State Department cable giving direction to its Mission on presenting a statement at the PC Meeting in Vienna. The statement is one of general support and addresses the specific issues of Military Commisssions for Al-Qaeda and Taliban fighters. The points to make are i) The Military Commissions will be impartial; ii) they are consistent with the procedural safeguards found in the Geneva Conventions of 1949 and Art. 75 of Protocol 1 of 1977 to the Geneva Conventions; iii) a decision can only be imposed by a unanimous decision of the panel members; iv) the accused are not required to testify, and no adverse inference may be drawn from a refusal to testify; and v) the proceedings will be open to the public to the maximum extent possible.
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RELEASED IN FULL
ORIGIN EUR-00
AMAD-00 CIAE-00 CTME-00 INL-00
DOTE-00 SRPP-00 DS-00 FAAE-00 FBIE-00 UTED-00
INFO LOG-00 NP-00 DODE-00
EB-00
VC-00 TEDE-00 INR-00 L-00
H-01 JUSE-00 LAB-01
VCE-00 DCP-01 DHS-00
AC-00 NSAE-00 NSCE-00 OMB-01
OPIC-01 EPAU-00 PA-00 PM-00
TFBI-00 PER-00 PRS-00
ACE-00 P-00 SP-00 SS-00
SSO-00 TEST-00 TRSE-00
USIE-00 EPAE-00 PMB-00 DRL-00
DSCC-00 PRM-00 G-00
SAS-00 /005R
SWCI-00
251887
SOURCE:
KODAKA.003005
DRAFTED BY: EUR/RPM:SARCHER:SKA --09/03/03 7-2128
APPROVED BY: EUR/RPM:SJONES
L/HRR:GBRANCATO DRL:PDAVIS L/UNA:RLAMOTT L/PM:JDOLAN
S/WCI:ERICHARD
9BFD87 030038Z /38
O P 030032Z SEP 03
FM SECSTATE WASHDC
TO USMISSION USOSCE IMMEDIATE
INFO OSCE POST COLLECTIVE PRIORITY
UNCLAS STATE 251887
E.O. 12958: N/A
TAGS: PGOV, PREL, OSCE
SUBJECT: GUIDANCE REQUEST -- OSCE PC -- RESPONSE TO
PA BRUCE GEORGE
REF: EMAIL USOSCE-EUR/RPM 09/02/03
1. POST IS AUTHORIZED TO PRESENT THE FOLLOWING
STATEMENT AT THE SEPTEMBER 03 PC MEETING IN VIENNA.
BEGIN TEXT:
THANK YOU MR. CHAIRMAN. WE WELCOME PRESIDENT BRUCE
GEORGE HERE TO THE PERMANENT COUNCIL AND THANK HIM
FOR HIS REPORT ON THE ANNUAL SESSION OF THE OSCE
PARLIAMENTARY ASSEMBLY IN ROTTERDAM, AS WELL AS
FUTURE PA ACTIVITIES AND PRIORITIES. I ATTENDED THE
ANNUAL SESSION, ACCOMPANYING A STRONG U.S.
.
DELEGATION OF 8 MEMBERS OF CONGRESS.
WE WELCOME THE INVOLVEMENT AND INPUT FROM OUR
PARLIAMENTARY COLLEAGUES. IN FACT, TODAY, THE
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UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: SHARON E AHMAD
UNCLASSIFIED DOS-002378
DATE/CASE ID: 19 OCT 2004 200303827
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CHAIRMAN-IN-OFFICE JAAP DE HOOP SCHEFFER, WILL
TESTIFY BEFORE THE U.S. CONGRESSIONAL COMMISSION ON
SECURITY AND COOPERATION IN EUROPE CONCERNING THE
DUTCH LEADERSHIP OF THE OSCE. THIS ILLUSTRATES JUST
HOW IMPORTANT THE OSCE IS TO OUR CONGRESS.
WE ARE ALSO PLEASED TO HAVE A REPRESENTATIVE OF THE
PARLIAMENTARY ASSEMBLY, AMBASSADOR NOTHELLE,
RESIDENT HERE IN VIENNA. AMBASSADOR NOTHELLE'S
PARTICIPATION IN VARIOUS MEETINGS HAS GREATLY
CONTRIBUTED TO THE FLOW OF INFORMATION BETWEEN THE
PA AND THE PC. WE LOOK FORWARD TO A CONTINUING
CLOSE WORKING RELATIONSHIP WITH HIM.
