VZCZCXYZ0027
OO RUEHWEB

DE RUEHNY #0403/01 0901638
ZNY CCCCC ZZH
O 311638Z MAR 06
FM AMEMBASSY OSLO
TO RUEHC/SECSTATE WASHDC IMMEDIATE 3718
INFO RUEAIIA/CIA WASHDC PRIORITY
RUEAWJA/DEPT OF JUSTICE WASHDC PRIORITY
RHEHNSC/NSC WASHDC PRIORITY
RUEHC/SECSTATE WASHDC PRIORITY 3719

C O N F I D E N T I A L OSLO 000403 
 
SIPDIS 
 
SIPDIS 
 
DEPARTMENT FOR L 
 
E.O. 12958: DECL: 03/31/2016 
TAGS: PREL KPAO PHUM OPDC PTER NO
SUBJECT: NORWAY PRESENTS ITS LEGAL VIEWS ON DETAINEES 
 
REF: STATE 26147 
 
Classified By: Pol/Econ Counselor Mike Hammer, Reason 1.4 b and d. 
 
¶1.  (C)  MFA DAS Leif Larsen summoned P/E counselor on March 
31 to receive a note outlining Norway's official legal 
position on detainees at Guantanamo and elsewhere (full text 
provided para 5).  After only a cursory reading of the note, 
P/E Counselor reiterated our position on detainees (reftel). 
 
¶2.  (C)  Foreign Minister Jonas Stoere has previously told us 
that he fully supports the fight against terrorism.  The 
Foreign Minister also accepts the right of the United States, 
and any other country for that matter, to defend itself 
against terrorists but fundamentally believes such action 
must be grounded in international law.  Speaking as a friend, 
Stoere (formerly the head of the Norwegian Red Cross) has 
expressed his concern that the U.S. hurts its ability to go 
after terrorists and its image by not applying international 
law appropriately. 
 
¶3.  (C)  Beyond the Minister's own personal conviction that 
we could be handling the issue of detainees better, Norway's 
left-of-center government wants to be on record opposing how 
we have handled detainees given that it is a hot-button 
political issue and that they feel that the prior 
right-of-center government failed to register concerns with 
us.  Larsen said that the MFA does not intend to make the 
note public but that, if asked, the MFA will state that it 
has made Norway's legal position clear to us.  We would not 
be surprised, however, if the text does become public at some 
point as the MFA's political leadership will want it known 
that it has "protested" our treatment of detainees and 
provided us its interpretation of international law.  The 
note does not request a reply. 
 
¶4.  (C)  Comment.  The Guantanamo detainee issue continues to 
be a hot topic here; just today Norway's paper of record 
Aftenposten ran a story interviewing three men who were held 
at Guantanamo.  We would welcome a visit by Legal Adviser 
John Bellinger, or other USG senior official, to help us with 
the public diplomacy message.  Despite our best efforts, 
there seems to be little to no understanding of the U.S. 
legal position. 
 
¶5.  Begin text of Norwegian note: 
 
Norway's position on key legal issues concerning protection 
of detainees in the struggle against terrorism 
 
¶1. Transnational terrorist attacks constitute not only a 
menace to peace and security, human rights and democratic 
values. They also defy and threaten human dignity. 
Governments must take coherent and united action in order to 
prevent such attacks, to remove bases of support to terrorist 
networks and to bring perpetrators of such attacks to 
justice. International law is essential for effective action 
in this regard. 
 
¶2. Norway believes that the determination of the status, 
rights and treatment of persons detained in relation to acts 
of transnational terrorism also has a bearing on the 
long-term effectiveness of the fight against terrorism. This 
includes the situation of detainees at Guantanamo Bay, which 
has been criticized over an extended period of time. Legal 
classifications and the language utilized in the 
interpretation of treaty obligations are important. They 
should not only contribute to legal certainty, but ensure the 
preservation of the essential values and interests protected 
by the law of armed conflict and other international rules 
aimed at protecting basic human dignity in warfare. 
 
¶3. The increasingly asymmetrical nature of the threat posed 
by certain groups engaged in armed conflict and other forms 
of violence may give rise to new legal challenges. These may 
include the determination of the legal status of persons 
detained, the scope of certain procedural rules and the 
extent to which there may be an overlap between international 
humanitarian law, on the one' hand, and human rights law, on 
the other. Irrespective of such issues, Norway is of the view 
that the fundamental safeguards for persons deprived of 
liberty cannot be open to doubt. They are part of the legal 
framework applicable in situations of international armed 
conflict, of non-international armed conflict and when 
violence cannot be classified as an armed conflict. These are 
the only three possible legal qualifications of situations of 
violence under international law. 
¶4. As regards certain legal interpretations that have been 
made with respect to the application of international law in 
the fight against terrorism Norway would like to reassert the 
following: 
 
International law, based on treaties or customary law, is 
binding on all states. It not only specifies States' rights 
and obligations in a given situation, but also provides a 
common ground for interpreting what the respective rights and 
obligations are. Adherence to international law is also 
premised on a shared understanding that it is in each State's 
interest to abide by the law, allowing, for example, a State 
to demand the protections provided for by humanitarian law to 
members of its armed forces detained by an adversary, whether 
in international or non-international armed conflict. 
 
