LEBANON TRIBUNAL: APPOINTING AND PROTECTING

S E C R E T SECTION 01 OF 03 USUN NEW YORK 000224 SIPDIS SIPDIS E.O. 12958: DECL: 03/04/2018 TAGS: PREL PTER UNSC SY LE SUBJECT: LEBANON TRIBUNAL: APPOINTING AND PROTECTING JUDGES REF: A. USUN 71 ¶B. STATE 1070 ¶C. STATE 10709 ¶D. USUN 109 ¶E. USUN 103 ¶F. USUN 220 Classified By: Carolyn L. Willson, Minister-Counselor for Legal Affairs , for reasons 1.4(b) and (d). ¶1. (C) BEGIN SUMMARY: As the UN continues to prepare for the Special Tribunal for Lebanon to begin functioning, a series of issues remain concerning the appointment of the 11 judges who will serve on the Special Tribunal for Lebanon. The Secretary-General selected the judges last fall but, to protect the Lebanese judges' security did not disclose their identities and announced that the judges would be appointed and begin their duties "at the appropriate time." The UN Office of Legal Affairs (OLA) contends that before the Prosecutor can assume his duties, which would happen by June 16 if the mandate of the UN International Independent Investigation Commission (UNIIIC) is not extended, the judges need to adopt the rules of procedure and evidence that will guide the Prosecutor's work. The judges also need to appoint a President, who, together with the pre-trial judge, will be one of only two judges who will need to work full-time during the Tribunal's initial phase. ¶2. (C) SUMMARY (CONT'D): The Management Committee for the Special Tribunal for Lebanon is now considering when the judges should hold their first meeting to begin preparing the rules of procedure and evidence. That decision, once made, will trigger significant financial and security consequences, since OLA contends that the Lebanese judges will not be able to return to Lebanon after that meeting. Even though the Lebanese judges will not assume full-time duties on the Tribunal until much later, the UN has recommended that the Tribunal pay them a subsistence allowance to cover their costs once they are relocated. When to schedule the judges' meeting depends significantly on when UNIIIC Commissioner Daniel Bellemare believes he should assume the role of Prosecutor, and therefore whether the Security Council extends the UNIIIC mandate beyond June 15. The Dutch have advised the Management Committee that they would need at least three months, and probably more time, to prepare to accommodate the judges. Apart from ensuring that all plans are in place to relocate the judges, all details relating to the judges' compensation must also be resolved, including the terms of the "risk allowance" (refs A-E) that the Lebanese judges have requested in return for their service. END SUMMARY. UN's Preparations on Judges -------------- ¶3. (C) Since late last fall, the UN Office of Legal Affairs (OLA) has updated the main donors to the Tribunal on plans for appointing the Tribunal's 11 judges and for relocating the Lebanese judges once their names become public (refs). Last December, the Secretary-General announced that the judges for the Tribunal had been selected but that the UN would not finalize their appointments or publicize their names until the appropriate time. UN Legal Counsel Michel personally informed the international judges of their selection, all of whom said they would accept once the UN issued formal offers. For security reasons, the UN did not inform the Lebanese judges of their selection. Michel also advised the main donors last fall that the UN's Department of Safety and Security was working to prepare contingency plans for relocating the Lebanese judges should their names leak, although for security reasons, Michel has not provided details on that process. ¶4. (C) At the Management Committee's February 29 meeting, Michel recommended that the UN convene the judges soon so they could begin preparing draft rules of procedure and evidence. He also commented that it could be difficult to keep the judges' names confidential for much longer. To expedite the judges' work, Michel said OLA had begun drafting the rules of procedure and evidence and planned to share the draft with eminent international legal experts first. ¶5. (C) The first judges' meeting would have significant financial consequences for the Tribunal. Because the Lebanese judges' names would become public when the judges meet, OLA contends the Lebanese judges would not be able to return to Lebanon afterward. Because the judges would be leaving their jobs in Lebanon once they are relocated and might not have other sources of income, the Management Committee needs to decide whether the Tribunal will pay the USUN NEW Y 00000224 002 OF 003 judges per diem or salary once they have been relocated but before they begin their full-time duties with the Tribunal. Although the UN has not made clear whether it would formally appoint the judges before that first meeting and announce them immediately after the meeting or whether it would convene the judges initially on an informal basis, the UN has