NETHERLANDS/KOSOVO: LEGAL ADVISER BELLINGER SWAYS

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 002060

SIPDIS

SIPDIS

E.O. 12958: DECL: 12/09/2017
TAGS: PREL PHUM KV EU UN
SUBJECT: NETHERLANDS/KOSOVO: LEGAL ADVISER BELLINGER SWAYS
DUTCH

REF: A. STATE 165486

B. USUN NEW YORK 1070

C. THE HAGUE 2044

D. THE HAGUE 1990

E. THE HAGUE 1902

F. THE HAGUE 1493

Classified By: DCM Michael F. Gallagher FOR REASONS 1.4(B) AND (D)


1. (C) SUMMARY: On December 10, 2007, Legal Advisor John
Bellinger and Ambassador Roland Arnall met with Dutch MFA
Deputy Director General Wim Geerts. Geerts and Bellinger
focused on Kosovo, with Geerts indicating that a statement by
UNSYG Ban in favor of an international presence there could
address Dutch concerns about supporting a post-KFOR mission
(para 3-6). Bellinger explained U.S. frustration with the
EU's position on the International Criminal Court (ICC)(para
7-8). Bellinger and Geerts also reviewed future cooperation
on the legal regime surrounding Guantanamo and terrorist
detainees, Middle East diplomacy, the status of the Lebanon
tribunal, plans for an extension of the Status of Forces
Agreement (SOFA) for the Netherlands Antilles and Aruba, and
recent controversial statements by former Dutch FM Bot (para
9-15). Embassy The Hague expects the Dutch to reach the
right decision on Kosovo (para 16). END SUMMARY.



2. (U) PARTICIPANTS:

U.S.
--------------
Ambassador Roland Arnall
Legal Adviser John Bellinger
Heather Schildge, Legal Counselor
Eric Falls, Political Officer

Dutch
--------------
MFA Deputy DG Wim Geerts
Liesbeth Lijnzaad, MFA, Director, International Law Division
Jos Schellaars, MFA, Deputy Director, Western Hemisphere
Department
Michel van Winden, MFA, Senior Policy Officer, Western
Balkans Division
Reneko Elema, Senior Policy Offficer, Human Rights and
Peacebuilding Department
Jeroen Boender, MFA, Policy Officer, Political Affairs
Division
Fabio Rossi, MFA, Policy officer, Permanent Representation to
the ICC


KOSOVO, SERBIA
--------------


3. (C) Geerts noted that the Dutch stand out on two positions
regarding the Balkans. First, on Kosovo, the Dutch are not
convinced that UNSC resolution 1244 will still be valid after
a Kosovar declaration of independence. A new UNSC resolution
is the best solution, but without that, the UNSYG should say
that "1244 stands." The second Dutch concern relates to
Serbia: the Dutch will not ratify a Stabilization and
Association Agreement (SAA) until the Serbs hand over
fugitive Ratko Mladic.


4. (C) On Kosovo, Bellinger noted that 1244 is not a legal
impediment to independence and that it provides an adequate
legal basis for continuing international civil and security
presences in Kosovo. Key allies, including France, Germany,
Italy and Denmark, agree on that point. Bellinger asked if
Dutch concerns could be addressed if the EU expressed a
willingness to provide a continued civil and security
presence in Kosovo, which would then be welcomed by the UNSYG
along with a UNSYG statement that "1244 authorizes" such a
presence. Bellinger also emphasized that the United States
wants the international response to Kosovo to be coordinated
among the Kosovars, the EU, the United States, and the UN.
The United States wants to avoid delays due to upcoming
elections in the region.


5. (C) Geerts thought the proposed UNSYG statement would "do
the trick" for the Netherlands, and help address domestic
political concerns. On the issue of independence, Geerts
emphasized that he could not say so publicly, but he did not
"deem it thinkable" that the Dutch would fail to recognize a
declaration of independence by Kosovo (i.e. the Dutch will

THE HAGUE 00002060 002 OF 003


recognize Kosovo's independence). However, it's a question
of timing -- the Dutch "will not be with the first group" to
recognize a Kosovar declaration of independence. The NATO
ministerial discussion of Kosovo helped reduce differences
and get rid of sharp edges among allies. However, Geerts
asked that Bellinger, if asked by the press, note that the
Dutch are examining 1244 as the legal basis for action in
Kosovo, and that the Dutch will decide "when they want" about
how to address the Kosovo issue publicly. Bellinger agreed,
and noted that the United States has asked the Kosovars to
hold off a declaration of independence until at least
mid-January.


6. (C) On Serbia, Geerts noted it would help if the United
States would pressure the Serbs and also make clear that the
Dutch will not ratify an SAA until they have Mladic.
Bellinger noted that while the United States is looking for
"sweeteners" to encourage Serbia not to oppose Kosovar
independence, the Serbs do not seem to have responded. In
any case, the United States will continue to push for Mladic
to be brought to justice.


