MEETING WITH LEBANESE TO DISCUSS OPTIONS FOR

UNCLAS USUN NEW YORK 000402

SIPDIS

SIPDIS

FOR L/UNA: TBUCHWALD AND L/LEI: LJACOBSON

E.O. 12958: N/A
TAGS: UNSC LE
SUBJECT: MEETING WITH LEBANESE TO DISCUSS OPTIONS FOR
HARIRI TRIBUNAL



1. BEGIN SUMMARY: Ralph Riachy, Chief Justice of Lebanon's
Supreme Court, and Choucri Sader, President of the
Legislative Service of Lebanon's Ministry of Justice,
discussed options for trying the persons responsible for the
assassination of former Lebanese Prime Minister Rafiq Hariri
with USUN Legal and Political Officers and Department
attorneys on February 24. Charge d,Affaires Caroline Ziade
and Counselor Sami Zeidan of the Permanent Mission of Lebanon
also attended the meeting at UN Headquarters. In a
wide-ranging discussion, Riachy and Sader sought political
support for an international tribunal established by the
Security Council under Chapter VII that would try Lebanese
and other suspects outside Lebanon. (Comment: On March 2,
following their meetings with UN lawyers, the team indicated
that they had revised their thinking and were no longer
considering a tribunal established by the Council under
Chapter VII. Report to follow septel. End comment.) Noting
that the mandate for the International Independent
Investigation Commission (UNIIIC) will end in June 2006, they
stressed the need to act quickly to establish the framework
for a tribunal (although not necessarily the court itself) by
then. END SUMMARY.

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PREFERRED MODEL FOR THE TRIBUNAL
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2. Sader and Riachy argued that the Council, through a
Chapter VII resolution, should establish an international
tribunal on the model of the International Criminal Tribunal
for the Former Yugoslavia (ICTY) and the International
Criminal Tribunal for Rwanda (ICTR). They made five main
arguments for an international tribunal: (1) to respond to
an act of terrorism against the international community; (2)
to enable Lebanese and non-Lebanese suspects to be tried
under the same standards and procedures; (3) to permit a
speedy, efficient trial; (4) to provide legitimacy in Lebanon
and Syria for the trial; and (5) to avoid security problems.
The tribunal would comprise trial and appellate courts and
apply Lebanese substantive criminal law, which they asserted
is sufficiently broad and extraterritorial in scope to ensure
that all participators and conspirators, whether in or
outside Lebanon, could be prosecuted. Sader and Riachy
proposed that the tribunal try all defendants in one trial
and try missing defendants in absentia.

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THE ISSUE OF IMMUNITIES
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3. Establishing an international tribunal would make it
possible to try suspects who would otherwise have immunities
in Lebanon, Sader and Riachy said. A domestic procedure
could be constrained by Lebanon's bilateral agreement with
Syria, which, as they described it, appears to prohibit the
extradition to Lebanon of Syrian nationals, provide official
acts immunity for Syrian officials found in Lebanon or
extradited from third countries, and give senior Syrian
officials an additional form of special immunity. (Note:
The Lebanese have provided the U.S. with a copy of the
agreement, as well as relevant penal code and procedural
provisions. End Note.) Without an international tribunal,
it also would be difficult to prosecute Lebanese officials,
they said. To bring charges against Lebanon officials, a
Lebanese court would need to seek a Parliamentary waiver of
immunity and then try the officials in special courts.

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PROVIDING A SPEEDY TRIAL
--------------


4. An international tribunal using the common law
adversarial system would also be speedier and more efficient
than a trial under Lebanese procedural law, Sader and Riachy
argued. Under the common law process, all of the evidence
that the UNIIIC garners and provides to the Lebanese
government could be placed directly before the court at trial
because it could issue indictments or complaints without a
grand jury. In contrast, under Lebanon's "juge instructive"
process, the investigating judge would have to review all the
evidence, take additional statements, and complete other
time-consuming steps before charges could be filed.

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ENSURING LEGITIMACY AND SECURITY
--------------


5. Sader and Riachy stressed that for security reasons and


to protect the court's credibility, the prosecutor and most
of the judges should not be Lebanese. The prosecutor would
need "complete independence," they said. They expressed
concern for the safety of the family in Lebanon of the
prosecutor and judges (including emigres),noting that there
have been five murders and 14 attempted murders in Lebanon
since Hariri's assassination. They also argued that any
possible Syrian retaliation during the trial would cast a
shadow that could limit the court's ability to operate.


6. To ensure the tribunal's legitimacy, Sader and Riachy
said the tribunal should be outside Lebanon. To avoid the
appearance of politicization, the court should not be located
anywhere under the jurisdiction of France, the UK, or the
United States. Accordingly, the UK's offer to host a court
at its military base in Cyprus would not be acceptable
politically, even though Cyprus would be the most convenient
venue. Instead, they argued for placing the court in a place
with an existing UN presence (e.g. The Hague or Vienna) and
asked whether a UN site might be available in Cyprus. They
also thought it would be simpler for the UN to revise its
existing Headquarters Agreement with either the Netherlands
or Austria than to negotiate a new agreement with a country
without a UN presence. Sader and Riachy discussed the
possibility of placing the tribunal in Egypt or another state
in the Middle East but expressed concerns about security
arrangements in Egypt.

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WHY OTHER MODELS MIGHT NOT WORK
--------------


7. Sader and Riachy expressed reservations about other types
of tribunals. They rejected the Lockerbie model as not
responsive to their security concerns. They also expressed
concerns about establishing a tribunal similar to the Sierra
Leone Special Court, under which the Council, through a
resolution, would request the Secretary-General to negotiate
an agreement with the Lebanese government to establish a
tribunal. Sader and Riachy doubted that Lebanon's Parliament
had the political capacity to ratify an agreement between
Lebanon and the United Nations to establish a tribunal. They
said the ratification process would be slow and ultimately
would likely fail. If the Council wished to adopt a Chapter
VII resolution establishing a tribunal, they thought that
Lebanon's Council of Ministers could advise the UN of
Lebanon's assent.

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COSTS
--------------


8. Sader and Riachy said the tribunal they envisioned would
be significantly less expensive than the ICTY because it
would address only one crime. Expressing confidence that the
other Arab states would support the tribunal, they suggested
it could be voluntarily funded. They then asked whether a
tribunal established by a Security Council resolution under
Chapter VII could be funded through voluntary contributions.
(Comment: There would be no legal bar to financing such a
tribunal through a voluntary trust fund. The ICTY and ICTR
both were funded through assessed contributions, but the
assessment scale (half regular budget, half peacekeeping)
took considerable time to resolve. The Sierra Leone Special
Court was voluntarily funded for the first few years of its
existence but because of inadequate contributions, it is now
receiving assessed funds from the Regular Budget as well as
voluntary contributions. The Khmer Rouge Tribunal, at this
point, is funded voluntarily. End Comment.)

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OTHER ISSUES
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9. Sadr and Riachy also assured the U.S. delegation that
trying all defendants together would not prejudice Lebanon's
ability to pursue other prosecutions in the future. If the
investigation and trial of suspects in the Hariri
assassination reveal links between the conspiracy to
assassinate Hariri and subsequent assassinations, they said
Lebanese prosecutors could bring separate charges at a later
time without facing the problem of double jeopardy. They
also said Lebanese law is flexible enough to permit Lebanon
to continue to detain the eight Lebanese suspects currently
in custody.


10. At the conclusion of the meeting, the Lebanese
delegation thanked the U.S. delegation and expressed interest


in meeting again soon to share perspectives on their meetings
with the French and other delegations.



BOLTON