VZCZCXYZ0009
OO RUEHWEB

DE RUCNDT #0402/01 0621633
ZNR UUUUU ZZH
O 031633Z MAR 06
FM USMISSION USUN NEW YORK
TO RUEHLB/AMEMBASSY BEIRUT IMMEDIATE 0629
RUEHDM/AMEMBASSY DAMASCUS IMMEDIATE 0269
RUEHC/SECSTATE WASHDC IMMEDIATE 8154
INFO RUEHGG/UN SECURITY COUNCIL COLLECTIVE PRIORITY

UNCLAS USUN NEW YORK 000402 
 
SIPDIS 
 
SIPDIS 
 
FOR L/UNA: TBUCHWALD AND L/LEI: LJACOBSON 
 
E.O. 12958: N/A 
TAGS: UNSC LE
SUBJECT: MEETING WITH LEBANESE TO DISCUSS OPTIONS FOR 
HARIRI TRIBUNAL 
 
 
¶1.  BEGIN SUMMARY:  Ralph Riachy, Chief Justice of Lebanon's 
Supreme Court, and Choucri Sader, President of the 
Legislative Service of Lebanon's Ministry of Justice, 
discussed options for trying the persons responsible for the 
assassination of former Lebanese Prime Minister Rafiq Hariri 
with USUN Legal and Political Officers and Department 
attorneys on February 24.  Charge d,Affaires Caroline Ziade 
and Counselor Sami Zeidan of the Permanent Mission of Lebanon 
also attended the meeting at UN Headquarters.  In a 
wide-ranging discussion, Riachy and Sader sought political 
support for an international tribunal established by the 
Security Council under Chapter VII that would try Lebanese 
and other suspects outside Lebanon.  (Comment:  On March 2, 
following their meetings with UN lawyers, the team indicated 
that they had revised their thinking and were no longer 
considering a tribunal established by the Council under 
Chapter VII.  Report to follow septel.  End comment.)  Noting 
that the mandate for the International Independent 
Investigation Commission (UNIIIC) will end in June 2006, they 
stressed the need to act quickly to establish the framework 
for a tribunal (although not necessarily the court itself) by 
then.  END SUMMARY. 
 
-------------------------------- 
PREFERRED MODEL FOR THE TRIBUNAL 
-------------------------------- 
 
¶2.  Sader and Riachy argued that the Council, through a 
Chapter VII resolution, should establish an international 
tribunal on the model of the International Criminal Tribunal 
for the Former Yugoslavia (ICTY) and the International 
Criminal Tribunal for Rwanda (ICTR).  They made five main 
arguments for an international tribunal:  (1) to respond to 
an act of terrorism against the international community; (2) 
to enable Lebanese and non-Lebanese suspects to be tried 
under the same standards and procedures; (3) to permit a 
speedy, efficient trial; (4) to provide legitimacy in Lebanon 
and Syria for the trial; and (5) to avoid security problems. 
The tribunal would comprise trial and appellate courts and 
apply Lebanese substantive criminal law, which they asserted 
is sufficiently broad and extraterritorial in scope to ensure 
that all participators and conspirators, whether in or 
outside Lebanon, could be prosecuted.  Sader and Riachy 
proposed that the tribunal try all  defendants in one trial 
and try missing defendants in absentia. 
 
------------------------ 
THE ISSUE OF IMMUNITIES 
------------------------ 
 
¶3.  Establishing an international tribunal would make it 
possible to try suspects who would otherwise have immunities 
in Lebanon, Sader and Riachy said.  A domestic procedure 
could be constrained by Lebanon's bilateral agreement with 
Syria, which, as they described it, appears to prohibit the 
extradition to Lebanon of Syrian nationals, provide official 
acts immunity for Syrian officials found in Lebanon or 
extradited from third countries, and give senior Syrian 
officials an additional form of special immunity.  (Note: 
The Lebanese have provided the U.S. with a copy of the 
agreement, as well as relevant penal code and procedural 
provisions.  End Note.)  Without an international tribunal, 
it also would be difficult to prosecute Lebanese officials, 
they said.  To bring charges against Lebanon officials, a 
Lebanese court would need to seek a Parliamentary waiver of 
immunity and then try the officials in special courts. 
 
