LEGAL COUNSEL MICHEL REPORTS OLA/LEBANESE NEAR

UNCLAS SECTION 01 OF 03 USUN NEW YORK 001366

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TAGS: UNSC PGOV PREL PTER KCRM SY LE
SUBJECT: LEGAL COUNSEL MICHEL REPORTS OLA/LEBANESE NEAR
AGREEMENT ON DRAFT TEXT TO ESTABLISH HARIRI TRIBUNAL

REF: A. BEIRUT 2293


B. USUN 423

C. USUN 402


1. (SBU) Begin summary: UN Legal Counsel Nicolas Michel
told the P-3 on July 12 that UN lawyers and Lebanese judges
Ralph Riachy and Choucri Sadr achieved progress last week in
negotiating a draft agreement and statute to establish a
tribunal to try those responsible for the assassination of
former Lebanese Prime Minister Rafiq Hariri. Michel hoped to
travel to Beirut next week to discuss the draft with senior
Lebanese officials and did not anticipate the Lebanese would
have significant changes to the text. Given the need to
consult with key Security Council members after his trip to
Lebanon, he did not expect the Secretary-General would submit
the draft agreement and statute to the Security Council for
approval in July. The agreement would be concluded after the
Council authorized the Secretary-General to sign it.
Finally, while stressing the need for a Chapter VII
resolution to compel third-state cooperation with the
tribunal and to establish the primacy of the UN-GOL
agreement over Lebanese law, Michel predicted the Russians
would not support such a resolution at this stage. Michel
also expected that the Secretary-General would extend the
contract of Serge Brammertz, Commissioner of the United
Nations International Independent Investigation Commission
(UNIIIC),by this Friday (July 14). End summary.


2. (U) Michel briefed P-3 lawyers and political officers
July 12 on OLA's trip to The Hague July 5-7 to negotiate the
text of the agreement and statute establishing the Hariri
tribunal with two Lebanese judges. Michel said Antonio
Cassese, the first President of the International Criminal
Tribunal for the Former Yugoslavia (ICTY),and Claude Jorda,
formerly an ICTY judge and now a judge on the International
Criminal Court, participated in the discussions and made
substantial contributions based on their experiences. Michel
opened by discussing how OLA thinks the process for
establishing the tribunal should proceed and then shared
views on substantive aspects of OLA's discussions with the
Lebanese judges.

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Next Steps in the Process
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3. (SBU) Michel said OLA has a "coherent and solid" draft
and hopes to travel to Lebanon next week (July 19-20) to
present its contents to senior Lebanese officials. The
Secretary-General has not approved the trip yet, but once

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Michel gets approval he expects to meet with senior leaders,
including the President, the Prime Minister, the Minister of
Justice, and the President of the Parliament. Michel
stressed he would not go to Beirut to initial or sign the
agreement and that the agreement is "not ripe for signature."
Instead, he would travel to hear views from senior officials
and political leaders. Michel said the UN's next steps would
depend on any comments the Lebanese provide but did not
expect any significant additional input. Michel added that
OLA has provided Syria with a short summary of the text -- at
the SARG's request -- but stressed that OLA is not
negotiating the text with Syria.


4. (SBU) After the Lebanese assent to the draft agreement
and statute -- which he said could take anywhere from a few
days to two to three weeks, Michel said OLA would prepare the
Secretary-General's report to the Council. That report will

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attach the draft agreement and statute for the Council's
consideration. To ensure a successful result, Michel said he
was willing to share the draft text with key Council members
before submitting it formally. He asked P-3 experts to
consider how best OLA could approach the Council tactically
to ensure the agreement is received favorably.


5. (SBU) Once the Council has concluded its considerations,
it would authorize the Secretary-General to sign and conclude
the agreement, although Michel said the Council would not
necessarily need a resolution to do so. Michel doubted the
Russian delegation would support a Chapter VII resolution to
compel the cooperation of third states at this stage. Beyond
compelling the cooperation of third parties, Michel suggested
that a Chapter VII resolution might also be necessary to
establish the primacy of the UN-GOL agreement over Lebanese
law, especially in the case of constitutional challenges to
the agreement,s provisions on pardon and immunity. Arguing
that such a Chapter VII resolution would be essential at some
stage, he urged the P-3 to lay the groundwork carefully

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before presenting that resolution to the Council.

