DURBAN REVIEW TURNS EVEN MORE SOUR: CAN THE

C O N F I D E N T I A L GENEVA 000077 E.O. 12958: DECL: 01/27/2019 TAGS: PHUM PREL UNHRC PGOV KISL SUBJECT: DURBAN REVIEW TURNS EVEN MORE SOUR: CAN THE PROCESS BE SAVED? REF: A. GENEVA 8 ¶B. GENEVA 10 ¶C. GENEVA 33 Classified By: Charge d'Affaires, a.i. Mark C. Storella, reasons 1.4 (b) and (d). Summary -------------- ¶1. (C) In turbulent negotiations from January 19-23, observers told us the Durban Review process and discourse became "poisonous" and the draft text -- at over 200 paragraphs -- even more problematic. The UK, the Netherlands, and Denmark are considering withdrawing from the process (Canada and Israel have already withdrawn),and Australia is no longer sitting behind its nameplate, but observing from the back of the room. The U.S. Mission has continued to send representatives to silently observe. (Having pulled out of the 2001 Durban Conference, the U.S. has not been engaged in the current review process.) Many like-minded countries hope U.S. engagement could produce a deus ex machina, but they acknowledge there are serious challenges posed by numerous countries that remain heavily invested in the current status of the talks. It will be difficult for the USG positively and constructively to engage in the process, particularly if negotiation continues on the basis of the existing problematic draft outcome text. This cable provides the state of play, a few options to consider, and a summary of the risks we will need to address in our calculus. End Summary. ISWG Goes from Bad to Worse -------------- ¶2. (C) The January 19-23 Durban Review Conference's Inter-Sessional open-ended Working Group (ISWG) meeting revived some of the most objectionable debates of the 2001 Durban Conference. A range of observers believe the draft compilation document has gone from bad to worse, with Iran, Syria, Pakistan, Cuba and to a certain extent South Africa and others adding even more legally and politically unacceptable language. Holocaust denial, allegations that Israel is guilty of apartheid and crimes against humanity, counterterrorism, racial profiling, reparations of slavery, and alleged Islamophobia, and additional language on defamation of religion were all discussed; proposals reflecting these ideas are currently bracketed in the draft document. A Danish diplomat said the tone was "poisonous." The EU unsuccessfully tried to roll back the worst proposals. GRULAC countries did little to moderate the extremes. The further degeneration of the process and the worsening of the draft document have prompted the UK, the Netherlands, and Denmark to recommend that their capitals discuss possible withdrawal at the EU Foreign Minister level. According to a Danish diplomat (protect),a total of 10 EU countries favor withdrawal, but all are waiting to see if Denmark, the Netherlands, and the UK pull out first. Meanwhile, the three EU countries eagerly await news of the U.S. position. The issue was to be addressed at an EU GAERC meeting on January 27 and may come up again at an EU COHOM meeting Feb 17-18. Australian diplomats, seated at the back of the room during the talks, tell us they will advise their capital not to engage in the process. What Will Happen Next? -------------- ¶3. (C) The Russian Chair of the ISWG, Yuriy Boychenko, has arranged an additional four days of informal sessions February 16-19 to continue negotiations on the current draft text and he is expected to task smaller working groups, under the guidance of "facilitators," to modify outstanding paragraphs. Given the intransigence of the Organization of the Islamic Conference (OIC) and the African Group, it is unlikely we will see significant changes from the negotiations and it is unclear what such sub-groups would produce. OHCHR Treaty Bodies Chief Ibrahim Salama informed us privately that he has prepared the High Commissioner's "contribution" to the Durban text, which would propose new language, defer some contested issues to other fora, and increase the role of the OHCHR in monitoring DDPA implementation. The High Commissioner could issue such a "contribution" as soon as mid-February. From what we know of this draft "contribution," it would be controversial and include proposals the USG would find problematic, including an optional protocol to the International Covenant on the Elimination of All Forms of Racial Discrimination (ICERD). Chances of Success Close to Nil on Current Text -------------- -- ¶4. (C) Some of our closest allies tell us they are starting to believe the chances of a positive outcome to the current process are extremely limited, particularly if it continues on the basis of a negotiation of the current draft document. They doubt the OIC countries are prepared to stop using Durban as a forum for political grandstanding or a format for inserting language that restricts freedom of speech, condemns Israel, and misinterprets international legal norms. Moreover, they don't believe the African countries, led largely by South Africa and Egypt, are prepared yet to back away from unqualified support of OIC positions. If the USG were to engage in the current process, they warn that the expectations that we could fix it would be unrealistic, leaving us with perceived ownership of a failed Durban Review Conference. There are also procedural difficulties. The disjointed drafting process may not be reparable without extremely high level intervention; however, Boychenko lacks the stature and Pill ay has not yet demonstrated that she is capable of such an intervention, they note. Some Options for the USG to Consider -------------- ¶5. (C) As seen from Geneva, we believe the USG has four options: ¶A. Non-participation in April 20-24 Durban Review Conference. Consult with like-minded states to determine if and when they are going to withdraw and work to coordinate announcements and our public message on the decision. Specifically, we would express at a