FURTHER PROGRESS IN DISCUSSIONS WITH EU ON LEGAL

C O N F I D E N T I A L SECTION 01 OF 02 BRUSSELS 002288 SIPDIS SIPDIS NSC: ANSLEY, ZARATE, KLINGLER DOD: HAYNES, ALLEN DOJ: BRADBURY, SWARTZ DNI: POWELL CIA: RIZZO E.O. 12958: DECL: 07/13/2017 TAGS: PTER PREL EUN SUBJECT: FURTHER PROGRESS IN DISCUSSIONS WITH EU ON LEGAL ISSUES ASSOCIATED WITH THE WAR ON TERRORISM REF: A. REFTEL: BRUSSELS 00810 ¶B. BRUSSELS 01198 Classified By: Political Minister Counselor Laurence Wohlers for reason s 1.4 (b) and (d) ¶1. (C) Summary. State Department Legal Adviser John Bellinger and Ashley Deeks, Attorney-Advisor, met June 5 with their counterparts from the 27 EU member states and representatives from the Council and Commission Secretariat. The majority of the four hour meeting was devoted to a further discussion of the U.S. response to the EU non-paper on principles of international law relevant to counter-terrorism, but also included a short update of developments in the United States. Discussion focused particularly on the interplay between international humanitarian law (IHL) and human rights law (HRL),and the circumstances in which HRL properly applies to counterterrorism activities. Participants also discussed the scope and application of the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR). Bellinger stressed that the ongoing dialogue with the EU has been beneficial in highlighting the complexity of the issues. There appears to be a growing appreciation that the existing legal paradigms are not a neat fit for the conflict with al Qaeda, and that this conflict may require some new legal approaches. End Summary. EU Questions on Military Commission Rulings ¶2. (C) The German Chairman of the EU group, Dr. Georg Witschel, and his colleagues posed questions regarding the dismissals of the two military commission cases (Hamdan and Khadr) because of a lack of a prior determination by a Combatant Status Review Tribunal that the individuals were "unlawful" enemy combatants. Bellinger explained the limited scope of this decision and made clear that the decision did not call the entire Military Commission Act or the commissions into question. Bellinger also made the point that, although the decisions were frustrating for the Executive Branch, they highlighted the extensive process these detainees receive. He noted that the U.S. Government was in the process of determining how to respond to the decisions, but that we likely would seek reconsideration of the decisions. He further explained that, in trying the individuals we hold at Guantanamo, the USG has worked to hard to create new, appropriate rules; the old rules (that is, those contained in the Geneva Conventions on how to prosecute prisoners of war) apply to lawful enemy combatants but not to "unlawful" enemy combatants. Bellinger made an analogy to the Nuremberg Tribunals: Faced with a new situation, we have had to come up with the best new system we can. Application of International Humanitarian Law and Human Rights Law ¶3. (C) Discussion then turned to the EU non-paper, with a focus on the interplay between IHL and HRL. The discussion made two things clear: first, the United States and the EU disagree about whether the CAT and the ICCPR apply to States acting outside their own territory, with the USG taking the view that the treaties generally do not. Second, this is an area in which the United States and the EU have different legal obligations, because many of he provisions in the CAT and ICCPR exist in the European Convention on Human Rights, which applies to States Parties (including all EU countries) when they exercise "effective control" outside their territory. The UK and France explained the decisions in two recent ECHR cases dealing with EU member states acting in peacekeeping capacities outside their territory; the European Court concluded that, because the states were acting in accordance with a UNSCR Chapter VII mandate, that mandate trumped any applicable ECHR obligations. Despite these differences, there was some agreement that IHL provisions would provide the governing law when IHL and HRL both applied but their rules were in tension. Bellinger highlighted his agreement with the Swedish legal adviser that "not all HRL applies in situations of armed conflict." The discussion made clear that, due to the complicated nature of the interplay between these bodies of law, every country in ISAF has given its forces in Afghanistan different guidance on what rules apply there. Several states urged the USG to BRUSSELS 00002288 002 OF 002 consider stating that it will apply the non-refoulement provision in Article 3 of the CAT extraterritorially as a matter of law, given that the USG already applies the provision as a matter of policy. ¶4. (C) In summarizing views on the interplay between HRL and IHL, Dr. Witschel suggested that the USG and EU need to agree to disagree about the extraterritorial application of the ICCPR; but that we agree (1) that Articles 4 and 5 of the CAT have an extraterritorial impact; and (2) that it is important to apply Article 3 (on non-refoulement) outside a state's territory, whether as a matter of law or policy. Detaining Suspected Terrorists in Failed States ¶5. (C) To further the point that the al Qaeda paradigm raises difficult new questions, Mr. Bellinger posed a hypothetical to urge EU states to consider how they would advise policy makers when faced with an imminent threat to their country flowing from terrorists operating out of a failed state. He asked: if individuals training in Somalia were planning an imminent attack in Hamburg, how would Germany react? Even if German criminal law would cover these acts, would Germany wait until the terrorists had entered its territory? In a surprisingly honest response, Dr. Witschel stated that he had no appropriate answer. Denmark noted that, because it lacked the practical capacity to act in that situation, it would need to work with others. The UK legal adviser claimed that even this kind of hypothetical raised political concerns because, in his view, U.S. actions in these situations "provoke fear" around the world because the U.S. has a "preponderance of power." Several states asserted that they would seek Chapter VII resolutions before taking action. Mr. Bellinger noted that it appears that the EU would decline to take proactive action in the face of an imminent terrorist threat. The exchange highlighted that several states have not had to grapple with the hard questions that the USG has in such scenarios, and that some states' solutions would not be realistic or timely. Summary of Views on EU Non-Paper ¶6. (C) Witschel summarized the multi-meeting discussion of the EU 8 principles in an effort to highlight where the USG and EU agreed and disagreed. He stated that: " we agree that whether a situation is an armed conflict and what type of conflict it is are mixed questions of fact and law; " some states agreed with the USG that a state can be in an armed conflict with a non-state actor (including a terrorist organization); " EU states were uncomfortable with the concept of a war without geographical and temporal limits; " we agree that IHL generally will be the lex specialis (over HRL) in armed conflict; " we disagree about the extraterritorial application of the ICCPR and the CAT; and " we agree that no one should be placed in a legal vacuum. US Positive on COJUR Dialogue ¶7. (C) Mr. Bellinger concluded his remarks by noting that after three U.S.-EU COJUR sessions under the German presidency, he suspects that there is more overall agreement than disagreement on the principles of international law relevant to counter-terrorism, and that some of the disagreements are merely over wording. He stressed that pre-9/11 legal frameworks are not suited to the new terrorist environment and the conflict with al Qaeda. He also reiterated that the Geneva Conventions are intended for conflict between state actors and not for conflicts between a state and a non-state actor. Bellinger concluded the discussions on a positive note and looked forward to further conversations led by Portugal as incoming President of the EU. ¶8. (U) This cable has been cleared by Ms. Deeks. WOHLERS .