LEBANON TRIBUNAL: MICHEL REPORTS TRIP AND P-3

C O N F I D E N T I A L USUN NEW YORK 000319 SIPDIS SIPDIS E.O. 12958: DECL: 04/24/2017 TAGS: PREL UNSC SY LE SUBJECT: LEBANON TRIBUNAL: MICHEL REPORTS TRIP AND P-3 MISSIONS DISCUSS WAY FORWARD Classified By: STATE 53329 ¶1. (U) This is an action request. See para 18. ¶2. (C) BEGIN SUMMARY: Per reftel, USUN Ambassador Wolff met with UN Legal Counsel Nicolas Michel on April 24 and followed up on April 25 to discuss the Special Tribunal for Lebanon. In response to Ambassador Wolff,s questions, Michel reported that the Lebanese are still considering the proposal to convene a working group to try to resolve differences over the text, with Geneva as a possible venue, and should provide final views to UN Special Coordinator for Lebanon Geir Pedersen within approximately two days. Michel said either he or the SYG could brief the Council no earlier than May 2, commented briefly on the likely content of the briefing, and expressed support for inviting the Lebanese judges to New York. Michel also said OLA is considering whether, if the Council establishes the tribunal, it should do so through a resolution annexing an amended version of the current statute or through a resolution that compels the Lebanese to act in accordance with the draft agreement and statute, subject to minimal changes that the resolution identifies as necessary. ¶3. (C) CONTINUE SUMMARY: Per reftel, USUN officers hosted French and British legal and political counterparts on April 25 to discuss the tribunal. Since fully cleared versions of the draft Chapter VII resolution establishing the court or revisions to the UN-GOL agreement and statute on the tribunal were not available from Washington before the P-3 meeting, USUN did not/not share these documents with the French or British. The meeting was therefore confined to a general discussion of the strategic and legal questions involved in a possible recourse to Chapter VII. The French and British both emphasized that they had not yet received instructions on the way ahead on the tribunal, although they agreed that recourse to a Chapter VII resolution would be the only option to establish the court if the Lebanese parliament fails to ratify the UN-GOL agreement and statute. While the British agreed that such a resolution should also compel cooperation from third-states and overcome immunities, the French legal adviser seemed willing to trade these elements to win more support for the tribunal's creation. END SUMMARY. Read-out of Michel's Trip -------------- ¶4. (C) Michel called his trip to Beirut &extremely challenging8 and reported that he explored "every possible option8 in an effort to persuade his Lebanese interlocutors to establish the tribunal through Lebanon,s domestic process. Michel said MP Michel Aoun restated his support for the tribunal, while Hizballah continued to demand preconditions to even discuss the content of the draft agreement and statute. In contrast, Michel characterized Speaker of Parliament Nabih Berri as &very astute8 in avoiding blame for the current stalemate. Specifically, Michel said Berri revived the proposal to convene a working group to try to resolve differences over the text, with Geneva as a possible venue. Berri reportedly suggested that Michel and the GOL Justice Minister should participate, along with the United States, France, Iran, and Syria. Michel said he had responded that including regional players would be a non-starter. Afterward, Berri said he would engage in such a meeting without any preconditions but would consult with others about the idea. Michel reported that Siniora seemed lukewarm about the idea but recognized that Berri,s statements might provide an opening to resume the Lebanese process. Michel said he expects to receive Berri,s final response (via Geir Pedersen) within two to three days but doubted that Berri would be able to get Hizballah to agree to drop its preconditions. ¶5. (C) Finally, Michel also said he learned that Hamadeh and Jumblatt had prepared a new letter asking the Council to establish the tribunal. The Lebanese cabinet met Friday afternoon and decided against sending the letter, after Michel cautioned Siniora that another letter to the Council before the UN briefs the Council would be counter-productive. In concluding, Michel emphasized his view that the Secretariat must wait to find out if the working group SIPDIS proposal might be acceptable before proceeding. Briefing the SC -------------- ¶6. (C) Ambassador Wolff stressed the USG desire for Michel to brief the Council on his trip as soon as possible. Michel agreed, adding that the Secretary-General,s and his travel plans this week would make it difficult to schedule before Wednesday, May 2. (Note: The