LEBANON: RIZK ON GOL SUING ISRAEL, ELECTORAL LAW

C O N F I D E N T I A L SECTION 01 OF 04 BEIRUT 003195

SIPDIS

SIPDIS

NSC FOR ABRAMS/DORAN/MARCHESE/SINGH

E.O. 12958: DECL: 10/03/2026
TAGS: KCRM PREL PTER LE GM SY IS
SUBJECT: LEBANON: RIZK ON GOL SUING ISRAEL, ELECTORAL LAW
REFORM, AND THE UNIIIC TRIBUNAL

REF: A. USUN 1899

B. STATE 166376

Classified By: Ambassador Jeffrey D. Feltman for reasons 1.4 (b) and (d
).

SUMMARY AND COMMENT
--------------


1. (C) Over lunch with the Ambassador and econoff on 10/2,
Justice Minister Charles Rizk shared an e-mail (full text in
para 6 below) sent by UN/OLA to his staff suggesting changes
in the draft statute for the special tribunal on the Hariri
assassination. The e-mail notes that UN/OLA had dropped the
"crimes against humanity" article and was considering new
formulations on other points. (We find particularly
attractive a proposed sentence on crimes beyond December 2005
that does not commit the tribunal to anything without UNSC
consent but could nevertheless serve as a deterrent.) If, as
the French suggested to USUN (per ref a),a new draft statute
exists, the Lebanese do not have it. Rizk told the
Ambassador by phone on 10/4 that the Lebanese have not yet
responded to the questions posed by UN/OLA but would do so
today or tomorrow. On other topics, Rizk also reported on
the 10/2 Lebanese cabinet meeting, which authorized him to
"sue" Israel for crimes committed during the July-August
conflict. That cabinet meeting also took up Prime Minister
Siniora's trip to address the EU Parliament, Siniora's
meeting with German Chancellor Merkel, and GOL efforts to
improve public awareness of reconstruction efforts. Rizk
also discussed his hope for electoral reform. End Summary
and comment.

DRAFT STATUTE ON TRIBUNAL
--------------


2. (C) Refs A and B suggest that UN/OLA has revised the
statute for a the special tribunal of international character
to be set up to try suspects in the murder of Rafiq Hariri.
Hosted by the Ambassador to lunch on 10/2, Rizk shared an
e-mail (see text in para 6 below) sent by the UN Office of
Legal Affairs (OLA) in New York to Judges Chukri Sadr and
Ralph Riachi, the two Lebanese jurists negotiating the text
with Nicolas Michel and his UN/OLA staff. While this e-mail
suggests textual amendments of the proposed statute, it is
not a complete draft. Contacted by the Ambassador by phone
on 10/4, Rizk confirmed that neither he nor his judges have
received a complete draft. He expected that the Lebanese
would forward answers to UN/OLA's questions "today or
tomorrow."


3. (C) Rizk expressed satisfaction with the changes
proposed in the UN/OLA e-mail. The elimination of the
previous Article 3, "crimes against humanity," would help win
cabinet approval, he though, while the hoped-for cancellation
of any presidential immunity could be handled by other means.
Concerned about deterring future attacks, Rizk approved
proposed language responding to one UNSC member's question on
allowing the tribunal -- with the approval of the parties (UN
and Lebanon) and the consent of the UNSC -- to consider the
inclusion of crimes beyond December 2005.


4. (C) In terms of timing, Rizk expects to have an official
text -- not just an e-mail -- within 10 days, at which point
he will show the text to PM Siniora, Speaker Berri, Telecom
Minister Hamade, Saad Hariri, and Walid Jumblatt. If they
have no major objections, Rizk will ask for Siniora's public
approval before taking the text to the cabinet. Rizk opposes
Marwan Hamadeh's idea of having the text before the cabinet
twice, once for approval "in principle" and one to approve
submitting an actual text to the parliament. Such a strategy
is too risky, Rizk said, arguing that one final approval by
the cabinet is the better approach.


5. (C) Rizk is eager to enact the tribunal now, not because
the case is ready for trial, but because he is anxious to
designate a prosecutor. He hopes that UNIIIC Commissioner
Brammertz will agree to stay on if he is assured of becoming
the prosecutor. He is also eager to get agreement on the
tribunal before next December, when the next Brammertz report
is due, as he expects the next report will be "more damning."