high level: 1) our deep regret that the Durban process has become a forum for unconstructive vitriol and distortions of international human rights norms; and 2) our sincere willingness to engage in a genuine discussion about racism, provided the dialogue truly seeks to address racism, and our deep commitment to fighting racism and racial discrimination - a topic on which the United States has much to share. (Note: UK representatives in Geneva have said they personally hope the U.S. might announce disengagement to avoid all the pitfalls in alternative strategies. End note.) ¶B. A Clean Slate Strategy. This would require sustained high-level political engagement that would short-circuit the existing technical-level negotiations in favor of an alternative to the current draft document and process. This would entail scrapping the draft outcome document in favor of a very brief declaration, a chairman's summary representing his/her own assessment, or no declaration/document at all at the April conference. The awaited High Commissioner's "contribution" would probably not be a good starting point. The USG would have to very discreetly float this idea with very senior levels in the United Nations and key States in capitals, in Washington and in Geneva. (Note: We believe it would be best if another country publicly proposed this idea. Were the USG to table the text or propose a solution, we could be blamed for sabotaging the existing, faltering process. End Note.) Although few delegations believe she is up to the task of "fixing" Durban, we would also have to ensure the unqualified and active support of the High Commissions for Human Rights, Navanethem Pillay. Pillay might be able to encourage African states to understand what is at stake, and that a meaningful exchange on racism cannot be distracted by the unnecessary and unhelpful agenda of the OIC. This strategy would hinge on three factors: 1) the African Group's (and in particular South Africa's) readiness to abandon solidarity with the OIC (which is likely to continue raising objectionable issues); 2) the willingness of a group of volunteers (including many non-EU members) to offer this solution; and 3) the USG accepting the DDPA in its entirety as a starting point, as that appears to be a true redline for African and OIC countries. We should recognize that such a "clean slate" strategy would require USG engagement at the highest levels and that there is no guarantee of success because many national delegations remain committed to advancing problematic language and concepts. The risk remains that the United States could be viewed as the "owner" of the initiative and therefore responsible for its success or failure. However, should this high level effort fail, we could be in a better position to show we had made a good faith effort. ¶C. Full engagement, including active negotiation of the current draft outcome document. We do not believe this option has virtually any chance of leading to an outcome document we could accept. The current document has too many objectionable elements and the process is too flawed. Our engagement might lead to our isolation and we might be forced to pull out in the end. While we would engage in good faith, our late entry into the process with radical changes would likely be poorly received and we might be seen as spoilers. ¶D. Defer a decision. Let the process play out without prejudicing a USG decision until we see how the dialogue proceeds, either in the February negotiations or in the April 6-9 ISWG session. We would need to have ready detailed press guidance to make clear our eagerness to participate provided the process were more acceptable. This option risks seeing unacceptable language become more entrenched and provides little support to our allies. ¶6. (C) Under any of the above scenarios, we believe Washington should consult with UK, Dutch, and Danish counterparts before determining a course of action. Those countries are looking anxiously at Washington to ensure they are not perceived as being out of step with us when we decide our policy. Comment: There be Dragons Here -------------- ¶7. (C) There are no silver bullet solutions for USG engagement in Durban. Because of the excessively large number of legal and political problems in the current draft text, growing numbers of countries are increasingly of the opinion that it is likely not feasible for the USG to engage successfully on the basis of that extremely problematic text. ¶8. (C) The four options notwithstanding, there remain fundamental issues the USG should address. First and foremost, the current process will in all likelihood recognize the DDPA in its entirety. The USG must determine if it can accept and recognize the DDPA as a starting point. Secondly, the current Durban process has become a platform for unconstructive anti-Israeli rhetoric, misinterpretations of international legal norms, and insidious attempts to limit freedom of expression in the name of fighting the "defamation" of religion. Were the USG to participate, we would have to be prepared to vociferously object to such discourse and to be prepared to walk out of the Durban Review Conference if these issues continue to arise. ¶9. (C) Finally, because of the high expectations that the U.S. Administration can "fix" Durban, there is a risk with any engagement strategy that other countries would view the United States as responsible for the success or failure of the conference. Moreover, influential states such as Iran, Syria, Egypt, Pakistan, and South Africa have very strong positions opposing U.S. views on these issues and some of these states may have an interest in the USG failing in such an undertaking. We will have to calibrate any possible USG participation in Durban with our ability to influence these key countries at the very highest level to change their current course and work constructively to an acceptable outcome. End Comment. STORELLA