------------------------ 
PROVIDING A SPEEDY TRIAL 
------------------------ 
 
¶4.  An international tribunal using the common law 
adversarial system would also be speedier and more efficient 
than a trial under Lebanese procedural law, Sader and Riachy 
argued.  Under the common law process, all of the evidence 
that the UNIIIC garners and provides to the Lebanese 
government could be placed directly before the court at trial 
because it could issue indictments or complaints without a 
grand jury.  In contrast, under Lebanon's "juge instructive" 
process, the investigating judge would have to review all the 
evidence, take additional statements, and complete other 
time-consuming steps before charges could be filed. 
 
--------------------------------- 
ENSURING LEGITIMACY AND SECURITY 
--------------------------------- 
 
¶5.  Sader and Riachy stressed that for security reasons and 
 
 
to protect the court's credibility, the prosecutor and most 
of the judges should not be Lebanese.  The prosecutor would 
need "complete independence," they said.  They expressed 
concern for the safety of the family in Lebanon of the 
prosecutor and judges (including emigres), noting that there 
have been five murders and 14 attempted murders in Lebanon 
since Hariri's assassination.  They also argued that any 
possible Syrian retaliation during the trial would cast a 
shadow that could limit the court's ability to operate. 
 
¶6.  To ensure the tribunal's legitimacy, Sader and Riachy 
said the tribunal should be outside Lebanon.  To avoid the 
appearance of politicization, the court should not be located 
anywhere under the jurisdiction of France, the UK, or the 
United States.  Accordingly, the UK's offer to host a court 
at its military base in Cyprus would not be acceptable 
politically, even though Cyprus would be the most convenient 
venue.  Instead, they argued for placing the court in a place 
with an existing UN presence (e.g. The Hague or Vienna) and 
asked whether a UN site might be available in Cyprus.  They 
also thought it would be simpler for the UN to revise its 
existing Headquarters Agreement with either the Netherlands 
or Austria than to negotiate a new agreement with a country 
without a UN presence.  Sader and Riachy discussed the 
possibility of placing the tribunal in Egypt or another state 
in the Middle East but expressed concerns about security 
arrangements in Egypt. 
 
-------------------------------- 
WHY OTHER MODELS MIGHT NOT WORK 
-------------------------------- 
 
¶7.  Sader and Riachy expressed reservations about other types 
of tribunals.  They rejected the Lockerbie model as not 
responsive to their security concerns.  They also expressed 
concerns about establishing a tribunal similar to the Sierra 
Leone Special Court, under which the Council, through a 
resolution, would request the Secretary-General to negotiate 
an agreement with the Lebanese government to establish a 
tribunal.  Sader and Riachy doubted that Lebanon's Parliament 
had the political capacity to ratify an agreement between 
Lebanon and the United Nations to establish a tribunal.  They 
said the ratification process would be slow and ultimately 
would likely fail.  If the Council wished to adopt a Chapter 
VII resolution establishing a tribunal, they thought that 
Lebanon's Council of Ministers could advise the UN of 
Lebanon's assent. 
 
------ 
COSTS 
------ 
 
¶8.  Sader and Riachy said the tribunal they envisioned would 
be significantly less expensive than the ICTY because it 
would address only one crime.  Expressing confidence that the 
other Arab states would support the tribunal, they suggested 
it could be voluntarily funded.  They then asked whether a 
tribunal established by a Security Council resolution under 
Chapter VII could be funded through voluntary contributions. 
(Comment:  There would be no legal bar to financing such a 
tribunal through a voluntary trust fund.  The ICTY and ICTR 
both were funded through assessed contributions, but the 
assessment scale (half regular budget, half peacekeeping) 
took considerable time to resolve.  The Sierra Leone Special 
Court was voluntarily funded for the first few years of its 
existence but because of inadequate contributions, it is now 
receiving assessed funds from the Regular Budget as well as 
voluntary contributions.  The Khmer Rouge Tribunal, at this 
point, is funded voluntarily.  End Comment.) 
 
------------ 
OTHER ISSUES 
------------ 
 
¶9.  Sadr and Riachy also assured the U.S. delegation that 
trying all defendants together would not prejudice Lebanon's 
ability to pursue other prosecutions in the future.  If the 
investigation and trial of suspects in the Hariri 
assassination reveal links between the conspiracy to 
assassinate Hariri and subsequent assassinations, they said 
Lebanese prosecutors could bring separate charges at a later 
time without facing the problem of double jeopardy.  They 
also said Lebanese law is flexible enough to permit Lebanon 
to continue to detain the eight Lebanese suspects currently 
in custody. 
 
¶10.  At the conclusion of the meeting, the Lebanese 
delegation thanked the U.S. delegation and expressed interest 
 
 
in meeting again soon to share perspectives on their meetings 
with the French and other delegations. 
 
 
 
BOLTON