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DE RUEHRL #0361/01 0401628
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FM AMEMBASSY BERLIN
TO RUEHC/SECSTATE WASHDC 1427
INFO RUCNFRG/FRG COLLECTIVE
RUEHTV/AMEMBASSY TEL AVIV 0433

C O N F I D E N T I A L BERLIN 000361 
 
SIPDIS 
 
SIPDIS 
 
E.O. 12958: DECL: 01/22/2021 
TAGS: PHUM SOCI GM
SUBJECT: VISIT OF HOLOCAUST ENVOY O'DONNELL: DISCUSSIONS ON 
INTERNATIONAL TRACING SERVICE (ITS) 
 
REF: 05 BERLIN 3427 
 
Classified By: DCM John Cloud.  Reason: 1.4(b) and (d) 
 
¶1. (C) Summary.  In January 18 meetings at the Foreign and 
Interior Ministries, and the Federal Chancellery, German 
officials signaled a desire to move more quickly toward a 
resolution of ITS issues than they had in the past, but were 
nonetheless unsure of how to do so from both a substantive 
and procedural standpoint.  As before (reftel) the Interior 
Ministry appeared least responsive to U.S. and other pressure 
for early introduction of a liberal access regime.  The 
Foreign Ministry was aware of the potential political costs 
of delay but was largely limited to an advisory and hortatory 
role.  Chancellery officials agreed to look into the matter, 
but had not previously been aware of the details of the case. 
 While the Interior Ministry said they would table a new 
draft access regime at an experts' meeting scheduled for 
February 20 in Luxembourg, but had nothing specific to say 
about the possible contents, preferring to focus on 
procedural/legal issues for the implementation of the 
putative regime.  End Summary. 
 
Foreign and Interior Ministries 
------------------------------- 
 
¶2. (C) Amb. O'Donnell met for 75 minutes at the Foreign 
Ministry on February 18 with Foreign and Interior Ministry 
officials to discuss developments at the January 13 meeting 
of experts charged with developing a new access regime for 
Holocaust records held by the ITS. Legal Affairs Asst. 
Secretary Laeufer and Office Director Ziegler represented the 
 
SIPDIS 
MFA; National Minorities Division officer Willenberg and 
attorney Buyel-Fromm attended for the Interior Ministry. 
Laeufer noted that the German side had moved forward with its 
proposal tabled on January 13 and that the most pressing 
issue from his perspective was the question of what form and 
shape such legal changes would have to take.  Amb. O'Donnell 
noted that the U.S. and others had been disappointed by the 
German proposal, and hoped that a new proposal grounded in 
the concept of "open access" would be forthcoming at the next 
session.  He also renewed the U.S. request for a digital copy 
of the ITS records.  O'Donnell also said the U.S. believed a 
new access regime could be developed without amending the 
Bonn Accords, which would entail a long ratification process. 
 
 
¶3. (C) Willenberg agreed that copies of ITS holdings could 
and should be provided to all 11 members of the ITS board. 
However, he argued that these should be provided only after 
ITS has completed digitizing all its records -- a process 
expected to take another 18 months.  This is, seemingly, a 
step forward on the German side.  However, in subsequent 
conversations, Amb. O'Donnell and Emboff confirmed that, in 
the German view, the copies must be handled in the same 
manner as the original documents (i.e., with limited access 
only for humanitarian purposes).  Amb. O'Donnell suggested 
that copying for the board members could proceed in parallel 
with the ITS's own copying, rather than wait for the entire 
process to finish. 
 
