UNSC APPROVES AGREEMENT ESTABLISHING LEBANON

UNCLAS USUN NEW YORK 002187

SIPDIS

SIPDIS
SENSITIVE

E.O. 12958: N/A
TAGS: PREL UNSC IS SY LE
SUBJECT: UNSC APPROVES AGREEMENT ESTABLISHING LEBANON
SPECIAL TRIBUNAL



1. (SBU) SUMMARY. DURING CLOSED CONSULTATIONS ON NOVEMBER
21, THE UN SECURITY COUNCIL UNANIMOUSLY APPROVED A LETTER



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FROM THE COUNCIL PRESIDENT TO SYG ANNAN EXPRESSING
SATISFACTION WITH THE AGREEMENT NEGOTIATED BETWEEN THE UN AND
THE GOL TO ESTABLISH A LEBANON SPECIAL TRIBUNAL AND INVITING
THE SYG TO PROCEED WITH THE FINAL STEPS TO ESTABLISH THE
COURT. ONCE THE SYG SIGNS THE AGREEMENT, IT WILL BE
SUBMITTED TO THE GOL FOR RATIFICATION, AFTER WHICH THE
TRIBUNAL AGREEMENT WILL ENTER INTO FORCE. DURING SC
CONSULTATIONS ON NOVEMBER 20 PRECEDING THE COUNCILS APPROVAL
OF THE LETTER, HOWEVER, THE QATARI DELEGATION QUESTIONED THE
CONSTITUTIONALITY OF THE GOL CABINET DECISION ENDORSING THE
TRIBUNAL AGREEMENT AND THE UN'S DECISION NOT TO CONSIDER
LEBANESE PRESIDENT LAHOUD'S OBJECTIONS TO THE TEXT. RUSSIAN
PR CHURKIN OBJECTED TO PASSAGES IN THE SYG'S REPORT
ACCOMPANYING THE AGREEMENT ON CRIMES AGAINST HUMANITY (OVER
WHICH THE TRIBUNAL DOES NOT HAVE JURISDICTION) AND THE
POSSIBLE LINKAGES BETWEEN THE HARIRI ASSASSINATION AND THE
OTHER 14 ATTACKS COMMITTED IN LEBANON BETWEEN OCTOBER 2004
AND DECEMBER 2005.


2. (SBU) SUMMARY, CONT,D. FRANCE, THE UK, GREECE, AND



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OTHERS JOINED AMBASSADOR BOLTON IN PUSHING FOR QUICK SC
ACTION TO APPROVE THE TRIBUNAL AGREEMENT AND ARGUING THAT
ONLY THE LEBANESE COULD DECIDE WHEN THEIR CONSTITUTIONAL
PROCESS IS COMPLETE. WHILE JAPAN EMPHASIZED ITS STRONG VIEW
THAT THE TRIBUNAL COULD BE FUNDED ONLY THROUGH VOLUNTARY
CONTRIBUTIONS -- WHICH THE USG, UK, AND ARGENTINA SUPPORTED
AND THE COUNCIL LATER ENDORSED -- THE JAPANESE DELEGATE
RAISED CONCERNS ABOUT LANGUAGE IN THE SYG'S REPORT THAT THE
COUNCIL WOULD CONSIDER ALTERNATE MEANS OF FINANCING THE COURT
IF VOLUNTARY CONTRIBUTIONS PROVE INSUFFICIENT. UN OFFICE OF
LEGAL AFFAIRS (OLA) HEAD NICOLAS MICHEL DEFENDED THE PROCESS
BY WHICH THE UN AND GOL NEGOTIATED THE TRIBUNAL AGREEMENT,
BUT EXPRESSED REGRET ABOUT THE CONTROVERSY SURROUNDING THE
SYG'S REPORT. END SUMMARY.

COUNCIL APPROVES TRIBUNAL AGREEMENT
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3. (SBU) DURING CLOSED CONSULTATIONS ON NOVEMBER 21, THE UNSC
APPROVED A DRAFT LETTER FROM THE PRESIDENT OF THE COUNCIL TO



