US embassy cable - 05GENEVA2839

C O N F I D E N T I A L SECTION 01 OF 02 GENEVA 002839 
 
SIPDIS 
 
PRM FOR PDAS GREENE AND MCE, L FOR BELLINGER, NEA FOR 
ISRAEL DESK, EAP FOR JAPAN DESK, BERN FOR SANDBERG 
 
E.O. 12958: DECL: 08/30/2010 
TAGS: PREL, KPAL, IS, ICRC, MDA 
SUBJECT: MDA: DISSUADING JAPAN FROM AMENDING THE PROTOCOL 
 
REF: STATE 206954 
 
Classified By: DCM Lynn Cassel; reasons 1.4 (b) and (d) 
 
1. (C) Summary: Japan is contemplating proposing an amendment 
to the current text of the additional third protocol (to 
adopt a new emblem for the Red Cross movement.)  This runs 
counter to the strong U.S. desire not to re-open the draft. 
While Japan's proposal itself is minor, it is quite possible 
that word of any submission would embolden members of the 
Organization of the Islamic Conference (OIC) who are 
considering whether to push textual changes initially 
proposed in 2000.  Mission recommends that Department 
instruct Embassy Tokyo to speak again with the Ministry of 
Foreign Affairs focal point on human rights in the Global 
Affairs Division.  We could acknowledge Japan's concerns, 
suggest some other ways those concerns could be addressed, 
and ask at least that Japan not be the first to re-open the 
text.  End Summary. 
 
2. (C) The Government of Japan may propose a minor textual 
change to the draft additional third protocol (AP3), before 
the Swiss government's November 27 deadline, according to 
Japanese Mission officer Akiro Kato.  The amendment concerns 
article 6 of the protocol, on "prevention and repression of 
misuse."  The Japanese concern, which originates with their 
Patent Office and was raised in 2000 and again earlier this 
year, is that the Government of Japan not accept any 
responsibility to prevent misuse of the new emblem (the red 
crystal) before Japan ratifies the protocol.  Their proposal, 
apparently, would be to replace the language at the end of 
article 6 (6), "before the adoption of this Protocol", with 
language referring to the entry into force for a State Party. 
 
 
3. (C) Mission Counselor Piper Campbell told Kato that no 
other party had submitted proposed amendments to the Swiss 
government (depositary of the Geneva Conventions.)  We hoped 
there would be no proposals before the November 27 deadline 
for submission.  The United States Government's goal was to 
adopt AP3 unchanged from the text as negotiated in 2000 - 
when near agreement was reached.  It would be particularly 
problematic from an "optics" viewpoint if the first proposed 
amendment came from a government which has been traditionally 
supportive of the AP3.  The Swiss and others were making 
significant efforts to improve the working relationship 
between the Palestinian Red Crescent and the Magen David Adom 
and we were hopeful this would improve the mood leading into 
the conference.  Campbell specifically asked Kato if Japan 
could avoid being the first delegation to make an amendment. 
If Arab or OIC states also were to propose changes and a 
negotiating process was kicked off, a minor Japanese 
amendment wouldn't have the same impact -- although the U.S. 
goal would still be to move the text forward without 
amendment. 
 
4. (C) Kato told Campbell November 18 that he had reported 
their conversation back to Tokyo.  He still has no 
instructions, he said, either on submitting a proposal or 
monitoring whether other amendments come in.  Kato assured 
Campbell that Japan supported adoption of AP3 and anticipated 
voting positively even if their language is not incorporated. 
 
--------------------------------------------- - 
AN ALTERNATIVE WAY FOR JAPAN TO RAISE ITS CONCERN 
--------------------------------------------- --- 
 
 
5. (U) If Washington concurs, it may be useful for Embassy 
Tokyo to provide the following observations to Japan. 
 
The U.S. previously had similar concerns to those now raised 
by Japan.  We dealt with those concerns in a reservation to 
the First Geneva Convention of 1949.  The U.S. reservation 
stated: 
 
"The United States in ratifying the Geneva Convention for the 
amelioration of the condition of the wounded and sick in 
armed forces in the field does so with the reservation that 
irrespective of any provision or provisions in said 
convention to the contrary, nothing contained therein shall 
make unlawful, or obligate the United States of America to 
make unlawful, any use or right of use within the United 
States of America and its territories and possessions of the 
Red Cross emblem, sign, insignia, or words as was lawful by 
reason of domestic law and a use begun prior to January 5, 
1905, provided such use by pre-1905 users does not extend to 
the placing of the Red Cross emblem, sign, or insignia upon 
aircraft, vessels, vehicles, buildings or other structures, 
or upon the ground." 
 
The purpose of this reservation was to exempt those uses of 
the red cross that were already in effect on January 5, 1905 
-- the day that legislation took effect establishing the 
American Red Cross.  If necessary, Japan could also deal with 
its issue by way of a reservation to the Protocol 
Moley