VZCZCXYZ0000
OO RUEHWEB

DE RUCNDT #1763/01 2502235
ZNR UUUUU ZZH
O 072235Z SEP 06
FM USMISSION USUN NEW YORK
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0142
INFO RUEHGG/UN SECURITY COUNCIL COLLECTIVE IMMEDIATE
RUEHLB/AMEMBASSY BEIRUT IMMEDIATE 0775
RUEHDM/AMEMBASSY DAMASCUS IMMEDIATE 0301
RUEHNC/AMEMBASSY NICOSIA IMMEDIATE 0697

UNCLAS USUN NEW YORK 001763 
 
SIPDIS 
 
SIPDIS 
 
FOR L/UNA:TBUCHWALD AND L/AN:LJACOBSON 
 
E.O. 12958: N/A 
TAGS: KCRM LE MOPS PINR PTER SY UNSC
SUBJECT: HARIRI TRIBUNAL: UN LEGAL COUNSEL WELCOMES 
U.S./FRENCH COMMENTS 
 
REF: A. SECSTATE 140003 
     ¶B. JACOBSON/WILLSON EMAIL-09/05/06 
     ¶C. USUN 1366 
 
¶1.  (SBU) BEGIN SUMMARY:  USUN Legal, accompanied by French 
Mission political officers, delivered points (ref A) 
regarding the draft Hariri tribunal agreement to UN Legal 
Counsel Michel on September 5.  We noted USG support for his 
return to Lebanon that evening.  In addition per ref B 
request, USUN sought clarification on whether the UN intends 
to reference the 1988 Arab Convention on the Suppression of 
Terrorism in the agreement.  The French cautioned that the 
Secretary-General should not request a Chapter VII resolution 
 
SIPDIS 
to compel cooperation with the tribunal when it seeks 
Security Council approval of the agreement establishing the 
tribunal.  (Note:  The French prefer to defer action on 
compulsion until the case is more developed.  End note.) 
Pressing Michel to submit the agreement to the Security 
Council for approval as soon as possible ) preferably 
October ) the French sought Michel's views on how he plans 
to proceed.  Stressing that he does not plan to finalize the 
agreement during his visit, Michel expressed appreciation for 
P-2 input, promised to take note of it, and agreed to consult 
again upon his return.  END SUMMARY. 
 
¶2.  (SBU) Michel welcomed the comments on the draft agreement 
to establish the Hariri tribunal as he prepared to leave for 
Lebanon.  Michel said he plans to meet with the Prime 
Minister, the Minister of Justice, and the Speaker of 
Parliament, as well as P-3 (or P-5 ambassadors) before 
leaving Lebanon on September 8.  The text of the draft 
agreement and annexed tribunal statute both will be part of 
those discussions, he said.  He also clarified that he is not 
bringing the final version of the agreement to Lebanon and 
does not intend to come close to signing the agreement during 
his trip.  Michel could not predict whether the September 5 
assassination attempt against Samir Shahadah would affect his 
trip, but expressed concern about news reports that it seemed 
related "at least in part" to the investigation of Hariri's 
assassination.  Michel said the Lebanese press reports on his 
trip and on the tribunal have been speculative, including 
recent reports that the tribunal would be located in Cyprus 
and that Serge Brammertz, Commissioner of the International 
Independent Investigation Commission (UNIIIC), would be the 
tribunal's prosecutor.  These issues have yet to be decided, 
he noted. 
 
¶3.  (SBU) At Michel's request, Office of Legal Affairs (OLA) 
Legal Officer Daphna Shraga then responded to the specific 
points concerning the text of the agreement.  Shraga said the 
UN intended the agreement to provide the tribunal with 
jurisdiction over the 14 other attacks committed between 
October 1, 2004 and December 31, 2005, but not any other 
terrorist acts.  Although the agreement would not refer by 
name to the other attacks, she said the Secretary-General's 
report to the Council would cite the pages in the fourth 
UNIIIC report to the Security Council that suggest the 
attacks were linked.  In providing jurisdiction over the 14 
other attacks, Shraga said OLA had followed its policy of 
balancing the need to ensure that a tribunal's temporal 
jurisdiction covers the main crimes and perpetrators with the 
need to ensure cost effectiveness.  (Note:  USUN does not 
share OLA's view.  End note.)  In this case, OLA is concerned 
that if the tribunal has jurisdiction only over the Hariri 
assassination, the UN will be "take one act out of context 
and we in the UN will be perceived as not objective."  OLA 
wants to avoid creating an impression that the tribunal will 
provide selective justice, she said.  Although OLA had 
thought it was important to limit the tribunal's temporal 
jurisdiction, she admitted that the attempted assassination 
of Shahadah had given her "second thoughts" about that 
approach. 
 
