URGENT DEMARCHE: URGE SUPPORT FOR SPECIAL

UNCLAS SECTION 01 OF 04 STATE 070478 SIPDIS SENSITIVE SIPDIS KINSHASA PASS TO BRAZZAVILLE E.O. 12958: N/A TAGS: UNSC LE PREL PTER SUBJECT: URGENT DEMARCHE: URGE SUPPORT FOR SPECIAL TRIBUNAL FOR LEBANON REF: A. USUN 384 ¶B. USUN 393 ¶1. (SBU) SUMMARY AND ACTION REQUEST: Department instructs Ambassadors (or Chiefs of Mission) to seek urgent meetings with host governments at the highest level possible to press for support for immediate UN Security Council action to establish the Special Tribunal for Lebanon. The P-3 shared the draft resolution text with all Security Council members last week. Except for Belgium and Slovakia, other Council members raised a number of questions/concerns (Refs A and B). Posts should draw from the material in paras 4-13 below to address these concerns and confirm support. Demarche may be delivered by phone and must be delivered within 24 hours of receipt in order to permit UNSC action by May 25. Demarche may be delivered in conjunction with French and British counterparts, if appropriate. End Summary and Action Request. ¶2. (SBU) OBJECTIVES: Department requests Embassies pursue the following objectives: -- For Embassies Paris, London, Brussels, and Bratislava: Inform host government that we are making this demarche, express appreciation for its support of the resolution, and ask host government to engage with other UNSC members to urge UNSC support of the resolution. -- For all other posts: Urge host government to instruct its mission to the UN to support the P-3 draft resolution on the Special Tribunal for Lebanon when it is formally tabled in the Security Council, which could happen as early as May 23, and to support a UNSC vote on the resolution this week. -- Note that, as UN Legal Advisor Michel reported to the Security Council, all parties in Lebanon support in principle the establishment of the Tribunal. Express our full appreciation of the importance of respecting the internal processes of member states, but stress that this is a case where the subversion of that process - through terrorism and other threats of violence - is itself the heart of the problem. -- Underscore the importance of the Tribunal for the future stability of Lebanon. Stress Prime Minister Siniora,s conclusion last week that "Lebanon cannot sustain the failure to establish a tribunal." Note that the only way to stop future political assassinations is for those responsible to be held accountable. Emphasize that the international community must help ensure that there is no impunity for political assassinations. -- Emphasize that the Tribunal must be established soon for operational reasons and in the interest of justice and stability. It would take at least a year for the Tribunal to become operational. ¶3. REPORTING DEADLINE: Embassy should report results of demarche to IO/UNP: Anneliese Reinemeyer before May 24. -------------- BACKGROUND -------------- ¶4. (SBU) The assassination of former Lebanese Prime Minister Rafiq Hariri on February 14, 2005, led to widespread protests and the withdrawal of Syrian troops from Lebanon in April 2005. At the GOL's request, the UN established the UN Independent International Investigation Commission (UNIIIC) and has worked with the Lebanese Justice Minister and other Lebanese officials to negotiate the Tribunal statute. Approval of the Tribunal has become a key element in the current political tension in Beirut, which pits PM Siniora and his March 14 allies (the Saad Hariri faction) against the pro-Syrian Hizballah-Aounist Alliance. (Note: March 14 commands a majority in the Parliament where the Hizballah-Aounist alliance represents a minority. End note.) The UN and the Lebanese Cabinet have approved the Tribunal Agreement and Statute; however, Hizballah and Syrian sympathizers have prevented the Parliament from convening to ratify the Agreement in an attempt to leverage this issue to gain a blocking minority in the Lebanese Cabinet. ¶5. (U) The Lebanese Parliament, which was scheduled to reconvene its regular session on March 20, has still not STATE 00070478 002 OF 004 met. A majority of the Lebanese Parliamentarians have documented more than once their intent to ratify the Tribunal, if only the Speaker of Parliament would allow them to convene. These members of the parliamentary majority, who took office after free and fair elections monitored by international observers, have actively sought Security Council assistance to establish the Tribunal. The P-3 have drafted a resolution that keeps the substance of the Statute/Agreement as negotiated by the Government of Lebanon and the UN in place. The P-3 plan to table this resolution as early as May 23 for a vote later this week. ¶6. (U) In expert level meetings in New York, UNSC delegations have raised a number of concerns (refs a and b). Posts may respond to these specific issues drawing on the points in paras 7-14 below. Posts may leave these points with the host government as a non-paper. ¶7. (SBU) WILL