LEBANON: NICHOLAS MICHEL IN LEBANON; NEEDS TIME

C O N F I D E N T I A L SECTION 01 OF 03 BEIRUT 002901

SIPDIS

SIPDIS

NSC FOR ABRAMS/DORAN/MARCHESE/HARDING

E.O. 12958: DECL: 09/07/2016
TAGS: PREL PTER KCRM LE SY
SUBJECT: LEBANON: NICHOLAS MICHEL IN LEBANON; NEEDS TIME
FOR TRIBUNAL AGREEMENT

REF: STATE 140003

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

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


1. (C) During a 9/7 meeting with the Ambassador and poloff
at the Phoenicia Hotel, UN Legal Adviser Nicholas Michel
provided an overview of his discussions with the Lebanese
regarding the draft "Statute of the Special Tribunal for
Lebanon." On sequencing, Michel said that PM Siniora should
wait for the UN Security Council to approve the statute
before moving ahead on Lebanese Cabinet and Parliamentary
approval. Michel noted that a UN Security Council resolution
establishing the tribunal is not a requirement. On substance
issues, Michel explained that the current draft grants the
tribunal scope over the Hariri assassination and "related
acts of a similar nature and gravity" between October 1, 2004
and Dec 31, 2005. He added that Article 3 of the agreement
gives the tribunal jurisdiction to try people for "crimes
against humanity," and that a main reason this was put in the
agreement is to avoid appending a separate and explicit
provision against immunities, which is potentially counter to
the Lebanese constitution. Michel implied there is a
disconnect within the GOL since PM Siniora had not been aware
of many of the details on timing, whereas the GOL's legal
team had been. Michel was accompanied by UN OLA's Mark
Quarterman and UN Special Representative for Lebanon Geir
Pedersen. END SUMMARY.

OTHER MEETINGS
--------------


2. (C) Michel had already met with other members of the P5
as well as separately with PM Siniora and Justice Minister
Charles Rizk (accompanied by the GOL legal team). Following
our meeting, Michel planned to meet with former Justice
Minister -- and Hariri family confidante -- Bahij Tabbareh,
who has been deeply involved in negotiating the draft
statute. Critically, Nabih Berri refused to meet with Michel
during his short visit to Beirut, a sign that Berri may try
to block GOL passage of the draft statute.

REALISTIC TIMETABLE FOR TRIBUNAL APPROVAL
--------------


3. (C) Michel said he sensed a disconnect between Siniora
and Rezk as far as the necessary sequencing for approving the
statute. Siniora had intended to present the draft
immediately -- "within two or three days" -- to the Council
of Ministers to approve and forward to the Chamber of
Deputies (Parliament),which Michel said is not advisable
since the statute still needs to go through a rigorous UNSC
vetting process from which it might emerge much altered.
Michel recommended Siniora wait until then to seek GOL
approval. However, Rizk and the GOL legal team were already
well aware of the necessary steps still to be taken, and
Michel and Pedersen wondered why they had not informed the
Prime Minister of this. "The Prime Minister does not appear
to have thought critically," noted Pedersen.


4. (C) As far as next steps, Michel leaves Beirut with the
latest draft which UNSYG Annan will present in a report to
the Security Council. Michel noted that there are already
several Lebanon-related reports -- the UNSCR 1701 report next
week, the Brammertz report in late September, the UNSCR 1559
report in late October -- filling the schedule, so he
proposes Annan forward his report on the tribunal, including
the statute, to the UNSC sometime during the first two weeks
of October. The Council would then deliberate and return
comments on the draft, though Michel hopes these will already
have been worked out in consultations beforehand to hurry
along the process. Then comes the complicated GOL approval
process. Michel estimated the whole process might take two
to three months. Notably, Michel said that a further
authorizing UNSC resolution under Chapter VII -- while
desirable -- would not be required in order to sign the
statute and establish the tribunal (he mentioned that the
Sierra Leone tribunal did not have an establishing
resolution).