WE SUPPORT INCREASED INVOLVEMENT OF PARLIAMENTARIANS
IN OSCE ACTIVITIES. PARLIAMENTARIANS HAVE BEEN
PARTICULARLY INVOLVED IN ELECTION OBSERVATION. THE
PA DEMOCRACY TEAMS AND AD HOC COMMITTEES HAVE ALSO
BEEN VERY USEFUL. WE BELIEVE WE SHOULD LOOK AT EVEN
MORE TYPES OF ACTIVITIES IN WHICH WE CAN BENEFIT
FROM THE EXPERIENCE AND EXPERTISE OF OUR
PARLIAMENTARIANS.
AS WE SAID WHEN AMBASSADOR NOTHELLE BRIEFED THE
PERMANENT COUNCIL ON THE RESULTS OF THE ROTTERDAM
MEETING, THE U.S. DELEGATION SPONSORED SEVERAL
SUPPLEMENTAL RESOLUTIONS, AND ADDITIONAL AMENDMENTS
TO THE COMMITTEE RESOLUTIONS, THAT WE HOPE WILL
RECEIVE FURTHER OSCE ACTION. THESE ITEMS CONCERN
IDPS, COMBATING ANTI-SEMITISM, WELCOMING «AFGHANISTAN»
AS A PARTNER FOR COOPERATION, AND COMBATING
TRAFFICKING AND EXPLOITATION OF CHILDREN.
CONGRESSMAN SMITH INTRODUCED AMENDMENTS CONCERNING
INTERNALLY DISPLACED PERSONS (IDPS) WHICH WAS
ADOPTED, RECOMMENDING THAT THE OSCE LOOK AT WHAT CAN
BE DONE TO BETTER THE SITUATION OF IDPS IN OUR
REGION. WE LOOK FORWARD TO DISCUSSION OF THIS ISSUE
IN THE COMING MONTHS, AS WE PREPARE FOR MAASTRICHT.
WE ALSO LOOK FORWARD TO DISCUSSION OF HOW WE CAN
INCREASE INVOLVEMENT OF ‹APCUMATSTAN» AS AN ACTIVE
OSCE PARTNER TAKING ADVANTAGE OF THE MANY MEETINGS
THIS FALL, INCLUDING THE HUMAN DIMENSION
IMPLEMENTATION MEETING AND THE MINISTERIAL IN
MAASTRICHT.
I WOULD LIKE TO NOTE THAT OUR CONGRESSMEN USED THE
OPPORTUNITY PRESENTED THEM IN ROTTERDAM TO CONTINUE
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DOS-002379
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Document Number: 2003STATE251887
FOLLOW-UP CONCERNING COMBATING ANTI-SEMITISM. THEY
CONTINUE TO GATHER SIGNATURES FROM FELLOW
PARLIAMENTARIANS IN SUPPORT OF A U.S./GERMAN
PARLIAMENTARY ACTION PLAN ON THE SUBJECT. WE LOOK
FORWARD TO DISCUSSION OF HOW TO FOLLOW UP
RECOMMENDATIONS COMING OUT OF THE ANTI-SEMITISM
CONFERENCE AND THE SPECIAL TOPIC DAY DEVOTED TO THIS
-AS WELL AS TOMORROW'S CONFERENCE ON RACISM,'
XENOPHOBIA, AND DISCRIMINATION - DURING THE HUMAN
DIMENSION IMPLEMENTATION MEETING. WE HOPE THAT WE
CAN ADDRESS THESE ISSUES AS WE LOOK TOWARD THE
MAASTRICHT MINISTERIAL.
WE ALSO WELCOME THE ADOPTION IN JULY OF THE ANTI-
TRAFFICKING ACTION PLAN. WE TAKE NOTE OF THE
PARLIAMENTARY ASSEMBLY'S ENDORSEMENT OF A POSSIBLE
NEW OSCE MECHANISM TO MAKE OUR EFFORTS AT COMBATING
THIS SCOURGE EVEN MORE EFFECTIVE, AND LOOK FORWARD
TO FURTHER DISCUSSIONS ON THIS AS WE PREPARE FOR THE
MINISTERIAL.
