
 
counts of crimes against humanity.  The PTC has announced it 
will make its decision on Ocampo's request on March 4 at 
14:00 (The Hague). 
 
¶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, Sudan's allies, including 
China, the African Union (AU), the Organization of the 
Islamic Conference (OIC), and the Arab League, began to push 
for an Article 16 resolution. 
 
¶8.  (SBU) So far, no UNSC member has introduced an Article 16 
deferral resolution in the UNSC.  We suspect this is most 
likely because no more than six or 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, as well as 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 are even close to nine votes they 
may bring the resolution forward as a political gesture to 
signify 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.  All action 
addresses have indicated they are not likely to support an 
Article 16 resolution, but with the announcement pending, 
we would like to ensure this is still the case.  In the case 
of Turkey, both in Washington and at post we continue to 
raise the issue at a high level with Turkish officials in the 
hopes of securing at least a commitment to abstain. 
 
¶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).  To a certain extent these fears have been fed by some 
actors within the Government of Sudan who have made 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).  We have underscored 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 justice and peace are not 
mutually exclusive.   We cannot allow events at the ICC to 
impact our focus on other key areas of concern with respect 
to Sudan, including ensuring the Government of Sudan uphold 
its international and national legal obligations, working 
with UN-AU Joint Chief Mediator Bassole to find a durable 
peace in Darfur, implementing the Comprehensive Peace 
Agreement, and achieving full deployment of of the UN/African 
Union Mission in Darfur (UNAMID). 
 
¶10.  (SBU) The U.S., UK, and France have all argued a 
deferral is not warranted by events on the ground.  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 demonstrate 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. 
 
 
---------------- 
Point of Contact 
---------------- 
 
¶11. (U)  For further information, please contact Joseph J. 
FitzGerald at IO/UNP (fitzgeraldjj@state.sgov.gov). 
CLINTON