MGLE01: UN LEGAL AFFAIRS CHIEF BRIEFS P-3 ON UNSCR

S E C R E T SECTION 01 OF 05 BEIRUT 000268

SIPDIS

SIPDIS

NSC FOR ABRAMS/DORAN/SINGH/WERNER

E.O. 12958: DECL: 01/30/2026
TAGS: PREL PGOV PTER KCRM LE SY
SUBJECT: MGLE01: UN LEGAL AFFAIRS CHIEF BRIEFS P-3 ON UNSCR
1644 FOLLOW-UP


Classified By: Jeffrey Feltman, Ambassador, per 1.4 (b) and (d).

SUMMARY
--------------


1. (S) In a 1/28 meeting, UN Under Secretary General for
Legal Affairs Nicolas Michel briefed P-3 ambassadors on his
consultations with GOL authorities on follow-up to UNSCR

1644. Michel said that he was pleasantly surprised and
relieved by the broad base of support he found for an
international tribunal. The details of where such a tribunal
would sit, who would preside, what legal jurisdiction would
be followed, etc. all need to be pursued, but the Lebanese
were generally well prepared and "asked the right questions."
Next, Michel said, he hoped the Lebanese would send a small
team to New York for consultations, after which a UN team
would return to Beirut. His goal was for UNSYG Annan to
report initially to the UNSC by March 15. UK Ambassador
James Watt revealed that the British have offered the
Lebanese use of a Cyprus airbase for Hariri-related trials.
Watt cautioned that this offer has not yet been shared with
the Cypriots and thus should be carefully protected.
Disagreeing on one point with Michel, P-3 ambassadors
questioned Michel's preference for GOL action to set up an
international tribunal rather than reliance on a UNSC
decision. UNIIIC Commissioner Brammertz, who attended the
P-3 briefing and talked with Ambassador Feltman on the
margins, said that he hoped international tribunal questions
could be answered quickly, as the UNIIIC should prepare its
own work according to the anticipated trials. Brammertz,
expressing concern that the UNIIIC must prepare a case that
would meet international standards, suggested that he will
work on establishing legal and analytical systems to replace
a rather ad hoc nature of the UNIIIC operation thus far.
Brammertz also noted that he has already establishd a liaison
unit within the UNIIIC to fulfill another part of UNSCR 1644
regarding assistance to the Lebanese in investigating the
other terrorist attacks. End summary.

IN WIDE-RANGING CONSULTATIONS, MICHEL
IMPRESSED BY SENSE OF URGENCY, APPRECIATION
--------------


2. (C) In the evening of 1/28, Michel, joined by his team
from the UN's Office of Legal Affairs (UN/OLA) and Geir
Pedersen, briefed the P-3 Ambassadors and UNIIIC Commissioner
Brammertz on his just-concluded 1/27-1/28 consultations with
the Lebanese authorities on UNSCR 1644 follow-up. Michel
noted that he had met with President Emile Lahoud, Parliament
Speaker Berri, Prime Minister Siniora, Minister of Foreign
Affairs Salloukh, Hariri bloc legal advisor (and "shadow"
Justice Minister) Bahej Tabarah, and UN staff. Minister of
Justice Charles Rizk hosted a long working lunch for the
UN/OLA team that included Prosecutor-General Said Mirza,
Higher Judicial Council chief Antoine Kheir, Presiding Judge
for the Hariri assassination Elias Eid, and judicial liaison
to the UNIIIC Judge Ralf Riachi. Everyone he met, Michel
reported, emphasized how much the Lebanese appreciate the
UN's help. All his Lebanese interlocutors stressed the need
to move quickly, to get the Hariri assassination behind them
as fast as possible. Both the appreciation and the sense of
urgency impressed Michel, he said.

"RELIEVED" TO DISCOVER BROADER
THAN EXPECTED LEVELS OF SUPPORT
--------------


3. (C) Starting out with general impressions, Michel said
that he was also pleasantly surprised, "even relieved," at
the broad base of support for an international tribunal to
try any suspects in the Hariri assassination. He was aware
of sharp political divisions within Lebanon on many issues,
but, on this question, even Shia representatives Berri and
Salloukh expressed their strong support or an international
tribunal. People may differ on the details, but Michel was
pleased to discover more common ground than he had expected,
even in the current difficult political circumstances in
Lebanon. He reported that the Lebanese had done their
homework before he arrived and thus were prepared with good
questions and comments. In general, he said, the
consultative process between the UN and the GOL must be seen
as an educational process, but the Lebanese were ready to
learn. Asked what he meant by this educational process,
Michel explained that Bahaj Tabbarah had spent much time
questioning Michel about what elements make a tribunal
considered to be "international." Michel said that he
explained to Tabbarah that the Lebanese need to think of what

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they need for fair, independent, and transparent judicial
procedures. There is no single model of when a tribunal
becomes international, and the Lebanese need to define what
works best for Lebanon. The Lebanese, Michel said, need to
think creatively.

