UN SECRETARIAT OUTLINES STEPS TO ESTABLISH HARIRI

UNCLAS SECTION 01 OF 02 USUN NEW YORK 001198

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SENSITIVE
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E.O. 12958: N/A
TAGS: PTER KCRM PINR KISL UNSC LE SY UN
SUBJECT: UN SECRETARIAT OUTLINES STEPS TO ESTABLISH HARIRI
TRIBUNAL

REF: USUN 243


1. (SBU) Summary. During a meeting with Department laywers
and USUN Political and Legal officers on June 9, UN Office of
Legal Affairs (OLA) lawyer Mark Quarterman and Department of
Political Affairs (DPA) officer Alma Saliu said they believed
they had reached agreement with Lebanese judges Choucri Sadr
and Ralph Riachy on the remaining steps to establish a
tribunal to try those responsible for the assassination of
Rafiq Hariri. Relaying Lebanese concerns that the timetable
for establishing the tribunal not slip further, U.S. and
French representatives strongly pressed the Secretariat to
schedule a visit to Beirut by the end of June to finalize the
agreement. OLA staff indicated they planned to finalize the
text by early July but took note of P-3 concerns on timing.
The Lebanese and the French separately argued that the
tribunal should have discretion to try other crimes linked to
the Hariri assassination, but OLA said it had not yet decided
how to address the question of jurisdiction. The Lebanese
judges disclosed that constitutional court review of the
UN-GOL agreement might become a stumbling block to Lebanese
ratification. End Summary.

Next Steps to Establish Tribunal
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2. (SBU) Quarterman said the Lebanese judges seemed satisfied
with OLA,s outline of the remaining steps necessary to
establish the tribunal. After the UN and GOL reach agreement
in principle on the treaty and the SYG presents the text to
the Council with an accompanying report explaining its
contents, he observed that the UNSC could request changes to
the text through an exchange of letters with the SYG. Once
the UNSC is satisfied with the agreement, Quarterman
suggested, the SYG could sign it on behalf of the UN. The
GOL could then sign the agreement and forward it to the
Lebanese Parliament for ratification. In the case of Sierra
Leone, after the Secretariat made the changes requested by
UNSC members and the exchange of letters ceased, the SYG went
forward and signed the agreement (he added this process took
two months). No additional UNSC authorization was needed in
that case for the SYG to act, but Quarterman said OLA had not
discussed this point in depth with the Lebanese.


3. (SBU) Relaying Lebanese concerns that the current
timetable for the draft agreement not slip beyond the current
rough timetable, U.S. and French experts strongly pressed the
Secretariat to quickly finish the draft treaty and statute

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necessary to establish the tribunal and urged OLA to honor
its prior commitment to visit Beirut by the end of June. The
French experts expressed hope that they would be able to
begin UNSC consultations on the draft text when they assume
the Presidency of the UNSC in July. Quarterman said OLA
hoped to have a draft agreement ready by the end of June that
could then be finalized in Beirut in early July, but he noted
U.S. and French insistence on a quicker timeframe and
promised to convey those views to U/SYG and Legal Counsel
Nicolas Michel.


4. (SBU) Quarterman noted that while a prosecutor,s office
will be created as soon as the agreement enters into force,
it will not be able to effectively carry out its work until
the remaining elements of the court, including a pre-trial
chamber, have been established. The tribunal will need to
organize its finances and hire judges before it can begin
legal proceedings -- including whether to continue to detain
the four Lebanese generals currently incarcerated on
suspicion of involvement in Hariri's killing. Speculating
that the Lebanese want the prosecutor in place quickly to
relieve them of responsibility over the four generals,
Quarterman opined privately that the GOL would have to
resolve the status of the generals before the tribunal begins
operating -- especially given that generals have already been
in jail for almost one year without charge.

Jurisdiction
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5. (SBU) Despite their earlier preference that the tribunal
focus on Hariri alone (reftel),the Lebanese judges told the
U.S. delegation on June 2 that they want the scope of the
tribunal's competence to be broad enough to hear cases of
additional assassinations committed from October 2004 to the
end of December 2005 if the prosecutor finds that these cases
are "linked" to the Hariri assassination. The judges argued
that broader jurisdiction would not delay moving forward with
the Hariri case. They said they expect the draft agreement
to provide jurisdiction to the tribunal for all terrorist
acts in Lebanon between October 2004 and December 2005,
leaving to the court to determine whether the cases are

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linked to Hariri.


6. (SBU) Quarterman told P-3 experts on June 9 that OLA was
still considering different options to address the extent of
the tribunal's jurisdiction over crimes other than the Hariri
assassination. Recalling UNSCR 1644's request that the SYG
recommend to the Council whether to expand the mandate of
UNIIIC to cover these other attacks, Quarterman argued that
if the Commission's mandate were expanded it would be odd for
the tribunal not to have the same jurisdiction. At the same
time, he noted that 13 out of 15 UNSC members had argued
during recent Council consultations that the tribunal should
have limited jurisdiction.


7. (SBU) The French expert said France would support
expanding the mandate of the Commission if Brammertz decides
there are links between the Hariri killing and other attacks.
He urged OLA to release the SYG's report on whether to
expand UNIIIC's mandate as soon as possible, but certainly
before the SYG's report on the agreement to establish the
tribunal. U.S. experts noted on June 9 that the U.S.
position would be informed by reports by Brammertz but that
resource implications for the tribunal would also have to be
considered.

Funding
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8. (SBU) Quarterman confirmed that the source of the
tribunal's funding does not need to be resolved in the UN-GOL
agreement, but he emphasized the importance of this question
because the tribunal will not have access to funds from UN
assessed contributions. Drawing on the Sierra Leone example,
Quarterman predicted the SYG would want the tribunal to have
pledges sufficient for one year of operations before it is
established. He added that the prosecutor will likely want
substantial investigative capabilities after the tribunal is
established to re-interview some of the witnesses deposed by
the UNIIIC and re-examine some of the evidence, so the first
year of the tribunal's operations will likely be quite
costly. He acknowledged, however, that the Lebanese judges
had assured him that funding would not be an issue for the
tribunal.

Amnesty and Pardon
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9. (SBU) Disclosing a possible stumbling block to swift
Parliamentary ratification, the Lebanese judges told
Department lawyers and USUN staff on June 2 that the
Constitution gives all Lebanese the right to petition for
amnesty or pardon except when they are convicted of
international crimes. (Comment: A subsequent review of the
Constitution revealed no such position; the judges might have
been referring to a provision of the Penal Code and not the
Constitution. End comment.) If ten members of Parliament
question whether the agreement satisfies the Constitutional
protections, the judges said, they have a certain period of
time in which to refer the issue to the Constitutional Court
(which is not now constituted). They added that the
Constitutional Court could decide to strike down certain
provisions of the agreement, such as those pertaining to
amnesty and pardon, and allow the rest of the agreement to
stand. Quarterman agreed on June 9 that review by the
constitutional court of the UN-GOL agreement could pose
problems, but he said the Lebanese had promised to find a way
to resolve this issue.

Comment
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10. (SBU) We would welcome Embassy Beirut,s views on whether
the Lebanese Government shares OLA,s outline of the
remaining steps necessary to establish the tribunal.
BOLTON