FINALLY, I WOULD LIKE TO NOTE THAT IN KEEPING WITH
THE COMMITMENT MR. SMITH MADE IN ROTTERDAM TO VISIT
«DIEUUMBSS» IN GUANTANAMO, HE LED A DELEGATION THERE
FROM THE U.S. COMMISSION ON SECURITY AND COOPERATION
IN EUROPE ON JULY 26. I UNDERSTAND THAT A SHORT
REPORT ON THE VISIT WILL BE SENT TO MR. GEORGE IN
THE NEAR FUTURE.
THANK YOU, MR. CHAIRMAN.
TO USE ONLY IF RAISED: DEPARTMENT GUIDANCE
GUANTANAMO BAY «DEIMLINEES»:
MILITARY COMMISSIONS
TRIAL BY MILITARY COMMISSION IS A COMMON AND WELL-
ESTABLISHED PRACTICE RECOGNIZED BY INTERNATIONAL
LAW.
THE U.S. HAS USED MILITARY COMMISSIONS SINCE THE
REVOLUTIONARY WAR, INCLUDING IN THE MEXICAN-AMERICAN
WAR, THE U.S. CIVIL WAR, AND WWII. THE EUROPEANS
ALSO USED MILITARY COMMISSIONS EXTENSIVELY IN THE
19TH AND 20TH CENTURIES, INCLUDING IN WWI AND WWII.
AS A MATTER OF HISTORIC PRECEDENT, THE U.S. AND ITS
EUROPEAN ALLIES HAVE CONVENED MILITARY COURTS OR
COMMISSIONS PRIMARILY IN CONNECTION WITH WAR-RELATED
OFFENSES.
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DOS-002380
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THE THIRD GENEVA CONVENTION OF 1949 EXPRESSLY
CREATES A PRESUMPTION THAT PRISONERS OF WAR "SHALL
BE TRIED ONLY BY A MILITARY COURT" UNLESS THE
EXISTING LAW OF THE DETAINING COUNTRY EXPRESSLY
PERMITS ITS CIVIL COURTS TO TRY A MEMBER OF ITS OWN
ARMED FORCES.
U.S. MILITARY COMMISSIONS, IF CONVENED, WOULD BE
CONSTITUTIONALLY AUTHORIZED. THE UNIFORM CODE OF
MILITARY JUSTICE EXPRESSLY RECOGNIZES THE
JURISDICTION OF MILITARY COMMISSIONS.
THE MILITARY COMMISSIONS WILL BE IMPARTIAL. THEY
WILL PROVIDE FULL AND FAIR TRIALS. WE BELIEVE THAT
THE PROCEDURES FOR THE COMMISSIONS PROVIDE
APPROPRIATE DUE PROCESS SAFEGUARDS.
THE USE OF MILITARY COMMISSIONS TO TRY THE «DETAINEES»
AT GUANTANAMO WOULD BE CONSISTENT WITH THE
PROCEDURAL SAFEGUARDS FOUND IN THE GENEVA
CONVENTIONS OF 1949 AND ARTICLE 75 OF PROTOCOL 1 OF
1977 TO THE GENEVA CONVENTIONS. (THE «UNITED» «STATES»
IS NOT A PARTY TO THE PROTOCOL.)'
(NOTE: BELOW ARE MORE DETAILED POINTS ON THE
PROCEDURES, FROM 02 STATE 20095 AND MORE RECENT
DOCUMENTS CLEARED BY DOD.):
IN PARTICULAR, THE PROCEDURES INCLUDE THE FOLLOWING:
--THE PRESUMPTION OF INNOCENCE
--REPRESENTATION BY DEFENSE COUNSEL
--THE HIGH STANDARD OF PROOF OF GUILT BEYOND A
REASONABLE DOUBT
--THE DEATH PENALTY CAN ONLY BE IMPOSED BY A
UNANIMOUS DECISION OF A 7-MEMBER PANEL
--REVIEW BY AN IMPARTIAL, 3-MEMBER PANEL (POSSIBLY
INCLUDING CIVILIANS WHO ARE TEMPORARILY
COMMISSIONED)
--THE ACCUSED IS NOT REQUIRED TO TESTIFY, AND NO
ADVERSE INFERENCE MAY BE DRAWN FROM A REFUSAL TO
TESTIFY.
