Identifier
Created
Classification
Origin
06USUNNEWYORK1865
2006-09-26 22:56:00
CONFIDENTIAL
USUN New York
Cable title:  

UN LEGAL COUNSEL MICHEL REVIEWS STATUS OF TREATY

Tags:  PREL UNSC LE SY 
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FM USMISSION USUN NEW YORK
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0281
INFO RUEHEE/ARAB LEAGUE COLLECTIVE IMMEDIATE
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RUEHZL/EUROPEAN POLITICAL COLLECTIVE IMMEDIATE
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C O N F I D E N T I A L SECTION 01 OF 03 USUN NEW YORK 001865 

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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)

C O N F I D E N T I A L SECTION 01 OF 03 USUN NEW YORK 001865

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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

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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