C O N F I D E N T I A L OSLO 000617

SIPDIS

SIPDIS

E.O. 12958: DECL: 05/10/2016
TAGS: ICRC PHUM PREF PREL NO KPAS KJUS
SUBJECT: BELLINGER TAKES ON NORWEGIAN CRITICS

REF: OSLO 403



Classified By: Pol/Econ Counselor Mike Hammer, reasons 1.4 (b) and (d)


1. (C) Summary. On May 9, Legal Adviser John Bellinger
presented U.S. policy on detainees to Deputy Foreign Minister
Johansen, parliamentarians, human rights NGOs, Norway's
leading foreign policy think tank, Norwegian legal scholars,
and in several media interviews. Johansen repeated Norway's
view that the Geneva Convention (including all its
protections) should be afforded to U.S.-held detainees.
Johansen also urged humane and proper treatment of detainees
at Guantanamo and elsewhere. Johansen's points reflected the
core sentiment of the various groups Bellinger addressed
during his packed one-day visit.


2. (C) In all his meetings Bellinger thoroughly explained
U.S. policy on detainees, made clear that the U.S. does not
torture, and stressed that we are firmly committed to
upholding our international legal obligations. Bellinger
delivered to MFA Legal Adviser Rolf Einar Fife our official
response to Norway's March 31, 2006 note concerning the legal
status of U.S.-held detainees (text of our diplomatic note
included para 12). Bellinger also publicly clarified the
U.S. position on Svalbard. End Summary.

Breakfast with NGOS: the Same Old Criticism
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3. (C) Bellinger started his long day in Oslo with a
breakfast hosted by the Ambassador with Norwegian NGOs and
distinguished academics. The discussion centered on the
legal justification for the U.S. policy on detainees
(focusing upon the framework of the Third and Fourth Geneva
Conventions), the International Criminal Court (ICC),
detainee treatment issues and alleged rendition flights.
Bellinger stressed our interest in a greater dialogue between
the U.S. and Europe, the U.S. commitment to upholding its
international legal obligations and dismissed myths
pertaining to U.S. treatment of detainees at Guantanamo.

DFM Johansen: Norway Demands Humane Treatment of Detainees

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4. (C) Legal Adviser Bellinger, accompanied by the
Ambassador, met with Deputy FM Johansen and Legal Adviser
Rolf Einar Fife for a discussion focused almost exclusively
on detainee issues. (Note: Johansen has been the most vocal
voice in the Norwegian government being critical of U.S.
treatment of detainees at Guantanamo. End Note.) Johansen
began by stressing that Norway is a "staunch, strong
supporter on the war against terror." Norway believes
terrorists are dangerous people but that they are also "human
beings" who must be afforded minimum treatment standards and
granted "full protections" under the Geneva Convention, he
argued. Bellinger agreed detainees must be, and are, treated
humanely, but noted that the detainees do not fall squarely
under the Geneva Convention, and that the term "unlawful
combatants" has a basis in existing international law. DFM
Johansen, noting that Al Qaida was "fundamentalist" about
religion, stated that Norway was also "fundamentalist" about
minimum humanitarian standards and fulfillment of the Geneva
Convention. He stated his concern that the U.S. policy
toward detainees could encourage other countries, such as
Sudan, to adopt detainment policies. Citing his own Middle
Eastern experiences, Johansen believed that popular sentiment
there was that the West had one set of standards and another
for Muslim countries. Johansen commented that "being firm on
international law will be a factor in the fight against
terror." Fife added that there was a "perception" of the
erosion of the standards of rules by the West. Bellinger
made clear that the United States is committed to fulfilling
its international legal obligations, adding that the U.S. has
established clear rules and procedures regarding the
treatment of detainees.


5. (C) Johansen took the opportunity of the meeting to
inform us of some good news, that Norway was scheduled to
ratify the Third Additional Protocol on Friday, May 12.
Bellinger welcomed Norway's decision and quick ratification.
Note: Bellinger later delivered to Fife our response to
Norway's March 31 note (reftel), concerning the U.S. position
on detainees.

Print Press and Television Coverage
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6. (U) The Legal Adviser conducted several interviews,
including with Norway's newspaper of record Aftenposten and
TV 2, Norway's private network. Aftenposten ran two
articles, one focusing on Bellinger explanation of U.S policy
on detainees, the other reporting on Bellinger's
clarification of U.S. policy toward Svalbard. On Svalbard,
the newspaper quoted Bellinger as stating that the "U.S. does
not disagree with Norway on Svalbard. We have not changed
positions on any questions that concern Svalbard. The
American position is actually the same as it has been for
several decades, that is to say that we reserve the same
treaty rights as other countries." The article goes on to
note that according to Bellinger, the U.S. is neither behind
the UK's nor Norway's positions.