In accordance with Article 2 common to the 1949 Geneva 
Conventions the existence of an armed conflict between States 
is decisive for the application of the Conventions ("In 
addition to the provisions which shall be implemented in 
peacetime, the present Convention shall apply to all cases of 
declared war or of any other armed conflict which may arise 
between two or more of the High Contracting Parties"). When 
triggered, the Conventions apply to all persons involved in 
an international armed conflict, including also members of 
irregular forces and members of non-State armed groups. The 
situation in Afghanistan was initially an international armed 
conflict within the meaning of the Geneva Conventions. To 
state that the Conventions apply does not, however, mean that 
Al-Qaida members, for example, are entitled to prisoner of 
war (POW) status. It only means that their protection and 
rights must be determined under international humanitarian 
law. It can be argued that the ongoing hostilities in 
Afghanistan may be classified as a non-international armed 
conflict, as they no longer involve the armed forces of 
opposing States Parties to the Conventions. 
 
Article 5 of the Third Geneva Convention stipulates that 
"should any doubt arise" as to whether a person is entitled 
to POW status, "such persons shall enjoy the protection of 
the present Convention until such time as their status has 
been determined by a competent tribunal". This provision was 
crafted to meet practical needs in armed conflict. A 
"competent tribunal" is mandated to make status 
determinations and is therefore not akin to a judicial body 
charged with reviewing challenges to the legality of 
detention or issues of individual criminal responsibility. 
 
Under certain conditions persons who do not qualify as POW, 
but who directly participate in hostilities or otherwise 
represent a serious threat to security may, under the Fourth 
Geneva Convention, be detained until cessation of active 
hostilities. They should be released earlier if they no 
longer pose a serious security threat to the Detaining Power. 
They remain protected by the Fourth Convention until final 
release. 
 
It should be emphasized that any person in the power of a 
Party to an international armed conflict, regardless of his 
or her specific legal status, is entitled to the "Fundamental 
Guarantees" provided for in Article 75 of the First 
Additional Protocol to the Geneva Conventions. These 
guarantees are widely recognized as reflecting customary 
international law and represent an essential safety net of 
protections that must be observed in relation to all 
detainees, at all times. 
 
In situations of non-international armed conflict, Article 3 
common to the Geneva Conventions contains basic protections 
that must be accorded to all persons not, or no longer, 
taking an active part in hostilities. International 
jurisprudence has determined that its rules are applicable in 
all types of armed conflicts, both non-international and 
international. Accordingly, persons covered by the article 
must "in all circumstances be treated humanely". Torture, 
cruel, humiliating and degrading treatment are "prohibited at 
any time and in any place whatsoever". Common Article 3 also 
prohibits the passing of sentences without previous judgment 
pronounced by a regularly constituted court, affording 
judicial guarantees. 
 
In situations not amounting to armed conflict, the rights of 
all persons deprived of liberty, including those who may be 
detained in relation to the fight against terrorism, are 
recognized in the 1966 International Covenant on Civil and 
Political Rights. The Covenant obliges States to treat 
detainees with "humanity and with respect for the inherent 
dignity of the human person" and guarantees the individual 
right to liberty and security of person. States' obligations 
under the Covenant may be subject to derogation under defined 
circumstances and on the basis of procedural safeguards. 
Furthermore, all individuals are protected by the 1984 
Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment. The Convention specifies 
that "no exceptional circumstances whatsoever" may be invoked 
as a justification of torture. This prohibition also applies 
to persons detained in relation to the fight against 
terrorism, as well as to persons transferred to another State. 
 
The International Committee of the Red Cross (ICRC) has a 
right of unrestricted access to all detainees in 
international armed conflicts. In non-international armed 
conflicts, visits are inter alia recognized in resolutions of 
the States Parties to the Geneva Conventions. The ICRC is 
habitually granted access to persons deprived of liberty 
outside of armed conflicts. 
 
29 March 2006 
 
End text of Norwegian Note. 
 
 
Visit Oslo's Classified website: 
http://www.state.sgov.gov/p/eur/oslo/index.cf m 
 
WHITNEY