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
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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