QUESTIONS POSED TO GOL OFFICIALS
REGARDING INTERNATIONAL TRIBUNAL
--------------


4. (C) Emphasizing that he was mostly in a "learning and
listening" mode during his trip, Michel said that most of his
discussions centered on the question in UNSCR 1644 of a
tribunal, with only some comments on the part of UNSCR 1644
asking the UNSYG to consult with the GOL on providing
assistance in the investigation of the other terrorist
attacks. It was clear to him, Michel said, that no existing
model -- Lockerbie, Cambodia, Sierre Leone, etc. -- is
tailor-made for the Lebanese situation. In terms of
substance, Michel noted that he discussed the following
issues with his interlocutors regarding a tribunal:

-- Choice of law: Will Lebanese law be applied? Everyone
he met, he said, was interested in ensuring that "the main
points" of Lebanese law will be applied, but there are
details to consider. For example, some of the Lebanese
advocated using a prosecutor system rather than the Lebanese
process (based on the French) of having a juge d'instructions
(presiding judge),because the prosecutor system is perceived
to be a speedier process and could more readily pick up on
the work by the UNIIIC. Michel said that his perception that
the Lebanese would try to adhere as closely to all details of
Lebanese law and a Lebanese process were proven wrong during
his meetings.

-- Penalties: Even though Lebanon has a death penalty, all
Lebanese accepted that a UN-affiliated tribunal could only
have a maximum sentence of life imprisonment. Some
interlocutors even welcomed this condition, Michel said, and
thought it would be useful in securing cooperation from key
figures.

-- Legal instrument that creates the UNIIIC: Michel said
that, once the details of the tribunal are worked out, there
are three options for legal establishment of the court.
First, the Lebanese Parliament could pass a statute that
creates the tribunal. Second, the UN and GOL could sign an
agreement together. Third, the UNSC could pass a resolution
creating the tribunal. The first and second options, Michel
said, are legally distinct but contain some of the same
elements. If the Lebanese Parliament would pass a statute,
the UN would still need some kind of understanding with the
GOL. If the GOL entered into an agreement, per the second
option, with the UN, the GOL would probably still need some
kind of Parliamentary ratification.

-- Question of jurisdiction: In some international
tribunals, Michel noted, decisions have to be made about
whether to pursue charges of genocide, crimes against
humanity or war crimes. None of that applies to the Hariri
assassination, making the jurisdiction questions simpler.
But there still need to be decisions on whether the tribunal
will try only suspects related to the Hariri assassination or
will include other crimes as well. There is also a question
about whether the tribunal would try only the most senior
suspects or everyone involved. How this question is answered
has consequences for resources and time frame for the
tribunal, Michel reported. He said that, in general, the
Lebanese seem to want all suspects tried, no matter how minor
their roles may have been.

-- Organized structure: Will the tribunal mirror the
Lebanese system? Will there be both a trial chamber and an
appeal chamber? What will the ratio of Lebanese judges to
international figures be in each chamber? Michel said that
he advised the Lebanese not to consider the Cambodia model,
which he said had two parallel figures -- an international
figure and a Cambodian figure -- for each position. Michel
said that he considered the Cambodia model to be a "recipe
for duplication, delay, and gridlock." Michel said that his
Lebanese interlocutors were all over the map on this
question, although everyone agreed that the person in the
prosecuting role must be non-Lebanese.

-- Location: The majority of his Lebanese interlocutors
advocated that the tribunal must take place outside Lebanon,
Michel noted. But Speaker Berri and FM Salloukh "were not

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convinced," reflecting Shia concerns. Some discussed Cyprus,
while others advocated a location where the UN already had a
facility. Some even mentioned Egypt, Michel said.

-- Financing: Michel said that he briefed the Lebanese on
how financing has been done in other examples. Ad hoc
tribunals tend to have UNSC-assessed contributions, he said,
whereas others operate with voluntary contributions. Michel
said that he strongly opposes the voluntary approach, as "you
can't have the Secretariat looking around to ask for money."
He noted that many people said that Lebanon could make a
substantial contribution. While some Lebanese mused that the
Hariri family could pay for some if not all of the tribunal,
Michel commented "that is obviously a bad idea."

-- Interim measures: People now in jail were arrested under
Lebanese law, Michel said. If decisions are taken about
using a different set of laws for the actual tribunal, there
will need to be some kind of interim steps, perhaps GOL
decrees, to provide legal transition for witnesses, suspects,
and even evidence collected so far.

-- UNIIIC transition: The UNIIIC will face expiry or
another renewal on 6/15. This reality injects a sense of
urgency in the international tribunal question, Michel noted.
If the UNIIIC will be extended again, perhaps some
adjustments in its mandate and role should be made, so that
the UNIIIC shifts in accord with what is decided regarding
the trial options.