--THE ACCUSED MAY PRESENT EVIDENCE IN HIS DEFENSE
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DOS-002381
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AND MAY CROSS-EXAMINE WITNESSES PRESENTED BY THE
PROSECUTION.
--PROCEEDINGS WILL BE OPEN TO THE PUBLIC "TO THE
MAXIMUM EXTENT PRACTICABLE" (BUT THEY CAN BE CLOSED
TO PROTECT NATIONAL SECURITY AND OTHER INTERESTS).
AT ALL TIMES, INCLUDING IN ANY CLOSED PROCEEDINGS,
THE ACCUSED WILL BE REPRESENTED BY COUNSEL.
--THE PROSECUTION WILL PROVIDE THE ACCUSED WITH
ACCESS TO EVIDENCE THE PROSECUTION INTENDS TO
INTRODUCE AT TRIAL AND WITH ACCESS TO EVIDENCE KNOWN
TO THE PROSECUTION THAT IS INCONSISTENT WITH THE
ALLEGED GUILT OF THE ACCUSED..
--THE REVIEW PANEL HAS THE AUTHORITY TO RETURN THE
CASE FOR FURTHER PROCEEDINGS IF A MAJORITY OF ITS
MEMBERS HAVE A DEFINITE AND FIRM CONVICTION THAT A
MATERIAL ERROR OF LAW OCCURRED.
AUTHORITY TO DETAIN
WE ARE AT WAR. THE «UNITED» «STATES» HAS THE AUTHORITY
UNDER THE LAW OF ARMED CONFLICT AND THE
RESPONSIBILITY TO DETAIN ENEMY COMBATANTS.
WE CONTINUE TO FIGHT AGAINST ENEMY COMBATANTS WHO
ARE PLANNING AND CONDUCTING ATTACKS AGAINST US.
THE CAPTURE AND DETENTION OF ENEMY COMBATANTS, TO
REMOVE THEM FROM THE FIGHTING, IS CONSISTENT WITH
THE LAW OF ARMED CONFLICT. THE U.S. COMPLIES WITH
THE LAW OF ARMED CONFLICT, INCLUDING THE TENET OF
HUMANE «T.MTAIMMIT» - A PRINCIPLE THAT THE TERRORISTS
FLAGRANTLY VIOLATE.
IT IS NECESSARY TO REMOVE ENEMY COMBATANTS FROM THE
BATTLEFIELD AND DETAIN THEM FOR THE SAFETY OF OUR
MILITARY FORCES, AND TO PREVENT FUTURE ATTACKS.
IT IS A UNIVERSALLY RECOGNIZED PRINCIPLE UNDER THE
LAW OF ARMED CONFLICT THAT ENEMY COMBATANTS ENGAGED
IN WAR MAY BE CAPTURED AND DETAINED FOR THE DURATION
OF THE CONFLICT. THIS HAS BEEN THE PRACTICE OF THE
U.S. AND ITS ALLIES IN EVERY WAR THEY HAVE
PARTICIPATED IN.
THE «DinummEs» AT GUANTANAMO ARE, IN FACT, ENEMY
COMBATANTS. AT THE TIME CT CAPTURE, THEY WERE
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DOS-002382
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BEARING ARMS AGAINST US OR OTHERWISE ACTING IN
SUPPORT OF HOSTILE ARMED FORCES ENGAGED IN AN ON-
GOING ARMED CONFLICT.
RIGHT TO COUNSEL
UNDER THE LAW OF ARMED CONFLICT, CAPTURED ENEMY
COMBATANTS. HAVE NO RIGHT TO COUNSEL, OR OF ACCESS TO
A COURT, TO CHALLENGE THEIR DETENTION DURING
HOSTILITIES.
IN THIS WAR, AS IN EVERY WAR, ENEMY COMBATANTS HAVE
NO LEGAL RIGHT TO COUNSEL OR OF ACCESS TO COURTS FOR
THE PURPOSE OF CHALLENGING THEIR DETENTION WHILE
HOSTILITIES ARE ONGOING.
IF A DETAINIZE» IS CHARGED WITH A CRIME, HE WOULD HAVE
ACCESS TO COUNSEL AND WOULD RECEIVE A FAIR TRIAL.
STATUS
MEMBERS OF THE TALIBAN AND AL QAIDA ARE NOT ENTITLED
TO PRISONER OF WAR STATUS UNDER THE GENEVA
CONVENTION ON PRISONERS OF WAR.
