VZCZCXRO9597
OO RUEHBC RUEHDE RUEHKUK
DE RUCNDT #1366/01 1952101
ZNR UUUUU ZZH
O 142101Z JUL 06
FM USMISSION USUN NEW YORK
TO RUEHEE/ARAB LEAGUE COLLECTIVE IMMEDIATE
RUEHGG/UN SECURITY COUNCIL COLLECTIVE IMMEDIATE
RUEHC/SECSTATE WASHDC IMMEDIATE 9607
INFO RUEHLB/AMEMBASSY BEIRUT IMMEDIATE 0750
RUEHDM/AMEMBASSY DAMASCUS IMMEDIATE 0296

UNCLAS SECTION 01 OF 03 USUN NEW YORK 001366 
 
SIPDIS 
 
SIPDIS 
 
PLEASE PASS TO L/UNA:TBUCHWALD 
 
E.O. 12958: N/A 
TAGS: UNSC PGOV PREL PTER KCRM SY LE
SUBJECT: LEGAL COUNSEL MICHEL REPORTS OLA/LEBANESE NEAR 
AGREEMENT ON DRAFT TEXT TO ESTABLISH HARIRI TRIBUNAL 
 
REF: A. BEIRUT 2293 
 
     ¶B. USUN 423 
     ¶C. USUN 402 
 
¶1.  (SBU) Begin summary:  UN Legal Counsel Nicolas Michel 
told the P-3 on July 12 that UN lawyers and Lebanese judges 
Ralph Riachy and Choucri Sadr achieved progress last week in 
negotiating a draft agreement and statute to establish a 
tribunal to try those responsible for the assassination of 
former Lebanese Prime Minister Rafiq Hariri.  Michel hoped to 
travel to Beirut next week to discuss the draft with senior 
Lebanese officials and did not anticipate the Lebanese would 
have significant changes to the text.  Given the need to 
consult with key Security Council members after his trip to 
Lebanon, he did not expect the Secretary-General would submit 
the draft agreement and statute to the Security Council for 
approval in July.  The agreement would be concluded after the 
Council authorized the Secretary-General to sign it. 
Finally, while stressing the need for a Chapter VII 
resolution to compel third-state cooperation with the 
tribunal and to establish the primacy  of the UN-GOL 
agreement over Lebanese law, Michel predicted the Russians 
would not support such a resolution at this stage.  Michel 
also expected that the Secretary-General would extend the 
contract of Serge Brammertz, Commissioner of the United 
Nations International Independent Investigation Commission 
(UNIIIC), by this Friday (July 14).  End summary. 
 
¶2.  (U) Michel briefed P-3 lawyers and political officers 
July 12 on OLA's trip to The Hague July 5-7 to negotiate the 
text of the agreement and statute establishing the Hariri 
tribunal with two Lebanese judges.  Michel said Antonio 
Cassese, the first President of the International Criminal 
Tribunal for the Former Yugoslavia (ICTY), and Claude Jorda, 
formerly an ICTY judge and now a judge on the International 
Criminal Court, participated in the discussions and made 
substantial contributions based on their experiences.  Michel 
opened by discussing how OLA thinks the process for 
establishing the tribunal should proceed and then shared 
views on substantive aspects of OLA's discussions with the 
Lebanese judges. 
 
------------------------- 
Next Steps in the Process 
------------------------- 
 
¶3.  (SBU) Michel said OLA has a "coherent and solid" draft 
and hopes to travel to Lebanon next week (July 19-20) to 
present its contents to senior Lebanese officials.  The 
Secretary-General has not approved the trip yet, but once 
 
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Michel gets approval he expects to meet with senior leaders, 
including the President, the Prime Minister, the Minister of 
Justice, and the President of the Parliament.  Michel 
stressed he would not go to Beirut to initial or sign the 
agreement and that the agreement is "not ripe for signature." 
 Instead, he would travel to hear views from senior officials 
and political leaders.  Michel said the UN's next steps would 
depend on any comments the Lebanese provide but did not 
expect any significant additional input.  Michel added that 
OLA has provided Syria with a short summary of the text -- at 
the SARG's request -- but stressed that OLA is not 
negotiating the text with Syria. 
 
¶4.  (SBU) After the Lebanese assent to the draft agreement 
and statute -- which he said could take anywhere from a few 
days to two to three weeks, Michel said OLA would prepare the 
Secretary-General's report to the Council.  That report will 
 
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attach the draft agreement and statute for the Council's 
consideration.  To ensure a successful result, Michel said he 
was willing to share the draft text with key Council members 
before submitting it formally.  He asked P-3 experts to 
consider how best OLA could approach the Council tactically 
to ensure the agreement is received favorably. 
 
¶5.  (SBU) Once the Council has concluded its considerations, 
it would authorize the Secretary-General to sign and conclude 
the agreement, although Michel said the Council would not 
necessarily need a resolution to do so.  Michel doubted the 
Russian delegation would support a Chapter VII resolution to 
compel the cooperation of third states at this stage.  Beyond 
compelling the cooperation of third parties, Michel suggested 
that a Chapter VII resolution might also be necessary to 
establish the primacy of the UN-GOL agreement over Lebanese 
law, especially in the case of constitutional challenges to 
the agreement,s provisions on pardon and immunity.  Arguing 
that such a Chapter VII resolution would be essential at some 
stage, he urged the P-3 to lay the groundwork carefully 
 
USUN NEW Y 00001366  002 OF 003 
 
 
before presenting that resolution to the Council. 
 