-- Witness protection program: One needs to be established,
Michel emphasized.

EXPANSION OF UNIIIC MANDATE
TO COVER OTHER ATTACKS
--------------


5. (C) While emphasizing again that this topic was of
secondary attention in his meetings, Michel said that he also
solicited people's views on whether the UNIIIC mandate should
be extended to investigate other terrorist attacks since the
10/1/04 car bomb attack against Marwan Hamadeh. Michel said
that he emphasized that UNSCR 1644 already authorized the
UNIIIC to provide assistance at the request of the GOL, "and
I urged everyone to make full use of these facilities."
Brammertz interrupted to say that he has already set up a
special liaison unit within the UNIIIC to provide such
technical assistance and advice to Lebanese investigations.
By keeping this unit isolated from the daily tasks of the
Hariri assassination, Brammertz thought that he could provide
services to the GOL without distracting attention away from
the UNIIIC's central mission of the Hariri investigation.
Nodding, Michel said that he strongly believed that it was
premature to ask for formal expansion of the UNIIIC mandate
to cover the other crimes. Progress on the Hariri
assassination and movement toward a trial might provide some
guidance over whether such expansion is really needed, he
said.

NEXT STEPS: GOL TO SEND
TEAM TO UN HEADQUARTERS
--------------


6. (C) In terms of next steps, Michel said that he hoped
the GOL would nominate a small team ("one or two persons") to
come to UN headquarters to talk in more detail about the
issues raised during these initial consultations. Smiling,
Michel said that he was aware that the nominations for such a
team would cause controversy inside Lebanon, as there is
likely to be competition over who gets to appoint the
members. Minister of Justice Charles Rizk (allied with
President Lahoud) was very eager to make the nominations
immediately, but PM Siniora might have other ideas. Next,
UN/OLA will send a team back to Lebanon for a longer period,
during which time the team will also meet with a broad range
of civil society in order to educate people about the meaning
of an international tribunal.


7. (C) Regarding timing, Michel quoted that UNSCR 1644
requires UNSYG to report back "on a timely basis" on the
question of an international tribunal. In Michel's view, it
would make sense for UNSYG Annan to provide an initial report
to the Security Council before or by March 15, when the
UNIIIC issues its next report. And then it would make sense
to have a more definitive report on UNSCR 1644 follow-up by
the time the UNIIIC mandate is again debated, in June.


BEIRUT 00000268 004 OF 005


P-3 AMBASSADORS QUESTION
GOL ABILITY TO MAKE DECISIONS
--------------


8. (C) Asked by the Ambassadors what points seemed most
contentious to the Lebanese, Michel said that he sensed
disagreements over the location and over the amount of
Lebanese composition in judicial teams. But neither of these
seemed to be deal breakers, he said. On the other hand,
there seemed to be a huge disagreement over the legal
instruments to be used to create the tribunal. Speaker Berri
said that another UNSCR would be red line that would destroy
the Lebanese consensus for an international tribunal. While
noting that his rationale was different than Berri's, Michel
said that he, too, did not like like the idea of UNSC action.
Instead, he favored some kind of GOL action, either a
parliamentary statute or GOL agreement with the UN ratified
by the parliament. That would create Lebanese "ownership,"
and contribute to capacity building within Lebanon. Berri,
Michel said, had boasted that he could get all parliamentary
action completed in less than two months, a considerable
improvement over the eighteen months it took Sierra Leone's
legislature to act.


9. (S) The P-3 ambassadors cautioned Michel that Berri
could not be trusted in accelerating a legislative calendar
for controversial bills. The P-3 ambassadors expressed
considerable skepticsm that Michel's preference for
parliamentary action was realistic. French Ambassador Emie,
endorsed by his P-3 colleagues, flatly rejected the notion
that the Lebanese will be able to pass a law creating the
tribunal. Citing many examples when the Lebanese
confessional structures led to gridlock, the ambassadors
urged that Michel start thinking now about UNSC action
instead. Michel said that, unless there was UNSC unanimity
in passing a resolution, the tribunal would be of
questionable legitimacy. How, he asked, do you get the
Russians and Chinese to vote in favor of a resolution
creating a tribunal, if there is no consensus inside Lebanon?
The ambassadors again noted that, whatever the difficulties
in New York, forcing the Lebanese to act risks destabilizing
the country. "The Syrians have clearly decided to
destabilize Lebanon," Emie insisted. "They are using
assassinations, and they are using Hizballah. They will use
any proposal that the parliament create the tribunal to make
things worse." Moreover, the ambassadors noted, a
UNSC-created tribunal might have better luck getting Syrian
cooperation than anything that came into being because of a
Lebanese parliamentary act.