ALTHOUGH THE U.S. NEVER RECOGNIZED THE TALIBAN AS
THE LEGITIMATE AFGHAN GOVERNMENT, «AFGHANISTAN» IS A
PARTY TO THE GENEVA CONVENTIONS, AND THE PRESIDENT
DETERMINED THAT THE CONVENTIONS APPLY TO THE ARMED
CONFLICT WITH THE TALIBAN.
UNDER THE TERMS OF THE THIRD GENEVA CONVENTION OF
1949, HOWEVER, THE TALIBAN ARE NOT ENTITLED TO POW
STATUS. SPECIFICALLY, THE TALIBAN DID NOT QUALIFY
AS LAWFUL COMBATANTS (OR POWS) UNDER ARTICLE 4 OF
THE THIRD GENEVA CONVENTION OF 1949 BECAUSE THEY FAILED TO SATISFY THE CONDITIONS UNDER ARTICLE 4. THE TALIBAN HAVE NOT EFFECTIVELY DISTINGUISHED THEMSELVES FROM THE CIVILIAN POPULATION OF «AFGHANISTAN». MOREOVER, THEY HAVE NOT CONDUCTED THEIR MILITARY OPERATIONS IN ACCORDANCE WITH THE LAWS AND CUSTOMS OF WAR.
«MUUMMWT»
THE «VVITED».«STATES» HAS TREATED AND WILL CONTINUE TO
TREAT ENEMY COMBATANTS AT GUANTANAMO HUMANELY AND,
TO THE EXTENT APPROPRIATE AND CONSISTENT WITH
MILITARY NECESSITY, IN A MANNER CONSISTENT WITH THE
PRINCIPLES OF THE THIRD GENEVA CONVENTION OF 1949.
ICC
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MR. CHAIRMAN, I HAVE ALREADY NOTED ON SEVERAL
OCCASIONS U.S. CONCERN REGARDING THE ICC, BUT LET ME
AGAIN SUMMARIZE THESE CONCERNS.
THE U.S. STRONGLY OBJECTS TO THE ICC'S CLAIMS OF
JURISDICTION OVER THE NATIONALS, INCLUDING
GOVERNMENT OFFICIALS AND SERVICE MEMBERS, OF STATES
NOT PARTY TO THE TREATY. WE ARE CONCERNED THAT THE
• LACK OF ACCOUNTABILITY OVER THE ICC AND ITS
PROSECUTORS WILL RESULT IN POLITICALLY MOTIVATED
ATTEMPTS TO INVESTIGATE AND PROSECUTE U.S. SERVICE
MEMBERS AND OTHER GOVERNMENT OFFICIALS. WE STRONGLY
OBJECT TO THE ICC'S CLAIM TO BE ABLE TO UNILATERALLY
DECIDE WHETHER AN U.S. INVESTIGATION OR PROSECUTION
WAS ADEQUATE. WE THINK THE TREATY PROVIDES AN
OPENING FOR THE ICC TO UNDERMINE THE ROLE OF THE UN
SECURITY COUNCIL IN DETERMINING WHEN A STATE HAS
COMMITTED AN ACT OF AGGRESSION.
WE HAVE BEEN CLEAR AND CONSISTENT IN COMMUNICATING
OUR CONCERNS ABOUT THE ICC SINCE NEGOTIATIONS OF THE
ROME STATUTE BEGAN.
WE RESPECT THE RIGHT OF ANY SOVEREIGN STATE TO
BECOME PARTY TO THE ROME STATUTE; HOWEVER, WE ASK
THAT THE SOVEREIGNTY OF THE «UNITED» «STATES» BE SIMILARLY RESPECTED AS WELL AS OUR RIGHT TO PROTECT
U.S. PERSONS FROM JURISDICTION UNDER A TREATY TO
WHICH THE U.S. HAS CHOSEN NOT BECOME A PARTY.
IN PURSUING ARTICLE 98 AGREEMENTS, WE ARE NOT
ATTEMPTING TO UNDERMINE THE INTERNATIONAL CRIMINAL
COURT; RATHER WE ARE WORKING WITHIN THE FRAMEWORK OF
THE ROME STATUTE WHICH SPECIFICALLY PROVIDES FOR
SUCH AGREEMENTS.
END TEXT.
POWELL
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DOS-002384
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