ACTION REQUEST: FINALIZING THE UN-LEBANON TREATY

UNCLAS SECTION 01 OF 03 USUN NEW YORK 001899 SIPDIS SENSITIVE SIPDIS E.O. 12958: N/A TAGS: PREL UNSC SY LE SUBJECT: ACTION REQUEST: FINALIZING THE UN-LEBANON TREATY TO ESTABLISH THE HARIRI TRIBUNAL REF: A. USUN 1865 ¶B. BUCHWALD-WILLSON E-MAIL ¶C. BEIRUT 3162 USUN NEW Y 00001899 001.2 OF 003 ¶1. (SBU) This is an action request. Please see para 10. ¶2. (SBU) Summary. During a meeting between P-3 legal and political officers on October 2, French experts reported that the UN's Office of Legal Affairs (OLA) had revised the draft treaty establishing the Hariri tribunal to delete any references to crimes against humanity and the Arab Convention on Terrorism ) two of the major points on which the USG had earlier pressed for changes (ref A). The French had no revisions to report on another point the USG had urged OLA to consider ) extending the tribunal,s temporal jurisdiction beyond December 2005 in an attempt to deter future attacks ) but joined the UK in arguing that the tribunal,s jurisdiction should not be extended. The French experts said the UN plans to submit the treaty to GOL Justice Minister Rizk as early as October 5 in order to secure GOL cabinet approval "in principle" before the SYG submits the treaty to the UNSC for review. After USUN legal and political officers described USG proposals to overcome potential claims of immunity by Lebanese or Syrian officials (ref b) ) including by adopting a Chapter VII resolution -- French and UK experts agreed that such a resolution would be necessary but warned that achieving one in the Council now would be politically impossible. The British expert proposed pushing for a Chapter VII UNSCR once the SYG certifies that the tribunal has become operational. While the UK and France agreed that the tribunal should be funded through voluntary contributions, they had not yet received formal guidance to respond to OLA's request that the prosecutor's office benefit from assessed contributions as long as the investigation continues. OLA plans to present options to fund the tribunal in the SYG,s report to the UNSC. End Summary. Status of the Draft Treaty -------------- ¶3. (SBU) The French legal expert reported that OLA's Mark Quarterman had told her earlier on October 2 that OLA had sent a revised version of the treaty to Lebanese judges Choukri Sadr and Ralph Riachy over the past weekend for their review. This version had been modified to address P-3 concerns in several ways. First, both the heading and the substance of the language on crimes against humanity had been removed. Second, the reference to the Arab Convention on Terrorism had been deleted. Third, OLA had asked the Lebanese judges to consider other crimes under Lebanese law -- beyond just terrorism -- for which the tribunal could try suspects. Sequence/Timeline for Approval -------------- ¶4. (SBU) The French legal expert said Quarterman predicted OLA could finalize the draft treaty by October 4-5, after receiving comments from the Lebanese judges, and then forward the text to Lebanese Justice Minister Rizk in order to secure "agreement in principle" from the GOL Cabinet. Once the Cabinet has approved the text in principle, OLA could then submit SYG Annan's report on the tribunal to the UNSC. (Note: This sequence was followed by the UN when setting up tribunals in other countries. End Note.) Lebanese Mission to the UN Charge Caroline Ziade confirmed this sequence of events during a separate meeting with Ambassador Wolff on October 2, but also undertook to check if the GOL wanted to move up the timetable for approval (per ref C). French and UK experts agreed to seek a working-level meeting between the P-3 and OLA on October 4 -- or as soon as possible after OLA has heard back from the Lebanese judges -- but before OLA submits the treaty to Justice Minister Rizk for his consideration. Given that OLA may finalize the SYG,s report to the Council soon after the Lebanese judges approve the latest version of the draft treaty, P-3 experts also agreed to seek instructions from capitals by October 4 on elements to propose OLA include in the SYG,s report. Deterring a Future Attack -------------- ¶5. (SBU) The UK expert said HMG would be "very uncomfortable" with any proposal to extend the tribunal's temporal jurisdiction beyond December 2005, given the risk that some within Lebanon or beyond could argue that the tribunal should also consider purported Israeli "war crimes" against Lebanon as well as the killing of the Mazjoub brothers (suspected USUN NEW Y 00001899 002.2 OF 003 Palestinian Islamic Jihad operatives) in May 2006. The French expert agreed that it would be prudent for the tribunal to retain the December 2005 cut-off and asked whether the USG would press the point. (Note: UNSCRs 1644 and 1686 expanded UNIIIC's mandate, at GOL request, from a sole focus on the assassination of Hariri and 22 others to include the provision of technical assistance to the GOL in its investigations of other terrorist attacks perpetrated in Lebanon since October 1, 2004. But the resolutions are silent on the cut-off date for attacks to be investigated by the Commission. OLA, as well as the majority of UNSC members, have interpreted the time frame of