CITING BERRI, RIZK FLOATS NEW APPROACH ON TRIBUNAL

C O N F I D E N T I A L SECTION 01 OF 03 BEIRUT 003732 SIPDIS SIPDIS NSC FOR ABRAMS/DORAN/MARCHESE/HARDING E.O. 12958: DECL: 11/30/2016 TAGS: PREL PTER KCRM LE SY SUBJECT: CITING BERRI, RIZK FLOATS NEW APPROACH ON TRIBUNAL Classified By: Jeffrey Feltman, Ambassador, per 1.4 (b) and (d). SUMMARY -------------- ¶1. (C) Minister of Justice Charles Rizk pitched a new idea for establishing the Special Tribunal for Lebanon. Meeting the Ambassador on 11/30, Rizk argued that both approaches currently under discussion to establish the tribunal are, and will remain, blocked. With pro-Syrians murdering politicians and Parliament Speaker Berri playing procedural games, the Lebanese constitutional approval process simply won't work. But the fallback option of the UNSC invoking Chapter VII to create the tribunal unilaterally won't work either, due to legal questions and likely Russian objections. Instead, Rizk argued, the Lebanese cabinet should ask the UN for changes in the draft (regarding financing of the tribunal and duration of the tribunal) that would allow the cabinet, per Article 52 of the Lebanese constitution, to pass the tribunal without reference to parliament. Rizk claimed that this idea actually originated with Berri, who doesn't want his association revealed. UN envoy Geir Pedersen (who saw Rizk separately) said that he would quietly float the Rizk/Berri idea in New York. Earlier, Minister of Culture (and Acting Foreign Minister) Tariq Mitri and Minister of Social Affairs Nayla Mouawad debated whether PM Siniora should proceed now in sending a letter to the UNSC requesting Chapter VII creation of the tribunal. Eventually, they concurred with Siniora's own view, which is to try to pursue the cabinet approval first while hoping that quiet consultations can take place in New York on the issue simultaneously. PM Siniora reaffirmed his support for this approach in a brief pull-aside with the Ambassador on the margins of the signing of the U.S. Trade and Investment Framework Agreement on 11/30. End summary. ARTICLE 52 -- NOT ALL TREATIES NEED TO GET PARLIAMENTARY NOD -------------- ¶2. (C) Asking to see the Ambassador urgently on 11/30, Rizk brandished an English-Arabic copy of Lebanon's constitution, asking the Ambassador to read Article 52: "The President of the Republic shall negotiate and ratify international treaties in agreement with the Prime Minister. These treaties are not considered ratified except after approval by the Council of Ministers. They shall be made known to the Chamber and Deputies whenever the national interest and security of the state permit. However, treaties involving the finances of the state, commercial treaties, and in general treaties that cannot be renounced every year shall not be considered ratified until they have been approved by the Chamber of Deputies." In other words, there is considerable leeway, Rizk said, for international treaties to be adopted in Lebanon without any reference to parliament. As for the president's constitutional role, Rizk argued that he is covered by Lahoud's participation in the cabinet session in which Rizk was given authority to negotiate the documents concering the Special Tribunal for Lebanon. OTHER WAYS OF ESTABLISHING THE TRIBUNAL ARE BLOCKED -------------- ¶3. (C) This article, Rizk said, is the key to the establishment of the Special Tribunal for Lebanon. After all, the two ways under discussion now -- cabinet and parliamentary approval by Lebanon, or UNSC invocation of Chapter VII authority imposing the tribunal unilaterally -- are both dead ends. Syria will work to kill two more ministers or enough MPs to prevent adoption of the tribunal documents in Lebanon. Even if murder fails, Berri will play procedural games to prevent the tribunal documents from reaching the parliamentary floor. As for Chapter VII, renegotiating the documents so that they meet Chapter VII requirements and drop the references to Lebanon's approval will take too much time, "six months or more." There are legal questions that will be difficult to answer if Lebanon is not an active partner. And Russia, and perhaps China, will likely block, even veto, a tribunal established unilaterally by the UN. TWO "SMALL" CHANGES NEEDED TO AVOID REFERENCE TO PARLIAMENT -------------- BEIRUT 00003732 002 OF 003 ¶4. (C) The existing tribunal documents, Rizk argued, only need two substantive changes to meet the constitutional requirement for cabinet approval only. First, the requirement for Lebanese financing needs to be taken out of the draft. Acknowledging the ambassador's point that financing is not a minor issue and that Lebanon should pay its share, Rizk said that the tribunal documents could make reference simply to a voluntary fund to pay for the tribunal. There does not need to be any reference to Lebanon's financial obligations. Then, separately, when the GOL submits its budget, it can have a line item for its voluntary contribution to the tribunal. The important point is to avoid any financial obligation on the GOL in the tribunal documents, in order to avoid triggering the parliamentary approval process. ¶5. (C) Second, the three-year duration of the tribunal needs to be dropped, in favor of what Rizk called year-by-year automatic renewal, for three years, "unless one of the parties objects." The Ambassador noted that this provides a certain risk, if a Syrian-dominated Lebanese cabinet should come to power. The greater risk, Rizk argued, is that the tribunal is never established. Moreover, he said, one could be creative with the clock, pushing the official starting date far to the future. For example, the three-year clock in the current draft starts with the appointment of the prosecutor-general. Maybe the clock should begin only with the issuance of indictment