7. (C) Comment: Bellinger was asked to clarify the U.S.
policy given an erroneous report a few days earlier that the
U.S. had changed its long-standing position on Svalbard and
opposed Norway's position. Bellinger's public correction was
a big relief to the Norwegian government, which is on pins
and needles regarding what position we might ultimately take
given the UK's recent challenge of Norway's position that
Svalbard's continental shelf is an extension of
mainland-Norway's continental shelf. End Comment.

Meeting with Key MPs on the Foreign Affairs Committee
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8. (C) Bellinger met with five members of the Parliament's
Foreign Affairs, including Chairman Olav Axelson (Labor),
Marit Nybakk (Labor), Vidar Bjornstad (Labor), Center Jon
Lilletun (Christian Democrat) and Alf Ivar (Center Party).
Before each parliamentarian asked pointed questions about our
treatment of detainees and renditions, each stressed the
importance to Norway of maintaining a strong relationship
with the United States. The parliamentarians also urged that
the U.S. apply the Geneva Convention to the detainees
Bjornstad concluded that the reason why detainee issues are
"debated so much" is that "the U.S. is so important." One of
the MPs later told us that the session was "fantastic" and
much appreciated by the committee's members.

Norwegian Foreign Policy Institute (NUPI) and International
Law Association
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9. (C) Bellinger addressed a capacity crowd at NUPI. The
value of Bellinger's visit was clearly evident given that
attendance at this event far exceeded expectations with over
70 packed into the room, including reporters from almost all
of Norway's mainstream media covering it. Issues raised
included Svalbard, Norway-U.S. relations, detainees and the
Geneva Convention. One item of interest is that the local
Sudanese Ambassador raised the case of Sami Al-Haj, a
Sudanese whom the Ambassador claimed was an Al Jazeera
cameraman, who was mistakenly interred at Guantanamo and
should be released.


10. (C) Later, Bellinger spoke at Norwegian International
Association lecture (composed of distinguished jurists and
academics) for over two hours. The session was lively, with
attendees challenging Bellinger on detainees and the use of
Presidential signing statements, specifically with reference
to the one on the McCain amendment. Of particular note were
the comments of a Norwegian Supreme Court Justice who found
the Guantanamo situation "completely wrong" from "a human
side," perceiving that the U.S. was "degrading people" at the
facility. Despite legal justifications for the U.S. position
on detainees under international law, the Justice was
"terrorized" and "disturbed" that the U.S. could keep people
interred. In addition, a former Iranian Ambassador to Norway
(who defected) made a plea for the Mujahideen E Khalq to be
removed from U.S. designated terrorist group list.

John: We, and the Norwegians, thank you for coming
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11. (C) Comment: Bellinger's packed one-day stop was exactly
what we had hoped for, an opportunity for an eloquent
exposition of U.S. legal views on the detainee issue.
Bellinger's message that the United States is committed to
living up to its international legal obligations was welcomed
by Norwegians. Fife noted to us that much of the passion
with which Norwegians challenged U.S. positions can be
attributed to four years of "bottled aggression" which was
"uncorked" by a chance to present their views directly to a
senior U.S. official. Fife remarked that it was healthy to
have had such a fulsome exchange on detainees, adding that
hearing Bellinger at least made Norwegians realize there are
other legitimate, well-reasoned views. We agree. Overall,
Norwegian public officials, recognizing the need to mandate
policies which protect their citizens while complying with
international law and norms, seemed more open to U.S. views
than the those outside the government, who are not saddled
with those great responsibilities. Bellinger's visit
received extensive press coverage and advanced our public
diplomacy objectives. We promise that if he comes again, we
will go lighter on the schedule. Again, thanks. End comment.


12. (SBU) Text of U.S. Diplomatic Note in response to
Norway's note on detainees follows:

"The United States believes that it is in a continuing state
of international armed conflict with Al Qaida, and,
therefore, that the law of armed conflict and international
humanitarian law governs our continuing operations in that
conflict. Members of Al Qaida have attacked our embassies,
our military vessels and military bases, our capital city,
and our financial center. The attacks by Al Qaida on the
United States on September 11, 2001 killed nearly three
thousand people. The UN Security Council has reaffirmed our
right of self-defense in relation to these attacks, which
were planned and launched from outside the United States, in
Resolution 1373. The United States continues to be engaged
in an active conflict against Al Qaida and the Taliban in
Afghanistan, and the vast majority of Guantanamo detainees
were captured by or turned over to our armed forces in
Afghanistan. Indeed, leaders of Al Qaida repeatedly have
asserted that they are at war with the United States.

