DEMARCHE REGARDING COMPREHENSIVE CONVENTION ON

UNCLAS STATE 056371

SENSITIVE
SIPDIS
FOR MARY MCLEOD AND JAMES DONOVAN AT USUN

E.O. 12958: N/A
TAGS: IN PREL PTER
SUBJECT: DEMARCHE REGARDING COMPREHENSIVE CONVENTION ON
INTERNATIONAL TERRORISM (CCIT) NEGOTIATIONS

REF: A. 08 STATE 16075

B. 08 STATE 76059

C. 08 BEIJING 1165

D. USUN 173


1. (U) Action Request: Please see para. 6-7.


2. (SBU) Summary: In light of the upcoming June meetings
of the UN Committee that is considering the Comprehensive
Convention on International Terrorism (CCIT) and in
response to Indian inquiries concerning U.S. support for
the proposed Convention, Embassy New Delhi and USUN are
requested to inform Indian officials that the U.S. cannot
accept as drafted the latest proposed text, which includes
"compromise" language proposed by the Greek Coordinator in

2007. The Greek Coordinator,s proposal would alter the
standard military exclusion clause which is essential to
the United States and like-minded governments and appears
in several other international counterterrorism treaties.
Further, the proposed Greek text would create unacceptable
ambiguities with respect to whether certain actions of
"national liberation movements" ("NLMs") (e.g. Hamas) are
covered by the CCIT. As we do not believe that the
language in the latest proposed text adequately addresses
our concerns or would receive the support of OIC
countries, the Indians should avoid bringing the CCIT to a
vote.


3. (SBU) Background: The CCIT was initiated by the
Government of India following counterterrorism conventions
pioneered by the United States (Terrorist Bombing),Russia
(Nuclear Terrorism),and France (Terrorist Financing).
Unlike other counterterrorism conventions that have been
negotiated successfully at the UN over the past two
decades, the CCIT does not focus on a particular kind of
terrorism but instead seeks an omnibus approach. The
United States and other G8 partners had serious concerns
about the wisdom of this approach and questioned whether
such a convention, in light of all the previous sectoral
conventions, would make a significant contribution to the
counterterrorism legal framework. The United States
worked with India to reshape the proposal so that it
focused primarily on updating the older conventions and
did not undercut their substantive provisions. While the
resulting text does not offer any significant new
additions to the legal framework for combating terrorism,
its provisions (with the significant exception described
below) do not undermine U.S. CT equities and, on that
basis, the U.S. and other G8 partners ultimately acquiesced
to India going forward with it.


4. (SBU) Almost all of the substantive text of the CCIT
was successfully negotiated without significant
controversy. The CCIT has been stalled since 2001,
however, due to disagreement between the U.S. and
like-minded governments and the Organization of the Islamic
Conference (OIC). The disagreement is focused on the
scope of terrorist activity, with the OIC seeking (1) to
weaken the exclusion of state military conduct from
coverage under the CCIT (e.g. so as to facilitate,
potentially, the characterization of military actions they
oppose by Israel, the United States, and others as being
"acts of terror" falling within the criminal and other

provisions of the conventions); and (2) to exclude the
actions of NLMs (e.g. Hamas) from the scope of the CCIT.
In early 2007, the Greeks proposed compromise language in
an attempt to bridge the divide with the OIC. We have
previously informed the Greek Coordinator, the Sri Lankan
chairman of the Ad Hoc Committee, and P-5 and G-8
countries that we do not believe that the 2007 proposal
adequately addresses our concerns and we are unable to
support it as drafted, (Refs A, B, and C). As noted in
Ref D, in the aftermath of the Mumbai attack, the Indians
are now pushing to conclude the CCIT and have indicated
that they want to take the CCIT to a vote quickly. In a
January 16 demarche in New Delhi, the Indian Joint
Secretary asked for USG support of the "current text,"
which includes the Greek Coordinator,s 2007 proposal.
The Indian Mission to the UN has also contacted USUN to a
sk whether the U.S. has new instructions concerning the
Indian plan to put the CCIT to a vote. The Ad Hoc
Committee that is considering the proposed Convention is
scheduled to meet in New York from June 29 to July 2,
2009, and there is likely to be renewed pressure to come
to closure on the text.


