MGLE01: UPDATE ON LEBANESE THINKING ABOUT HARIRI

C O N F I D E N T I A L SECTION 01 OF 03 BEIRUT 000757 SIPDIS SIPDIS NSC FOR ABRAMS/DORAN/WERNER/SINGH E.O. 12958: DECL: 03/13/2016 TAGS: KCRM PGOV PREL UNSC LE SUBJECT: MGLE01: UPDATE ON LEBANESE THINKING ABOUT HARIRI TRIBUNAL REF: A. USUN 423 ¶B. USUN 451 ¶C. BEIRUT 726 AND PREVIOUS Classified By: Christopher W. Murray, Charge d'Affaires. Reason: Sect ion 1.4 (b) and (d). ¶1. (C) Summary: GOL Legal Advisor for the UNIIIC Tribunal Ralph Riachy met with Charge March 9 to review plans for eventual establishment of a tribunal to try suspects in the February 14 assassination of former Prime Minister Rafiq Hariri. Riachy provided a GOL scenario closely in line with reftel (a),noting in addition that a UNSC Chapter VI resolution in mid to late March would greatly aid a Lebanese political consensus in favor of the tribunal. Riachy envisioned conversion of the UNIIIC into an office of a Procurer General (Chief Prosecutor) as early as the expiration of the UNIIIC's current mandate in June. He then foresaw an international tribunal that would apply modified Lebanese criminal law and procedures to be established in negotiations between the GOL and the UN. Riachy and his GOL colleagues including Justice Minister Rizk briefed UNIIIC Commissioner Brammertz on March 9. Brammertz offered no evident objections, but had some concern about how his work program could be affected by shifting legal objectives in a transition from the UNIIIC as it is now established to an Office of the Procurer General. End Summary. Sequence of Events -------------- ¶2. (C) On March 9, Charge met with Judge Ralph Riachy, head of Lebanon's highest criminal court. He has been serving also as the Ministry of Justice's liaison with the UN International Independent Investigation Commission (UNIIIC), and he was one of two Lebanese legal experts, along with Judge Choucri Sadr, who met with UN and Perm-5 officials in New York (reftels a and b). Riachy confirmed the sequence of steps, identified in reftels, that would lead to the establishment of a tribunal in the framework of UNSCR 1644. He emphasized that the Security Council, upon receipt of the March 15 UNIIIC Brammertz report, should adopt a Chapter VI resolution. This resolution, with its call for the negotiation of an agreement between the GOL and the UN, would give a much-needed impetus to eventual Lebanese Parliamentary ratification of an agreement on modalities for the tribunal. Riachy seemed moderately concerned that domestic Lebanese debate and politics within the Lebanese Parliament could present a real challenge to ratification of the agreement. Consistent with para 3, reftel (b),Riachy did not think that the Security Council should reveal much detail about future intentions, such as a later Chapter VII resolution, in the course of adopting a Chapter VI resolution in mid to late March. He said that the UN and the French are in agreement with the scenario laid out in reftels (a) and (b). GOL-UN Agreement -------------- ¶3. (C) Riachy said that the agreement to be negotiated between the GOL and the UN would draw on UNSCR 1644 as the basis for the international tribunal. But it should be the GOL-UN agreement that actually establishes the tribunal, rather than via a separate UNSCR. (Note: Riachy did not elaborate on this point, but he was probably concerned about a veto in the UNSC. From a Lebanese perspective, he may be optimistic about ultimate Parliamentary ratification of the GOL-UN agreement on the tribunal, and thus there would be nothing to gain from running the issue of the tribunal through the Security Council. End Note.) ¶4. (C) In addition to the agreement between the GOL and UN that establishes the tribunal, Riachy said that the GOL-UN agreement would contain an annex that will identify and define substantive law and applicable procedure. The agreement will define how the tribunal would be financed. The annex will take up issues such as: -- A cut-out for the death penalty, as it exists in Lebanese law; -- Reciprocal Lebanese-Syrian immunities for official acts. Riachy said that in principle, with respect to international courts, there are no immunities. The annex should therefore speak to this issue. -- Plea-bargaining arrangements. These should be included BEIRUT 00000757 002 OF 003 in the annex. Riachy said his model tribunal would begin with a procurer general