DASD WAXMAN'S CONSULTATIONS WITH GONL ON TREATMENT

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 000866

SIPDIS

E.O. 12958: DECL: 03/31/2015
TAGS: PREL PHUM MARR AF NL
SUBJECT: DASD WAXMAN'S CONSULTATIONS WITH GONL ON TREATMENT
OF DETAINEES

REF: A. STATE 30940

B. THE HAGUE 683

Classified By: CLASSIFIED BY POLITICAL COUNSELOR ANDREW SCHOFER FOR REA
SONS 1.4 (B AND D)


1. (C) Summary: On March 24, DASD for Detainee Affairs
Matthew Waxman met with senior Dutch MFA and MOD officials
and a broad GONL interagency team concerning the treatment of
detainees in the Global War on Terror. These consultations
grew out of a recent request from FM Bot to Secretary Rice
and DepSecDef Wolfowitz. DASD Waxman and his OSD team
provided an overview of U.S. detainee policy and addressed
specific GONL questions regarding U.S. policy on detainee
matters in the War on Terrorism. GONL interlocutors
repeatedly expressed their appreciation for the briefings
which they had sought following strong parliamentary concerns
related to the Dutch decision to deploy special forces as a
coalition member in OEF. The GONL position as to the
applicability of the Geneva Conventions and the laws of armed
conflict (LOAC) to OEF differs from that of the USG. The
GONL does not agree with the USG position that Al Qaeda and
Taliban detainees are unlawful combatants under the laws of
war. Both sides share the belief that detainees should be
accorded humane treatment in accordance with the principles
of the Conventions. The Dutch asked whether the U.S. might
be willing to make a joint statement to this effect, as it
would help the GONL manage its parliamentary concerns and
might also prove useful for the U.S. in managing perceptions
with other European allies. The Department of Defense agreed
to consider the idea. End Summary.


2. (C) Deputy Assistant Secretary of Defense for Detainee
Affairs Matthew Waxman, accompanied by OSD Associate General
Counsels Eliana Davidson and Diane Beaver and Special
Assistant for Detainee Affairs Bryan Del Monte visited The
Hague on March 24 for consultations with the GONL concerning
treatment of detainees in the Global War on Terror. This
visit grew out of a request from FM Bot during his February
meetings with Secretary Rice and Deputy Secretary of Defense
Wolfowitz (ref A). The GONL has faced parliamentary pressure
on this issue following the government's decision to deploy
Dutch special operations forces (SOF) personnel to
Afghanistan to participate in Operation Enduring Freedom. In
a recent debate on the issue, MPs expressed strong concerns
about U.S. treatment of detainees and the possibility that
Dutch forces might detain Al Qaeda or Taliban members as part
of combat operations (ref B).


3. (C) DASD Waxman first met with MFA Deputy Political
Director Herman Schaper, MOD Deputy Political Director
Jan-Dirk Siccama and MFA Special Ambassador for Human Rights
Piet de Klerk. Schaper expressed the GONL's appreciation for
the consultations further to FM Bot's request. He noted the
differing views between the U.S. and the GONL as to whether
Al Qaeda and Taliban detainees were unlawful combatants. He
said that treatment of detainees had been used to criticize
the west, and that since the Netherlands was strongly
committed to the transatlantic link, the GONL wanted to help
manage this issue and perhaps build a consensus among allies
on the matter. Schaper said the GONL priority was to be sure
that the minimum standards of international humanitarian law
applied to detainees. Given that the Global War on Terror
represents a new kind of warfare, Schaper suggested that
perhaps international law needed to be adapted to address it.


4. (C) DASD Waxman expressed gratitude for Dutch
participation and support in the Global War on Terror and
said the purpose of his visit was to clarify USG policies on
detainees and refute any misperceptions and to build upon
areas where there was agreement. He said that the U.S.
considers itself to be in a state of war and that it applies
the laws of armed conflict. He stressed that the U.S. is
committed to the Geneva Conventions and to humane treatment
of detainees. The U.S. believes the Geneva Conventions
contain obligations as well as protections. The Conventions
recognize lawful combatants in their text so by necessity
there are unlawful combatants. Al Qaeda and Taliban do not
abide by the obligations in the Conventions and are therefore
not entitled to protection as lawful combatants. Although Al
Qaeda and Taliban may not be entitled to protection as
solders under the Geneva Conventions, both the President and
the Secretary of Defense have directed that they be treated
humanely, regardless of their status. Schaper asked whether,
given the open-ended nature of the current conflict, it might
be worth exploring whether there was international consensus
to deal with terrorists by adding to the international legal
structure. OSD Associate General Counsel Davidson said the
U.S. looked to existing legal frameworks for guidance and
that the February 2002 Presidential direction on humane
treatment of prisoners said the U.S. would treat prisoners in
a manner consistent with the Geneva Conventions.

