UN LEGAL COUNSEL MICHEL REVIEWS STATUS OF TREATY

C O N F I D E N T I A L SECTION 01 OF 03 USUN NEW YORK 001865 SIPDIS SIPDIS E.O. 12958: DECL: 09/25/2016 TAGS: PREL UNSC LE SY SUBJECT: UN LEGAL COUNSEL MICHEL REVIEWS STATUS OF TREATY TO ESTABLISH HARIRI TRIBUNAL Classified By: Ambassador Alejandro D. Wolff, per 1.4 (b) and (d) ¶1. (C) Summary. During a meeting with UN Legal Adviser Nicolas Michel on September 25 to review progress towards a draft treaty establishing a tribunal to try those responsible for the assassination of former Lebanese PM Hariri, Ambassador Wolff praised the efforts of the UN Office of Legal Affairs (OLA) to negotiate a draft text with the Lebanese and underscored the continued need for expeditious action. Arguing that OLA and the P-3 should agree on the basic features of the treaty before the document is submitted to the UNSC, Ambassador Wolff articulated strong USG concerns about language in the current draft related to crimes against humanity. After initially offering OLA's stock defense of the crimes against humanity provision, Michel seemed to appreciate the political problems inherent in such a reference and agreed to reconsider the point. If the treaty contains no reference to crimes against humanity -- which OLA say could override Syrian claims of official immunity -- Michel and his OLA colleagues argued forcefully that the UNSC must adopt a Chapter VII resolution to address that issue and to mandate cooperation with the tribunal. ¶2. (C) Summary, cont'd. Michel agreed that the treaty should deter future assassination attempts in Lebanon by extending the tribunal's jurisdiction beyond December 2005. Reporting that certain parties (a clear reference to Syria) would object to Cyprus as a location for the tribunal, Michel opined that the court might "end up" in The Hague and asked if the USG had any concerns about that location. He seemed to take Ambassador Wolff's point that the tribunal should be funded through voluntary rather than assessed contributions, but noted that the Commission is funded by assessed contributions and asked that the investigation continue to be funded this way -- even after the tribunal takes over the investigatory function. Michel asked that the USG reconsider its opposition to trials in absentia on the basis that such trials could be used as a bargaining chip to persuade Russia and other UNSC members that a Chapter VII resolution to compel Syrian participation is necessary. After hearing USG concerns about the draft treaty, Michel agreed to reconsider the text and consult with the Lebanese judges again before OLA and P-3 experts reconvene to review the details, and agreed to Ambassador Wolff's request that the full text be shared with the USG well in advance of any discussion in the Council. Michel implied that this consultation process could delay the SYG's report to the Council on the draft treaty until the end of October. End Summary. ¶3. (C) Ambassador Wolff met UN Legal Adviser Nicolas Michel on September 25 to discuss the status of negotiations on a treaty between the UN and the Government of Lebanon (GOL) to establish a "tribunal of an international character" to try those responsible for the assassination of former Lebanese Prime Minister Rafiq Hariri. Michel had already consulted with the French, British, Russian, Chinese, and Qatari delegations on the status of the draft treaty. Michel was joined by UN OLA attorneys Daphna Shraga and Mark Quarterman. USUN Legal Adviser and Poloff (notetaker) accompanied Ambassador Wolff. Timeline -------------- ¶4. (C) While praising OLA's efforts over the past few months to negotiate a draft treaty with the Lebanese, Ambassador Wolff underscored the need to move quickly to finalize the text to sustain support for the tribunal in Lebanon's fragile political environment. But he added that the Secretariat and key UNSC members should agree on the main elements of the treaty before the SYG submits his report to the Council, so the UNSC can approve the document quickly and enable the Lebanese to prepare for signature. Michel agreed that the draft treaty should be finalized as soon as possible and expressed hope that the SYG would be able to present his report to the Council, with the draft treaty attached, by early October -- although he maintained that the report should not "collide" with the next report on UNSCR 1559 implementation expected on October 19th. (Note: After hearing the breadth of USG concerns about the text, however, Michel seemed to imply that the early October timeframe might need to be delayed. End Note.) In the meantime, OLA would continue to consult with key UNSC members and the Lebanese judges on the text. Once the SYG submits his report to the Council, the Council would need to indicate its assent. In the case of the Sierra Leone tribunal, Michel noted, the Council took two and a half months for its President to send a letter with comments back to the SYG. Expressing hope that the Council would move quicker in this case, Michel reported USUN NEW Y 00001865 002 OF 003 that the Lebanese believe they will need anywhere from one week to one month to secure parliamentary ratification. Crimes Against Humanity -------------- ¶5. (C) Characterizing the language in the draft treaty allowing the court to try suspects for crimes against humanity "unnecessary legally and dangerous politically," Ambassador Wolff said the treaty must not deviate from the UNSC's intent in setting up this tribunal. Instead of including language on crimes against humanity, Ambassador Wolff encouraged Michel to expand the body of Lebanese law under which suspects could be tried to include crimes other than just terrorism. Murder and conspiracy, for example, are two crimes under which the prosecutor might also wish to indict suspects. Suggesting it would be "lamentable" for the UNSC to legitimize the Arab Convention on Terrorism by referencing it in the draft treaty, Ambassador Wolff pushed Michel to excise such language. Explaining that the USG and the UNSC saw the court as a means to help the Lebanese recover from an attack on their sovereignty and not as a new international court per se, Ambassador Wolff urged Michel to heed the Council's request in setting up the tribunal and not to create unnecessary political problems in the process. ¶6. (C) Although Michel and his colleagues at first offered their stock defense of the crimes against humanity language -- that the Hariri assassination and the 14 other attacks