applying largely Anglo-Saxon criminal practice and procedure. (Note: The absence of plea-bargaining in Lebanese civil code procedure has been a serious frustration to the UNIIIC investigators. End Note.) ¶5. (C) We also note here that past reporting has used both the words "treaty" and "agreement" in referring to what would be negotiated between the GOL and the UN. Riachy consistently used the word "agreement" in our discussion. When asked specifically about this, he said that for his part, there was no substantive distinction in this context between a treaty and an agreement. ¶6. (C) Riachy said that the next step after negotiation of the GOL-UN agreement would be presentation of the agreement to the Lebanese Parliament, with both the agreement and its accompanying annex sent forward for vote. The Parliament would be asked to "empower the Government to sign the agreement with the UN." Once the agreement is signed by both the GOL and the UN, the UN Secretary General would present it to the UNSC. At that time, the SYG or a Council member would recommend that the UNSC adopt a Chapter VII resolution calling upon all states to cooperate with the tribunal. Tribunal Operations -------------- ¶7. (C) Riachy described a two-phase process for the tribunal. First, a Procurer General would be asked to take up and continue the work of the UNIIIC. Riachy thought that the newly established Procurer General would want to keep as much of the existing UNIIIC staff as possible. The Procurer General would have a legal advisor to make sure that all evidence and accusations are in conformance with international legal standards for prosecution. ¶8. (C) In a second phase, when the Procurer General issues his "act of accusation" against those whom he has identified, the international tribunal is launched with the establishment of a trial level court. Only after the trial level court has completed its work would an appellate level would be set up, if necessary. Riachy said that putting off the creation of the appellate court would be a way to save money. ¶9. (C) As for the jurisdiction of the tribunal over other crimes referred to in UNSCR 1644 (these could include the 16 other bombings, assassinations, and attempted assassinations in Lebanon since October 2004, in addition to the Hariri assassination),Riachy favored "leaving an opening," while not obligating the tribunal to either inclusion or exclusion of these crimes in its work. He said he thought (like Brammertz, reftel C) that some of the same people were probably involved in these other crimes. But this wider range of acts should not end up blocking a consensus on the Hariri trial, Riachy advised. Costs -------------- ¶10. (C) Riachy said that the present UNIIIC arrangements could continue through the Procurer General stage, with the GOL and the UN splitting various expenses. For the trial phase, Riachy said, and he emphasized his caution here, that perhaps Lebanon could pay, with help from friendly countries such as those in the Gulf. Venue -------------- ¶11. (C) Riachy had no objection to Cyprus. Choucri Sadr made the same point to Charge on another occasion. At that time, Sadr, just back from his travels to New York, had said that he too favored the tribunal using a combination of Lebanese substantive law and Anglo-Saxon procedure. The Russians -------------- ¶12. (C) Charge asked Riachy if the Russian Embassy in Beirut had been engaging the GOL. Riachy replied negatively, noting that his only contact had been one visit from a Russian Embassy third secretary. Briefing with Brammertz -------------- BEIRUT 00000757 003 OF 003 ¶13. (C) Riachy said that Justice Minister Rizk, the GOL Procurer General, Choucri Sader, and he had briefed UNIIIC Commissioner Serge Brammertz on the foregoing scenario during the morning of March 9. He said that Brammertz was generally receptive, but had one concern. In essence, the concept of converting the UNIIIC into the office of a Procurer General would entail a change in applicable law: from the Lebanese law and procedure which guide the UNIIIC at present, to whatever law and procedure the GOL-UN agreement would stipulate in its own text and annex. For Brammertz, this left some ambiguity and uncertainty about how he should be targeting his investigations and focusing his work. But Riachy sensed that this was not a deal-breaker or major disruption for Brammertz. MURRAY