VZCZCXYZ0016
OO RUEHWEB

DE RUEHC #6371 1531318
ZNR UUUUU ZZH
O R 021304Z JUN 09
FM SECSTATE WASHDC
TO RUEHNE/AMEMBASSY NEW DELHI IMMEDIATE 0000
RUCNDT/USMISSION USUN NEW YORK IMMEDIATE 0000
INFO RHEHNSC/NSC WASHINGTON DC 0000

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