MICHEL SHARES THOUGHTS ON ESTABLISHING HARIRI

C O N F I D E N T I A L USUN NEW YORK 000277 SIPDIS SIPDIS FOR IO:SILVERBERG, L/AN:LJACOBSON, NEA/ELA:ADONICK E.O. 12958: DECL: 04/10/2017 TAGS: PREL UNSC PGOV PTER KCRM SY LE SUBJECT: MICHEL SHARES THOUGHTS ON ESTABLISHING HARIRI TRIBUNAL Classified By: Amb. Alejandro D. Wolff, for reasons 1.4(b) and (d). ¶1. (U) Ambassador Wolff, accompanied by Ambassador Chris Ross (USUN/POL) and USUN LegalOff, met with UN Legal Counsel Nicolas Michel and two members of his staff April 9 to explore the UN's understanding of the state of play on establishment of the tribunal envisaged in UN Security Council Resolution 1664 (2006). ¶2. (C) Ambassador Wolff opened by emphasizing that, in the USG's view, Prime Minister Siniora needs to focus on two sets of actions before sending any letter to the UN concerning the tribunal. First, he must exhaust the Lebanese constitutional process for ratifying the draft tribunal texts; second, he must reach out to influential regional governments to build support for any Lebanese request of the Security Council to establish the tribunal under Chapter VII. ¶3. (C) Michel made it clear that, although he has not checked on the Secretary-General's current position in the past few days, he is confident that the UN continues to prefer to have the Lebanese ratify the tribunal texts through their domestic constitutional process. For the UN to abandon that approach now could expose the UN to becoming a pawn in Lebanon's domestic politics. The UN's current mandate, therefore, remains to help the GOL pursue and complete its constitutional process. ¶4. (C) At the same time, the UN recognizes that the Lebanese might not be able to establish the tribunal domestically. As a result, beginning two or three weeks ago, the UN started telling the Lebanese through Acting PermRep Caroline Ziadeh, Saad Hariri staffer Amal Mudallali, and Nabih Berri's senior legal advisor that, if they find they cannot resolve their impasse, the UN stands ready to help. Berri's legal advisor had replied that, when the working group that Berri proposed is set up, the Lebanese will be back in touch. Michel noted that the latest proposal on the working group's composition was two representatives each from the government and the opposition. Berri, he said, seems to want Saudi Arabia to play a conciliating role and host the meetings of the group, but not to convene the working group. Echoing his earlier remarks, Michel commented that the "Hariri/Berri process" is the correct one, and the UN has no wish to derail it. If and when the working group meets, he will be ready to travel, but not, as the SYG has said, if the meetings are merely a delaying tactic. ¶5. (C) Asked about the UN's understanding of the principal concerns of those opposed to the agreement, Michel noted several: (1) the language giving the tribunal jurisdiction over other attacks as well as the assassination of Prime Minister Hariri; (2) the language on "command responsibility" of leaders; (3) the language permitting trials in absentia; and (4) the language authorizing the tribunal's prosecutor to conduct investigations. ¶6. (C) Michel speculated that the Lebanese opposition's concerns reflect certain misunderstandings. For instance, Michel noted that the tribunal could exercise jurisdiction over other attacks only under circumscribed circumstances set forth clearly in the texts. It also is clear, Michel said, that the various Lebanese actors do not understand that actually setting up the tribunal could take up to a year after it is established. ¶7. (C) Michel then offered views on Hizballah and Syrian concerns. Hizballah's primary concern is that the tribunal might target its leadership, he said, but speculated that Hizballah also might want to ensure a majority of Lebanese judges in the tribunal's trial and appellate chambers. (Note: Under Article 2 of the draft tribunal agreement, there would be one international pre-trial judge, three trial chamber judges (one Lebanese and two international),and five appeals chamber judges (two Lebanese and three international.) As for the Syrians, he added, they continue to insist that no movement take place on the tribunal before the United Nations International Independent Investigation Commission completes its work and that, in the event any Syrians are among the accused, they must be tried in Syria. ¶8. (C) Asked what leverage the UN might have over the Lebanese process, Michel highlighted the role the UN can play on technical issues, such as by stressing the apolitical process for selecting judges and for conducting the proceedings, as well as the international legal standards by which the tribunal would operate. He also cited a possible UN role on political aspects, noting that letting the domestic Lebanese process play out instead of rushing it will give the various actors a better handle on the trail of evidence and thus encourage them to take more responsible positions to break out of the stalemate. Michel emphasized that, although the UN would be willing to make non-substantive changes to the tribunal texts to give those Lebanese opposed to it a face saving way out, the UN will not make any substantive changes that could undermine the tribunal's independence and impartiality or its basis in international standards of criminal justice. ¶9. (C) Michel and Ambassador Wolff then discussed the possibility that, assuming the current impasse cannot be overcome, Siniora would ask the Security Council to establish the tribunal. Michel thought Siniora would try to keep his options open for now, realizing that if he requests Council intervention and the Council does not deliver, Siniora's government would fall. Ambassador Wolff cautioned that the USG has heard that Siniora could contact the Council this week. He then stressed that any letter Siniora sends the Council must unequivocally request the Council to take Chapter VII action. Before sending the latter, Siniora should reach out to regional players, including Saudi Arabia, Egypt, and the Arab League, ideally to convey their own support for the Council to establish the tribunal. A letter of endorsement from the Arab League would be a real plus. Michel said he would be willing to pass a similar message along to the Lebanese. ¶10. (C) Asked what changes in the current texts would be needed to create the tribunal under Chapter VII, Michel said the resolution would replace the text of the agreement. Although the language the UN negotiated previously with the Lebanese could be used, some language from the agreement would need to be changed. For instance, it might be necessary to change the language concerning the appointment of Lebanese judges. (Note: Under the current agreement, the SYG would appoint Lebanese judges in consultation with the Lebanese government.) The funding provisions of the agreement also would likely need adjustment; Michel also doubted that the Council could use Chapter VII to compel the GOL to fund 49 percent of the costs of the tribunal (as the agreement currently contemplates). Michel also said the Council could adopt a statute "very close" to the current text. ¶11. (U) We learned subsequently that Siniora had sent a letter April 10 to the SecGen requesting that the Council establish the tribunal. WOLFF