--------------------- 
Substantive Questions 
--------------------- 
 
¶6.  (SBU) Michel said OLA and the Lebanese judges agreed that 
the tribunal would have jurisdiction over the Hariri case, as 
well as similar attacks of the "same nature and gravity" 
committed between October 1, 2004 and December 31, 2005.  The 
tribunal would have jurisdiction over acts of terrorism under 
Lebanese criminal law -- which Michel cautioned should be 
seen in the light of Lebanon's adherence to the Arab 
Convention on the Suppression of Terrorism -- as well as 
crimes against humanity.  Should the investigation determine 
that the Hariri assassination and the other 14 attacks 
represented crimes that occurred on a massive scale, Michel 
said the judges could try perpetrators for crimes against 
humanity.  The French political officer raised several 
questions and concerns about adding language on crimes 
against humanity, arguing that it could give the Russians and 
the Chinese an excuse to object in order to delay 
establishment of the tribunal.  In response, OLA Principal 
Legal Officer Daphna Shraga argued that without that element, 
the tribunal would not have an international character. 
Michel said it would be a "significant omission" to leave 
crimes against humanity out of the tribunal's jurisdiction. 
 
¶7.  (SBU) USUN asked whether the language in the statute 
concerning the 14 other attacks would create an inconsistency 
between the tribunal's jurisdiction and UNIIIC's mandate and 
whether the Secretary-General would therefore recommend that 
the Council expand UNIIIC's mandate to include the other 
attacks before the UNSC authorizes the Secretary-General to 
sign the agreement establishing the tribunal.  Michel said 
the question was "difficult" and he would discuss it with 
UNIIIC Commissioner Serge Brammertz.  He said any 
recommendations the Secretary-General would make about 
extending UNIIIC's mandate would depend on what Brammertz 
concludes and thought Brammertz's next report to the Council, 
due September 15, might be a good opportunity for the SYG to 
present recommendations about expanding the UNIIIC's mandate. 
 
¶8.  (SBU) Michel then discussed the questions of amnesty and 
trials in absentia, noting that the statute for the tribunal 
would preclude amnesties for war crimes, genocide, and crimes 
against humanity.  Michel admitted that in doing so, OLA had 
"pushed the envelope," but thought the amnesty provisions of 
the text would survive constitutional challenge.  The statute 
permits trials in absentia, but gives a suspect the right to 
a retrial if the accused had a counsel of his or her choosing 
or was not present at the first trial and did not instruct 
the defense counsel appointed by the tribunal during that 
trial. 
 
¶9.  (SBU) The statute also provides creative solutions to 
incorporate elements of Lebanese civil law with aspects of 
common law, which provides the underpinnings of all of the 
other international tribunals the UN has established, Michel 
said.  The tribunal will have a prosecutor, a pretrial judge, 
a defense office, a trial chamber, and an appeals chamber. 
The pretrial judge will have an important role.  The 
tribunal's statute also includes measures to permit fair but 
speedy trials and to protect the rights both of the accused 
and of victims.  The statute also describes rules of 
procedure and evidence. 
 
-------------------- 
UNIIIC and Brammertz 
-------------------- 
 
¶10.  (SBU) At the end of the meeting, Michel said he expected 
the Secretary-General would reappoint Serge Brammertz by July 
14 and commented on how best to achieve the transition 
between the UNIIIC's investigation and the work of the 
tribunal.  Michel said Bruno Stagno, President of the ICC 
Assembly of States Parties (and Costa Rican Foreign 
Minister), told him the deadline for ICC States Parties to 
object to Brammertz's reappointment had passed.  Even so, the 
Secretariat of the ICC Assembly of States Parties wanted to 
 
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discuss the issue with the ICC Bureau when they meet this 
week so the ICC Bureau could make the final decision. 
(Comment:  The French legal adviser then expressed some 
frustration at Stagno's proposal, noting that no ICC State 
Party had objected to Brammertz's reappointment and that the 
members of the ICC Bureau are also ICC States Parties.  End 
comment.) 
 
USUN NEW Y 00001366  003 OF 003 
 
 
 
-------------------- 
Funding and Location 
-------------------- 
 
¶11.  (SBU) Michel said OLA and the Lebanese had yet to 
resolve questions about the tribunal's location or its 
financing.  He said the UN had heard objections from "various 
actors" to using Cyprus as a location for the tribunal, but 
he did not specify other options.  On funding, Michel said 
the Secretariat would present options to the UNSC for its 
consideration.  He noted Lebanese assurances that funding 
would not be a problem "even if the cost of a tribunal 
exceeded USD 100 million" but wondered how the GOL would be 
able to pay this bill without any funding from the Hariri 
family (which he emphasized must be a redline for the 
international community).  Even if the GOL can come up with 
significant funds for the tribunal without help from the 
Hariris, Michel cautioned that the UN Comptroller might 
recommend that Lebanon contribute no more than 49 percent of 
the total cost -- lest it appear that the GOL could exert 
undue influence over the tribunal. 
BOLTON