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

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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

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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.


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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