41. Memorandum From the Executive Secretary of the Department of
State (Eliot) to
the President’s Assistant for National Security Affairs (Kissinger)1
2
Washington, June 24, 1970.
Subject:
-
OAS General Assembly Agenda Item
on Terrorism and Kidnapping
In response to Mrs. Davis’ request of June 22, I
enclose a copy of the Issues Paper for the Secretary of State
prepared on this subject. The question continues to be under
informal discussion among certain OAS Representatives in Washington as well as with
Foreign Ministries, but a consensus has yet to develop on the
content of a resolution to be adopted by the General Assembly.
In addition to the Argentine draft and the U.S. suggestions
summarized in the attached memorandum, the Mexican Representative
late last week gave us what he termed a “skeleton” draft. This, in
effect, does little more than the Permanent Council resolution, in
that its operative paragraphs simply (1) reaffirm human rights
principles; (2) condemn acts of violence, including acts of
terrorism, especially kidnapping and extortion; and (3) recommend
that the Inter-American Juridical Committee and the Inter-American
Commission on Human Rights submit recommendations to the next
session of the General Assembly on the aspects of the problem that
can be subject to international action. Additionally, however, the
Mexican Representative-expressed general agreement with our proposal
on the preparation of an international instrument
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recognizing terrorist acts against
representatives of foreign states as international crimes. There are
several aspects of the Argentine draft that Mexico cannot accept,
including the identification of terrorist acts as common crimes and
the mention of asylum and extradition.
We have just received a copy of a Brazilian draft resolution, whose
operative paragraphs: (1) recommend that member states take adequate
domestic measures with respect to crimes of terrorism and
kidnapping, including appropriate definition under their penal laws;
(2) urge member governments bilaterally and multilaterally to
exchange information and coordinate action; (3) request the
Inter-American Juridical Committee (IAJC) to commence within 30 days and complete in 60
days thereafter a draft international instrument dealing with the
objective of this resolution; (4) recommend that the IAJC in its proposal take account of
the need to adjust the practice of asylum and extradition so as not
to benefit the perpetrators of such crimes, which should be
characterized as international crimes and crimes against humanity;
(5) recommend that the Permanent Council urgently convoke a special
session of the OAS General Assembly
to examine and approve the IAJC
proposal as soon as it is completed. (The draft resolution does not
specifically mention terrorist crimes against representatives of
foreign states, which, of course, is an important point as far as we are concerned.)
We have a number of returns from our circular telegram explaining the
Argentine proposal and our suggestions. These preliminary reactions
indicate that: Uruguay reacts favorably to our suggestions for
strengthening the Argentine draft; Venezuela is inclined to support
the Argentine draft but agrees with us that the international
aspects of the problem should be strengthened; Costa Rica, Nicaragua
and Paraguay are in general agreement that the Argentine draft needs
strengthening; Colombia in principle supports the Argentine draft
but will study other suggestions, including ours; Mexico will study
our suggestions, and is grateful of our desire to avoid any adverse
reflection on Mexico’s actions in receiving “ransomees”; Barbados
agrees “something must be done” collectively; Guatemala tends to
favor
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concentrating on
moral condemnation, but will defer to others to take the initiative,
as will Jamaica for different reasons; Bolivia, Peru and Chile are
so far non-committal but will study
our suggestions.
There seems to be some difference of opinion between those who
advocate unanimity even at the sacrifice of a strong resolution, and
those who advocate the reverse.
In our case, we are prepared to make some adjustments in our own
proposals as we learn more of the positions of other members. So
far, in our conversations, we have found considerable agreement with
our desire not to limit the options available in seeking the release
of kidnapped diplomats (or other persons).
Theodore L. Eliot, Jr.
Executive Secretary
[Page 4]
Enclosure
Issues Paper
OAS POLICY AND ACTION ON
TERRORISM AND KIDNAPPING
(Agenda Item 13)
Summary of U.S. Position
The U.S. supports the Argentine initiative in raising this matter
as well as the Argentine draft resolution which is now under
informal discussion among OAS
members. However, since the Argentine resolution is addressed
primarily to the problems of terrorism and kidnapping in
general, regardless of the victim (with only passing mention of
such crimes committed against representatives of foreign
states), the U.S. is endeavoring through the present
consultation process to strengthen the draft by adding greater
emphasis to the international aspects of the problem, including:
(a) a specific condemnation of terrorist acts (including
kidnapping) against representatives of foreign states; (b) a
recommendation that member states facilitate the extradition of
terrorists; (c) a provision setting in motion the preparation of
an international instrument declaring terrorists acts against
representatives of foreign states to be international crimes;
(d) a call on world opinion and particularly on countries and
organizations that maintain ties with terrorist movements. This
last suggestion might serve as a springboard for future
consideration by the UN General
Assembly.
We are seeking to avoid any steps in the OAS that might limit the options available to
governments in securing the release of kidnapped diplomats,
including the release of prisoners (who might themselves be
terrorists) into asylum as ransom, when agreed to by the
governments concerned.