made clear that the judges must be appointed formally before they can elect a President. Dutch Face Complexities in Relocating Judges -------------- ¶6. (S) On March 4 and March 6, the Dutch Mission's legal adviser, Brechje Schwachofer, briefed Committee members on the Dutch government's preparations for accommodating the Lebanese judges. Noting that, to their knowledge, no other government has volunteered to host the Lebanese judges after the first judges' meeting, Schwachofer said the date for the meeting could not be scheduled soon unless a third state agrees to accommodate the Lebanese judges before they begin full-time duties on the Tribunal. If the Netherlands is the only state than can accommodate the Lebanese judges, the date for the judges' meeting can only be decided when security measures are ready, meaning that the meeting cannot be held for at least three months. (Note: Schwachofer subsequently told USUN privately that the Dutch do not want to ask other states to host the Lebanese judges but have pressed the UN to do so. She reported that the French had agreed to host the judges but then changed their minds and mentioned that Belgium had been discussed as another possibility. She also stressed that the Dutch expect that the costs of external security for the judges and the Tribunal, which they will bear, will be "staggering," making the Netherlands the largest contributor to the Tribunal. End Note.) ¶7. (S) Stressing the complexity of the effort, she said the Dutch authorities are currently looking for accommodations for the judges, assuming that each one would have a family of four. The Dutch expect it to take approximately three months after they have selected the housing before the judges can move in because security upgrades will need to be completed. The Dutch efforts have been complicated greatly because they do not know the judges' identities, she said. The Dutch are uncomfortable leasing apartments without consulting individual judges on how much they would be willing to pay in rent and how many family members they need to accommodate, particularly since the judges will have to pay their rents themselves. Although she acknowledged that it would be preferable to place the judges in temporary accommodations first, she said such housing might not be available. Lebanese Propose "Risk Allowance" Solution -------------- ¶8. (C) All details concerning the judges' compensation also need to be resolved before the judges hold their first meeting. On March 6, the Management Committee decided upon the terms and conditions of service for the judges (ref F), but another issue to be resolved before concerns the "risk allowance" that the Lebanese judges have demanded as a condition of their service (refs A-E). On the margins of the Management Committee's March 6 meetings, Lebanese PermRep Salam advised Committee members that the Lebanese government proposes to meet the judges' request by making a lump-sum payment into a blind-trust administered by a financial institution. The Lebanese government would make that payment, before the judges' first meeting, and the overall amount would provide additional compensation during the Lebanese judges' three-year terms. That financial institution would then pay the judges an allowance, at intervals to be determined that would be less frequent than every month. The amount of the allowance would be comparable to the USD 4,800 stipend that the UN pays its staff when it evacuates them. ¶9. (C) The Tribunal budget would not reflect the payments to the judges, and the Management Committee would have no role in them, he said. On the other hand, Salam emphasized Lebanon's desire to make its arrangement fully transparent, so as to insulate the Tribunal and the Lebanese government from any future challenges from defense counsel. Once Management Committee members signaled their acceptance of Lebanon's proposal, Salam proposed that Lebanon would send a letter to the Secretary-General, advising both of Lebanon's arrangement for the judges. ¶10. (C) Assistant Secretary General for Legal Affairs Larry Johnson responded that OLA viewed Lebanon's proposal as legally acceptable because the Lebanese government would make the payment before the judges begin serving but said the UN USUN NEW Y 00000224 003 OF 003 did not want to have any role in arranging or managing the blind trust, the terms of which would be between the trustee and the Lebanese government. He said he would need to seek guidance from UN Legal Counsel Michel concerning Lebanon's desire for transparency, noting that Lebanon's proposal would undermine the UN's desire to stay out of the trust fund arrangement. Several Committee members said they needed more time to consider the Lebanese proposal, supported Lebanon's desire to make the arrangement transparent to safeguard against legal challenges, but expressed concern that the non-Lebanese judges, once they became aware of it, would demand a comparable allowance. KHALILZAD