Identifier
Created
Classification
Origin
07BRUSSELS1198
2007-04-10 10:57:00
CONFIDENTIAL
USEU Brussels
Cable title:  

PROGRESS IN DISCUSSIONS WITH EU ON LEGAL ISSUES

Tags:  PTER PREL EUN 
pdf how-to read a cable
VZCZCXRO9495
OO RUEHAG RUEHROV
DE RUEHBS #1198/01 1001057
ZNY CCCCC ZZH
O 101057Z APR 07 ZDK
FM USEU BRUSSELS
TO RUEHC/SECSTATE WASHDC IMMEDIATE
RUEAIIA/CIA WASHDC IMMEDIATE
RUEAWJA/DEPT OF JUSTICE WASHDC IMMEDIATE
RUEKJCS/DOD WASHDC IMMEDIATE
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE PRIORITY
C O N F I D E N T I A L SECTION 01 OF 02 BRUSSELS 001198 

SIPDIS

SIPDIS

NSC FOR JUDITH ANSLEY, JUAN ZARATE, AND RICHARD KLINGER
DOD FOR JIM HAYNES AND CHUCK ALLEN
DOJ FOR STEVE BRADBURY AND BRUCE SWARTZ
DNI FOR BEN POWELL
CIA FOR JOHN RIZZO

E.O. 12958: DECL: 04/09/2017
TAGS: PTER PREL EUN
SUBJECT: PROGRESS IN DISCUSSIONS WITH EU ON LEGAL ISSUES
ASSOCIATED WITH THE WAR ON TERRORISM

REF: BRUSSELS 810

Classified By: EMIN JOHN SAMMIS FOR REASONS 1.4 (b) AND (d)

C O N F I D E N T I A L SECTION 01 OF 02 BRUSSELS 001198

SIPDIS

SIPDIS

NSC FOR JUDITH ANSLEY, JUAN ZARATE, AND RICHARD KLINGER
DOD FOR JIM HAYNES AND CHUCK ALLEN
DOJ FOR STEVE BRADBURY AND BRUCE SWARTZ
DNI FOR BEN POWELL
CIA FOR JOHN RIZZO

E.O. 12958: DECL: 04/09/2017
TAGS: PTER PREL EUN
SUBJECT: PROGRESS IN DISCUSSIONS WITH EU ON LEGAL ISSUES
ASSOCIATED WITH THE WAR ON TERRORISM

REF: BRUSSELS 810

Classified By: EMIN JOHN SAMMIS FOR REASONS 1.4 (b) AND (d)


1. (SBU) Summary. In a meeting with Legal Advisers from
the 27 EU countries on March 21, State Department Legal
Adviser John Bellinger and the EU presidency chair, German
Foreign Ministry Legal Adviser Georg Witschel, developed
increasing consensus around two fundamental U.S. legal
positions that, before this meeting, had been resisted by
European governments: 1) that there was a war in Afghanistan
in 2001-2002, when the majority of Guantanamo detainees were
captured, that was covered by the law of war; and 2) that it
is possible to be in a state of armed conflict with a
terrorist group like Al Qaeda. This represents a significant
advance in the process that began eighteen months ago, and a
number of Bellinger,s counterparts remarked privately that
they have developed a much better understanding of U.S.
positions as a result of the intensified dialogue. At the
same time, EU counterparts have raised concerns about a
number of follow-on legal questions related to the scope of
the continuing armed conflict with Al Qaeda, including how to
identify where it is ongoing, how to determine when it is
appropriate to use military force, how long the conflict will
go on, and how to differentiate combatants from
non-combatants. We will need continued dialogue to explain
U.S. positions fully and to answer these questions
satisfactorily. End Summary.


2. (SBU) John Bellinger, State Department Legal Adviser,
and Joshua Dorosin, Assistant Legal Adviser for
Political-Military Affairs, met March 21 in Strasbourg with
counterparts from the 27 EU Member States and representatives
from the Council and Commission Secretariat to continue their
intensive dialogue on legal issues related to the ongoing
armed conflict with Al Qaeda. This was the sixth meeting of
this group in the last fourteen months, and closely followed
meetings in Brussels on February 27.