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THE SYG EXPRESSING SATISFACTION WITH THE UN-GOL AGREEMENT
ESTABLISHING THE LEBANON SPECIAL TRIBUNAL AND INVITING THE
SYG TO PROCEED, TOGETHER WITH THE GOL, IN CONFORMITY WITH THE
CONSTITUTION OF LEBANON, WITH THE FINAL STEPS FOR THE
CONCLUSION OF THE AGREEMENT (TEXT OF THE LETTER E-MAILED TO
IO/UNP). FOLLOWING THE COUNCILS ENDORSEMENT, THE PERUVIAN
PR, AS PRESIDENT OF THE UNSC, TRANSMITTED THE LETTER TO THE
SYG ON NOVEMBER 21. THE SYG WILL NOW SIGN THE TRIBUNAL
AGREEMENT FORMALLY BEFORE SUBMITTING IT TO THE GOL TO BE
RATIFIED ACCORDING TO LEBANON'S CONSTITUTIONAL PROCESS. ONCE
THE GOL RATIFIES THE AGREEMENT AND NOTIFIES THE UN
ACCORDINGLY, IT WILL ENTER INTO FORCE AND THE TRIBUNAL WILL
HAVE BEEN ESTABLISHED ON PAPER. THE TRIBUNAL WILL NOT BEGIN
FUNCTIONING, HOWEVER, UNTIL A DATE DETERMINED BY THE SYG IN
CONSULTATION WITH THE GOL, AFTER TAKING INTO ACCOUNT THE
PROGRESS OF THE UN INTERNATIONAL INDEPENDENT INVESTIGATION
COMMISSION (UNIIIC).

MICHEL OFFERS STRONG DEFENSE OF PROCESS...
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4. (SBU) WARNING DURING CONSULTATIONS ON NOVEMBER 20 THAT
"DARK FORCES" WANT TO DERAIL THE TRIBUNAL, MICHEL LAUNCHED AN
IMPASSIONED DEFENSE OF THE AGREEMENT AND STATUTE AND CALLED
ON THE COUNCIL TO HELP END IMPUNITY IN LEBANON BY CONTINUING
ITS UNANIMOUS SUPPORT FOR THE UNIIIC / TRIBUNAL PROCESS.
ALLUDING TO CONCERNS RAISED BY LEBANESE PRESIDENT LAHOUD
ABOUT THE CONSTITUTIONALITY OF THE GOL CABINET DECISION
APPROVING THE DRAFT AGREEMENT AND STATUTE (REFTELS),MICHEL
DEFENDED THE PROCESS BY WHICH THE UN-GOL AGREEMENT WAS
DRAFTED AND THE LEGITIMACY OF THE OUTCOME. HE NOTED THAT THE
LEBANESE JUDGES WHO NEGOTIATED WITH OLA WERE FULLY EMPOWERED
BY GOL CABINET DECISIONS THAT INVOLVED LAHOUD AND THAT THE
TRIBUNAL NEGOTIATIONS ENJOYED UNANIMOUS SUPPORT FROM
LEBANON'S NATIONAL DIALOGUE. ALTHOUGH THE NOVEMBER 13
CABINET DECISION WAS OF MAJOR POLITICAL IMPORTANCE, MICHEL
REPORTED THAT THE GOL WOULD ONLY BE LEGALLY BOUND BY THE
TRIBUNAL AGREEMENT ONCE ITS CONSTITUTIONAL PROCESS --
INCLUDING PARLIAMENTARY RATIFICATION -- IS COMPLETE.




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5. (SBU) TURNING TO THE PROVISIONS OF THE DRAFT AGREEMENT AND
STATUTE, MICHEL SAID THE COURT WOULD EXPAND ITS JURISDICTION
BEYOND THE HARIRI ASSASSINATION ONLY IF THE OTHER 14 ATTACKS
COMMITTED BETWEEN OCTOBER 2004 AND DECEMBER 2005 MEET STRICT
TESTS REGARDING THEIR CONNECTION TO THE HARIRI ATTACK. HE
SAID THE TRIBUNAL WOULD BE GOVERNED BY APPLICABLE LEBANESE
SPECIAL TRIBUNAL

CRIMINAL LAW WITHOUT ANY RECOURSE TO CONSIDER CHARGES OF
CRIMES AGAINST HUMANITY. ON THE APPOINTMENT OF JUDGES,



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MICHEL CONFIRMED THAT THE SYG WOULD MAKE THESE DECISIONS IN
CONSULTATION WITH THE LEBANESE. HE OUTLINED THE FUNDING
OPTIONS PRESENTED IN THE REPORT -- ASSESSED CONTRIBUTIONS,
VOLUNTARY CONTRIBUTIONS, OR A COMBINATION OF BOTH -- AND
NOTED THAT THE SYG WOULD DETERMINE WHEN THE TRIBUNAL WOULD
BEGIN FUNCTIONING IN CONSULTATION WITH THE GOL AFTER
CONSIDERING PROGRESS IN UNIIIC'S WORK. ON THE TRIBUNALS
DURATION, MICHEL NOTED THE AGREEMENT CREATES A MECHANISM TO
CONSIDER THE COURT'S PROGRESS AFTER THREE YEARS BUT IF THE
TRIBUNAL,S ACTIVITIES HAVE NOT CONCLUDED, THE TRIBUNAL WILL
BE EXTENDED TO COMPLETE ITS WORK, FOR A PERIOD TO BE
DETERMINED BY THE SYG IN CONSULTATION WITH THE GOL AND THE
UNSC.