Secretary-General returns on Friday, April 27, and Michel returns from a meeting of UN legal advisers the next day. End Note.) Michel plans to meet with the SYG on Monday, April 30 to determine whether the SYG wants to address the Council himself or have Michel make the presentation, as well as to discuss the content of the briefing. ¶7. (C) Ambassador Wolff pressed Michel on whether he or the SYG would advise the Council that the tribunal must be established under Chapter VII. Michel said he would defer to the SYG. Michel said he thought the briefing should discuss the various ways the Council could establish the tribunal and stress the need for the Council,s action to bind the Lebanese. UNSC Resolution -------------- ¶8. (C) Michel said OLA is still considering what changes might have to be made to the existing draft statute and agreement if the Council acts to establish the tribunal. He agreed that the Council could adopt a resolution that attaches as an annex a revised statute, but that the Council alternatively could adopt a resolution using the bringing into effect the existing agreement and statute that OLA negotiated with the Lebanese, subject to the minimal number of changes that the resolution identifies as necessary. Meeting the Lebanese Judges -------------- ¶9. (C) Michel expressed support for the proposal to invite the Lebanese judges to New York for detailed discussions on any changes that would need to be made to the existing texts before the Council could establish the tribunal. He said he had met productively with the judges during his trip to Beirut and thought additional consultations would be useful. Given time constraints, however, he doubted the Lebanese judges would have sufficient time to travel to New York for meetings before the Secretariat,s briefing. No Instructions Yet on Chapter VII -------------- ¶10. (C) At an April 25 meeting with USUN officers, political and legal officers from the French and British Missions said they had yet to receive instructions from their capitals on the way forward regarding the tribunal in the wake of Michel's visit to Beirut, but acknowledged that recourse to Chapter VII was the only other option to establish the court if the Lebanese parliament is unable to ratify the UN-GOL agreement and statute. The French Mission,s legal adviser, however, argued it was "too early" to engage in a discussion of a draft Chapter VII resolution and that we should wait at least 48 hours to see if the Geneva initiative proposed by Berri goes forward. Assuming the Geneva initiative fails, the P-3 could then hear the briefing by Michel or the SYG to the Council as well as reactions by Council members before deciding how to proceed. The UK poloff, speaking without instructions and noting that HMG wants to be sure that the Lebanese would not need implementing legislation to comply with a Chapter VII resolution, predicted that the UK would ultimately support such a resolution if France and the U.S. were on board. ¶11. (C) The French legal adviser also predicted that France, given its traditional role sponsoring resolutions on Lebanon and interest at the highest levels in Paris on the tribunal, would want to introduce a draft Chapter VII resolution if necessary. While Paris was "thinking of drafting" a text, it had thus far taken a cautious approach for fear of undermining Michel's efforts. Noting that Washington was also working on a text that we hoped to share with the French and British within the next few days, USUN officers clarified that U.S. efforts on the tribunal were meant to ensure the P-3 were in a position to move forward quickly, and not necessarily an indication that the U.S. itself wished to introduce the draft resolution. Assuming that Washington is able to finalize draft texts in time, USUN proposed that the P-3 meet to consider U.S. or French drafts on April 26. The French and British agreed to that timeline but noted they still might not have instructions. But Preliminary Thoughts on Strategy and Law -------------- ¶12. (C) Pressed by USUN on the need to move as quickly as possible on a Chapter VII resolution once Michel or the SYG brief the Council, the French legal adviser agreed we should "move fast, but with something that is easily acceptable to the Council." Before introducing a Chapter VII UNSCR, however, she argued that P-3 countries and Lebanon must prepare the ground adequately with UNSC members and regional states such as Saudi Arabia, Jordan, and Egypt. UK and French experts agreed that the Russians would be unwilling to declare in advance whether they would veto a Chapter VII resolution, and that China, Indonesia, South Africa, Qatar, and possibly Panama would likely voice objections. The UK legal expert suggested that the