COUNCIL ACTION UNDERMINE LEBANESE SOVEREIGNTY? The United States continues to fully support the immediate establishment of the Special Tribunal to try those responsible for perpetrating the terrorist attack that killed Rafiq Hariri and 22 others. We believe the establishment of the Tribunal is necessary to see that justice is done. The Tribunal will serve as a deterrent to those who in the future might be tempted to engage in similar violent crimes intended to undermine Lebanon's democracy, sovereignty and independence. While we would prefer Lebanese parliamentary approval, this is no longer a realistic option. Although established by the Security Council under Chapter VII, the Tribunal will retain all the key Lebanese Components. Lebanon will continue to have a role in choosing judges and the Lebanese deputy prosecutor and in consulting with the UN on a Headquarters Agreement. Additionally, the Tribunal will work in accordance with Lebanese law. A Chapter VII Tribunal will strengthen sovereignty by working integrally with Lebanon to see that justice is done. This is a case where international pressure can help free a country from internal and external threats to its sovereignty. Lebanon,s sovereignty is imperiled when political leaders, journalists, and citizens are targeted for assassination because of their political views. ¶8. (SBU) WHY NOW? -- First, the Lebanese people,s right to justice should be neither denied nor delayed. The Tribunal will demonstrate that there is no impunity for politically-motivated violence and thereby deter further violence. In the current highly volatile political situation in Lebanon, all political leaders, journalists, and citizens must feel free to express their views without threats or fear of assassination. The need for this freedom of expression is even more urgent as Lebanon approaches its fall Presidential elections. Without the Tribunal and the assurance of justice, all political leaders may fear they are vulnerable. -- Second, the Tribunal must be established soon for operational reasons, since it will take at least a year for the Tribunal to become operational. -- Third, the unresolved question of the Tribunal has prevented Parliament from addressing the other important political issues facing Lebanon, including economic reform, a new electoral law, and the disarmament of militias. Parliament will not convene until the issue of the Tribunal is resolved by the Security Council. -- Fourth, Prime Minister Siniora has requested urgent UNSC action on this issue to bolster his democratically-elected government against attempts by parties in Lebanon and the region to undermine its authority. ¶9. (SBU) ARE THERE OTHER OPTIONS? While Parliamentary ratification would have been far preferable, the ratification process is definitively blocked. The opposition refused to discuss specific concerns about the Statute with UN Legal Advisor Nicolas Michel and continues to use the Tribunal as leverage in its negotiations with the government to gain a blocking minority in the Cabinet. The Lebanese domestic courts are unable to take on sensitive political prosecutions because of the high-risk security situation. The only realistic option for justice is for the Security Council to act on the request of the democratically-elected Government of Lebanon and take a &binding8 decision to bring the Tribunal Agreement into force. STATE 00070478 003 OF 004 -- (IF ASKED ONLY) WHAT ABOUT THE ICC? The International Criminal Court is not an appropriate venue for the prosecution of those responsible for the Hariri assassination, a terrorist action that violated Lebanese law. The ICC prosecutes war crimes, crimes against humanity, and genocide, which are offenses within the jurisdiction of the ICC. A referral to the ICC would also be inconsistent with respect for Lebanese sovereignty; Lebanon itself should have the lead in the prosecution of those responsible for terrorist acts on its soil. ¶10. (SBU) WILL COUNCIL ACTION LEAD TO INSTABILITY? -- Lebanon already suffers from a high level of instability resulting from the threat of violence from Lebanon,s armed militias and their foreign sponsors, who use this threat to control Lebanon,s internal political dialogue. We have no information that the clashes between the Lebanese Armed Forces and Fatah al-Islam are connected to the issue of Security Council Action to establish the Special Tribunal for Lebanon. The establishment of the Tribunal, with its promise of ending impunity, will increase stability by deterring politically-motivated violence and permitting Lebanese leaders to address the serious, underlying political issues facing Lebanon. -- As Prime Minister Siniora said last week: "Lebanon cannot sustain the failure to establish a tribunal. It touches the heart and essence of fundamental justice in the country and will lead to the continued obsession with assassinations; it will be a sword hanging over the necks of the Lebanese." (Ya Libnan, 05/17/2007) -- Now