HARIRI TRIBUNAL: UN LEGAL COUNSEL WELCOMES

UNCLAS USUN NEW YORK 001763

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FOR L/UNA:TBUCHWALD AND L/AN:LJACOBSON

E.O. 12958: N/A
TAGS: KCRM LE MOPS PINR PTER SY UNSC
SUBJECT: HARIRI TRIBUNAL: UN LEGAL COUNSEL WELCOMES
U.S./FRENCH COMMENTS

REF: A. SECSTATE 140003

B. JACOBSON/WILLSON EMAIL-09/05/06

C. USUN 1366


1. (SBU) BEGIN SUMMARY: USUN Legal, accompanied by French
Mission political officers, delivered points (ref A)
regarding the draft Hariri tribunal agreement to UN Legal
Counsel Michel on September 5. We noted USG support for his
return to Lebanon that evening. In addition per ref B
request, USUN sought clarification on whether the UN intends
to reference the 1988 Arab Convention on the Suppression of
Terrorism in the agreement. The French cautioned that the
Secretary-General should not request a Chapter VII resolution

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to compel cooperation with the tribunal when it seeks
Security Council approval of the agreement establishing the
tribunal. (Note: The French prefer to defer action on
compulsion until the case is more developed. End note.)
Pressing Michel to submit the agreement to the Security
Council for approval as soon as possible ) preferably
October ) the French sought Michel's views on how he plans
to proceed. Stressing that he does not plan to finalize the
agreement during his visit, Michel expressed appreciation for
P-2 input, promised to take note of it, and agreed to consult
again upon his return. END SUMMARY.


2. (SBU) Michel welcomed the comments on the draft agreement
to establish the Hariri tribunal as he prepared to leave for
Lebanon. Michel said he plans to meet with the Prime
Minister, the Minister of Justice, and the Speaker of
Parliament, as well as P-3 (or P-5 ambassadors) before
leaving Lebanon on September 8. The text of the draft
agreement and annexed tribunal statute both will be part of
those discussions, he said. He also clarified that he is not
bringing the final version of the agreement to Lebanon and
does not intend to come close to signing the agreement during
his trip. Michel could not predict whether the September 5
assassination attempt against Samir Shahadah would affect his
trip, but expressed concern about news reports that it seemed
related "at least in part" to the investigation of Hariri's
assassination. Michel said the Lebanese press reports on his
trip and on the tribunal have been speculative, including
recent reports that the tribunal would be located in Cyprus
and that Serge Brammertz, Commissioner of the International
Independent Investigation Commission (UNIIIC),would be the
tribunal's prosecutor. These issues have yet to be decided,
he noted.


3. (SBU) At Michel's request, Office of Legal Affairs (OLA)
Legal Officer Daphna Shraga then responded to the specific
points concerning the text of the agreement. Shraga said the
UN intended the agreement to provide the tribunal with
jurisdiction over the 14 other attacks committed between
October 1, 2004 and December 31, 2005, but not any other
terrorist acts. Although the agreement would not refer by
name to the other attacks, she said the Secretary-General's
report to the Council would cite the pages in the fourth
UNIIIC report to the Security Council that suggest the
attacks were linked. In providing jurisdiction over the 14
other attacks, Shraga said OLA had followed its policy of
balancing the need to ensure that a tribunal's temporal
jurisdiction covers the main crimes and perpetrators with the
need to ensure cost effectiveness. (Note: USUN does not
share OLA's view. End note.) In this case, OLA is concerned
that if the tribunal has jurisdiction only over the Hariri
assassination, the UN will be "take one act out of context
and we in the UN will be perceived as not objective." OLA
wants to avoid creating an impression that the tribunal will
provide selective justice, she said. Although OLA had
thought it was important to limit the tribunal's temporal
jurisdiction, she admitted that the attempted assassination
of Shahadah had given her "second thoughts" about that
approach.


4. (SBU) With respect to language providing jurisdiction
over crimes against humanity, Shraga acknowledged that
Lebanese law might provide a sufficient basis for
jurisdiction but said OLA wanted to "inject as many elements
from international law into the tribunal." If the tribunal's
competence is limited to national law, issues such as head of
state immunity could be more difficult to address, she said.
Characterizing U.S. and French concerns as "political," she
said crimes against Lebanese law and crimes against humanity
are "mutually inclusive," and the tribunal should give the
prosecutor flexibility to bring charges of crimes against
humanity if he or she believes the facts exist to support
those charges. The French expert responded that France
doubts that, as a legal matter, the crimes can be


characterized as crimes against humanity. While
acknowledging U.S. and French concerns, Shraga said a
decision to omit crimes against humanity from the tribunal's
jurisdiction could raise countervailing objections. She said
OLA decided to keep the language on crimes against humanity
in the draft agreement after its consultations with jurists
such as Antonio Cassese, the first President of the
International Criminal Tribunal for the Former Yugoslavia
(ICTY),who argued for its inclusion.


5. (SBU) On the issue of the 1998 Arab Convention on the
Suppression of Terrorism, Shraga and Michel indicated they
could be flexible. Michel said OLA included a reference to
the Convention in the draft agreement because it wanted to
avoid referring to Lebanese law generally, which could be
overly inclusive and provide a basis for numerous different
interpretations. He suggested that the agreement could be
revised to refer to specific articles of the Convention that
define terrorist offenses, without referring to those that
provide exceptions for national liberation movements.


6. (SBU) In response to the French concern about when OLA
would suggest a Chapter VII resolution, Michel said they
would consult carefully to avoid making a proposal that would
create difficulties in the Security Council. At a minimum,
the Secretary-General's report to the Security Council would
include a sentence saying that measures will have to be taken
to ensure cooperation with the tribunal. A Chapter VII
resolution could be useful to clarify that the agreement has
primacy, particularly with respect to any issues on which
international and domestic law differ. He noted different
views among Council members on what is necessary for a
Security Council to be binding and mused that it might be
preferable to avoid being "too dogmatic" about what is and is
not necessary. Shraga noted that a Chapter VII resolution
would be necessary for enforcement, although in practice even
Chapter VII resolutions are unenforceable, but then said the
Lebanese have insisted upon securing a Chapter VII
resolution. The French reiterated that, although they do not
disagree with the UN on substance, they are concerned that
proposing an agreement to the Council in October that refers
to crimes against humanity and seeks a Chapter VII resolution
will break consensus in the Security Council "at a time we
need this consensus, on Lebanon in particular."


7. (SBU) Michel then previewed his plans for finalizing the
agreement. The Lebanese press has reported incorrectly that
the UN plans to have the Lebanese Parliament approve the
agreement and then bring it to the Security Council before
the Secretary-General signs it, he said. Michel plans to get
comments from the Lebanese during his visit and then inform
and consult with Security Council members. After those
discussions, Michel thought he would have the elements for
the Secretary-General's report to the Council, which would
attach the agreement and statute for establishing the
tribunal. Once the Security Council has agreed to a
document, the Secretary-General will sign it, and then
Lebanon's parliamentary approval process can begin.

BOLTON