3. (SBU) After beginning the session with an update on the
newly-promulgated Military Commission regulations and the
recent U.S. Court of Appeals decision in the Boumediene case,
Bellinger and his counterparts devoted the majority of the
four-hour meeting to discussing whether it is legally
possible for a state to be in an armed conflict with a
non-state actor, like Al Qaeda, outside that state,s
territory. In particular, the group focused on the
international legal principles that govern when a state may
resort to the use of force in assessing whether a state would
have a right to use military force against a non-state actor.
Bellinger and Dorosin explained that the United States
believes that it is in an ongoing state of armed conflict
with Al Qaeda, and that whether a state would have a right to
use force to respond to an attack or threat of attack by a
terrorist organization under use of force principles would
depend the facts. When the United States and allies
commenced military operations in Afghanistan in 2001, no
state questioned the right of the United States to take
military action against Taliban and Al Qaeda forces, in the
exercise of the inherent right of self-defense reflected in
Article 51 of the United Nations Charter. Indeed, the
unanimous adoption by the Security Council of resolution 1373
recognized this right. As a factual matter, the United
States believes that this armed conflict has continued on
battlefields in or near Afghanistan, and that the armed
conflict has manifested itself in other places in the world
where Al Qaeda forces have engaged in hostile acts against us.


4. (SBU) For the first time in the eighteen-month process,
the group engaged in a detailed two-way conversation that
displayed dramatically different positions among EU
counterparts on these legal issues. Some, including notably
the French and Greek representatives, resisted discussing law
of war principles, insisting (as in prior meetings) that
governmental operations against terrorist groups like Al
Qaeda should be limited to law enforcement actions and that
the rules governing those operations must respect human
rights norms. Others, including the UK, German, Danish and
Austrian representatives, noted that it would be appropriate
to consider whether to use military force against terrorist
forces under traditional use of force principles and agreed
that it would be appropriate to discuss the relationship
between such analyses and the specific rules governing

BRUSSELS 00001198 002 OF 002


military operations during this type of armed conflict.
These four states basically agreed that the United States was
authorized to intervene militarily in Afghanistan in 2001,
but they questioned whether the conflict that began then
continues today, in light of the establishment of the Karzai
government. Bellinger and Dorosin pressed back hard on this
point, asserting that, as a factual matter, there had been no
interruption of hostilities, and noting that even the ICRC
has indicated publicly that the armed conflict in Afghanistan
continues, albeit in a form that reflects a shift in the
character of the conflict from international to
non-international.


5. (SBU) By the end of the session, Bellinger and Witschel
had succeeded in developing increasing consensus around two
fundamental U.S. legal positions that, before this meeting,
had been resisted by European governments: 1) that there was
a war in Afghanistan in 2001-2002, when the majority of
Guantanamo detainees were captured, that was covered by the
law of war; and 2) that it is possible to be in a state of
armed conflict with a terrorist group like Al Qaeda. At the
same time, EU counterparts raised concerns about a number of
follow-on legal questions related to the scope of the
continuing armed conflict with Al Qaeda, including how to
identify where it is ongoing, how to determine when it is
appropriate to use military force, how long the conflict will
go on, how to differentiate combatants from non-combatants,
and what specific rules should govern state action in such
conflicts.


5. (C) Comment. The detailed discussions that took place
during this latest meeting showed some areas where agreement
might be possible between the United States and certain key
members of the EU and highlighted where differences remain.
We will need to engaged in continued dialogue to explain U.S.
positions fully and to answer these questions satisfactorily
Separately, Bellinger and German representative Georg
Witschel, currently serving as the COJUR presidency chair,
discussed how best to reflect this ongoing dialogue in the
U.S.-EU Summit Statement, and agreed to develop proposals
over the next few weeks to assist Summit Statement drafters
in preparing text. End Comment.


6. (U) This cable was drafted and cleared by L.

McKinley
.