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6. (C) The e-mail from the UN OLA's follows below.

Begin Text:

Dear Judges,

The results of the informal consultations conducted with
Members of the Security Council have clearly shown that while
there is a general agreement for the inclusion of the 14
other related terrorist attacks within the jurisdiction of
the Tribunal, there is no support for the inclusion of crimes
against humanity. We have, accordingly, revised the Statute
to include within its subject-matter jurisdiction only crimes
under the national laws of Lebanon. In revising the Articles
on the jurisdiction of the Tribunal, we have also revised a
number of other provisions throughout the Statute, on which
we would appreciate your views, comments and suggestions.
The Articles referred to in this Note, unless otherwise
indicated, are those contained in the 28 September draft.

a.
Article 1 on the jurisdiction of the Special Tribunal is now
more explicit on the series of terrorist attacks falling
within the jurisdiction of the Tribunal, beginning on October
1 and ending on 12 December 2005. One Member State has
suggested that the temporal jurisdiction of the Tribunal be
left open-ended in order to ensure that related crimes
committeed after 12 December will not go unpunished. At the
end of the paragraph we added, therefore, the words "or on
any later date decided by agreement of the Parties and the
consent of the Security Council."

b.
Article 2 omits any reference to the Arab Convention and now
includes only crimes under Lebanese law. We would appreciate
your views on what other "lesser crimes" under the Lebanese
Penal Code might be included in Article 2 of the Statute.

c.
Old Article 3 on crimes against humanity is omitted.

d.
New Article 3 on principles of individual criminal
responsibility. The word "individual" was deleted throughout
the Article. In paragraph 1, the words "in accordance with
general principles of international law" were deleted.
Paragraph 4 which refers to the principles applicable under
Lebanese law is deleted also since it is now self-evident
that only those principles are applicable. At the same time,
however, we wonder whether the principles established in
paragraphs 2 and 3 could be considered also principles of
criminal responsibility under Lebanese Criminal Code and thus
be retained in the text. In this connection, we would like
your views on whether the following immunity clause would be
acceptable: "The official position of any accused persons
(whether as Head of State or Government or as a responsible
official) shall not relieve such person of criminal
responsibility nor mitigate punishment."

e.
Article 4 on concurrent jurisdiction - in paragraph 3(a),a
second line, the date 31 December 2005 is changed to 12
December.

f.
Article 5 on non-bis in idem, in paragraph 2, third line, the
word "international" has been square-bracketed. It should
now read: "were designed to shield the accused from criminal
responsibility."

g.
Article 9, paragraph 2. with the omission of crimes against
humanity from the jurisdiction of the Tribunal, it is
questionable whether competence in "international law,
including international criminal law and human rights law"
would still be required for the appointment of judges. These
words are now inserted in square-brackets.

h.
Article 26 on appellate proceedings. In paragraph 3, the
reference to decisions of the Appeals Chambers of the ICTY
and ICTR has been omitted. The revised paragraph would now
read: "Judges of the Appeals Chamber shall be guided by the

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decisions of the Court of Cassation of Lebanon."

i.
Article 28, paragraph 2. We have maintained the reference to
the international Rules of Procedure and Evidence which now
may be appropriate only in part.

We would appreciate your views on any and all of the
above-mentioned provisions and any other suggestions you may
have.

Best regards,
Larry D Johnson
UN/OLA

End Text.

AUTHORIZED TO SUE ISRAEL
--------------


7. (C) Discussing the cabinet meeting he had attended
immediately prior to the Ambassador's lunch, Rizk reported
that he asked for and received authorization to pursue a
lawsuit against Israel for crimes committed during the July
and August conflict. He has little expectation of a
financial reward, and -- questioned by the Ambassador about
the self-destructive and futile nature of such a request --
recognized that he runs the risk that Israel will counter
with a suit asking Lebanon for damages, on the basis that
Hizballah's kidnapping of Israeli soldier provoked the action
and Hizballah intentionally targetted civilians. Rizk views
the suit as a "public relations" effort and a psychological
ploy; he plans to find a "celebrity" lawyer to take on the
case, even though he expects results. (Comment: It is
dismaying to see someone who has played such an unexpectedly
constructive role on the UNIIIC and tribunal embrace a
populist, public relations stunt that will only annoy people
Lebanon should have as friends now. It was perhaps
inevitable that the cabinet would authorize such a move, but
we will work to see if the proposal can be quietly shelved.
End comment.)

