NORWAY PRESENTS ITS LEGAL VIEWS ON DETAINEES

C O N F I D E N T I A L OSLO 000403 SIPDIS SIPDIS DEPARTMENT FOR L E.O. 12958: DECL: 03/31/2016 TAGS: PREL KPAO PHUM OPDC PTER NO SUBJECT: NORWAY PRESENTS ITS LEGAL VIEWS ON DETAINEES REF: STATE 26147 Classified By: Pol/Econ Counselor Mike Hammer, Reason 1.4 b and d. ¶1. (C) MFA DAS Leif Larsen summoned P/E counselor on March 31 to receive a note outlining Norway's official legal position on detainees at Guantanamo and elsewhere (full text provided para 5). After only a cursory reading of the note, P/E Counselor reiterated our position on detainees (reftel). ¶2. (C) Foreign Minister Jonas Stoere has previously told us that he fully supports the fight against terrorism. The Foreign Minister also accepts the right of the United States, and any other country for that matter, to defend itself against terrorists but fundamentally believes such action must be grounded in international law. Speaking as a friend, Stoere (formerly the head of the Norwegian Red Cross) has expressed his concern that the U.S. hurts its ability to go after terrorists and its image by not applying international law appropriately. ¶3. (C) Beyond the Minister's own personal conviction that we could be handling the issue of detainees better, Norway's left-of-center government wants to be on record opposing how we have handled detainees given that it is a hot-button political issue and that they feel that the prior right-of-center government failed to register concerns with us. Larsen said that the MFA does not intend to make the note public but that, if asked, the MFA will state that it has made Norway's legal position clear to us. We would not be surprised, however, if the text does become public at some point as the MFA's political leadership will want it known that it has "protested" our treatment of detainees and provided us its interpretation of international law. The note does not request a reply. ¶4. (C) Comment. The Guantanamo detainee issue continues to be a hot topic here; just today Norway's paper of record Aftenposten ran a story interviewing three men who were held at Guantanamo. We would welcome a visit by Legal Adviser John Bellinger, or other USG senior official, to help us with the public diplomacy message. Despite our best efforts, there seems to be little to no understanding of the U.S. legal position. ¶5. Begin text of Norwegian note: Norway's position on key legal issues concerning protection of detainees in the struggle against terrorism �A; ¶1. Transnational terrorist attacks constitute not only a menace to peace and security, human rights and democratic values. They also defy and threaten human dignity. Governments must take coherent and united action in order to prevent such attacks, to remove bases of support to terrorist networks and to bring perpetrators of such attacks to justice. International law is essential for effective action in this regard. ¶2. Norway believes that the determination of the status, rights and treatment of persons detained in relation to acts of transnational terrorism also has a bearing on the long-term effectiveness of the fight against terrorism. This includes the situation of detainees at Guantanamo Bay, which has been criticized over an extended period of time. Legal classifications and the language utilized in the interpretation of treaty obligations are important. They should not only contribute to legal certainty, but ensure the preservation of the essential values and interests protected by the law of armed conflict and other international rules aimed at protecting basic human dignity in warfare. ¶3. The increasingly asymmetrical nature of the threat posed by certain groups engaged in armed conflict and other forms of violence may give rise to new legal challenges. These may include the determination of the legal status of persons detained, the scope of certain procedural rules and the extent to which there may be an overlap between international humanitarian law, on the one' hand, and human rights law, on the other. Irrespective of such issues, Norway is of the view that the fundamental safeguards for persons deprived of liberty cannot be open to doubt. They are part of the legal framework applicable in situations of international armed conflict, of non-international armed conflict and when violence cannot be classified as an armed conflict. These are the only three possible legal qualifications of situations of violence under international law. ¶4. As regards certain legal interpretations that have been made with respect to the application of international law in the fight against terrorism Norway would like to reassert the following: International law, based on treaties or customary law, is binding on all states. It not only specifies States' rights and obligations in a given situation, but also provides a common ground for interpreting what the respective rights and obligations are. Adherence to international law is also premised on a shared understanding that it is in each State's interest to abide by the law, allowing, for example, a State to demand the protections provided for by humanitarian law to members of its armed forces detained by an adversary, whether in international or non-international armed conflict. In accordance with Article 2 common to the 1949 Geneva Conventions the existence of an armed conflict between States is decisive for the application of the Conventions ("In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties"). When triggered, the Conventions apply to all persons involved in an international armed conflict, including also members of irregular forces and members of non-State armed groups. The situation in Afghanistan was initially an international armed conflict within the meaning of the Geneva Conventions. To state that the Conventions apply does not, however, mean that Al-Qaida members, for example, are entitled to prisoner of war (POW) status. It only means that their protection and rights must be determined under international humanitarian law. It can be argued that the ongoing hostilities in Afghanistan may be classified as a non-international armed conflict, as they no longer involve the armed forces of opposing States Parties to the Conventions. Article 5 of the Third Geneva Convention stipulates that "should any doubt arise" as to whether a person is entitled to POW status, "such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal". This provision was crafted to meet practical needs in armed conflict. A "competent tribunal" is mandated to make status determinations and is therefore not akin to a judicial body charged with reviewing challenges to the legality of detention or issues of individual criminal responsibility. Under certain conditions persons who do not qualify as POW, but who directly participate in hostilities or otherwise represent a serious threat to security may, under the Fourth Geneva Convention, be detained until cessation of active hostilities. They should be released earlier if they no longer pose a serious security threat to the Detaining Power. They remain protected by the Fourth Convention until final release. It should be emphasized that any person in the power of a Party to an international armed conflict, regardless of his or her specific legal status, is entitled to the "Fundamental Guarantees" provided for in Article 75 of the First Additional Protocol to the Geneva Conventions. These guarantees are widely recognized as reflecting customary international law and represent an essential safety net of protections that must be observed in relation to all detainees, at all times. In situations of non-international armed conflict, Article 3 common to the Geneva Conventions contains basic protections that must be accorded to all persons not, or no longer, taking an active part in hostilities. International jurisprudence has determined that its rules are applicable in all types of armed conflicts, both non-international and international. Accordingly, persons covered by the article must "in all circumstances be treated humanely". Torture, cruel, humiliating and degrading treatment are "prohibited at any time and in any place whatsoever". Common Article 3 also prohibits the passing of sentences without previous judgment pronounced by a regularly constituted court, affording judicial guarantees. In situations not amounting to armed conflict, the rights of all persons deprived of liberty, including those who may be detained in relation to the fight against terrorism, are recognized in the 1966 International Covenant on Civil and Political Rights. The Covenant obliges States to treat detainees with "humanity and with respect for the inherent dignity of the human person" and guarantees the individual right to liberty and security of person. States' obligations under the Covenant may be subject to derogation under defined circumstances and on the basis of procedural safeguards. Furthermore, all individuals are protected by the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Convention specifies that "no exceptional circumstances whatsoever" may be invoked as a justification of torture. This prohibition also applies to persons detained in relation to the fight against terrorism, as well as to persons transferred to another State. The International Committee of the Red Cross (ICRC) has a right of unrestricted access to all detainees in international armed conflicts. In non-international armed conflicts, visits are inter alia recognized in resolutions of the States Parties to the Geneva Conventions. The ICRC is habitually granted access to persons deprived of liberty outside of armed conflicts. 29 March 2006 End text of Norwegian Note. Visit Oslo's Classified website: http://www.state.sgov.gov/p/eur/oslo/index.cf m WHITNEY