¶4.  (SBU) With respect to language providing jurisdiction 
over crimes against humanity, Shraga acknowledged that 
Lebanese law might provide a sufficient basis for 
jurisdiction but said OLA wanted to "inject as many elements 
from international law into the tribunal."  If the tribunal's 
competence is limited to national law, issues such as head of 
state immunity could be more difficult to address, she said. 
Characterizing U.S. and French concerns as "political," she 
said crimes against Lebanese law and crimes against humanity 
are "mutually inclusive," and the tribunal should give the 
prosecutor flexibility to bring charges of crimes against 
humanity if he or she believes the facts exist to support 
those charges.  The French expert responded that France 
doubts that, as a legal matter, the crimes can be 
 
 
characterized as crimes against humanity.  While 
acknowledging U.S. and French concerns, Shraga said a 
decision to omit crimes against humanity from the tribunal's 
jurisdiction could raise countervailing objections.  She said 
OLA decided to keep the language on crimes against humanity 
in the draft agreement after its consultations with jurists 
such as Antonio Cassese, the first President of the 
International Criminal Tribunal for the Former Yugoslavia 
(ICTY), who argued for its inclusion. 
 
¶5.  (SBU) On the issue of the 1998 Arab Convention on the 
Suppression of Terrorism, Shraga and Michel indicated they 
could be flexible.  Michel said OLA included a reference to 
the Convention in the draft agreement because it wanted to 
avoid referring to Lebanese law generally, which could be 
overly inclusive and provide a basis for numerous different 
interpretations.  He suggested that the agreement could be 
revised to refer to specific articles of the Convention that 
define terrorist offenses, without referring to those that 
provide exceptions for national liberation movements. 
 
¶6.  (SBU) In response to the French concern about when OLA 
would suggest a Chapter VII resolution, Michel said they 
would consult carefully to avoid making a proposal that would 
create difficulties in the Security Council.  At a minimum, 
the Secretary-General's report to the Security Council would 
include a sentence saying that measures will have to be taken 
to ensure cooperation with the tribunal.  A Chapter VII 
resolution could be useful to clarify that the agreement has 
primacy, particularly with respect to any issues on which 
international and domestic law differ.  He noted different 
views among Council members on what is necessary for a 
Security Council to be binding and mused that it might be 
preferable to avoid being "too dogmatic" about what is and is 
not necessary.  Shraga noted that a Chapter VII resolution 
would be necessary for enforcement, although in practice even 
Chapter VII resolutions are unenforceable, but then said the 
Lebanese have insisted upon securing a Chapter VII 
resolution.  The French reiterated that, although they do not 
disagree with the UN on substance, they are concerned that 
proposing an agreement to the Council in October that refers 
to crimes against humanity and seeks a Chapter VII resolution 
will break consensus in the Security Council "at a time we 
need this consensus, on Lebanon in particular." 
 
¶7.  (SBU) Michel then previewed his plans for finalizing the 
agreement.  The Lebanese press has reported incorrectly that 
the UN plans to have the Lebanese Parliament approve the 
agreement and then bring it to the Security Council before 
the Secretary-General signs it, he said.  Michel plans to get 
comments from the Lebanese during his visit and then inform 
and consult with Security Council members.  After those 
discussions, Michel thought he would have the elements for 
the Secretary-General's report to the Council, which would 
attach the agreement and statute for establishing the 
tribunal.  Once the Security Council has agreed to a 
document, the Secretary-General will sign it, and then 
Lebanon's parliamentary approval process can begin. 
 
BOLTON