UN ON LEBANESE TRIBUNAL, BRAMMERTZ EXTENSION

C O N F I D E N T I A L SECTION 01 OF 04 USUN NEW YORK 000891 SIPDIS SIPDIS E.O. 12958: DECL: 04/28/2016 TAGS: PREL UNSC LE SY SUBJECT: UN ON LEBANESE TRIBUNAL, BRAMMERTZ EXTENSION REF: BEIRUT 1316 AND PREVIOUS Classified By: Ambassador Jackie W. Sanders for reasons 1.4 (b) and (d) . ¶1. (C) Summary and Comment: The UN's Office of Legal Affairs (OLA) says it is bewildered by the request of Lebanese Justice Minister Charles Rizk to appoint a prosecutor-general now for the tribunal to be established to try any suspects in the murder of Prime Minister Rafiq Hariri. OLA's Mark Quarterman told USUN April 27 that OLA Under Secretary-General Nicholas Michel advised Rizk during an April 21 meeting with the visiting Lebanese delegation that the proper focus at this juncture should be the investigation headed by UNIIIC Commissioner Serge Brammertz. Quarterman argued that it is illogical for the tribunal to become operational -- including the appointment of a prosecutor-general -- before the investigation has identified and indicted the primary suspects and prepared cases for trial, a process he estimated could take until the end of this year or early 2007. OLA had hopefully concluded that the public request for a one-year extension of UNIIIC by Lebanese Information Minister Ghazi Aridi April 26 indicated that Rizk and Prime Minister Siniora accepted the UN view of the appropriate sequencing of the investigative and trial process. Quarterman outlined a 15-step process for establishing the special tribunal with an international character as called for in UNSCR 1664, and admitted the UN is only at step one. He and Alma Saliu of the UN's Department of Political Affairs also confirmed that UN Secretary-General Annan is pleased with Brammertz and would have "no problem with an extension." They expect this issue, as well as budget and personnel questions, to be addressed when Brammertz visits New York the week of May 8. ¶2. (C) Comment: OLA has clearly failed to move forward to negotiate an agreement with Lebanon to establish the tribunal since UNSCR 1664 was adopted one month ago. Perhaps just as critically, communication between the UN and the GOL about shared expectations of what lies ahead is inadequate, and each side appears to lack an understanding of the other's concerns. In particular, views about how and when to merge the investigative and trial phases appear to have been evolving independently. The process of establishing a tribunal is new for Lebanon and the GOL's lack of experience in dealing with such matters could easily add to its sense of frustration. At the same time, Quarterman had been diverted recently to a legal assessment of the UN's relations with Hamas, and his lack of previous exposure to Lebanese law appears to be complicating his efforts. Fundamentally, however, OLA assumptions about how to proceed -- driven primarily by legal and administrative criteria -- appear to have clashed with Lebanese e political imperatives. We should facilitate an improved dialogue, and identify means of sustaining the Lebanese and international consensus in favor of both the investigation and the tribunal. End Summary and Comment. -------------- Crossed Wires -------------- ¶3. (C) USUN, joined by French and UK experts, met April 27 with OLA Quarterman and DPA Saliu to discuss the status of UN negotiations for the Hariri tribunal (per UNSCR 1664) and the UNIIIC investigation. USUN outlined the Lebanese parliamentary schedule (adjourn at the end of May, reconvene in October) and asked Quarterman to assess the prospects of submitting a treaty for ratification prior to the end of May. Quarterman said he understood the Lebanese request to ratify the treaty in May to be driven by Rizk's desire to immediately appoint a prosecutor-general. He characterized this desire as a "misperception" of the judicial process, and expressed bewilderment that the Justice Minister did not recognize that it was illogical to establish an operational tribunal when no suspects had been indicted and no cases prepared for trial. "What would the prosecutor-general do?" he asked. He also opined that other members of the Security Council are likely to question why the treaty to establish the tribunal must be finalized in May when the Council would not be expected to act to extend the investigative commission until June, suggesting Rizk seeks to put the cart before the horse. Quarterman said this subject has been raised in the meeting April 21 between OLA U/SYG Michel and the visiting Lebanese delegation headed by Prime Minister Siniora, which included