LEBANESE LEGAL DELEGATION LEAVES NEW YORK WITH PLAN

C O N F I D E N T I A L USUN NEW YORK 000423

SIPDIS

SIPDIS

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

E.O. 12958: DECL: 03/03/2016
TAGS: KCRM PGOV PREL UNSC LE
SUBJECT: LEBANESE LEGAL DELEGATION LEAVES NEW YORK WITH PLAN

REF: USUN NEW YORK 402

Classified By: Ambassador Jackie Sanders for Reasons 1.4(b) and 1.4(d).


1. Summary. Department lawyers and USUN Political and
Legal Officers met again (reftel) March 2 with the Lebanese
Tribunal team to review the status of planning for the
prosecution of those responsible for the Hariri
assassination. The team was about to return to Beirut after
concluding a series of meetings with UN Legal Office lawyers.
They indicated that they had also met with French and
Russian Mission Legal Advisers, and admitted that French
political analysis of what was possible in the Security
Council had influenced their thinking. Both the Lebanese
team, and the UN team with whom we met later, said that the
talks had been highly productive and an excellent start to
further talks which they expect will follow. After almost a
week of consultations with the UN and with us, they have
moved from a Beirut-centric preference for an international
tribunal set up by a Chapter VII Security Council resolution
to support for a Special Court for Lebanon established by a
treaty between the UN and the GOL that has been ratified by
the Lebanese Parliament. They envision the Tribunal would
have some international components. This process ideally
would be book-ended by two UNSCRs -- the first to instruct
the UN to negotiate a treaty with the GOL and the second to
compel international cooperation with the Tribunal once
established. Their plan would also enable the Tribunal to
utilize and build on work already underway in the
International Independent Investigation Commission (UNIIIC).
They stressed the need for an efficient Tribunal and are
returning to Lebanon with a clear plan and timetable to
propose to the Prime Minister. End Summary.


2. Ralph Riachy, Chief Justice of Lebanon's Supreme Court,
and Choucri Sader, President of the Legislative Service of
Lebanon's Ministry of Justice, said that after three days of
consultations with the UN Lebanon Tribunal team they were now
"one team" looking for the most efficient way to establish
the Tribunal. They said that they had come to New York with
instructions from their government to discuss a Yugoslav type
Tribunal to be established by the Security Council under
Chapter VII but were now convinced that it would be more
efficient and feasible to establish a Special Tribunal. The
Tribunal would be established through an act to be adopted by
the Lebanese parliament that would bring into force as part
of Lebanese law the terms of an agreement that would be
negotiated with the UN. A Security Council resolution would
authorize the Secretary General to negotiate the agreement
and a subsequent resolution would require co-operation with
the Court. During the course of the week, the Lebanese had
moved to a characterization of the court as a "special
Lebanese Tribunal" with international components (as opposed
to a truly "international court"). Under the regime that
they anticipated establishing, the applicable substantive law
would be existing Lebanese law. The Secretary General would
appoint the Prosecutor and judges. Lebanese judges would be
selected from a roster provided by the Lebanese Supreme
Council of the Judiciary. The Prosecutor and majority of the
judges would be non-Lebanese, and the Court would be located
abroad.


3. Under the concept presented by Riachy and Sader, the
prosecutor would build on the investigative phase of work
which has been begun by the UNIIIC. The second phase would
begin with the appointment of a Prosecutor and the
transformation of the UNIIIC into a judicial investigative
body under his direction, with provisions allowing the
special court to utilize evidence that had been developed by
UNIIIC. As part of an effort to help lower costs, only when
ready to move to the next phase, the trial, would the judges
(3 trial, 5 appellate) start work. This arrangement, they
said, would be efficient and cost effective.


4. The Lebanese team envisioned the following steps and time
line:

- Per UNSCR 1644, the Secretary-General would produce a
report for the Security Council in mid-March which would
describe the plan and elements for the Tribunal. The report
would present a framework, not an agreement. The timing of
the release of the report, shortly after Brammertz's March 16
briefing to the Council, would be designed to sustain
political momentum in the wake of what is expected to be an
inclusive and interim UNIIIC report.

- The Security Council would adopt a resolution authorizing

the Secretary General to negotiate an agreement with the
Lebanese government specifying key elements of the agreement.

- The UN would dispatch a negotiating team with the
objective of producing an agreement by April.

- The Lebanese Parliament would take action on the agreement
during April and May.

- The Security Council would adopt a subsequent resolution
which would require cooperation with the Court under Chapter
VII. This should be adopted before the June 15 expiration of
the UNIIIC's mandate.


5. Both the Lebanese and UN teams mentioned a number of
legal issues that must be resolved and shared their thinking
on some of them. They said they plan one trial for all
defendants, on the theory that the Hariri assassination was
one event. Recalling the other assassinations or attempted
assassinations, the Lebanese suggested that a focus on Hariri
was appropriate as they were confronting a "serial killer."
They want to ensure that the Court has personal jurisdiction
which will permit prosecution of non-Lebanese. They
anticipate that the agreement will have to address questions
of immunity, amnesty and pardon.

- Lebanese law would apply. The crimes that would be
included in the agreement were crimes under Lebanese law at
the time of the event. It may be necessary to modify or
draft new rules of procedure and evidence. The single trial
will include both present and absent defendants and thus the
trial could be completed even if some are tried in absentia.

- There has been no decision regarding the location of the
Tribunal but it must be outside Lebanon because of security
concerns and should not be in the territory of a P-5 member.
Close proximity to Lebanon would be a plus. Cyprus was
mentioned as a possibility, though they made clear it would
not be viable to use the UK facility (or Sovereign Base
Area).

- They anticipate the need for an agreement with the Host
state. (UN lawyers indicated that the Lockerbie agreement
could be a useful model.)

- Costs will be reduced by using the UNIIIC's work product
and phasing in the creation of the Court. Since the Tribunal
is not a subsidiary body of a UN organ, it would not be
financed from the UN budget. They envision that the funding
would be voluntary and indicated that Lebanon would be
prepared to contribute an equitable share. They did not
expect that this court would have difficulties in finding
donors to support it, and specifically suggested that they
thought funding would be forthcoming from other Arab states.
(Note: U.S. side highlighted the importance of dealing with
the cost issue in a way that prevents it from becoming an
impediment to building support for the Court; and emphasized
the importance of identifying funding for the Court in
advance, and in a way that makes others comfortable that
funds promised would actually be forthcoming. End Note.)


6. Comment: Although we made excellent progress during the
course of the week, there are obviously many impediments
remaining -- e.g., the need to identify a suitable country
for hosting the Court, deciding where non-Lebanese persons
would serve sentences; whether the second UNSCR (under
Chapter VII) would require cooperation of all states, or just
of a particular state or states; whether it is feasible to
have one trial for all defendants (whether or not actually in
custody); whether Lebanese parliamentary approval would
actually be forthcoming. Both the Lebanese and UN teams
indicated that the project is off to a good start, and we
share that assessment. There still are, however, quite a few
legal and political issues to be resolved and the time table
set for completing the steps to establish the Court (June 15)
may be too ambitious. End Comment.
BOLTON