US embassy cable - 05GENEVA2396

UNCLAS SECTION 01 OF 02 GENEVA 002396 
 
SIPDIS 
 
SECDEF PASS TO DOD/OGC, DOD/OSD; JOINT STAFF - 
JCS/LEGAL;OSD FOR USDP-DETAINEE AFFAIRS 
 
E.O. 12958: N/A 
TAGS: PREL, PHUM, PREF, PTER, ICRC, UNCHR, Human Rights 
SUBJECT: DOD GENERAL COUNSEL HAYNES, MEETING WITH HIGH 
COMMISSIONER FOR HUMAN RIGHTS ARBOUR 
 
Participants 
 ------------ 
 
1.  (U)  U.S.:  Ambassador Kevin Moley, DOD General Counsel 
William J. Haynes, DOD DAS Matthew Waxman, USN Capt. Michael 
Boock, EUCOM Col. William Lietzau and Lt. Col. Sarajane 
Stenton, U.S. Mission Legal Adviser Jeffrey Kovar, and 
Political Counselor Velia De Pirro. 
 
OHCHR:  High Commissioner Louise Arbour, and OHCHR Human 
Rights Officers Jonathan Prentice, Karim Gehzraoui and 
Shahrzad Tadjbakhsh. 
 
 
Human Rights Law and Humanitarian Law 
------------------------------------- 
 
2.  (SBU)  In a September 22, 2005 meeting with High 
Commissioner for Human Rights Louise Arbour, DOD General 
Counsel William J. Haynes welcomed the opportunity to meet 
with her and offered to begin a dialogue on issues of mutual 
interest.  Arbour said she welcomed the opportunity to speak 
with GC Haynes.  Noting that her first experience in 
international humanitarian law had been with the 
International Criminal Tribunal for Yugoslavia (ICTY), she 
lauded the precedent set by ICTY in creating a new body of 
law by establishing personal criminal accountability for 
rulers and others who abused human rights.  Arbour urged the 
United States to exercise leadership in support of what she 
deemed to be progressive international legal developments. 
She stressed that the United States must be willing to 
subject itself to the international legal rules to which it 
wants to hold others. 
 
3.  (SBU)  She pointed to the United States and Canada as two 
democracies with legislation providing protections well 
beyond the minimum standards of most international law. She 
asserted that this made it easier to accept an international 
regime of rules.  For example,  both countries could easily 
embrace international rules on admissibility of evidence in 
criminal cases.  Arbour described her work on a fully 
functioning international regime of human rights rules, 
implementation, and enforcement, in addition to robust 
domestic implementation through universal jurisdiction.  She 
saw this as the natural evolution of law that is moving and 
bringing exciting changes, rather than remaining settled. 
 
4. (SBU)  GC Haynes noted that there was a lot of room for 
discussion as the law continues to develop; it is important 
to take account of the key role of the customs and practices 
of nations in the discussion.  He warned that new rules may 
have unintended consequences, and that customs are not always 
accepted by every state.  The U.S. is reluctant to support 
any unelected body making new international rules. 
 
 
Access for Special Rapporteurs to Guantanamo 
-------------------------------------------- 
 
5.  (SBU) As expected, Arbour was forceful in making her case 
for admitting the Special Rapporteurs to Guantanamo.  She 
said that the United States simply had to agree to a 
reasonable request to stop the increasing pressure on this 
issue and to assert its leadership role in defending human 
rights.  She added that allowing at least some of the 
rapporteurs to visit would benefit the United States, image 
in the world as well as make things easier for friends and 
allies of the United States.  GC Haynes said he heard the 
message loud and clear.  He noted that the issue was under 
review, and expressed appreciation for Arbour,s support for 
U.S. leadership on human rights. 
 
 
Assurances Against Torture for Returned Detainees 
--------------------------------------------- ---- 
 
6. (SBU)  Arbour had read in the press that the United States 
was about to return detainees to Afghanistan.  She expressed 
concern they not be returned if there was any question of 
torture, noting that Sweden had been found by the Torture 
Committee to have violated the Convention Against Torture in 
this regard.  DAS Waxman responded by describing current 
discussions.  There was agreement that Arbour's efforts to 
assist the GOA with rule of law issues could complement DOD 
efforts to create the infrastructure to receive the 
returnees.  Arbour added that her office was prepared to 
provide assistance in assessing the credibility of the 
assurances provided by host governments.  She questioned the 
acceptance of assurances from nations that are &known8 to 
be human rights violators. GC Haynes stressed that U.S. law 
in this regard was clear; moreover, the United States did not 
want to keep detained persons longer than necessary. 
 
 
Detention Review 
---------------- 
 
7.  (SBU)  Arbour said she had heard it said that the USG 
doctrine was an absolute separation of international human 
rights and humanitarian law.  In her view, the two bodies of 
law operate together, as in Darfur.  She noted she was 
pleased that the U.S. Supreme Court had filled the legal 
"black hole" regarding detainees.  GC Haynes responded that 
DOD was eager to engage on these issues; that long before the 
Supreme Court ruled on the right of detainees to bring habeas 
corpus actions, there were several layers of administrative 
review for Guantanamo detainees.  He outlined various aspects 
of the procedure governing Commissions. 
 
 
Visit to United States 
---------------------- 
 
8.  (SBU)  At the beginning of the meeting, Arbour noted her 
interest in visiting Washington to meet with Secretary of 
Defense Rumsfeld, which adds to her outstanding request to 
meet with Secretary Rice.  (Comment:  U.S. Mission Geneva is 
working on dates for a possible visit later this fall. End 
comment) 
 
9.  GC Haynes has cleared on this message. 
 
 
Moley