The conflict against Al Qaida is not geographically limited
to Afghanistan, however: Al Qaida and its allies have engaged
and continue to engage in attacks against the United States,
its facilities, and its allies worldwide. This international
armed conflict does not fall within the ambit of Common
Article 2 of the 1949 Geneva Conventions because Al Qaida is
not and cannot be a &High Contracting Party8 as defined by
those Conventions. At the same time, the conflict is not
confined to the territory of single state, and thus does not
fall within the scope of Common Article 3 of the 1949 Geneva
Conventions.

This does not mean that the United States believes that it is
engaged in an armed conflict with all terrorists everywhere.
The U.S. Congress,s Authorization for Use of Military Force,
passed on September 18, 2001, states that &the President is
authorized to use all necessary and appropriate force against
those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist
attacks that occurred on September 11, 2001, or harbored such
organizations or persons, in order to prevent any future acts
of international terrorism against the United States by such
nations, organizations or persons.8 In any case in which
the United States considers whether to use armed force, the
U.S. Government would evaluate whether the use of force would
be authorized, and whether the specific action to be taken is
necessary and proportional to the goal to be achieved. The
U.S. Government would evaluate a variety of factors in
determining whether military force is appropriate in any
given case, including whether the country in which we would
act has consented to the action, or is willing and able to
address the threat posed by the individual or group at issue.
This does not mean that military force will be appropriate
in every circumstance. Where it is appropriate to detain,
question, and prosecute an individual, we do so; in many
cases, this will be the preferred course of action.

In applying the law of armed conflict to the conflict in
Afghanistan and with Al Qaida, the United States has
determined that Al Qaida and Taliban detainees are not
entitled to prisoner of war (POW) privileges provided by the
Third Geneva Convention. The Third Geneva Convention accords
POW status to enemy forces that follow certain rules
specified in Article 4: being commanded by a person
responsible for subordinates; having a fixed distinctive sign
recognizable at a distance; carrying arms openly; and
conducting operations in accordance with the laws and customs
of war. The President determined that Taliban detainees are
not entitled to POW status because they have not effectively
distinguished themselves from the civilian population of
Afghanistan and have not conducted their operations in
accordance with the laws and customs of war. Because Al
Qaida is not covered by the Third Geneva Convention, as
explained above, it is not a High Contracting Party to the
Convention and, in any event, its members fail to meet the
requirements of Article 4 of the Convention.

Although the Third Geneva Convention does not apply as a
matter of treaty law to those detained at Guantanamo, the
United States has provided all such detainees with Combatant
Status Review Tribunals (CSRTs). These CSRTs, which
determine whether individuals are being properly detained as
enemy combatants, are patterned after Article 5 tribunals as
those tribunals have developed in practice. In fact, the
CSRTs provide greater process for the detainees than have
Article 5 tribunals set up by other countries. In
proceedings before a CSRT, a detainee may call reasonably
available witnesses, question other witnesses, and testify,
or decline to do so, at his choice. Each detainee has the
right to a personal representative to assist in preparing his
case, to receive an unclassified summary of the evidence
before the hearing, and to introduce relevant documentary
evidence.
The United States has used the term &unlawful combatants8
to describe those found by a CSRT to be Al Qaida and Taliban
fighters. This term is used to describe enemy combatants who
are not entitled to POW protections by the terms of the Third
Geneva Convention, as explained above, and who, because they
are combatants, are not protected persons under the terms of
the Fourth Geneva Convention. This category of individuals
is not a newly-created category; rather, it has appeared for
the past fifty years in various treatises on military law and
in U.S. and British military manuals. (See, for example,
Adam Roberts, &Counter-terrorism, Armed Force, and the Laws
of War,8 Survival, Spring 2002; Alan Rosas, The Legal Status
of Prisoners of War, Helsinki 1976.)

