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DE RUCNDT #0423/01 0630038
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O 040038Z MAR 06
FM USMISSION USUN NEW YORK
TO RUEHLB/AMEMBASSY BEIRUT IMMEDIATE 0632
RUEHDM/AMEMBASSY DAMASCUS IMMEDIATE 0272
RUEHNC/AMEMBASSY NICOSIA IMMEDIATE 0543
RUEHC/SECSTATE WASHDC IMMEDIATE 8185
INFO RUEHXK/ARAB ISRAELI COLLECTIVE PRIORITY
RUEHGG/UN SECURITY COUNCIL COLLECTIVE PRIORITY

C O N F I D E N T I A L USUN NEW YORK 000423 
 
SIPDIS 
 
SIPDIS 
 
FOR L/UNA: TBUCHWALD AND L/LEI: LJACOBSON 
 
E.O. 12958: DECL: 03/03/2016 
TAGS: KCRM PGOV PREL UNSC LE
SUBJECT: LEBANESE LEGAL DELEGATION LEAVES NEW YORK WITH PLAN 
 
REF: USUN NEW YORK 402 
 
Classified By: Ambassador Jackie Sanders for Reasons 1.4(b) and 1.4(d). 
 
 ¶1.  Summary.  Department lawyers and USUN Political and 
Legal Officers met again (reftel) March 2 with the Lebanese 
Tribunal team to review the status of planning for the 
prosecution of those responsible for the Hariri 
assassination.  The team was about to return to Beirut after 
concluding a series of meetings with UN Legal Office lawyers. 
 They indicated that they had also met with French and 
Russian Mission Legal Advisers, and admitted that French 
political analysis of what was possible in the Security 
Council had influenced their thinking.  Both the Lebanese 
team, and the UN team with whom we met later, said that the 
talks had been highly productive and an excellent start to 
further talks which they expect will follow.  After almost a 
week of consultations with the UN and with us, they have 
moved from a Beirut-centric preference for an international 
tribunal set up by a Chapter VII Security Council resolution 
to support for a Special Court for Lebanon established by a 
treaty between the UN and the GOL that has been ratified by 
the Lebanese Parliament.  They envision the Tribunal would 
have some international components.  This process ideally 
would be book-ended by two UNSCRs -- the first to instruct 
the UN to negotiate a treaty with the GOL and the second to 
compel international cooperation with the Tribunal once 
established.  Their plan would also enable the Tribunal to 
utilize and build on work already underway in the 
International Independent Investigation Commission (UNIIIC). 
They stressed the need for an efficient Tribunal and are 
returning to Lebanon with a clear plan and timetable to 
propose to the Prime Minister.  End Summary. 
 
¶2.  Ralph Riachy, Chief Justice of Lebanon's Supreme Court, 
and Choucri Sader, President of the Legislative Service of 
Lebanon's Ministry of Justice, said that after three days of 
consultations with the UN Lebanon Tribunal team they were now 
"one team" looking for the most efficient way to establish 
the Tribunal.  They said that they had come to New York with 
instructions from their government to discuss a Yugoslav type 
Tribunal to be established by the Security Council under 
Chapter VII but were now convinced that it would be more 
efficient and feasible to establish a Special Tribunal.  The 
Tribunal would be established through an act to be adopted by 
the Lebanese parliament that would bring into force as part 
of Lebanese law the terms of an agreement that would be 
negotiated with the UN.  A Security Council resolution would 
authorize the Secretary General to negotiate the agreement 
and a subsequent resolution would require co-operation with 
the Court.  During the course of the week, the Lebanese had 
moved to a characterization of the court as a "special 
Lebanese Tribunal" with international components (as opposed 
to a truly "international court").  Under the regime that 
they anticipated establishing, the applicable substantive law 
would be existing Lebanese law.  The Secretary General would 
appoint the Prosecutor and judges.  Lebanese judges would be 
selected from a roster provided by the Lebanese Supreme 
Council of the Judiciary.  The Prosecutor and majority of the 
judges would be non-Lebanese, and the Court would be located 
abroad. 
 
