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