the Commission's investigative mandate to run from October 1, 2004, through December 2005. Because the purpose of the tribunal is to try those responsible for acts investigated by the Commission, OLA and other member states have argued that the tribunal should have the same temporal jurisdiction as the Commission. End Note.) USUN Officers told UK and French experts that Ambassador Wolff had told Nicolas Michel (ref A) that the treaty should deter future attacks in Lebanon by extending its jurisdiction beyond December 2005, but that the U.S. had not proposed a specific formula to accomplish this goal. Arguing that extending the tribunal's jurisdiction would be politically difficult within the Council, where many members prefer a primary focus on the Hariri assassination, French and British experts opined that the UNSC could always ask the Secretariat to modify the agreement with the Lebanese to SIPDIS include future crimes -- as had been the case with the ICTY. Laying the Groundwork for a Chapter VII UNSCR -------------- ¶6. (SBU) French and British experts agreed that the Council would eventually have to adopt a Chapter VII resolution mandating cooperation with the tribunal, but argued it would be politically impossible to secure such a resolution now within the UNSC. Recalling Russian opposition to language regarding the tribunal in a press statement following UNIIIC head Brammertz's briefing to the Council (septel),the French expert predicted that Russia would too oppose a Chapter VII resolution at the present time but would acquiesce to one once it becomes necessary for the tribunal to function. USUN Officers noted that the USG had yet to take a decision on when to push for a Chapter VII resolution, but suggested that the P-3 agree on language to propose that OLA include in the draft treaty or in the SYG's report that could serve as a trigger for a Chapter VII resolution. Drawing from ref B, USUN Officers described ideas to add language to the treaty/statute overriding claims of immunity below the head of state level or requiring states asserting such immunity to do so formally -- which could then lead the UNSC to act. ¶7. (SBU) Evincing no enthusiasm for proposals to amend the treaty/statute to set the stage for a Chapter VII resolution -- on the grounds that they would delay the process of approving the treaty -- French and British experts suggested that the P-3 instead advise OLA to include language in the SYG's report that could serve as a trigger for a Chapter VII resolution. Noting that the SYG would have to certify that the tribunal had become operational -- after the GOL parliament ratifies the treaty and presumably after the court hires a prosecutor and judges -- the British expert proposed that OLA recommend that this certification be accompanied by a resolution conferring the same authority on the tribunal that the Commission currently enjoys. By welcoming the SYG's report in the exchange of letters that follows the Council's review of the draft treaty, the UNSC could then set the stage for a Chapter VII resolution when the tribunal becomes operational. Funding: When to Cut off Assessed Contributions -------------- -- ¶8. (SBU) UK and French experts shared USG views that the tribunal ought to be funded through voluntary contributions, but did not have formal positions on OLA's request that the prosecutor's office continue to receive funding from assessed contributions as long as the investigation continues (ref B). The French expert predicted Paris would be tempted to support OLA's request given the need to ensure continuity in operations between UNIIIC and the tribunal, while the British expert seemed more reluctant on this point. In terms of funding options longer-term, the British expert noted that HMG would have no problem with 100 percent GOL funding as long as it is transparent. The French expert suggested that some degree of international funding would be important politically but had no formal views to report. USUN NEW Y 00001899 003.2 OF 003 Comment and Action Request -------------- ¶9. (SBU) Comment: Presuming OLA still believes the SYG must certify that the tribunal has become operational, this reporting requirement offers a good opportunity to push for a Chapter VII resolution and to mark a clean break between funding for the Commission and the tribunal. In this scenario, the P-3 could argue that the tribunal needs the same legal authority to compel cooperation that the Commission enjoys under UNSCR 1636 in order to become truly operational. The Commission could also receive funding from assessed contributions until this point -- which we could argue the tribunal should reach only once a case is ready for trial and judges have been appointed -- after which assessed contributions would cease and the tribunal would function on the basis of voluntary contributions. ¶10. (SBU) Action Request: We will request that OLA share with us a revised version of the draft treaty as soon as it concludes its discussions with the Lebanese judges. USUN requests Department views on the issues described in paras 5-8, particularly the issue of the tribunal's temporal jurisdiction, no later than OOB October 4 to enable us to engage in a timely fashion with OLA. BOLTON