VZCZCXRO2953
RR RUEHBZ RUEHDU RUEHGI RUEHJO RUEHMA RUEHMR RUEHPA RUEHRN RUEHTRO
DE RUCNDT #0711/01 2022355
ZNR UUUUU ZZH
R 212355Z JUL 09
FM USMISSION USUN NEW YORK
TO RUEHC/SECSTATE WASHDC 6962
INFO RUEHZO/AFRICAN UNION COLLECTIVE
RUEHKM/AMEMBASSY KAMPALA 0379
RUEHKH/AMEMBASSY KHARTOUM 1583

UNCLAS SECTION 01 OF 02 USUN NEW YORK 000711 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PREL KJUS KAWC UNSC SU
SUBJECT: AMBASSADOR RICE MEETS WITH LIECHTENSTEIN PERMANENT 
REPRESENTATIVE WENAWESER ON ICC ISSUES 
 
¶1.  (U) Summary:  Amb. Rice met with Liechtenstein Amb. 
Wenaweser on July 7 on ICC issues.  They discussed the USG 
review of the ICC, possible future USG engagement with the 
ICC, the 2010 review conference, the recent AU decision not 
to comply with the arrest warrant for President Bashir of 
Sudan, and the crime of aggression. 
 
¶2.  (U) Liechtenstein Amb. Wenaweser, President of the ICC 
Assembly of State Parties, met with Amb. Rice on July 7 to 
discuss the status of the USG review of the ICC and other 
ICC-related issues.  Wenaweser said he wanted to explore what 
USG engagement could be within the ICC Assembly of State 
Parties and in other fora.  He indicated he was aware of the 
ongoing U.S. policy review and noted that the USG would soon 
receive an invitation to participate as an observer in next 
June's Review Conference in Kampala, where the main issue 
would be the crime of aggression.  Wenaweser explained that 
the negotiators of the ICC had agreed aggression should be 
covered by the Rome Statute, but left the definition and 
conditions for exercise of jurisdiction to be negotiated 
later.  He believed that the ICC Parties had worked out a 
"pretty solid" definition of aggression; what remains is how 
to bridge the gap on the conditions for exercise of 
jurisdiction where one group (the P-4) want to require a 
prior determination of aggression by the U.N. Security 
Council, while most other countries do not want to leave the 
exercise of jurisdiction entirely up to the Council. He noted 
there is a subsidiary issue for the Review Conference: 
whether to keep Article 124, which gives States Parties the 
ability to opt out from war crimes jurisdiction for seven 
years. 
 
¶3.  (SBU) Amb. Rice asked what Wenaweser thought the effect 
of  the AU decision not to enforce the arrest warrant for 
President Bashir would be on the ICC and, more specifically, 
on the Review Conference.  Wenaweser said he wasn't sure, 
because the decision does not have any legal effect-ICC 
Parties still have a treaty obligation to execute the 
warrant.  He noted that Botswana had already dissociated 
itself and said it would abide by the warrant; he hoped other 
countries such as Uganda would as well. 
 
¶4.  (SBU) Asked by Amb. Rice what he thought the impact and 
benefit would be if the USG engaged as an observer at the 
ICC, Wenaweser said he thought that the USG would be better 
informed about what the ICC was doing, that there were some 
areas where the ICC was of interest to the USG "as a tool" 
and that it would be useful for the USG to engage on the 
definition of aggression, about which "your people have 
always had qualms."  He expressed the hope that the USG 
review process would not be drawn out with the U.S. position 
crystallizing only at the last minute before the Review 
Conference, as that would not be productive.  While he hoped 
the USG would not come forward with "fifteen pages of 
amendments" to the Rome Statute, it would be better to come 
forward with problems sooner rather than later, and to let 
him know what was coming. 
 
¶5.  (SBU) Pressed to say how he would like the USG review to 
come out, Wenaweser said he was a realist.  He would envision 
a policy of small incremental steps toward increased USG 
engagement with the court, with USG involvement in certain 
areas, for example, arrests (perhaps through intelligence 
sharing), with USG ratification coming in the distant future, 
if at all.  He thought it was important to have more States 
Parties, but also positive and constructive engagement from 
States that are not yet parties.  He characterized the 
position of Russia and China as "not negative, as it could 
be," and highlighted the fact that they allowed resolution 
1593 to be adopted.  He characterized China's posture as one 
of "benign neglect."  They are a bit irritated over Darfur 
and far from joining, but always attend the Assembly of 
States Parties and are active as observers, including on the 
issue of aggression.  The Russians are also active on 
aggression. 
 
¶6.  (U) Wenaweser noted there were a lot of misconceptions in 
the United States Congress, but also far more widespread, 
about what the ICC is and does.  An educational effort is 
needed to explain concepts such as complementarity (the ICC 
acts only when national courts won't or can't) and to make 
clear that the Rome Statute is not retroactive.  Amb. Rice 
suggested that the ICC consider issuing fact sheets that 
explained the ICC and the principal issues clearly. 
 
¶7.  (SBU) Amb. Rice turned the conversation to the crime of 
aggression, noting that the definition of aggression 
undoubtedly raises anxiety in places like Washington, D.C., 
in part because people do not understand how there can be an 
individual crime of aggression, let alone what it is. 
 
USUN NEW Y 00000711  002 OF 002 
 
 
Wenaweser responded that criminalizing aggressive war had 
been on the agenda since World War II, after which a number 
of defendants were convicted of aggression at Nuremberg, but 
that had been aggression involving war; there was no current 
legal basis for penalizing individuals for illegal use of 
force.  He asserted that the working definition is very 
conservative and narrow, and would not apply to many cases, 
as there must be aggression by a State before an individual 
can be held criminally responsible.   Amb. Rice said that 
some would question the limitation to actions by States, when 
non-State actors such as rebel groups and terrorists are 
responsible for so many illegal uses of force.  She also 
questioned how the boundary between self-defense and 
aggression would be defined, and suggested that having anyone 
other than the Security Council define that boundary might be 
seen as impinging on its role.  Wenaweser said there was 
general agreement that the Council should have the first 
shot.  The harder issue was what to do if the Security 
Council doesn't act; outside of the P-5, most countries were 
not content to let the Security Council have the final say. 
This was the most difficult issue facing the Review 
Conference. 
 
¶8.  (U) Amb. Rice thanked Wenaweser for his perspective.  She 
told him that USUN would keep in touch with him during the 
review, and encouraged him to speak with others in 
Washington, D.C. 
RICE