papers, allowing the UNIIIC to continue its investigation until that point. ¶6. (C) In terms of process for GOL approval under this new idea, Rizk reviewed the now-familiar steps involving the cabinet. First, the cabinet would have to send proposed changes back to the UN for circulation in UN/OLA and the UNSC. Then the UN would have to return the approved, revised documents to Lebanon, at which point the cabinet would formally approve them. After the 15-day waiting period when President Lahoud would no doubt refuse to sign the decision approving the tribunal documents, the cabinet would meet again and approve them. At this point, the cabinet would also authorize Rizk or Mitri to sign the documents with the UN. No parliamentary action is required. Rizk noted that the risk of Syria-inspired murder still exists, but at least the time is shorter than what would be needed to fight for parliamentary adoption. IDEA ORIGINATES WITH BERRI -------------- ¶7. (C) Rizk claimed to have consulted with Judges Ralf Riachi and Choukri Sadr, both of whom agreed that what Rizk floated is constitutionally sound. But, lowering his voice to a conspiratorial whisper, Rizk revealed that he had not come up with this idea on his own: it was actually handed to him in a meeting the previous day with Berri. Describing the UN and Rizk's lawyers as "stupid," Berri announced that he wanted nothing to do with the tribunal. "But you don't have to ask me," he told Rizk. In describing his proposal, the Speaker claimed that he wouldn't mind at all if the tribunal was established, as long as he could avoid any participation in its creation. Rizk asked Berri whether he wouldn't denounce the tribunal or use its establishment in this manner to brand the March 14 majority as power-mad and in further violation of the constitution. Berri promised Rizk he would stay quiet, as long as he was not expected to bless the tribunal in any way. PEDERSEN TO FLOAT IDEA QUIETLY IN UN -------------- ¶8. (C) The Ambassador asked Rizk if he had shared this idea with other Lebanese ministers. He said that he preferred to wait until he knew from the USG, France, Russia, and the UN whether this might work. He said that he would see the French and Russian ambassadors over the next few days. Geir Pedersen, who heard Rizk's arguments a few hours before the Ambassador did, said that he would float the idea quietly in New York. While noting that he was intrigued, Pedersen cautioned that no one should underestimate the financial complications of removing the Lebanese assessment. But he agreed that overcoming the financial issues appears ultimately less difficult than overcoming the political issues, and murder, now hindering establishment of the tribunal. SINIORA, MITRI, MOUAWAD BEIRUT 00003732 003 OF 003 AGREE ON PARALLEL TRACKS -------------- ¶9. (C) Earlier in the day, the Ambassador and PM Siniora witnessed AUSTR Shaun Donnelly and Minister of Economy and Trade Sami Haddad sign the Trade and Investment Framework Agreement. In a conversation on the margins, Siniora said that he did not believe that the time was yet ripe for him to send a letter to the President of the Security Council asking that Chapter VII authority be invoked to create the tribunal without further reference to Lebanon. While hoping that "the experts" are already discussing that possibility in New York and capitals, Siniora said that he would be able to stand on stronger grounds in sending such a letter once it becomes clear that the parliamentary route is blocked. So, for now, he urged that the Lebanese constitutional process play itself out -- while strong messages are simultaneously sent to Syria to lay off the assassinations. "Let's have three parallel tracks," Siniora said: attempt to use Lebanon's constitutional process, strong messages to Syria, and quiet consultations on Chapter VII fall-back options in New York. ¶10. (C) The Ambassador also met with Minister of Culture (and Acting Foreign Minister) Tariq Mitri and Minister of Social Affairs Nayla Mouawad. Mouawad initially argued that the UNSC should be able to move ahead without requiring a letter from Siniora in creating the tribunal. "Don't put anything more on Fouad's shoulders," she begged. Listening to the Ambassador's arguments about why that is not a politically feasible approach, she then vowed to push Siniora to send a letter "immediately." Mitri intervened, echoing the PM's remarks about letting Lebanon's constitutional process go forward until it is obviously blocked, per Siniora's suggested approach. After considerable, spirited back-and-forth, Mouawad eventually agreed. Both Mitri and Mouawad, however, urged quiet consultations on a potential usage of Chapter VII in parallel with the Lebanese constitutional process. COMMENT -------------- ¶11. (C) While we defer to the lawyers and USUN, what Rizk (or Berri) proposes is surely not easy, especially as it makes financing the tribunal less certain. And there are surely many traps in this approach, such as the fact that a less friendly Lebanese cabinet could cancel the tribunal each year on the anniversary of the tribunal's official establishment. But the current approach -- of hoping for Lebanese parliamentary approval -- in the current hypertense political atmosphere appears to to be rooted in wishful thinking, given Berri's apparent orders to stop the tribunal's adoption by the parliament. The most intriguing element, of course, is Berri's alleged authorship of this approach. We hope that Rizk, who sometimes talks first and thinks second, protects the source in this case. Intentionally flattering Rizk's presidential ambitions, we suggested that, if this new approach proves feasible, Rizk protect Berri by taking credit himself. Rizk sincerely seeks a way forward -- both for the tribunal and for himself. FELTMAN