UNHCR OFFERS SEVERAL WAYS FORWARD ON THE

C O N F I D E N T I A L GENEVA 000263 EUR, IO, PRM, S/WCI E.O. 12958: DECL: 03/27/2019 TAGS: PHUM PREF PREL KDRG PGOV PTER MOPS KAWK KISL KPAO SUBJECT: UNHCR OFFERS SEVERAL WAYS FORWARD ON THE GUANTANAMO DETAINEE ISSUE Classified By: Mark C. Storella, Charge d'Affairs, a.i., for reasons 1. 4 (b & d) ¶1. (SBU) SUMMARY. In a very productive March 26 meeting with S/WCI Ambassador Clint Williamson, the Office of the UN High Commissioner for Refugees (UNHCR) Assistant High Commissioner for Protection Erika Feller offered the USG several options to assist in finding durable solutions for remaining Guantanamo detainees. END SUMMARY. ¶2. (SBU) On March 26, 2009, Ambassador-at-Large for War Crimes Issues Clint Williamson, S/WCI staff Shaun Coughlin, and Mission staff participated in a meeting on Guantanamo detainees with UNHCR's Assistant High Commissioner for Refugees Erika Feller, UNHCR Americas Bureau Director Merida Morales-O'Donnell, UNHCR Status Determination and Protection Information Chief Richard Stainsby, and UNHCR legal officer Maria Bances Del Rey. The Ambassador provided a detailed briefing on the USG's progress made to date in securing the transfer of 520 Guantanamo detainees; the very minimal rates of mistreatment reported by transferred detainees thus far; the satisfactory efforts in place to mitigate threats potentially posed by released detainees; the current process underway to review individual case files and make recommendations regarding prosecution, transfer or release; and the goal to fulfill the President's commitment of closing Guantanamo by January 22, 2010. He noted the varying degrees of comfort European governments had with the idea of admitting the 50 to 60 detainees who cannot return to their countries of origin for fear of mistreatment, and asked UNHCR how it could assist the USG in finding durable solutions for this population. -------------- UNHCR PRESENTS OPTIONS -------------- ¶3. (SBU) AHC Feller expressed her gratitude for the Ambassador's presentation, saying it provided UNHCR with unprecedented clarity on the situation. She stated UNHCR's willingness and readiness to assist the U.S. initiative, and described three possible options for support ranging from what she described as a "minimalist" approach to a "maximalist" one. First, UNHCR could send a letter to potential resettlement countries endorsing the USG's efforts to resettle Guantanamo detainees. Second, UNHCR could undertake a more active "good offices role," advocating with these potential resettlement countries and participating in larger briefings of potential resettlement countries. Third, UNHCR could individually interview (and/or conduct detailed paper reviews) of each case for possible refugee referral. This third "maximalist" option would require that the detainees meet the refugee definition and not be excludable. It is by far the most resource and time intensive, and could require U.S. assistance (i.e. money) to carryout depending on scale. Even if all 50-60 detainees were reviewed, Stainsby estimated that sufficient manpower could be gathered through use of consultants to finish all referrals in two months. AHC Feller noted that, in light of Sweden's upcoming presidency of the European Union, the Swedish government has already reached out to her to see whether UNHCR would be willing to provide such a resettlement referral service. ¶4. (C) Feller also recognized that these options provided cover to countries accepting detainees, and said that UNHCR had willingly provided such "fig leaves" in the past. Ambassador Williamson explained in fact many countries that were considering accepting detainees were looking for "fig leaves" that would make resettlement more palatable to their publics and skeptical political figures in their governments. He said that, in this vein, the USG was working with the EU to develop a framework for transfers so that states would be acting under an EU umbrella. Likewise, the USG was seeking engagement by prominent human rights figures (i.e. High Commissioner Pillay and Special Rapporteur Novak) and by human rights NGOs that would be supportive of governments' decisions to accept detainees. He added that governments would welcome UNHCR involvement as well, and thanked AHC Feller for her suggestions on the role that the organization could play. He noted that while actual referrals of detainees as refugees (option 3) might be the most helpful, there was a potential downside. If undertaken, UNHCR assessments of individuals could result in findings of "excludability" for some, which might make it impossible for countries otherwise willing to accept detainees to then do so. Keller acknowledged that this was a problem and said that while UNHCR engagement in the form of the first two options (written letter and use of good offices) might not be as active, those were less risky approaches. -------------- THE POTENTIAL HURDLES: EXCLUDABILITY, CREDIBILITY, CHINA -------------- ¶5. (SBU) AHC Feller said that UNHCR could be flexible in assisting detainees who would not traditionally fall under UNHCR's mandate under the 1951 Refugee Convention (a mandate focused on refugees and stateless persons). She suggested that UNHCR could write letters and play a "good offices" role without conducting individual determinations ) but only if UNHCR receives assurances from the USG that none of the detainees would be "excluded" from UNHCR,s mandate. Exclusion, she explained, would stem from an individual's past actions that are barred under the Convention, like serious non-political crimes, war crimes, crimes against humanity, and acts that were contrary to the purposes and principles of the United Nations. She wondered whether detainees classified as "low" or "medium" threat individuals would have committed such acts. Ambassador Williamson acknowledged that many detainees have had contact with some extremist groups, but their level of involvement was going to be clarified during the USG's ongoing review process. AHC Feller said that membership in a terrorist organization like al-Qaeda would not automatically exclude people from refugee status, but it would trigger further investigation into whether the individual was responsible for excludable acts. ¶6. (SBU) In addition to excludability concerns, Stainsby explained that some detainee claims he had reviewed did not seem credible. Some case files amount to a "he said, she said" argument between the accuser and the accused. Stainsby also wondered whether, as a result of the inter-agency review process, refugees would be cleared of accusations that would have previously made them excludable. ¶7. (C) AHC Feller also noted that the Chinese have been pressuring UNHCR and potential resettlement countries to refrain from assisting in resettling detained Uighurs. Her organization, she noted, would not be swayed. As proof, she cited a recent trip to Beijing during which Chinese security services presented information on a Uighur given recognition by UNHCR and demanded the organization rescind its status conferment. Fuller explained that she could not discuss this matter with the country of origin, but that UNHCR would review the information provided. (NOTE: UNHCR did review the information but did not pull recognition from the Uighur. END NOTE.) -------------- NEXT STEPS -------------- ¶8. (SBU) Ambassador Williamson expressed urgency in the need to move forward along parallel tracks in order to meet the January 22, 2010, deadline to close Guantanamo. He outlined his plan to meet with the European Council and assess the various requirements of European governments. In the meantime, the USG's interagency process will continue and determine the appropriate outcome for each case. Williamson said he would discuss the engagement options presented by UNHCR (letter, good offices, or referrals) with counterparts in Washington and would follow up in the near future regarding a USG response on how best to proceed. ¶9. (SBU) AHC Feller committed to briefing the Swedish government on their conversation. She said that UNHCR could quickly draft letters and perform advocacy, however it would need more time (depending upon the number of detainees involved) to gather a robust team of refugee status determination specialists to review case files and conduct interviews for any detainees the USG might wish to pursue full-blown referrals for. She recommended that the USG consider providing UNHCR with some sample low-threat and high-threat cases for background. In the end, she hopes the USG will present UNHCR with cases it believes would not be excludable under the 1951 Refugee Convention. ¶10. (U) Ambassador Williamson has cleared this cable. STORELLA