Rizk. Michel reportedly advised them that the proper focus at this stage is the investigation. Quarterman said the UN was pleased when they learned from the press that the GOL had called for a one-year extension of UNIIIC, presuming that this announcement suggested the GOL concurred USUN NEW Y 00000891 002 OF 004 with the UN view of how to proceed. -------------- How to Establish a Tribunal -------------- ¶4. (C) Quarterman then proceeded to outline 15 steps OLA believes from past experience are necessary to set up the tribunal. -- First, OLA must prepare a draft treaty and a proposed statute to make the necessary modifications to Lebanese law. Quarterman said OLA was currently engaged in this process, which he described as complex because, unlike other tribunals, this court would use Lebanese law rather than international law. He said OLA planned to ask two judges currently sitting on international tribunals to review the OLA effort to confirm its viability, and expected this review to take ten days. -- Second, OLA will send the draft treaty and proposed statute for the GOL to review. Quarterman said OLA had planned to transmit them by the end of May. -- Third, the GOL will review, a process expected to take approximately one week. -- Fourth, OLA will travel to Beirut for negotiations with the GOL, estimated to take place in the first half of June. -- Fifth, OLA and the GOL reach agreement in principle. -- Sixth, OLA returns to New York and the Secretary-General shares the agreement with the Security Council, expected to take place in mid- to late-June. -- Seventh, Council delegations share the text with capitals and review. -- Eighth, there is an exchange of letters between the Council Presidency (on behalf of the Council) and the Secretary-General. This process took approximately one month SIPDIS when the Council approved the Sierre Leone tribunal, leading to an estimate that this time the process could be completed by the end of July. -- Ninth, Michel would travel to Beirut for a signing ceremony with Rizk. -- Tenth, the Lebanese Parliament would review and ratify. -- Eleventh, the Security Council could adopt a resolution endorsing the treaty and compelling cooperation with the tribunal by non-Lebanese citizens. (Note: Quarterman noted that this resolution may not be necessary for the treaty to be implemented.) -- Twelfth, OLA sends an assessment mission to Lebanon and the host country is chosen as the site of the tribunal. -- Thirteenth, based on this assessment, OLA prepares an operational plan and budget for the tribunal. -- Fourteenth, funds are raised for the first year of the tribunal's operating costs ("cash in the bank") and pledges are obtained for the second year's operating costs. -- Fifteenth, the tribunal's staff is hired, including the prosecutor-general, panel of judges, and administrative staff responsible for managing the registry and supporting the judges. ¶5. (C) Quarterman estimated this process could be complete by the end of this year or the beginning of 2007. He noted that the timing is purely notional, depending on Lebanese reaction and Council reaction. In Quarterman's view, having the tribunal become operational within this time frame dovetailed with the UN's assumptions about the likely progress of the investigation, i.e., by December 2006 or January 2007 Brammertz would have significantly advanced his investigation and be ready to begin submitting cases for trial. (Comment: While both the UN and the GOL assume that the Commission investigation will morph into the prosecutor-general's investigation at some stage -- and ideally Brammertz will move from his current position as chief investigator to prosecutor-general -- neither side has yet identified when this merger should occur. Ideally, the prosecutor's office could be created when Brammertz reports to the Security Council that the investigation has proceeded to the point where the equivalent of criminal indictments could issue. It would not necessarily be at the same time as the creation of the court, which could occur immediately prior to the time arrest warrants are issued. The court would of course have to be running when defendants are arrested as they would be entitled to immediate appearance before the court. End Comment.) Quarterman made clear that OLA's assumptions about the time it would take for the investigation to bear fruit had resulted in their unhurried approach to drafting and negotiating the treaty. In response to USUN inquiry, he said OLA had not been pressured by the Secretary-General or other member states to slow down its SIPDIS efforts to conclude the