SYG CONVENES P-5 TO SEEK EARLY AGREEMENT ON TEXTS

UNCLAS USUN NEW YORK 002084

SIPDIS

SIPDIS

FOR IO:KSILVERBERG, NEA/ELA:ADONICK, L/AN:LJACOBSON

E.O. 12958: N/A
TAGS: UNSC PGOV PREL PTER KCRM SY LE
SUBJECT: SYG CONVENES P-5 TO SEEK EARLY AGREEMENT ON TEXTS
ESTABLISHING HARIRI TRIBUNAL

REF: A. USUN 2046

B. STATE 166376

C. USUN 1366


1. BEGIN SUMMARY: Secretary-General Annan met with the P-5
ambassadors on November 1, appealing to the P-5 to show
flexibility and reach agreement within the next few days on
the draft GOL/UN agreement and accompanying statute to
establish a tribunal to try those responsible for the
assassination of former Lebanese Prime Minister Rafiq Hariri.
The meeting was clearly designed to press the Russians to
withdraw their objections to the draft texts. Annan stressed
the tenuous political situation in Lebanon and said Lebanese
Prime Minister Siniora and the Lebanese want the UN to
proceed as quickly as possible in concluding the two texts,
which would lay the legal foundations for establishing the
tribunal. Several P-5 ambassadors agreed that the P-5 should
reach agreement in the next few days, but Russian Deputy
PermRep Rogachev said Russia did not want to compromise
quality. At the end of the meeting, Ambassador Bolton
suggested the P-5 meet to find a way forward. END SUMMARY.


2. Ambassador Bolton represented USUN at the
Secretary-General's November 1 meeting; all other P-5

SIPDIS
ambassadors attended, except for Russian PermRep Churkin, who
is away from New York. (Junior DPR Rogachev represented
Russia.) UN Legal Counsel Nicolas Michel and Daphna Shraga
and Markus Pellek of the Office of Legal Affairs (OLA) also
attended.


3. Annan opened the November 1 meeting by expressing concern
about emerging divisions in the Lebanese government and then
summarizing key objections the Russians have raised to the
texts that OLA drafted and circulated to the P-5, Japan, and
Qatar on October 19. Annan said the Secretariat wants to
submit the texts for the Council's approval but does not want
to do so if the Council remains divided. He asked the P-5 to
provide final reactions to the Secretariat within one or two
days.


4. Annan then summarized Russia's objections and concerns.
Russia has objected to the provision of the statute
permitting trials in absentia and the provision permitting
appointment - not Security Council election - of judges and
prosecutors. Russia also seeks to amend the statute to
terminate the tribunal automatically after three years.
Russia also has questioned the use of the word "terrorist" in
the statute to characterize the attacks over which the
tribunal would exercise jurisdiction, the applicability of
international law to the tribunal, the provision concerning
individual criminal responsibility, and the reference in the
statute that permits the tribunal to draw on the
jurisprudence of international criminal tribunals.


5. UK PermRep Jones-Parry expressed concern that the draft
statute and agreement do not include a provision to strip
immunity of Lebanese and third-party officials, as the
statute establishing the Special Court for Sierra Leone does.
Michel said a provision to strip the immunity of Lebanese
officials would violate Lebanon's constitution, while a
bilateral agreement would not be sufficient to eliminate the
immunities of third-country officials.


6. Russian DPR Rogachev said Russia shares the view that the
situation in Lebanon dictates "some urgency," but cautioned
that speed should not take priority over the need to ensure
the quality of the tribunal. He argued that the trial itself
should be "very fair" and "developed in accordance with the
highest standards," saying that the draft text in some places
set out "minimal standards." He then said Russia's concerns
are legal, not political. Specifically, he said Russia was
"surprised" to see that non-governmental organizations and
interested individuals could present the names of judges for
the Secretary-General to appoint. Second, he said the
defense should have the same privileges and immunities as the
prosecution. He concluded by saying the texts should be
concluded in "a matter of days not weeks."


7. Annan and Michel then addressed Russia's comments.
First, Michel said OLA has consulted carefully with all of
the P-5 to ensure that the texts reflect P-5 concerns and
consulted with international judges to be sure the texts
reflect international standards. Michel also questioned
Russia's claim that the remaining issues are only legal in
nature, noting that the key question of whether the tribunal
should exercise jurisdiction over the Hariri attack only over
other attacks is a policy - not a legal - question.



8. Michel explained that OLA had revised the texts last week
to try to address Russia's concerns, sharing the revisions
with Russia only. Among other things, he said OLA redrafted
Article 1 of the draft statute (concerning subject-matter
jurisdiction) to address Russia's concerns. The revision
contained one sentence stating that the tribunal has
jurisdiction over the Hariri attack. The second provision
said if three conditions were met, then some of the other 14
attacks might also be covered. Specifically, the attacks
must be related to the Hariri attack, of a similar nature,
and of a similar gravity, he says. Because Russia had not
accepted OLA revisions, however, Michel clarified that OLA
had retracted them and would not share them with others. The
texts OLA circulated to the P-5 on October 19 would remain
the working drafts.


9. Michel then responded directly to some of Russia's other
objections. He said OLA modeled the provision concerning
appointment of judges on the mechanism by which judges are
appointed to the Cambodia tribunal. For that tribunal, two
independent judges participate along with representatives of
the Secretariat in a selections panel, and all participants
have considered that process to be effective.


10. Concerning Russia's concerns about the provision
permitting trials in absentia, Michel said Lebanese law
permits them and the draft statute permits these trials if a
defendant is represented by counsel, something the European
Court of Human Rights has established as a condition to
protect defendants' human rights. Michel continued that four
of Russia's other objections relate to the international
character of the court, stressing that OLA thinks
international elements must be a part of the statute of the
tribunal. Finally, on the issue of whether the tribunal
should terminate automatically, Michel thought OLA could find
language to address Russia's concern that the tribunal should
not continue indefinitely, while ensuring that an arbitrary
decisions of one of the partie would not force it to stop
working.


11. French PermRep de La Sabliere pressed Rogachev on
whether Russia could accept OLA's new proposal on the scope
of jurisdiction. Rogachev said Russia's "precondition" is
that attacks other than the one on Hariri must be related to
the Hariri attack if the tribunal is to exercise jurisdiction
over them. The mere fact that suicide bombers perpetrated
six of the other attacks does not establish a relationship,
he argued, saying that a reference to the other attacks in
one of Serge Brammertz's reports is not sufficient to
establish a relationship. The notion of a "relation" should
be established according to criminal law principles, he
argued. Michel responded that the revised draft article uses
the word "if," showing that the issue of relationship has not
been prejudged. Annan agreed, saying the draft statute is
the key text - not a paragraph in a Brammertz report to the
Council.


12. Ambassador Bolton sought clarification on whether
Brammertz agrees with the UN's desire to move quickly to
establish the tribunal. Michel said he has spoken with
Brammertz on a regular basis and Brammertz has not objected,
and Annan agreed to secure written confirmation from
Brammertz. Michel also clarified that the UN does not intend
to appoint judges and create a working tribunal immediately
after the texts are concluded. Instead, the UN wants to
ensure that the legal bases for the tribunal are clear,
allowing Brammertz to ensure that his investigation is
conducted consistent with the rules and procedures of the
tribunal. In practice, it would take months, if not a year,
to bring the tribunal into operation because the UN would
have to conduct an assessment mission, identify a location,
and secure funding, among other things.


13. At the end of the meeting, Ambassador Bolton stressed
that all parties want to move quickly. He then suggested
that the P-5 ambassadors should meet to move the process.
BOLTON