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DE RUEHBS #2288/01 1941129
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O 131129Z JUL 07
FM USEU BRUSSELS
TO RUEHC/SECSTATE WASHDC IMMEDIATE
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INFO RUCNMEM/EU MEMBER STATES COLLECTIVE PRIORITY

C O N F I D E N T I A L SECTION 01 OF 02 BRUSSELS 002288 
 
SIPDIS 
 
SIPDIS 
 
NSC: ANSLEY, ZARATE, KLINGLER 
DOD: HAYNES, ALLEN 
DOJ: BRADBURY, SWARTZ 
DNI: POWELL 
CIA: RIZZO 
 
E.O. 12958: DECL: 07/13/2017 
TAGS: PTER PREL EUN
SUBJECT: FURTHER PROGRESS IN DISCUSSIONS WITH EU ON LEGAL 
ISSUES ASSOCIATED WITH THE WAR ON TERRORISM 
 
REF: A. REFTEL: BRUSSELS 00810 
     ¶B. BRUSSELS 01198 
 
Classified By: Political Minister Counselor Laurence Wohlers for reason 
s 1.4 (b) and (d) 
 
¶1. (C)  Summary. State Department Legal Adviser John 
Bellinger and Ashley Deeks, Attorney-Advisor, met June 5 with 
their counterparts from the 27 EU member states and 
representatives from the Council and Commission Secretariat. 
The majority of the four hour meeting was devoted to a 
further discussion of the U.S. response to the EU non-paper 
on principles of international law relevant to 
counter-terrorism, but also included a short update of 
developments in the United States.  Discussion focused 
particularly on the interplay between international 
humanitarian law (IHL) and human rights law (HRL), and the 
circumstances in which HRL properly applies to 
counterterrorism activities.  Participants also discussed the 
scope and application of the Convention Against Torture (CAT) 
and the International Covenant on Civil and Political Rights 
(ICCPR).  Bellinger stressed that the ongoing dialogue with 
the EU has been beneficial in highlighting the complexity of 
the issues.  There appears to be a growing appreciation that 
the existing legal paradigms are not a neat fit for the 
conflict with al Qaeda, and that this conflict may require 
some new legal approaches.  End Summary. 
 
EU Questions on Military Commission Rulings 
 
¶2. (C) The German Chairman of the EU group, Dr. Georg 
Witschel, and his colleagues posed questions regarding the 
dismissals of the two military commission cases (Hamdan and 
Khadr) because of a lack of a prior determination by a 
Combatant Status Review Tribunal that the individuals were 
"unlawful" enemy combatants.  Bellinger explained the limited 
scope of this decision and made clear that the decision did 
not call the entire Military Commission Act or the 
commissions into question.  Bellinger also made the point 
that, although the decisions were frustrating for the 
Executive Branch, they highlighted the extensive process 
these detainees receive.  He noted that the U.S. Government 
was in the process of determining how to respond to the 
decisions, but that we likely would seek reconsideration of 
the decisions.  He further explained that, in trying the 
individuals we hold at Guantanamo, the USG has worked to hard 
to create new, appropriate rules; the old rules (that is, 
those contained in the Geneva Conventions on how to prosecute 
prisoners of war) apply to lawful enemy combatants but not to 
"unlawful" enemy combatants.  Bellinger made an analogy to 
the Nuremberg Tribunals: Faced with a new situation, we have 
had to come up with the best new system we can. 
 
Application of International Humanitarian Law and Human 
Rights Law 
 
¶3. (C)  Discussion then turned to the EU non-paper, with a 
focus on the interplay between IHL and HRL.  The discussion 
made two things clear: first, the United States and the EU 
disagree about whether the CAT and the ICCPR apply to States 
acting outside their own territory, with the USG taking the 
view that the treaties generally do not.  Second, this is an 
area in which the United States and the EU have different 
legal obligations, because many of he provisions in the CAT 
and ICCPR exist in the European Convention on Human Rights, 
which applies to States Parties (including all EU countries) 
when they exercise "effective control" outside their 
territory.  The UK and France explained the decisions in two 
recent ECHR cases dealing with EU member states acting in 
peacekeeping capacities outside their territory; the European 
Court concluded that, because the states were acting in 
accordance with a UNSCR Chapter VII mandate, that mandate 
trumped any applicable ECHR obligations.  Despite these 
differences, there was some agreement that IHL provisions 
would provide the governing law when IHL and HRL both applied 
but their rules were in tension.  Bellinger highlighted his 
agreement with the Swedish legal adviser that "not all HRL 
applies in situations of armed conflict."  The discussion 
made clear that, due to the complicated nature of the 
interplay between these bodies of law, every country in ISAF 
has given its forces in Afghanistan different guidance on 
what rules apply there.  Several states urged the USG to 
 