[Page 5]
Discussion
Argentina took the original initiative in April 1970 in placing
this matter before the OAS
Permanent Council, and Uruguay added the proposal that it go
from there to the General Assembly. On May 15 the Permanent
Council adopted a resolution that: (1) reaffirmed human rights
principles; (2) condemned terrorist acts as crimes against
humanity; and (3) recommended the inclusion of this item on the
General Assembly agenda, namely “The general action and policy
of the Organization regarding acts of terrorism and particularly
the kidnapping of persons and extortion connected with that
crime”.
Argentina continues to take the principal initiative and has
circulated to members a draft General Assembly resolution, whose
operative paragraphs would: (1) reaffirm human rights
principles; (2) condemn terrorism, kidnapping and extortion; (3)
declare that, despite any ideological significance, such acts
are common crimes; (4) recommend that member states take
measures domestically to put an end to such crimes, define them
under their penal laws, and establish suitable penalties; (5)
urge member governments bilaterally and multilaterally to
exchange information and coordinate action with respect to such
crimes; (6) request the Inter-American Juridical Committee to
study the status and responsibility of the perpetrators of such
crimes, which affect not only internal peace but also, in the
case of the kidnapping of representatives of foreign states,
disturb the normal functioning of international relations-with
the stipulation this study consider especially (the question of)
the application in such cases of the right of asylum whose
purpose is to protect human rights.
Paragraphs 3 and 6 above are connected, as they relate to the
principle that common criminals are not entitled to the right of
asylum (nor to exemption from
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extradition). The Argentines explain that
paragraph 3 is designed to provide a helpful basis for
governments that wish to apply this principle to terrorists,
including kidnappers, while the results of paragraph 6 would
hopefully go a step further by providing a firmer juridical
basis and definition for such application perhaps through
international commitments.
While in general agreement with the Argentine proposal; we have
suggested that it be strengthened by including provisions that
would: (1) add to paragraph 2 a specific condemnation of
terrorist acts directed against representatives of foreign
states as violations of not only human rights but also of
principles governing the conduct of relations between states;
(2) sharpen the wording of paragraphs 3 and 6 to avoid any
implication that terrorists are entitled to asylum under present
law; (3) add to paragraph 4 a recommendation that member states
facilitate the extradition of terrorists; (4) add a new
paragraph requesting the Permanent Council, in consultation with
the Inter-American Juridical Committee and with the assistance
of the General Secretariat, to prepare for submission to a
specialized Inter-American Conference an appropriate
international instrument recognizing terrorists acts, including
kidnapping, directed against representatives of foreign states
as international crimes and stipulating measures to deter and
punish such crimes; (5) add a new paragraph calling on world
opinion, and particularly on those countries and organizations
that maintain ties with movements that perpetrate these crimes,
to use their influence to help bring an end to such acts.
In making suggestion (1) above we have pointed out that it was
the kidnapping of diplomats that brought the matter to OAS and world attention and hence
should be added to the condemnation, and that
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we are not thinking of diplomats as
specially privileged persons (a point that concerned some of our
colleagues) but as agents conducting relations between states.
The measures contemplated in suggestion (4) could include, among
others, the prosecution by any state of terrorist crimes against
foreign representatives (as in the case of piracy), a commitment
to extradite such criminals, and/or extended statute of
limitations for such crimes. In suggestion (5) we are thinking
of a springboard for possible consideration in the UN General Assembly and of bringing
some focus to bear on the indirect responsibility of those
countries and organizations that advocate armed struggle and
terrorism (e.g. the Havana-based Latin American Solidarity
Organization and the Tricontinental Organization that recently
published a manual on terrorism). Some members have problems
with this suggestion, which they consider an indirect accusation
against Cuba and other communist countries.
In connection with our desire to avoid limiting the options
available in securing the release of kidnapped diplomats (see
summary), we believe it is essential to maintain a clear
distinction between the traditional right of asylum as a
humanitarian principle for the benefit of the asylee, on the one
hand, and the recent granting of asylum to prisoners at the
request of the governments concerned as a humanitarian expedient
for the benefit of a kidnapped person. In our view, a limitation
on the right of asylum would affect the former but not the
latter. By making this distinction clear, we hope both to keep
the options open and to set to rest Mexico’s misgivings that the
proposed resolution might reflect adversely on recent actions by
the Mexican Government in granting asylum to “ransomees”.
Note: A revised Argentine draft has just been received and will
be appended when translated, together with a text of the U.S.
suggestions. Since
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both will be under continuing discussion, and since hopefully
many of our suggestions will be incorporated in the Argentine
draft, there will doubtless be changes in the days ahead.
[Page 9]
Enclosure
NATIONAL SECURITY COUNCIL
WASHINGTON. D.C. 20506
June 22, 1970
MEMORANDUM FOR
- Mr. Theodore L.
Eliot, Jr.
- Executive Secretary
- Department of State
SUBJECT:
- Information Memorandum on the June 25 Meeting of the
OAS General
Assembly
We would appreciate receiving by the close of business June 24 an
information memorandum for Dr. Kissinger on the terrorism and kidnapping item
on the agenda for the Special Session of the Organization of
American States (OAS) General
Assembly scheduled to begin meeting in Washington on June 25.
This memorandum should cover the issues raised by the agenda
item, the U.S. position. and the anticipated positions of the
other OAS countries.