5. (SBU) The Greek Proposal: the Greek proposal would
erode our position with respect to the two critical
issues. First, any deviation from the standard military
carve-out text that has been accepted in previous
conventions will strengthen OIC efforts to interpret the
carve-out in this and other conventions as providing more
limited protection for state militaries. The carve-out
text in previous CT treaties was the subject of vigorous
negotiation and the text that resulted was the product of
compromise. It included some ambiguities that were not
ideal, but in the end provided enough confidence that the
United States could proceed to join the respective
conventions. Second, the ambiguity as to coverage of NLMs
will be in conflict with our fundamental view that
national liberation or other motivation does not excuse
acts of terrorism. Further, OIC countries have given no
indication that engaging in a negotiation of the Greek
language, and any watering down of the carve-out provision
that might follow, would in fact lead them to accept the
Convention, so we would in essence be negotiating with
ourselves from text that was already the subject of
compromise in previous UN counterterrorism treaties.


6. (SBU) Embassy New Delhi and USUN are requested to
convey the following to appropriate Indian officials:

-- The United States continues to support a Comprehensive
Convention on International Terrorism that would
strengthen the existing international counterterrorism
legal regime and reinforce the critical principle that no
cause or grievance justifies terrorism in any form.

-- A Convention that purports to address terrorism
comprehensively cannot exclude the conduct of national
liberation movements from its scope. At the same time, it
should not reach state military action, which is subject
to other international regimes and which has been excluded
from prior counterterrorism conventions.

-- We continue to believe that the standard military
carve-out found in these prior counterterrorism
conventions, and as set out in Article 18 of the
Coordinator,s 2002 draft text, best promotes the
priorities noted above and reflects the appropriate comp
romise of the various perspectives on this issue. In the
absence of clear carve-out language, the Convention risks
being used for political ends to target state military
actions--whether to suppress terrorism, revolts, or for
other purposes--that a particular country or group doesn't
like.

-- We have not been persuaded that there are any
deficiencies that need to be remedied in the standard
language that the international community has adopted five
times before. In the nearly eight years that the
Terrorist Bombing Convention has been in force, we are not
aware of any criticism that states have inappropriately
relied on its carve-out provisions, and we are similarly
not aware of criticism relating to the application of the
identical provisions in the other conventions. After
closely examining the proposal for the military carve-out
presented by the Greek Coordinator in 2007, we do not
believe that, as drafted, it adequately addresses our
concerns.

-- With regard to the official acts of state militaries,
the proposal would add a clause in Article 18, paragraph 4
providing that "acts which would amount to an offense as
defined in the Convention remain punishable under (other)
laws." However, neither the domestic legal framework nor
the international law framework is sufficiently
comprehensive to make this true.

-- Equally problematic would be the addition of the newly
proposed Article 18, paragraph 5, a savings clause related
to the rules of international law applicable in armed
conflict. This text would create unacceptable ambiguities
in the scope of the Convention and would likely be invoked
to argue that certain violent acts of "national liberation
movements" are permissible under international
humanitarian law and are therefore not terrorist acts.

-- Ambiguity with regard to the coverage of violent acts
of national liberation movements would undermine the
critical message that terrorism is criminal and
unjustifiable regardless of motivation. Some of the
proposed preambular language, particularly preambular
paragraph 10 from the 2005 consolidated text, furthers
such ambiguity.

-- In addition to our specific substantive concerns with
the coordinator's proposal and our view that a deviation
from the text previously accepted in other conventions is
unjustified, we also have no expectation that the
compromise proposed would be acceptable to the countries
that have objected to the standard military carve-out
language.

-- Under these circumstances, and given that the U.S. and
India are in agreement that the Convention should not
apply to the activities of state militaries, we believe it
is critical to maintain a unified position in support of
retaining the standard military carve-out. Efforts to
renegotiate the standard language are unlikely to be
productive and risk undermining the value of the
instrument. They could also result in an instrument that
the United States and other countries would not be able to
support.


7. (U) Embassy New Delhi and USUN are also requested to
report delivery of this demarche by June 8, 2009.
Responses and/or questions should be directed to Peter
Gutherie (L/LEI) (GutheriePA@state.gov;
GutheriePA@state.sgov.gov; 202.647.5115),and Kristina
Daugirdas (DaugirdasKB@state.gov;
DaugirdasKB@state.sgov.gov; 202.647.2197). The Department
greatly appreciates the assistance of Embassy and Mission.
CLINTON