constitute a genuine prima facie case of crimes against humanity, that it would be difficult for a tribunal of an "international character" to prosecute defendants solely under Lebanese law, and that a conviction for crimes against humanity could trump head-of-state immunity -- they ultimately seemed to concede that the treaty could fulfill its purpose using other means. Acknowledging that other P-3 delegations and Russia shared USG concerns about the language on crimes against humanity, Michel agreed with Ambassador Wolff's argument that disputes between the UNSC and the Secretariat on the substance of the treaty would send the SIPDIS wrong signal to the Lebanese about the international community's commitment to ensuring justice in these cases. He undertook to reconsider the OLA draft on this and other issues, and to continue to consult with the P-3, as well as other key UNSC delegations (he cited Japan and Qatar),before submitting the SYG's report to the Council. Chapter 7 Resolution -------------- ¶7. (C) If the treaty does not include language on crimes against humanity, however, Michel and his colleagues underscored that the Council would need a Chapter VII UNSC resolution to deal with this issue and to mandate cooperation with the tribunal in order to ensure its effectiveness. Unless they are tried for crimes against humanity or subject to a Chapter VII resolution, Michel noted, high-ranking Syrian officials could claim immunity from prosecution per customary international law or a bilateral Syrian-Lebanese agreement. Besides a charge of crimes of humanity or a Chapter VII resolution, Shraga argued the only other conceivable alternative to countering claims of immunity by high-level Syrian officials would be to insert specific language disavowing claims of immunity into the draft treaty. She maintained, however, that the Lebanese had already told OLA that such a provision would not be acceptable because it would directly contradict the Lebanese constitution. ¶8. (C) Agreeing that the tribunal must have the same power to compel cooperation as the United Nations Independent International Investigation Commision (UNIIIC) currently enjoys, Ambassador Wolff undertook to discuss with Washington when/how the UNSC could consider such a resolution. But he noted that we would need to consider the question carefully to overcome sensitivities within the Council about resolutions adopted under Chapter VII. Michel said he had "no doubt" that a UNSCR would be considered binding under Chapter VII if it referred to "threats to international peace and security," and used the words "decides" and "shall" to mandate cooperation with the tribunal, even if it did not explicitly refer to Chapter VII. Trials in Absentia -------------- ¶9. (C) Acknowledging USG concerns that language in the treaty authorizing trials in absentia might lead to show trials, but noting that such provisions exist in both Lebanese and French law, Michel argued that retaining this feature would be USUN NEW Y 00001865 003 OF 003 especially important to argue for a Chapter VII resolution. If the Russians or other UNSC members object to a Chapter VII resolution mandating cooperation with the tribunal, Michel suggested, other delegations could argue that the tribunal would then have to resort to a trial in absentia. Arguing that trials in absentia were another part of the interlinked chain OLA had created to ensure the tribunal's effectiveness, Michel asked Ambassador Wolff to reconsider USG objections to this provision. Deterrence -------------- ¶10. (C) Michel opined that OLA and the P-3 were coming to a common understanding on the linkages necessary for the tribunal to consider cases related to the other 14 attacks committed in Lebanon since October 1, 2004, but acknowledged that the draft treaty cuts off the tribunal's jurisdiction in December 2005 -- the date of the last of the 14 other attacks. Michel agreed with Ambassador Wolff that the two sides also need to find language to deter future such attacks. Recalling the assassination attempt against senior Lebanese Internal Security Forces official Samir Shahadah on September 5, 2006, Ambassador Wolff argued that the treaty ought to extend the tribunal's jurisdiction until at least the date when the treaty enters into force and agreed that OLA and P-3 experts should meet again to find a supplementary formula that would also deter future attacks. Location -------------- ¶11. (C) Reporting that OLA and the Lebanese had yet to agree on a location for the tribunal, Michel confided that some of the key parties involved -- a clear reference to Syria -- would not support establishing the tribunal in Cyprus. Recalling that proximity, accessibility, security, and the availability of existing facilities are the factors OLA has considered to determine where to seat the tribunal, Michel suggested that the court might "end up" in The Hague even though the city would not have been OLA's first choice. He asked Ambassador Wolff to explore whether the USG would have concerns about The Hague as a location for the tribunal. Michel also confided that OLA, while consulting with the Dutch authorities and the Lebanese, would ask the Dutch not to publicly reject hosting the tribunal if reports leak that The Hague is one of the options. Once a location is identified, Michel suggested the UN and the host country would be able to take the time necessary to negotiate a bilateral agreement defining their mutual responsibilities, rather than having to rely on an UNSCR as in the case of the Sierra Leone tribunal (where there was insufficient time to conclude a bilateral agreement). Cost -------------- ¶12. (C) Recalling the UNSC's request that the Secretariat propose options to fund the tribunal, Michel confirmed that one of the options OLA is considering involves a combination of assessed and voluntary contributions in order to guarantee that the tribunal has adequate resources. Ambassador Wolff argued that the tribunal should be funded based strictly on voluntary contributions and that the GOL should pay the lion's share. He acknowledged that 14 of 15 UNSC members expressed their support for voluntary contributions to fund the tribunal during the most recent UNSC consultations on UNIIIC. If the Council decides to support only voluntary contributions, Michel asked that the investigation receive funding through assessed contributions as long as it continues -- even after the tribunal takes over that function. BOLTON