READOUT FROM SINIORA'S TRIP TO BERLIN
--------------


8. (C) The Council of Ministers also discussed Siniora's
recent address to the EU Parliament and the Prime Minister's
two hour bilateral meeting with Angela Merkel in Germany.
Rizk, who was part of the official party to Germany and
Strausbourg, was quite pleased that Siniora "was treated like
a head of state." German officials apparently asked Siniora
"how they could help (Lebanon) with the Syrians," which the
Lebanese interpreted as a sign of German friendliness.


9. (C) The Lebanese delegation also talked to the Germans
and other EU partners about Iran. Rizk predicted that
between six months and two years from now, the international
community would have to "sit down with the Iranians to make
an arrangement." The EU will not support a war between the
United States and Iran, Rizk said, but it will assist with
U.S.-Iran negotiations.

RECONSTRUCTION
--------------


10. (C) Reconstruction was also high on the cabinet's
agenda. Apparently aware of strong concerns that Siniora's
refusal to delegate reconstruction authority is slowing the
process and leaving the GOL open to criticism, Minister of
Social Affairs Nayla Mouawad had suggested at the October 2
cabinet meeting that the GOL issue daily communiques on
reconstruction progress as a publicity counter-offensive
against Hizballah and Aoun criticism.

APPOINTMENT OF JUDGES
--------------


11. (C) Rizk's said his major task this week is rectify the
confessional allocation of two senior judges awaiting
appointment. Apparently the committee of judges who made the
recommendations mistakenly nominated a Shia for a
Druze-designated slot, and intentionally tried to place a
Greek Catholic in a traditionally Maronite slot. While the

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community of judges elects a slate to fill senior judicial
positions, the appointments require approval from the
Minister of Justice, Prime Minister, Minister of Defense, and
the President. Seven of 10 judges may veto any ministerial
denial of their slate, indicating some level of judicial
independence.

ELECTORAL REFORM NEEDED TO
DECONFESSIONALIZE, DEMOCRATIZE
--------------


12. (C) Rizk expressed frustration several times at
President Lahoud's obstructionist behavior, which means as a
practical matter that the Cabinet and Parliament must
unanimously on any decision or face the possibility that
Hizballah could leae the government. "We need to go beyond a
confessional system by means of an electoral law" that would
help Lebanon transition to a "real" parliamentary system
rather than a confessional system, Rizk said. "This is
becoming an obsession with me."


13. (C) Rizk was also frustrated with heightened sectarian
tensions. He cited a street conflict on Saturday night that
may have started as a personal dispute but has taken on
sectarian and political overtones as the two groups of
participants were apparently pro-Hariri and pro-Berri. Rizk
commented, "why are we (the LAF and UNIFIL) in Naqoura if we
can't control Beirut?"

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


14. (C) If, as Ref A suggests, there is a complete new
draft statute on the special tribunal, Rizk does not have it.
In fact, it appears from the e-mail text (in para 6 above)
that the ball is in the GOL's court to respond to a few
questions -- which Rizk insisted the GOL will do today or
tomorrow. We are intrigued by the language on how to deal
with crimes after December 2005. The language in the UN/OLA
e-mail would prevent the tribunal from being open-ended while
also -- we hope -- providing some deterrent effect. As for
the question of whether the tribunal is submitted before the
cabinet only once or twice (the first time "in principle"
only),the cabinet seems divided. We expect that, in this
case, the Hariri family view will have a large impact on
Siniora's thinking. Marwan Hamadeh -- a primary proponent of
the two-submission approach -- told us separately that he
plans to have Nazek Hariri, Rafiq's widow, call Rizk to
encourage the two-submission approach. With his presidential
ambitions never far below the surface, Rizk will certainly
take Nazek's views seriously.
FELTMAN