treaty. The French expert subsequently advised USUN that President Chirac had directed French PermRep de La Sabliere earlier in the week to urge USUN NEW Y 00000891 003 OF 004 Michel to accelerate the treaty negotiations. -------------- Better Ties? -------------- ¶6. (C) USUN expressed concern to Quarterman that OLA had neglected to incorporate the volatile Lebanese political environment into its calculations. While the national consensus in support of the investigation and tribunal is currently strong, unanticipated events could cause this consensus to weaken by October (presuming a special summer session of the Parliament is politically impossible). We asked how we could facilitate an improved dialogue between the UN and the GOL. Quarterman replied defensively that this meeting was the first time that he had heard about the Lebanese political calendar, and that Rizk "communicated" with the UN primarily through the press. When we pressed that this gap suggested a need for better links, he said OLA had excellent working-level contacts and believed the matter had been addressed in Michel's April 21 meeting. He also said that OLA had asked Geir Pederson to engage with the GOL on this matter. In an informal fashion, the group explored whether steps one through five could be collapsed and completed by the end of May so that the Prime Minister or Justice Minister could consider reporting to Parliament before it adjourned to secure approval in principle. Quarterman was reluctant to rush the drafting process, and it was agreed that officials based in Lebanon would be better judges of what might be appropriate when. ¶7. (C) Quarterman provided a brief update on the elements of the treaty. He said Russia and Syria had expressed a preference for a majority of non-Lebanese judges. They had also asked how the tribunal would treat non-Lebanese citizens. OLA explained to them the principle of law that suspects no matter what their nationality are tried by the law of the jurisdiction where the trial occurs, which in many cases is the state where the crime was committed; Quarterman said they seemed satisfied with this response. He did not provide the names of any countries under consideration as the venue for the tribunal, but observed that the current controversy over the location of the Charles Taylor trial underscored the sensitivity of such questions. (Comment: We recommend we reengage with the UN and the GOL on the critical question of where to hold the trial; persuading another government to host the tribunal as a "donation-in-kind" may require USG and/or French and UK intervention. End Comment.) -------------- Brammertz Extension and UNIIIC Administration -------------- ¶8. (C) Quarterman and DPA's Saliu confirmed that SYG Annan is happy with Brammertz's work and expect he will seek the commissioner's extension when they meet in May. USUN asked if the UN has succeeded in fully staffing UNIIIC. Saliu said the UN had sought to facilitate the hiring process by offering standard six-month contracts (with the caveat that if the Council did not extend UNIIIC the contract would be voided) and by placing UNIIIC directly in touch with prospective member state employees rather than slow the process down as an intermediary. To facilitate staffing, Saliu recalled that the Brammertz and the UN had earlier proposed the Council consider an early extension of UNIIIC. They have now concluded that seeking a one-year extension by the commission's 15 June expiration would be a preferable route. Saliu reported that UNIIIC had just sent in a budget request, which proposed an increase of 71 percent in funding. She said she had not yet reviewed the contents of the request but expressed concern about general pressure to reduce UN budgets. When the French expert asked acidly whether the UN had gotten around to paying Brammertz's salary, Saliu said her office had added an additional employee in order to be more responsive. USUN noted that we would listen carefully to Brammertz's assessment of what additional support he required from the UN when he next visited New York. -------------- Comment -------------- ¶9. (C) If the logic of OLA's view is deemed sound, other events on the horizon that could contribute to sustaining momentum in Lebanon include an announcement of Brammertz's extension, which will suggest confidence in his investigation, and adoption in mid-June of an UNSCR extending UNIIIC for one year. We welcome Embassy Beirut's views on USUN NEW Y 00000891 004 OF 004 how to improve the dialogue between OLA and the UN. For example, would a May visit by Michel to Beirut be helpful? BOLTON