ICC COOPERATION
--------------


7. (C) Bellinger noted that the Dutch Permrep told USUN
Ambassador Wolff that the U.S. statement on the UNGA
Resolution on the ICC appeared to be a "statement of war"
(reftel B). In fact, the United States was making a "strong
statement of disappointment." The United States has worked
hard for three years to move toward a pragmatic approach to
the ICC, but there has been no corresponding effort by
allies. On the UNGA resolution, the EU had responded to U.S.
compromise language with a message that there was "no room
for compromise." The U.S. statement is not a closed door,
but we,ve gone as far as we can. If there is to be
movement, it will have to be on the side of the ICC
supporters. Bellinger opined that if the ICC supporters want
non-parties to cooperate with them regarding the ICC, they
are going to have to accommodate the legitimate concerns of
non-parties.


8. (C) Geerts stated that he was not aware of the Dutch
ambassador's comments and was not closely involved in the
matter. Ms. Lijnzaad expressed regret that negotiations had
come to the point of the U.S. statement on the ICC, but
defended the Dutch approach as coordinator, stating that more
than 100 nations cosponsored the resolution. Because the
resolution was essentially a political statement, it was
simply too much to expect that language affirming the rights
of non-Parties could be included. The Dutch appreciate U.S.
efforts to cooperate with the ICC, especially in the case of
Darfur. As coordinator for the resolution, however, "there's
a limit to what you can do."


MIDDLE EAST
--------------


9. (C) Geerts expressed Dutch appreciation of the Annapolis
conference. FM Verhagen will represent the Dutch at the
Paris conference later this month. Geerts also thanked
Bellinger for U.S. efforts at the Geneva International Red
Cross/Crescent conference to resolve the matter of ambulance
access to the Palestinian territories. The Dutch hope the
solution on ambulances will be durable. The Dutch said that
more good news stories, such as that on Palestinian flower
exports, are needed.


10. (C) Bellinger emphasized the Secretary's personal
involvement and commitment to the Middle East peace process.
In Geneva, the resolution on ambulance access was a positive
surprise, with Israelis and Palestinians sitting down
together to resolve the matter.


GUANTANAMO/DETAINEES
--------------


11. (C) Bellinger noted that ongoing discussions on
terrorism, human rights and humanitarian law -- bilateral, at
international conferences, through the EU Council Working
Group on Public International Law (COJUR) -- are bearing
fruit. It is a difficult issue because trying to explain the
gaps in humanitarian law allows critics of the United States

THE HAGUE 00002060 003 OF 003


to question our motives. However, there is now a much better
understanding of terrorism and the related gaps in
international law. Germany is debating whether to
criminalize terrorist training and preparation overseas.
Gathering evidence in these situations is often extremely
difficult. Some governments are looking at preventive
detention laws, although there has been a sad history of
abuse. Nonetheless, we need measures to prevent terrorism
before it happens.


12. (C) Geerts said FM Verhagen wants to continue the "Leiden
process" in 2008 by bringing together "experts from different
walks of life" to work on: an international definition of
terrorism, the use of intelligence evidence in terrorism
trials, evaluation of existing legal assistance treaties, the
relation between human rights and humanitarian law, and the
possibility of bringing terrorists before the ICC. The FM
wants "to keep thinking about this." (NOTE: The Netherlands
supported a conference in April 2007 at Leiden University to
examine these issues. END NOTE.)


LEBANON TRIBUNAL
--------------


13. (C) Geerts said the Dutch are pleased with the progress
in setting up the Lebanon Tribunal, including the initialing
of a draft Headquarters agreement with the UN. He noted
Dutch concerns that the Netherlands not be asked to enforce
sentences. Bellinger thanked Geerts for the Dutch
contribution, opined that the United States would probably
not be the right place for sentence enforcement, but that it
was disappointing that other European countries were not more
supportive.


SOFA FOR NETHERLANDS ANTILLES AND ARUBA
--------------


14. (C) Geerts indicated that the Dutch support renewal of
the SOFA on a multi-year basis.


INTERVIEW BY FORMER DUTCH FM BOT
--------------


15. (C) Geerts stated that FM Verhagen was very unhappy with
comments by former Dutch FM Bot in a newspaper interview over
the weekend. Both Verhagen and Prime Minister Balkenende
disagree with the comments, find them inappropriate and have
made that clear to Bot. (NOTE: Among other things, Bot
said America was "no longer an ally with whom I like to be
associated," doubted the need for a missile defense shield,
and expressed skepticism about U.S. detention policy. The
bulk of his criticism, however, was directed at his former
boss, PM Balkenende, whom he accused of stifling debate
within Cabinet and "muzzling" the Foreign Minister.
Balkenene and FM Verhagen vigorously rejected Bot,s comments
in the press. END NOTE.)


COMMENT
--------------


16. (C) The Dutch concerns about Kosovo and UNSC resolution
1244 are not new (reftels C-F),but Geerts' statements to
Bellinger are the most forthcoming statement that we have
seen from the Dutch. As with Afghanistan, the Dutch have a
unique timeline for a reaching a decision on Kosovo driven
largely by domestic politics. The 2007 governing coalition
accord explicitly bars the international deployment of Dutch
forces without international authorization and specific
guarantees. This is largely a reaction to the 1995 massacre
in Srebenica, an event which still makes the Dutch extremely
cautious about international deployments and the Balkans in
general. That said, the overriding Dutch desire for EU
consensus means they are unlikely to stand alone once a
common European position begins to emerge. Having UNSYG
clarification that 1244 provides an appropriate legal basis
for an international civil and security presence will help
the Dutch support a deployment. END COMMENT.
Arnall