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

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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
.