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