The United States does not agree with the contention of the
Government of Norway that all combatants not meeting the
definition of prisoner of war fall within the Fourth Geneva
Convention. There is a genuine gap in the application of the
two Conventions with respect to certain persons during an
armed conflict. The drafters did not intend the Fourth
Convention to protect organized military forces in systematic
combat; rather, it is designed to cover civilians. Indeed,
aspects of this gap are expressly recognized in the Fourth
Geneva Convention, which specifically excludes from its
definition of protected persons certain individuals whose
countries of nationality maintain diplomatic relations with
the detaining power, and which limits protections to a
parties own territory and occupied territory (neither of
which pertain to Afghanistan, which is not U.S. territory and
never occupied by the United States). Contemporaneous
statements by the negotiators of the Conventions recognize
this gap, and include a statement by the ICRC representative
at the 1949 Diplomatic Conference that &although the two
conventions might appear to cover all the categories
concerned, irregular belligerents were not actually
protected.8 At that same conference, the Dutch
representative stated that to conclude that individuals who
are not POWs under the Third Geneva Convention &are
automatically protected by other Conventions is certainly
untrue. . . . (The Fourth Geneva Convention) certainly does
not protect civilians who are in the battlefield, taking up
arms against the adverse party.8 Statements from the UK and
Swiss negotiators supported this view as well. Indeed, the
very lack of full coverage for non-traditional armed forces
in part led states to call for the negotiations that led to
Additional Protocols I and II. Although the United States
participated in those negotiations, we have not ratified
those treaties, partly because we are concerned that
Additional Protocol I could allow organizations such as Al
Qaida to claim POW status or other protections that are
inappropriate for terrorist groups. Because the United
States is not a party to Additional Protocols I and II, the
United States does not bear any treaty obligations under
those instruments.

As the President of the United States stated in his February
7, 2002 order, the values that the United States shares with
other civilized nations countenance humane treatment of
detainees. Because of these shared values, the President
ordered the U.S. Armed Forces to treat detainees in the
conflict with Al Qaida and the Taliban humanely and, to the
extent appropriate and consistent with military necessity, in
a manner consistent with the principles of the Geneva
Conventions.

Norway,s note also discusses the applicability of the
Convention Against Torture and the International Covenant on
Civil and Political Rights (ICCPR) to these conflicts. The
U.S. position on torture is clear: U.S. criminal law and
treaty obligations prohibit torture, and the United States
will not engage in or condone torture anywhere. In addition,
the recently enacted Detainee Treatment Act codifies in U.S.
law the prohibition against cruel, inhuman, and degrading
treatment contained in Article 16 of the Convention Against
Torture, as applicable to the United States by the terms of
its reservation to this Article, and makes clear that the
prohibition applies to the treatment of all detainees under
U.S. control anywhere in the world.

The United States believes that the ICCPR does not apply
extraterritorially, and has taken this position consistently
since the time at which States adopted the ICCPR. The United
States is not alone in interpreting the ICCPR as
territorially limited. For example, the Government of the
Netherlands told the Human Rights Committee that it disagreed
with the suggestion that its U.N. peacekeepers in Srebrenica
fell within the ambit of the ICCPR, explaining, &Article 2
of the Covenant clearly states that each State Party
undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction, the
rights recognized in the Covenant(It goes without saying
that the citizens of Srebrenica, vis--vis the Netherlands,
do not come within the scope of that provision.8
U.S. Government policy, applicable to all agencies, is not to
transport anyone to a country if we believe it is more likely
than not that the individual will be tortured. In some
contexts, the United States seeks specific assurances that
extend beyond questions of torture. For example, if the
receiving State in question is not a party to the CAT, the
United States may pursue more specific assurances, which, for
example, assure that an individual will be treated humanely
and not be subject to cruel, inhuman, or degrading treatment.
Renditions, in appropriate circumstances, can be a useful
tool to bring terrorists to justice or prevent them from
carrying out terrorist acts. Both the United States and
European countries have used renditions for many years. For
example, a rendition by the French government brought one of
history,s most infamous terrorists, best known as Carlos the
Jackal, to justice in France, where he is now imprisoned.
Indeed, the European Commission of Human Rights rejected
Carlos,s claim that his rendition was unlawful.

Although the United States has no obligation to provide the
ICRC with notification of or access to Al Qaida or Taliban
detainees (who are not entitled to either the status of POWs
or protected persons), the United States has made clear that,
as a matter of policy, it will provide ICRC notice of and
access to such detainees to the maximum extent practicable,
consistent with the unique and compelling military and
security needs posed by this type of conflict. Consistent
with this policy, the ICRC has notice of and access to the
vast majority of the detainees held by the U.S. Government in
this conflict, and has full access to detainees held at
Guantanamo.

The United States appreciates its continuing dialogue with
the Government of Norway on these and related issues." End
text.


13. (U) Legal Advisor Bellinger did not have an opportunity
to clear this message.



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