QATAR AND RUSSIA RAISE DOUBTS
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6. (SBU) QATAR EVENTUALLY ACQUIESCED TO THE VIEWS OF OTHER
COUNCIL MEMBERS DURING NOVEMBER 21 CONSULTATIONS AND
SUPPORTED THE DRAFT UNSC LETTER TO THE SYG -- AFTER IT



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CIRCULATED ITS OWN LETTER TO THE UNSC PRESIDENT PUTTING FORTH
ITS INTERPRETATION THAT THE DRAFT LETTER REQUIRES THE
APPROVAL OF PRESIDENT LAHOUD AND THE GOL PARLIAMENT. DURING
THE NOVEMBER 20 CONSULTATIONS, HOWEVER, QATAR EXCORIATED THE
UN-GOL TRIBUNAL PROCESS AND EXPRESSED DOUBTS ABOUT THE
CONSTITUTIONALITY OF THE GOL CABINET DECISION. WARNING THAT
QUICK SC ACTION COULD "POUR OIL ON THE FIRE" OF SECTARIAN
TENSIONS IN LEBANON, QATARI PR NASSER MAINTAINED ON NOVEMBER
20 THAT THE TRIBUNAL AGREEMENT DID NOT MEET LEBANESE
CONSTITUTIONAL TESTS. ASKING MICHEL WHY OLA HAD NOT
CONSIDERED LAHOUD'S OBJECTIONS TO THE AGREEMENT, NASSER
ARGUED THAT ALL LEBANESE PARTIES HAD TO SUPPORT THE TRIBUNAL
AGREEMENT BEFORE IT COULD BE CONSIDERED LEGITIMATE.


7. (SBU) AFTER NOTING IN THE NOVEMBER 20 CONSULTATIONS THAT
THE LETTERS FROM SINIORA AND LAHOUD TO THE COUNCIL DIFFERED
IN &TONE AND SUBSTANCE,8 RUSSIAN PR CHURKIN SAID THE
COUNCIL MUST MAKE CLEAR THAT &WE EXPECT ALL CONSTITUTIONAL
PROCEDURES OF LEBANON TO BE OBSERVED IN THE PROCESS OF
ADOPTING THE DOCUMENTS.8 HE THEN FOCUSED DURING THE



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NOVEMBER 20 CONSULTATIONS ON OBJECTIONS TO THE SYG'S REPORT.
NOTING THAT THE AGREEMENT STIPULATES THAT THE TRIBUNAL WILL
HAVE JURISDICTION OVER THE OTHER 14 ATTACKS IF THEY ARE FOUND
TO BE RELATED TO THE HARIRI ASSASSINATION, CHURKIN ARGUED
THAT THE SYG'S REPORT PRE-JUDGED THAT FINDING BY SUGGESTING
THAT THE TRIBUNAL WOULD NOT BE ABLE TO PROPERLY CONSIDER THE
HARIRI CASE WITHOUT ALSO CONSIDERING THE OTHER 14 ATTACKS.
CHURKIN ALSO RAISED STRONG OBJECTIONS TO THE PARAGRAPHS 23-25
OF THE SYG'S REPORT, WHICH NOTE THAT THE UN SECRETARIAT
WANTED TO INCLUDE CHARGES OF CRIMES AGAINST HUMANITY BUT WAS
DISSUADED FROM DOING SO BY MEMBER STATES. ARGUING THAT THE
SYG'S REPORT CANNOT SERVE AS A REFERENCE DOCUMENT FOR THE
TRIBUNAL BECAUSE OF THESE "ERRORS," CHURKIN SUGGESTED THAT
MICHEL'S BRIEFING TO THE COUNCIL -- WHICH HE SAID CLARIFIED
MANY OF RUSSIA'S QUESTIONS ABOUT THE REPORT -- BE ATTACHED AS
AN ANNEX TO THE REPORT.