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Substantive Questions
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6. (SBU) Michel said OLA and the Lebanese judges agreed that
the tribunal would have jurisdiction over the Hariri case, as
well as similar attacks of the "same nature and gravity"
committed between October 1, 2004 and December 31, 2005. The
tribunal would have jurisdiction over acts of terrorism under
Lebanese criminal law -- which Michel cautioned should be
seen in the light of Lebanon's adherence to the Arab
Convention on the Suppression of Terrorism -- as well as
crimes against humanity. Should the investigation determine
that the Hariri assassination and the other 14 attacks
represented crimes that occurred on a massive scale, Michel
said the judges could try perpetrators for crimes against
humanity. The French political officer raised several
questions and concerns about adding language on crimes
against humanity, arguing that it could give the Russians and
the Chinese an excuse to object in order to delay
establishment of the tribunal. In response, OLA Principal
Legal Officer Daphna Shraga argued that without that element,
the tribunal would not have an international character.
Michel said it would be a "significant omission" to leave
crimes against humanity out of the tribunal's jurisdiction.


7. (SBU) USUN asked whether the language in the statute
concerning the 14 other attacks would create an inconsistency
between the tribunal's jurisdiction and UNIIIC's mandate and
whether the Secretary-General would therefore recommend that
the Council expand UNIIIC's mandate to include the other
attacks before the UNSC authorizes the Secretary-General to
sign the agreement establishing the tribunal. Michel said
the question was "difficult" and he would discuss it with
UNIIIC Commissioner Serge Brammertz. He said any
recommendations the Secretary-General would make about
extending UNIIIC's mandate would depend on what Brammertz
concludes and thought Brammertz's next report to the Council,
due September 15, might be a good opportunity for the SYG to
present recommendations about expanding the UNIIIC's mandate.


8. (SBU) Michel then discussed the questions of amnesty and
trials in absentia, noting that the statute for the tribunal
would preclude amnesties for war crimes, genocide, and crimes
against humanity. Michel admitted that in doing so, OLA had
"pushed the envelope," but thought the amnesty provisions of
the text would survive constitutional challenge. The statute
permits trials in absentia, but gives a suspect the right to
a retrial if the accused had a counsel of his or her choosing
or was not present at the first trial and did not instruct
the defense counsel appointed by the tribunal during that
trial.


9. (SBU) The statute also provides creative solutions to
incorporate elements of Lebanese civil law with aspects of
common law, which provides the underpinnings of all of the
other international tribunals the UN has established, Michel
said. The tribunal will have a prosecutor, a pretrial judge,
a defense office, a trial chamber, and an appeals chamber.
The pretrial judge will have an important role. The
tribunal's statute also includes measures to permit fair but
speedy trials and to protect the rights both of the accused
and of victims. The statute also describes rules of
procedure and evidence.

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UNIIIC and Brammertz
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10. (SBU) At the end of the meeting, Michel said he expected
the Secretary-General would reappoint Serge Brammertz by July
14 and commented on how best to achieve the transition
between the UNIIIC's investigation and the work of the
tribunal. Michel said Bruno Stagno, President of the ICC
Assembly of States Parties (and Costa Rican Foreign
Minister),told him the deadline for ICC States Parties to
object to Brammertz's reappointment had passed. Even so, the
Secretariat of the ICC Assembly of States Parties wanted to

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discuss the issue with the ICC Bureau when they meet this
week so the ICC Bureau could make the final decision.
(Comment: The French legal adviser then expressed some
frustration at Stagno's proposal, noting that no ICC State
Party had objected to Brammertz's reappointment and that the
members of the ICC Bureau are also ICC States Parties. End
comment.)

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Funding and Location
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11. (SBU) Michel said OLA and the Lebanese had yet to
resolve questions about the tribunal's location or its
financing. He said the UN had heard objections from "various
actors" to using Cyprus as a location for the tribunal, but
he did not specify other options. On funding, Michel said
the Secretariat would present options to the UNSC for its
consideration. He noted Lebanese assurances that funding
would not be a problem "even if the cost of a tribunal
exceeded USD 100 million" but wondered how the GOL would be
able to pay this bill without any funding from the Hariri
family (which he emphasized must be a redline for the
international community). Even if the GOL can come up with
significant funds for the tribunal without help from the
Hariris, Michel cautioned that the UN Comptroller might
recommend that Lebanon contribute no more than 49 percent of
the total cost -- lest it appear that the GOL could exert
undue influence over the tribunal.
BOLTON