5. (C) DASD Waxman and party also participated in an extended
expert-level meeting chaired by Amb. de Klerk which included
MFA and MOD legal representatives, action officers from MFA's
human rights, security policy and political affairs
departments as well as the MOD general policy affairs
department. De Klerk stressed that combating terrorism is
one of the GONL's highest priorities, both politically and
militarily. They also wanted to look at how to do this while
maintaining respect for human rights. In that context, the
GONL sought further information from the U.S. on the
applicability of the Geneva Conventions, the status of
prisoners at Guantanamo Bay and renditions. DASD Waxman said
that aggressive waging of war against Al Qaeda is not
inconsistent with humane treatment of prisoners. Concerning
the Geneva Conventions, he said that to reward Al Qaeda and
Taliban detainees with the guarantees of the Geneva
Convention would only encourage terrorist activity. De Klerk
said that in the GONL view if one does not qualify as a
prisoner of war then one falls under the Fourth Geneva
Convention. The Dutch position is that one is either a POW
or else one is a civilian. The Netherlands takes the view
that even if one does not observe the law, the Geneva
Conventions still apply. Davidson said the U.S. did not
share this view of how the Conventions apply, however, the
U.S. treats detainees in a manner consistent with the
principles of the Convention. She also noted that detainees
at Guantanamo can challenge their detentions in court.


6. (C) Concerning Guantanamo, DASD Waxman said that to date,
the U.S. has released 212 detainees, of which we know at
least 12 that were transferred or released have returned to
combat against the U.S. The U.S. allows ICRC representatives
to visit with detainees at Guantanamo as well as at U.S.
facilities at Abu Gharaib and Kandahar and also to have
access to U.S. commanders. The President of the ICRC has
also met with the President, Secretary of State, Secretary of
Defense, Deputy Secretary of Defense and Vice Chief of the
Joint Chiefs of Staff. De Klerk said he was pleased this
dialogue existed but noted that certain requests of UNHCR
Special Rapporteurs had been refused. He said this could
strengthen the hand of other countries that deny access to
the UNHCR Special Rapporteurs. Regarding the treatment of
detainees, Davidson stressed that clear guidance was being
provided to combatant commanders and that this guidance had
been reviewed by the Department of Justice and Staff
Advocates to confirm it comports with U.S. Federal Law and
U.S. international obligations. The U.S. is also are
currently updating military manuals for dealing with
detainees.


7. (C) In response to Dutch questions on renditions, Waxman
said the U.S. does not send anyone to another country for the
purpose of being tortured nor do we send anyone to a country
where we believe it is more likely than not that the detainee
will be tortured. We seek assurances from receiving
countries that they will not be tortured and comply with our
treaty requirements and international obligations.


8. (C) While noting the difference of interpretation of the
Geneva Conventions, the Dutch side asked if it would be
possible to reach some sort of statement of consensus on
practices in treatment of detainees. This would be helpful
to the Dutch government in answering parliamentary concerns,
but might also help the U.S. in persuading other allies of
its point of view. DASD Waxman said the Department of
Defense would be interested in exploring the idea of such a
statement. De Klerk expects to be visiting Washington in
April and may follow up on this issue.

Comment:


9. (C) The Dutch underlined their strong appreciation for the
opportunity to consult on these issues. Despite our
disagreement over the status of AlQaeda and Taliban detainees
with respect to the Geneva Conventions, continuing dialogue
with the USG on this issue will help the GONL manage domestic
political questions. In addition, some sort of U.S.-Dutch
joint statement of principles conferring the humane treatment
of detainees would likely be of considerable help to the GONL
in addressing parliamentary concerns. Given the Netherlands'
strong reputation both globally and in Europe as outspoken
defenders of human rights, association with the Dutch in such
a joint statement might be useful in addressing this issue
with other European allies and partners. Post appreciates
DASD Waxman's last minute schedule change to accommodate this
visit.


10. (U) DASD Waxman cleared this cable.
SOBEL