¶4. (C) Willenberg also noted European Union privacy rules, 
which he said the EU members of the ITS would have to apply 
to the data and which, in his view should also be applied by 
non-EU members of the board.  Agreeing on a common data 
protection plan should, he said, be a key element of the 
February 20 experts group meeting.  Willenberg promised that 
a new draft access regime with detailed provisions on data 
protection would be provided for discussion then.  Willenberg 
also raised concerns about liability, noting that the U.S. 
and UK had both made clear that, as states, they could not 
provide immunity to ITS.  The Ministry thought that the best 
way to proceed would be to establish a system in which 
researchers assume the liability for their actions.  Laeufer 
raised some concern about how long it would take to make 
legally-binding changes to the Bonn Accords, noting that 
solving the liability issue would almost certainly require 
legal action of some sort.  He was more optimistic that 
copying and changing the access regime could be accomplished 
without legal action.  At last with regard to copied records, 
Amb. O'Donnell suggested that liability would apply only to 
the country holding the copies; as to the original holdings, 
he suggested exploring insurance options. 
 
¶5. (C) U.S. Rep to the ITS Board Pattison then asked if 
Germany believed amendments to the Bonn Accords were required 
to come up with a liability regime, or whether this could be 
decided by the ITS board.  MFA's Laeufer suggested the 
question was open, but Interior's Willenberg then offered a 
lengthy and complex elaboration of how Interior views the 
process of establishing a new access regime.  Willenberg 
 
argued that a legally binding change (requiring ratification 
by at least some of the board member states) to the Bonn 
Accords was required in order to give the ITS a research 
function (in addition to its humanitarian purpose) and 
perhaps for liability or other matters.  Changes would also 
be required to the agreement between the members states and 
the ICRC on the administration of ITS -- these might not 
require legal action, he suggested.  Finally, the board 
itself could approve the actual terms of the access regime 
for researchers.  Willenberg acknowledged the complexity of 
this structure, but thought it could be perhaps abbreviated 
by working on all three elements in parallel and perhaps even 
implementing a new access regime on a provisional basis, if 
that were legally possible.  Laeufer reacted with some 
consternation, saying that such a "top-down" approach would 
take years and create political problems. 
 
Chancellery (KA) 
---------------- 
 
¶6. (C) O'Donnell met for 45 minutes with KA Division Director 
for Interior an Justice matters Kuhne, Office Director for 
Religious Affairs Tempel, and Americas' Desk officer Pellet. 
After a discussion of the generally excellent state of 
U.S.-German cooperation on Jewish- and Holocaust-related 
issues, Amb. O'Donnell outlined the problems the U.S. was 
having in obtaining copies of the ITS records and of setting 
up an access regime for researchers.  Kuhne admitted that he 
had not followed the issue previously and was unaware of the 
details.  He promised to look into the matter with the 
Interior Ministry and follow developments at the Luxembourg 
experts' group meeting.  He did not offer any specific views, 
but said that there were times when the simple fact of KA 
interest had an impact. 
 
¶7. (C) On another issue, OD Tempel asked Amb. O'Donnell if he 
had any information on a videoclip shown at a New York dinner 
organized by the Simon Wiesenthal Center.  The clip, 
according to Tempel and Pellet, inaccurately portrayed 
Germany as facing a massive surge in neo-Nazi and 
anti-Semitic activism.  Amb. O'Donnell agreed to look into 
the matter; he was not previously aware of the clip. 
 
¶8. (C) Comment:  In a subsequent meeting with Dr. Laeufer on 
other issues, Laeufer expressed to Amb. O'Donnell his 
personal frustration with the lack of a willingness by 
Interior Ministry lawyers to come up with creative ways to 
find a solution to opening the Archives and making copies for 
member countries.  He suggested that there would have to be 
an approach from the American side to the Interior Minister 
or political level to get more flexibility.  (Embassy will 
follow up with the Interior Minister's office.)  Laeufer also 
said that he wasn't worried about the liability issue, but 
was more concerned about finding a way to reach agreement 
with the U.S. on how the documents would b used after they 
were copied and are in the hands of member countries. 
Laeufer promised to again consider the U.S. proposal for 
copying the digitized records that was put forward by the 
U.S. delegation at the February working group meeting in the 
Hague.  End Comment. 
TIMKEN JR