VZCZCXRO8003
OO RUEHAG RUEHBC RUEHBZ RUEHDA RUEHDBU RUEHDE RUEHDF RUEHFL RUEHIK
RUEHKUK RUEHKW RUEHLA RUEHLN RUEHLZ RUEHROV RUEHSR RUEHVK RUEHYG
DE RUCNDT #1899/01 2761301
ZNR UUUUU ZZH
O 031301Z OCT 06
FM USMISSION USUN NEW YORK
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0324
INFO RUEHXK/ARAB ISRAELI COLLECTIVE IMMEDIATE
RUEHEE/ARAB LEAGUE COLLECTIVE IMMEDIATE
RUEHZL/EUROPEAN POLITICAL COLLECTIVE IMMEDIATE
RUEHGG/UN SECURITY COUNCIL COLLECTIVE IMMEDIATE

UNCLAS SECTION 01 OF 03 USUN NEW YORK 001899 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PREL UNSC SY LE
SUBJECT: ACTION REQUEST: FINALIZING THE UN-LEBANON TREATY 
TO ESTABLISH THE HARIRI TRIBUNAL 
 
REF: A. USUN 1865 
 
     ¶B. BUCHWALD-WILLSON E-MAIL 
     ¶C. BEIRUT 3162 
 
USUN NEW Y 00001899  001.2 OF 003 
 
 
¶1. (SBU) This is an action request.  Please see para 10. 
 
¶2. (SBU) Summary.  During a meeting between P-3 legal and 
political officers on October 2, French experts reported that 
the UN's Office of Legal Affairs (OLA) had revised the draft 
treaty establishing the Hariri tribunal to delete any 
references to crimes against humanity and the Arab Convention 
on Terrorism ) two of the major points on which the USG had 
earlier pressed for changes (ref A).  The French had no 
revisions to report on another point the USG had urged OLA to 
consider ) extending the tribunal,s temporal jurisdiction 
beyond December 2005 in an attempt to deter future attacks ) 
but joined the UK in arguing that the tribunal,s 
jurisdiction should not be extended.  The French experts said 
the UN plans to submit the treaty to GOL Justice Minister 
Rizk as early as October 5 in order to secure GOL cabinet 
approval "in principle" before the SYG submits the treaty to 
the UNSC for review.  After USUN legal and political officers 
described USG proposals to overcome potential claims of 
immunity by Lebanese or Syrian officials (ref b) ) including 
by adopting a Chapter VII resolution -- French and UK experts 
agreed that such a resolution would be necessary but warned 
that achieving one in the Council now would be politically 
impossible.  The British expert proposed pushing for a 
Chapter VII UNSCR once the SYG certifies that the tribunal 
has become operational.  While the UK and France agreed that 
the tribunal should be funded through voluntary 
contributions, they had not yet received formal guidance to 
respond to OLA's request that the prosecutor's office benefit 
from assessed contributions as long as the investigation 
continues.  OLA plans to present options to fund the tribunal 
in the SYG,s report to the UNSC.  End Summary. 
 
Status of the Draft Treaty 
-------------------------- 
 
¶3. (SBU) The French legal expert reported that OLA's Mark 
Quarterman had told her earlier on October 2 that OLA had 
sent a revised version of the treaty to Lebanese judges 
Choukri Sadr and Ralph Riachy over the past weekend for their 
review.  This version had been modified to address P-3 
concerns in several ways.  First, both the heading and the 
substance of the language on crimes against humanity had been 
removed.  Second, the reference to the Arab Convention on 
Terrorism had been deleted.  Third, OLA had asked the 
Lebanese judges to consider other crimes under Lebanese law 
-- beyond just terrorism -- for which the tribunal could try 
suspects. 
 