MUSING ABOUT AN ICC OPTION
--------------


10. (S) Saying that he knew very well what the U.S.
reaction would be, Michel said that there was another option,
perhaps the simplest option, were it not for probable
political objections. The Treaty of Rome creating the
International Criminal Court could be amended, adding crimes
related to terrorism as another part of the ICCC
jurisdiction. Emie noted that the outgoing UNIIIC
Commissioner Mehlis had mused about the same approach.
Ambassador Feltman emphasized that the USG would not support
moving in this direction.

WATT SAYS UK OFFERS UP CYPRUS
(BUT WITHOUT INFORMING CYPRIOTS)
--------------


11. (S) Referring to the question of the location of the
trial, UK Ambassador James Watt revealed that, during Jack
Straw's visit to Lebanon in early January, Straw had offered
the Lebanese the use of UK airbases in Cyprus as a location
for an international tribunal. Flights from Lebanon or Syria
could go, for security reasons, directly to the airbase
rather than via Lanarca Airport. Watt cautioned that the UK
has not yet discussed this option with the Cypriots
themselves, so he asked that the information be closely held.
Michel noted that several Lebanese had made reference to
Straw's offer and appeared to be interested in pursuing it.

BRAMMERTZ SEEKS CLARITY, ORDER, SYSTEMS
--------------


12. (C) On the margins of the P-3 briefing, newly arrived
UNIIIC Commissioner Brammertz and Ambassador Feltman spoke
briefly and agreed to meet in the coming days (time TBD).
Brammertz said that he is eager for some of the questions

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regarding the international tribunal to be answered, as the
UNIIIC needs to adjust how it collects and dispenses with
evidence in accordance to the laws and procedures to be
applied in any trials. For example, Brammertz said, the
assumption in UNSCR 1595 and subsequent resolutions has been
that the UNIIIC is, essentially, helping the GOL prepare for
an eventual Lebanese trial. Thus, Brammertz said, his
predecessor, Detlev Mehlis, had periodically turned over all
evidence to the Lebanese presiding judge. If an
international tribunal will be trying the case instead,
perhaps the UNIIIC should have different procedures for
preserving the evidence.


13. (C) Asked about his own approach, Brammertz generously
praised the work of Mehlis, saying that he would build on
Mehlis' own analysis and work. But, Brammertz said, the
environment has changed, and the UNIIIC needs to adjust.
When Mehlis arrived, he thought the UNIIIC would be around
for only three months and be required merely to submit a
report to the UNSC. He then got a six-week extension,
followed by another ten-week extension, followed by an
agreement to stay on a few additional weeks awaiting
Brammertz' appointment and arrival. All of this meant that
the UNIIIC remained a rather ad hoc institution, Brammertz
said. Now, besides continuing to pursue leads, the UNIIIC
need to increase its own legal and technical capacities.
Brammertz reported that he was setting up new units within
the UNIIIC to deal exclusively with preparing files to make
them up to international standards. Asked by the Ambassador
about competing priorities, he insisted that this
"standardization" would not come at the expense of the actual
investigation but was absolutely critical to the UNIIIC's
ability to understand and present what it had. There were
some technical leads, too, that Mehlis never pursued because
he lacked the technical expertise. Now is the time to build
up the in-house technical expertise. Brammertz also said
that the UNIIIC was having to do more of the trial
preparatory work than had originally been envisioned, since
the GOL has proven politically incapable of taking this on.
This, again, suggeseted that the UNIIIC had to move into a
more institutionalized phase.

COMMENT
--------------


14. (C) Before the arrival of the UN/OLA team, rumors
circulated around Beirut that the UN was foot-dragging on the
follow-up to UNSCR 1644. Battered by these rumors, people
had resigned themselves to thinking that Michel's visit would
be a box-checking exercise meant to postpone any real
discussion of an international tribunal. Yet if there is a
lack of enthusiasm in UN headquarters for the UNSCR 1644
issues, Michel did not reveal it in his P-3 briefing. We've
talked with some of the Lebanese whom Michel met, and their
assessment was that Michel was intensely focused on coming up
with the answers needed to decide how best to pursue UNSCR
1644's requests to UNSYG Annan. We, too, were impressed by
the clarity of his analysis. Separately, UNSYG's Personal
Representative for Lebanon Geir Pedersen told us that he did
not detect any sense of unease or unhappiness on the part of
Michel for his mission here. Given the ongoing cabinet
crisis provoked by the question of an international tribunal,
it is encouraging news for Lebanon's political majority that
the UN Secretariat seems to be taking UNSCR 1644 seriously.
We hope that Michel's apparent commitment to pursuing UNSCR
1644 follow-up will be matched by a Lebanese commitment to
choose quickly the small team Michel wants to travel to New
York. In the course of our discussions with Lebanese
political leaders, we will certainly raise this issue.
FELTMAN