Chinese might come under significant pressure from the G-77/Non-Aligned Movement states in the General Assembly to oppose an action by the Council to bring the UN-GOL agreement and statute into effect when Lebanon has failed to do so itself. ¶13. (C) Turning to questions of law, the UK legal adviser questioned whether the Council had the authority under Chapter VII to adopt a resolution that would obligate the Lebanese to act in accordance with the resolution and statute. He warned that doing so would create a dangerous precedent of the Council compelling states to adhere to agreements they had not ratified. Speaking informally, he argued that it would be far preferable legally and politically for the Council to scrap the UN-GOL agreement entirely and incorporate elements of it into the tribunal statute (to be annexed to the draft UNSCR) or the draft UNSCR itself. While the Special Lebanon Tribunal should remain a mixed court and not become similar to the ICTY or ICTR, it would be important to many UNSC members that the Council respect the principle that only sovereign states can bring agreements they have signed into force. ¶14. (C) On the question of funding, the UK political officer clarified that the UK continued to prefer funding a tribunal through voluntary contributions, while the French said they ultimately would prefer funding the court through assessed contributions. Both agreed they needed to review more carefully whether the Council would have the authority to compel Lebanon to finance a tribunal that the Council would establish under Chapter VII. France May Go Wobbly on Immunities -------------- ¶15. (C) Asked about the advisability of compelling cooperation from third states and overcoming immunities in the draft Chapter VII UNSCR, the UK legal expert suggested it would be desirable for the resolution to include both issues. He agreed that there is no point to establish the court if it is not clear that those indicted will be transferred to its jurisdiction. The French legal adviser did not offer an opinion on the question of compelling third-state cooperation. She did, however, warn that it might not be &politically feasible8 to overcome immunities in this resolution ) especially given the possible application to heads of state. When asked how the Council would be able to pass a second Chapter VII resolution overcoming immunities after a divisive vote to establish the tribunal and after the identifies of the suspects becomes clear ) which could make the question of overcoming immunities much more political ) the French legal adviser had no answer. Comment and Action Request -------------- ¶16. (C) Securing a Chapter VII resolution establishing the tribunal will almost certainly be a highly divisive exercise in the Security Council. We will have to work hard in capitals and in New York to secure nine votes in favor and avoid a Russian or Chinese veto. If we succeed, those who oppose the resolution may see the court in much the same way as they see UNSCRs 1559 and 1680, both of which were not adopted unanimously and on both of which follow-up action in the UNSC has been difficult to achieve. Added to this difficulty is the risk that if the tribunal does indict high-ranking officials from third countries, that many UNSC members will see depriving those suspects of immunity as much more of a political act than if those immunities were addressed at the start. ¶17. (C) All of this means that we will most likely have one chance to get everything we need to establish the court and make it effective. USUN believes strongly that we should, in the most general way and without naming individual states, compel cooperation and overcome immunities in the Chapter VII resolution establishing the court. At the least, we should include those elements in a draft resolution and see how the Russians, et al, react. If it is necessary to trade those elements away in order to establish the court ) a very risky bargain, in our view ) we should make that calculation if/when we are forced to do so, but not before. ¶18. (C) Given the tension between the French MFA and the Elysee on the question of pursuing a Chapter VII resolution on the tribunal, which is apparent to us from discussions with the French Mission, we will also need to corner the French into agreeing to a P-3 draft UNSCR as soon as possible. The best way to do this is to present them with a draft text and call their bluff. Now that we have arranged a technical meeting with OLA on April 26 (per reftel) -- to which we could invite the French and British -- we could also arrange a P-3 meeting afterwards to review draft documents prepared in Washington and consider what changes might be necessary based on discussions with the Secretariat. KHALILZAD