BEIRUT 00002901 002 OF 003



TRIBUNAL JURISDICTIONAL ISSUES
--------------


5. (C) On substance, the key issues of concern are the
same: the tribunal's scope to try other cases and the
jurisdiction to charge suspects with crimes against humanity.
Regarding scope, Michel said that his GOL interlocutors have
agreed to keep the current language in the statute allowing
the tribunal jurisdiction over suspects in the Hariri
assassination "as well as for other related acts of a similar
nature and gravity which occurred in Lebanon between 01
October 2004 and 31 December 2005." (Note. Michel let us
glance at the most recent draft, which shows this is no
longer bracketed language. End Note.) The Ambassador said
that the USG position is that the "nature and gravity"
language gives the tribunal too broad a jurisdiction, while
bookending it with the two dates is too limiting since, as we
saw with the Shehadeh assassination attempt this week, there
is still a threat against Lebanon. Michel assured us that
the use of the term "related acts" means the tribunal will
encompass only crimes that are clearly materially related to
the Hariri assassination.


6. (C) Regarding the timeframe, Michel said that the UN
wants to exercise some form of control over the scope of
time, since there is a perception that the tribunals on
Sierra Leone, Rwanda, and the former Yugoslavia have "gone
out of control". However, Michel added that if there were
another "series of attacks" in Lebanon, then "minds might
change." He noted that Hizballah is reportedly "adamantly"
against broadening the tribunal's jurisdiction beyond just
the Hariri assassination.


7. (C) Michel raised Articles 2 and 3 of the draft statute.
Article 2 gives the tribunal jurisdiction to try people for
terrorism according to Lebanese law and, notably, the 1998
Arab Convention on the Suppression of Terrorism (providing
wider Arab cover),while Article 3 allows for suspects to be
tried for crimes against humanity. The Ambassador raised
reftel points, but Michel countered that it makes sense from
a legal and political perspective to include this Article 3.
He noted that tribunal judges will not be able to try
suspects solely for crimes against humanity, but will have to
include a terrorism charge as well (though suspects can be
charged solely for terrorism if there is insufficient
evidence to support a crimes against humanity charge).


8. (C) Furthermore, implicit in the crimes against humanity
international legal understanding is a "clear provision
against immunities," which might otherwise have to be
explicitly spelled out in an annex (such as the Sierra Leone
tribunal statue contains). The GOL legal team had noted to
Michel in their earlier meeting that this might be counter to
Lebanon's Constitution, allowing suspects to potentially
submit complaints to the Constitutional Council. This would
also give political ammunition to those in Lebanon opposed to
the tribunal. Michel said he will keep the language as it is
and see if it can gain consensus in New York, though Justice
Minister Rizk warned him that any seeming reluctance within
the UNSC will only increase the difficulty of ultimately
gaining GOL approval for Article 3.

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


9. (C) Though Michel's chronology of the steps needed to
approve and establish the tribunal will dash the hopes of
those -- including Siniora -- who wanted a rapid adoption of
the agreement, there is a silver lining in that the issue
will continue to be headline fodder in Lebanon at various
points (Michel's return to New York, the Secretary General's
presentation to the UNSC, etc.),presumably having a
dissuasive effect on would-be attackers. Further, while we
would prefer the attacks' timeframe in the statute be left
open-ended and not restricted to 15 months, as an added
deterrent we should make known the possibility that the
tribunal might extend to include a further series of attacks
(if the Shehadeh attempt proves to be the start of a new
bombing campaign).


BEIRUT 00002901 003 OF 003



10. (C) Berri's refusal to meet with Micel, ostensibly
because of his parliamentary sit-in, is a concern. Berri
could be using the tribunal issue to gain leverage over
Siniora and Hariri in terms of access to reconstruction
money. He could also be following instructions from his
Hizballah coreligionists, without whom he has little
political vitality amongst Lebanese Shi'a, to play hardball
in order to scuttle or gain concessions on the tribunal.
Whichever the case, we will keep a close watch on Berri's
position on the tribunal as the agreement evolves.
FELTMAN