MOVING FORWARD AT UNGA 64 ON THE COMPREHENSIVE

C O N F I D E N T I A L USUN NEW YORK 000840 SIPDIS E.O. 12958: DECL: 09/16/2016 TAGS: CT PREL SUBJECT: MOVING FORWARD AT UNGA 64 ON THE COMPREHENSIVE CONVENTION ON INTERNATIONAL TERRORISM (CCIT) REF: USUN 692 Classified By: Classified by Amb. Rice for reasons 1.4(b) and (d). ¶1. (U) This is an action cable. See paragraph 3. ¶2. (C) SUMMARY: The Sixth Committee will address the CCIT on October 6, 7 and 23. Negotiations on the CCIT have foundered for nine years on two issues: (1) the scope of an exemption for military activities and (2) exemption of national liberation movements. USG redlines are that military activities must be exempted using standard language from previous antiterrorism conventions, and that violent acts of national liberation movements must not be exempted. By contrast, the OIC wants to exempt military activities only if they are in compliance with international law and wants national liberation movements (with the Palestinians particularly in mind) exempted by the Convention. While in substantive terms, the Convention adds little to existing counterterrorism conventions, USUN believes we would gain significant political capital (particularly with the Indians, who initiated the negotiations and are anxious to bring them to conclusion) if we are seen as making a genuine effort to bring the negotiations to closure, and would place the blame for failure to conclude the convention squarely in the OIC's court. Such an effort would be consistent with our goals of reducing isolation and maximizing influence at UNGA 64. In any event, the Indians have twice floated a proposal using language previously accepted by the United States, and we owe them a response. USUN believes there is merit to the Indian proposal, and to the USG's working with the Indians to introduce and support this proposal, possibly through the Sri Lankan Chairman of the Ad Hoc Committee on Measures to Eliminate International Terrorism, and to try to persuade moderate members of the OIC to endorse it as well. ¶3. (C) ACTION REQUESTED: USUN requests guidance as soon as possible in advance of the early October Sixth Committee discussions on whether the USG should proceed with the approach outlined in paragraph 2. If the Department does not consider that approach viable, we seek guidance on other proposals/approaches that might help advance discussions in the Sixth Committee and allow us to respond constructively to the Indians. ¶4. (C) BACKGROUND: In 2002, the USG agreed to a text for Article 18 which included the following language: "Nothing in this Convention shall affect other rights, obligations and responsibilities of States, peoples and individuals under international law, in particular the purposes and principles of the Charter of the United Nations, and international humanitarian law." The text falls short of the OIC objective of clearly excluding national liberation movements (NLMs) from the scope of the Convention. It does, however, open the door to an OIC argument that international humanitarian law allows national liberation movements to engage in acts of violence against their alleged oppressors and that such acts are not, therefore, covered by the Convention. Although the OIC has not accepted the language, the USG has consistently indicated that it can accept the 2002 language, and it would be extremely difficult for us to change our position now. ¶5. (U) The 2005 text prepared by the Greek Coordinator, Maria Telalian, contained the 2002 text for Article 18, but also included preambular paragraph 10, which the USG found objectionable: "Reaffirming that in accordance with the Charter of the United Nations, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, all people have the right to self-determination, freedom and independence, and that those peoples that have been forcibly deprived of its exercise have the right to struggle to that end, in conformity with the relevant principles of the Charter and of the above-mentioned Declaration." ¶6. (SBU) Because there was no consensus on the 2005 Coordinator's text, the Coordinator proposed a "compromise text" in 2007. To date, the USG has said that it has problems with the changes the 2007 text makes to the 2002 text, and that it does not see any point in seriously considering it or other possible solutions unless and until the OIC shows a genuine willingness to engage. The 2007 text adds a new paragraph (5) stating that "This Convention is without prejudice to the rules of international law applicable in armed conflict, in particular those rules applicable to acts lawful under international humanitarian law." The USG has objected to this language as further bolstering the OIC's ability to argue that the actions of NLMs are excluded from the scope of the Convention. In addition, the USG dislikes the addition of the phrase "acts which would amount to an offence as defined in article 2 of this Convention remain punishable under other laws," because it might not always be the case that military actions excluded from the coverage of the Convention would be punishable under other laws. ¶7. (SBU) Both prior to the July meeting and at the August bilateral held between USUN and the Indian permanent mission to the United Nations, the Indians floated the idea of encouraging the chairman or the coordinator of the Ad Hoc Committee on Measures to Eliminate International Terrorism to issue a Chairman's text that would use the 2002 language for Article 18, and would remove the troublesome preambular paragraph 10 and replace it with two preambular paragraphs. The first, drawn directly from the International Convention for the Suppression of Terrorist Bombings, would read: "Noting that the activities of military forces of States are governed by rules of international law outside the framework of this Convention and that the exclusion of certain actions from the coverage of this Convention does not condone or make lawful otherwise unlawful acts, or preclude prosecution under other laws." The second uses preambular language drawn from the United Nations Global Counter-Terrorism Strategy: "Recalling also that, in the 2005 World Summit Outcome, world leaders rededicated themselves to support all efforts to uphold the sovereign equality of all States, respect their territorial integrity and political independence, to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes and principles of the United Nations, to uphold the resolution of disputes by peaceful means and in conformity with the principles of justice and international law, the right to self-determination of peoples which remain under colonial domination or foreign occupation, non-interference in the internal affairs of States, respect for human rights and fundamental freedoms, respect for the equal rights of all without distinction as to race, sex, language or religion, international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and the fulfillment in good faith of the obligations assumed in accordance with the Charter." ¶8. (C) USUN sees merit to the USG embracing this proposal. The language does not appear to cross any USG redlines, or make any significant concessions that the OIC simply could pocket. We would suggest that the Department and USUN respond to the Indian overtures by indicating we are willing to work with them to persuade the Chairman to issue the proposal as a "Chairman's text," and to try to persuade moderate members of the OIC that it is unrealistic to think that they can achieve a clear carve-out for national liberation movements, or a limitation of the military activities exemption to acts that are lawful under international law, and that it is now time to bring the negotiations to a close. We believe that high-level demarches in capitals would be critical to chances of success. Even if the efforts fall short, we believe we would gain considerable good will for taking a positive, active approach. RICE