P-3 CALL FOR QUICK COUNCIL ACTION
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8. (SBU) FRANCE AND THE UK JOINED AMBASSADOR BOLTON IN
PUSHING FOR SPEEDY ESTABLISHMENT OF THE TRIBUNAL. RESPONDING
TO QUESTIONS RAISED BY QATAR, AMBASSADOR BOLTON ARGUED THAT
IT WAS ENTIRELY APPROPRIATE FOR THE COUNCIL TO ACT BEFORE THE
GOL PARLIAMENT RATIFIES THE AGREEMENT BECAUSE THE COUNCIL HAD
TO SPECIFY WHICH FUNDING OPTION IT WOULD SUPPORT. ON THE
CONSTITUTIONALITY OF THE LEBANESE CABINET DECISION, SEVERAL
DELEGATES SUPPORTED AMBASSADOR BOLTON'S ARGUMENT THAT ONLY
THE LEBANESE -- AND NOT THE SECURITY COUNCIL OR THE
SECRETARIAT -- COULD DECIDE WHETHER THE GOL HAD FOLLOWED ITS

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OWN PROCEDURES. RESPONDING TO RUSSIAN PR CHURKIN'S
OBJECTIONS TO THE SYG'S REPORT, AMBASSADOR BOLTON AGREED THAT
THE SECRETARIAT WAS OUT OF LINE TO INCLUDE THE PARAGRAPHS ON
CRIMES AGAINST HUMANITY AND EXPRESSED SUPPORT FOR THE
PROPOSAL TO REFER TO MICHEL'S BRIEFING IN THE SC'S LETTER IN
ORDER TO CLARIFY THE RECORD.

JAPANESE CONCERNED ABOUT THE BILL
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9. (SBU) WHILE SEVERAL COUNCIL MEMBERS SAID THEY COULD ACCEPT
ANY OF THE SYG'S FUNDING OPTIONS, ALL DELEGATIONS EVENTUALLY
SUPPORTED THE STRONG PREFERENCE EXPRESSED BY JAPAN, THE USG,
ARGENTINA, AND OTHERS THAT THE TRIBUNAL BE FUNDED SOLELY
THROUGH VOLUNTARY CONTRIBUTIONS. THE JAPANESE, HOWEVER, ALSO
OBJECTED TO THE OBSERVATION IN THE SYGS REPORT THAT THE
SPECIAL TRIBUNAL

COUNCIL AND THE SYG SHOULD CONSIDER ALTERNATE MEANS OF
FINANCING THE TRIBUNAL IF VOLUNTARY CONTRIBUTIONS PROVE



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INSUFFICIENT. BEFORE THEY AGREED DURING THE NOVEMBER 21
CONSULTATIONS TO SUPPORT THE DRAFT UNSC LETTER TO THE SYG
APPROVING THE TRIBUNAL AGREEMENT -- WHICH ENDORSED THE SYG'S
OBSERVATION ABOUT ALTERNATE FINANCING ARRANGEMENTS -- THE
JAPANESE SOUGHT AND RECEIVED ASSURANCES FROM THE USG AND
FRANCE THAT MAJOR DONORS TO THE UN WOULD BE CONSULTED IF
ALTERNATE MEANS OF FINANCING THE TRIBUNAL PROVE NECESSARY.

MICHEL STUMBLES DEFENDING SYGS REPORT
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10. (SBU) IN RESPONSE TO CRITICISM FROM RUSSIA AND THE USG ON
THE SYG'S REPORT (ABOVE),MICHEL AGREED THAT THE REPORT WAS
NOT LEGALLY BINDING AND EXPRESSED REGRET OVER THE CONTROVERSY
OVER THE REPORT'S PARAGRAPHS ON LINKAGES BETWEEN THE HARIRI
CASE AND OTHERS AND THE PASSAGES ON CRIMES AGAINST HUMANITY.
HE MAINTAINED THAT THE SECRETARIAT DID NOT INTEND TO
PRE-JUDGE WHETHER THE TRIBUNAL WOULD HAVE JURISDICTION OVER
THE OTHER 14 ATTACKS NOR SUGGEST THAT CONCERNS RAISED BY
MEMBER STATES ABOUT LANGUAGE ON CRIMES AGAINST HUMANITY WERE



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POLITICALLY MOTIVATED. IN RESPONSE TO OTHER QUESTIONS FROM
DELEGATIONS, MICHEL MAINTAINED THAT THE TRIBUNAL'S PROSECUTOR
MUST HAVE INVESTIGATIVE AUTHORITY EVEN AFTER THE UNIIIC
CONCLUDES ITS WORK. HE NOTED THAT THE SEAT OF THE TRIBUNAL
HAD YET TO BE DECIDED, BUT THAT THE SELECTION CRITERIA WOULD
ENSURE AN INDEPENDENT, IMPARTIAL, AND SECURE LOCATION.
MICHEL ARGUED AGAINST LIFTING THE 49 PERCENT CAP ON VOLUNTARY
CONTRIBUTIONS BY THE GOL LEST THE INDEPENDENCE OF THE
TRIBUNAL COME INTO QUESTION.
BOLTON