AL-MASRI UPDATE -- NEXT STEPS ON ARREST WARRANTS

S E C R E T BERLIN 000230

SIPDIS

NOFORN
SIPDIS

FOR S/ES-O, EUR, AND L

E.O. 12958: DECL: 02/05/2017
TAGS: KJUS PTER PREL PGOV GM
SUBJECT: AL-MASRI UPDATE -- NEXT STEPS ON ARREST WARRANTS

REF: BERLIN 200

Classified By: Economic Minister-Counselor Robert F. Cekuta for Reasons
1.4 (b) and (d)


1. (S/NF) Summary: The MFA's Acting Legal Adviser told
emboffs Feb. 5 the German Government fully understands the
USG's strong desire that international arrest warrants not be
issued in the al-Masri case. She noted, however, that such
warrants are routinely issued ("99.99 percent of the time")
in connection with cases involving another democratic state
and that it would be highly unusual for the MFA to block such
a request. Additionally, in light of the domestic political
pressure on the German Govenment -- and on FM Steinmeier in
particular -- over the al-Masri and Kurnaz cases, her sense
was the German MFA and Justice Ministry in all likelihood
will not/not block a request for the issuance of
international arrest warrants in this case. End Summary.


2. (S/NF) EMIN and Global Affairs Counselor met February 5
with Acting MFA Legal Adviser Susanna Wasum-Rainer using
Department-supplied points to underscore the serious negative
implications of a German decision to issue international
arrest warrants in the al-Masri case. EMIN noted that
reports in the German media, including statements attributed
to FM Steinmeier, indicate the German Federal Government (MFA
and Justice Ministry) does not/not plan to block the
anticipated application of the Munich prosecutor to issue
international arrest warrants in the Al-Masri case, based on
the domestic warrants that had already been issued. EMIN
strongly urged that the German Government weigh carefully all
factors relevant to the case -- including the potential
repercussions for our overall bilateral relationship -- in
deciding whether or not to allow the international arrest
warrants to be issued.


3. (S/NF) In response to EMIN's query, Wasum-Rainer said at
this point no/no request has been received from the German
federal police for international arrest warrants to be issued
in the case. (Note: this statement tracks with information
we obtained earlier in the day from Judge Ralf Riegel, the
German Justice Ministry official who will be tasked with
coordinating any such request.) She nonetheless expects the
request to be made soon. Wasum-Rainer added that the German
police (BKA -- Bundeskriminalamt) usually pass such warrants
directly to the police authorities where the individual is
believed to live. It is only in cases where there are human
rights or similar concerns that the MFA is asked to decide
whether the arrest request should go forward. For example,
the MFA looks closely at German authorities' requests for
international warrants against Chinese nationals, since PRC
authorities will often decide to try the individuals
themselves and sometimes impose much stricter penalties than
German courts would hand down. Her colleague Andreas Zimmer,
MFA Office Director for International Law, explained that the
guidelines are set forth in the German federal "Regulations
for Dealing with Foreign Countries in Criminal Matters." He
cited the relevant text, as follows (informal Embassy
translation): "Before executing an incoming or forwarding an
outgoing request, the highest judicial or administrative
authority has to be notified and allowed to respond if the
request, from the point of view of the requesting or
requested state, could be of particular political, factual or
legal importance. In particular, a specific importance is
deemed to exist if there are indications that the death
penalty will be imposed or any other violation of the
fundamental principles of the German legal order...."


4. (S/NF) Wasum-Rainer noted that this provision is normally
applied in connection with extradition requests made by a
third country to Germany, in order to ensure fair treatment
of the individual extradited. It nonetheless forms the legal
basis for consideration of "political implications" of
transnational requests, she added. In the case of
applications for international arrest warrants, the German
federal Government has no objection in "99.99 percent of the
cases" involving other democratic states, Wasum-Rainer said.


5. (S/NF) Wasum-Rainer said she understood the USG concerns,
but stressed the case also entails serious domestic political
implications. Specifically, she referred to the current
Bundestag and media criticism of FM Steinmeier's alleged role
in a number of terrorism-related cases, such as al-Masri and
"Bremer Taliban" Murat Kurnaz. In this context, a decision
by the MFA (read Steinmeier) to block issuance of the
international arrest warrants would cause a great deal of
domestic "political turbulence."


6. (S/NF) EMIN noted our respect for the independence of the
German judiciary, but reiterated our serious concern that
moving forward with international arrest warrants would cloud
our bilateral relationship and impact negatively on a number
of important bilateral undertakings. Wasum-Rainer in return
asked that we convey to Washington the "serious dilemma" in
which the MFA finds itself in this case. She also undertook
to keep us informed of further developments and, in
particular, to notify us as soon as the MFA receives a formal
request for an international arrest warrant.
TIMKEN JR