¶3.  Under the concept presented by Riachy and Sader, the 
prosecutor would build on the investigative phase of work 
which has been begun by the UNIIIC.  The second phase would 
begin with the appointment of a Prosecutor and the 
transformation of the UNIIIC into a judicial investigative 
body under his direction, with provisions allowing the 
special court to utilize evidence that had been developed by 
UNIIIC.  As part of an effort to help lower costs, only when 
ready to move to the next phase, the trial, would the judges 
(3 trial, 5 appellate) start work.  This arrangement, they 
said, would be efficient and cost effective. 
 
¶4.  The Lebanese team envisioned the following steps and time 
line: 
 
-  Per UNSCR 1644, the Secretary-General would produce a 
report for the Security Council in mid-March which would 
describe the plan and elements for the Tribunal.  The report 
would present a framework, not an agreement.  The timing of 
the release of the report, shortly after Brammertz's March 16 
briefing to the Council, would be designed to sustain 
political momentum in the wake of what is expected to be an 
inclusive and interim UNIIIC report. 
 
-  The Security Council would adopt a resolution authorizing 
 
the Secretary General to negotiate an agreement with the 
Lebanese government specifying key elements of the agreement. 
 
-  The UN would dispatch a negotiating team with the 
objective of producing an agreement by April. 
 
-  The Lebanese Parliament would take action on the agreement 
during April and May. 
 
-  The Security Council would adopt a subsequent resolution 
which would require cooperation with the Court under Chapter 
VII.  This should be adopted before the June 15 expiration of 
the UNIIIC's mandate. 
 
¶5.  Both the Lebanese and UN teams mentioned a number of 
legal issues that must be resolved and shared their thinking 
on some of them.  They said they plan one trial for all 
defendants, on the theory that the Hariri assassination was 
one event.  Recalling the other assassinations or attempted 
assassinations, the Lebanese suggested that a focus on Hariri 
was appropriate as they were confronting a "serial killer." 
They want to ensure that the Court has personal jurisdiction 
which will permit prosecution of non-Lebanese.  They 
anticipate that the agreement will have to address questions 
of immunity, amnesty and pardon. 
 
- Lebanese law would apply.  The crimes that would be 
included in the agreement were crimes under Lebanese law at 
the time of the event.  It may be necessary to modify or 
draft new rules of procedure and evidence.  The single trial 
will include both present and absent defendants and thus the 
trial could be completed even if some are tried in absentia. 
 
- There has been no decision regarding the location of the 
Tribunal but it must be outside Lebanon because of security 
concerns and should not be in the territory of a P-5 member. 
Close proximity to Lebanon would be a plus.  Cyprus was 
mentioned as a possibility, though they made clear it would 
not be viable to use the UK facility (or Sovereign Base 
Area). 
 
-  They anticipate the need for an agreement with the Host 
state.  (UN lawyers indicated that the Lockerbie agreement 
could be a useful model.) 
 
-  Costs will be reduced by using the UNIIIC's work product 
and phasing in the creation of the Court.  Since the Tribunal 
is not a subsidiary body of a UN organ, it would not be 
financed from the UN budget.  They envision that the funding 
would be voluntary and indicated that Lebanon would be 
prepared to contribute an equitable share.  They did not 
expect that this court would have difficulties in finding 
donors to support it, and specifically suggested that they 
thought funding would be forthcoming from other Arab states. 
(Note:  U.S. side highlighted the importance of dealing with 
the cost issue in a way that prevents it from becoming an 
impediment to building support for the Court; and emphasized 
the importance of identifying funding for the Court in 
advance, and in a way that makes others comfortable that 
funds promised would actually be forthcoming.  End Note.) 
 
¶6.  Comment:  Although we made excellent progress during the 
course of the week, there are obviously many impediments 
remaining -- e.g., the need to identify a suitable country 
for hosting the Court, deciding where non-Lebanese persons 
would serve sentences; whether the second UNSCR (under 
Chapter VII) would require cooperation of all states, or just 
of a particular state or states; whether it is feasible to 
have one trial for all defendants (whether or not actually in 
custody); whether Lebanese parliamentary approval would 
actually be forthcoming.  Both the Lebanese and UN teams 
indicated that the project is off to a good start, and we 
share that assessment.  There still are, however, quite a few 
legal and political issues to be resolved and the time table 
set for completing the steps to establish the Court (June 15) 
may be too ambitious.  End Comment. 
BOLTON