BRUSSELS 00002288  002 OF 002 
 
 
consider stating that it will apply the non-refoulement 
provision in Article 3 of the CAT extraterritorially as a 
matter of law, given that the USG already applies the 
provision as a matter of policy. 
 
¶4.  (C) In summarizing views on the interplay between HRL and 
IHL, Dr. Witschel suggested that the USG and EU need to agree 
to disagree about the extraterritorial application of the 
ICCPR; but that we agree (1) that Articles 4 and 5 of the CAT 
have an extraterritorial impact; and (2) that it is important 
to apply Article 3 (on non-refoulement) outside a state's 
territory, whether as a matter of law or policy. 
 
Detaining Suspected Terrorists in Failed States 
 
¶5.  (C) To further the point that the al Qaeda paradigm 
raises difficult new questions, Mr. Bellinger posed a 
hypothetical to urge EU states to consider how they would 
advise policy makers when faced with an imminent threat to 
their country flowing from terrorists operating out of a 
failed state.  He asked: if individuals training in Somalia 
were planning an imminent attack in Hamburg, how would 
Germany react?  Even if German criminal law would cover these 
acts, would Germany wait until the terrorists had entered its 
territory?  In a surprisingly honest response, Dr. Witschel 
stated that he had no appropriate answer.  Denmark noted 
that, because it lacked the practical capacity to act in that 
situation, it would need to work with others.  The UK legal 
adviser claimed that even this kind of hypothetical raised 
political concerns because, in his view, U.S. actions in 
these situations "provoke fear" around the world because the 
U.S. has a "preponderance of power."  Several states asserted 
that they would seek Chapter VII resolutions before taking 
action.  Mr. Bellinger noted that it appears that the EU 
would decline to take proactive action in the face of an 
imminent terrorist threat.  The exchange highlighted that 
several states have not had to grapple with the hard 
questions that the USG has in such scenarios, and that some 
states' solutions would not be realistic or timely. 
 
Summary of Views on EU Non-Paper 
 
¶6. (C) Witschel summarized the multi-meeting discussion of 
the EU 8 principles in an effort to highlight where the USG 
and EU agreed and disagreed.  He stated that: 
 
"     we agree that whether a situation is an armed conflict 
and what type of conflict it is are mixed questions of fact 
and law; 
"     some states agreed with the USG that a state can be in 
an armed conflict with a non-state actor (including a 
terrorist organization); 
"     EU states were uncomfortable with the concept of a war 
without geographical and temporal limits; 
"     we agree that IHL generally will be the lex specialis 
(over HRL) in armed conflict; 
"     we disagree about the extraterritorial application of 
the ICCPR and the CAT; and 
"     we agree that no one should be placed in a legal vacuum. 
 
US Positive on COJUR Dialogue 
 
¶7. (C) Mr. Bellinger concluded his remarks by noting that 
after three U.S.-EU COJUR sessions under the German 
presidency, he suspects that there is more overall agreement 
than disagreement on the principles of international law 
relevant to counter-terrorism, and that some of the 
disagreements are merely over wording.  He stressed that 
pre-9/11 legal frameworks are not suited to the new terrorist 
environment and the conflict with al Qaeda.  He also 
reiterated that the Geneva Conventions are intended for 
conflict between state actors and not for conflicts between a 
state and a non-state actor.  Bellinger concluded the 
discussions on a positive note and looked forward to further 
conversations led by Portugal as incoming President of the EU. 
 
¶8. (U) This cable has been cleared by Ms. Deeks. 
 
WOHLERS 
.