that the Tribunal has been referred to the UNSC, all parties in Lebanon and the region consider it a fait accompli and are not likely to respond violently. -- As long as there is impunity for politically-motivated violence, the Lebanese Cabinet, the Lebanese Parliament, journalists, the Lebanese people and UNIFIL are all at risk. Lebanon can only have a secure future when the killers know they will be held accountable for their actions. ¶11. (SBU) WHY SHOULD THE COUNCIL PICK SIDES IN AN INTERNAL DISPUTE? WHY SHOULD THE COUNCIL LISTEN TO PRIME MINISTER SINIORA RATHER THAN PRESIDENT LAHOUD - BOTH HAVE SENT LETTERS? The establishment of the Tribunal is not a partisan political issue, it is an issue of justice. The Council is not picking sides ) all political sides in Lebanon have professed their support for the Tribunal in principle. Unfortunately, the opposition in Lebanon is attempting to leverage the universal support for the Tribunal for their political gain in an unrelated political issue. By linking the Tribunal to its demand for a blocking minority in the Cabinet, the opposition has politicized the Lebanese people's desire for justice. Council action to establish the Tribunal will depoliticize the Tribunal and the search for justice. President Lahoud's letter does not argue against the Tribunal; rather he argues against Prime Minister Siniora's request for Council action to establish the Tribunal. President Lahoud has indicated on many occasions that he supports the Tribunal; in fact, the full Lebanese Cabinet, with President Lahoud presiding, authorized Lebanese judges to negotiate the Tribunal Agreement and Statute with the Secretariat. Despite this history of support, President SIPDIS Lahoud refused to sign the Tribunal Agreement following approval by the Cabinet. ¶12. (SBU) WHAT IS THE LEGAL BASIS FOR 'BRINGING AN AGREEMENT INTO FORCE'? CAN THE UNSC NOW RATIFY AGREEMENTS FOR COUNTRIES THAT HAVE FAILED TO DO SO THEMSELVES? (Note: Posts are encouraged to deflect this question and rely on the political arguments found elsewhere in this cable. However, if necessary, posts can draw from the following points. End note.) -- We understand your concerns about having the UN Security Council decide that a state shall be a party to an international agreement to which it has formally decided not to become a party. But there is an important distinction between the Security Council taking action that would impose obligations on a state, on the one hand, and the UNSC taking action that would require a state to become a party to a particular treaty, on the other hand. -- There are in fact numerous examples of the former in Council practice. For instance: STATE 00070478 004 OF 004 -- In UNSC resolution 1593, the Security Council decided that the Government of Sudan "shall fully cooperate with and provide any necessary assistance" to the ICC, even though Sudan was not a party to the Rome Statute creating the ICC. Thus, the Council imposed these substantive obligations that a party would have under the Rome Statute, even though Sudan was not a party and had not consented to the Rome Statute. -- In UNSC resolution 1737, the Council called upon Iran to ratify the Additional Protocol with the IAEA, but did not require Iran to become a party to that agreement. At the same time, the Council required Iran to provide the same kind of access and cooperation with the IAEA that it would have had to provide if it were a party to the agreement. -- In this case, the proposed resolution would decide that the "provisions" of the Agreement would enter into force, with the effect that Lebanon would be required to comply with them. Lebanon would be required to take the actions described by the provisions of the resolution, but the resolution would not say that Lebanon had agreed or consented to the Tribunal Agreement. -- This is especially appropriate in a case like this, where Lebanon has been involved and supported the process from the outset, where (as verified by UN Legal Advisor Michel) all parties in Lebanon support in principle the establishment of the Tribunal, and where the inability of the Lebanese Parliament to act results from threats of further violence and terrorism. We understand fully the importance of respecting the internal processes of member states, but this is a case where the subversion of that process - through terrorism and other threats of violence - is itself the heart of the problem. 13: (U) DOES CHAPTER VII HAVE MILITARY IMPLICATIONS? This resolution would do no more than make the provisions of the Agreement legally binding, just as if the Lebanese Parliament had approved it. There were no implications that foreign militaries would intervene to enforce the agreement if the Lebanese Parliament had approved it, and there would be none under this resolution. ¶14. (U) POINT OF CONTACT: Please contact IO/UNP: Anneliese Reinemeyer at (202) 647-0046 or via e-mail for further background information or with questions. RICE