Sequence/Timeline for Approval 
------------------------------ 
 
¶4. (SBU) The French legal expert said Quarterman predicted 
OLA could finalize the draft treaty by October 4-5, after 
receiving comments from the Lebanese judges, and then forward 
the text to Lebanese Justice Minister Rizk in order to secure 
"agreement in principle" from the GOL Cabinet.  Once the 
Cabinet has approved the text in principle, OLA could then 
submit SYG Annan's report on the tribunal to the UNSC. 
(Note: This sequence was followed by the UN when setting up 
tribunals in other countries.  End Note.)  Lebanese Mission 
to the UN Charge Caroline Ziade confirmed this sequence of 
events during a separate meeting with Ambassador Wolff on 
October 2, but also undertook to check if the GOL wanted to 
move up the timetable for approval (per ref C).  French and 
UK experts agreed to seek a working-level meeting between the 
P-3 and OLA on October 4 -- or as soon as possible after OLA 
has heard back from the Lebanese judges -- but before OLA 
submits the treaty to Justice Minister Rizk for his 
consideration.  Given that OLA may finalize the SYG,s report 
to the Council soon after the Lebanese judges approve the 
latest version of the draft treaty, P-3 experts also agreed 
to seek instructions from capitals by October 4 on elements 
to propose OLA include in the SYG,s report. 
 
Deterring a Future Attack 
------------------------- 
 
¶5. (SBU) The UK expert said HMG would be "very uncomfortable" 
with any proposal to extend the tribunal's temporal 
jurisdiction beyond December 2005, given the risk that some 
within Lebanon or beyond could argue that the tribunal should 
also consider purported Israeli "war crimes" against Lebanon 
as well as the killing of the Mazjoub brothers (suspected 
 
USUN NEW Y 00001899  002.2 OF 003 
 
 
Palestinian Islamic Jihad operatives) in May 2006.  The 
French expert agreed that it would be prudent for the 
tribunal to retain the December 2005 cut-off and asked 
whether the USG would press the point.  (Note:  UNSCRs 1644 
and 1686 expanded UNIIIC's mandate, at GOL request, from a 
sole focus on the assassination of Hariri and 22 others to 
include the provision of technical assistance to the GOL in 
its investigations of other terrorist attacks perpetrated in 
Lebanon since October 1, 2004.  But the resolutions are 
silent on the cut-off date for attacks to be investigated by 
the Commission.  OLA, as well as the majority of UNSC 
members, have interpreted the time frame of the Commission's 
investigative mandate to run from October 1, 2004, through 
December 2005.  Because the purpose of the tribunal is to try 
those responsible for acts investigated by the Commission, 
OLA and other member states have argued that the tribunal 
should have the same temporal jurisdiction as the Commission. 
 End Note.)  USUN Officers told UK and French experts that 
Ambassador Wolff had told Nicolas Michel (ref A) that the 
treaty should deter future attacks in Lebanon by extending 
its jurisdiction beyond December 2005, but that the U.S. had 
not proposed a specific formula to accomplish this goal. 
Arguing that extending the tribunal's jurisdiction would be 
politically difficult within the Council, where many members 
prefer a primary focus on the Hariri assassination, French 
and British experts opined that the UNSC could always ask the 
Secretariat to modify the agreement with the Lebanese to 
 
SIPDIS 
include future crimes -- as had been the case with the ICTY. 
 
Laying the Groundwork for a Chapter VII UNSCR 
--------------------------------------------- 
 
¶6. (SBU) French and British experts agreed that the Council 
would eventually have to adopt a Chapter VII resolution 
mandating cooperation with the tribunal, but argued it would 
be politically impossible to secure such a resolution now 
within the UNSC.  Recalling Russian opposition to language 
regarding the tribunal in a press statement following UNIIIC 
head Brammertz's briefing to the Council (septel), the French 
expert predicted that Russia would too oppose a Chapter VII 
resolution at the present time but would acquiesce to one 
once it becomes necessary for the tribunal to function.  USUN 
Officers noted that the USG had yet to take a decision on 
when to push for a Chapter VII resolution, but suggested that 
the P-3 agree on language to propose that OLA include in the 
draft treaty or in the SYG's report that could serve as a 
trigger for a Chapter VII resolution.  Drawing from ref B, 
USUN Officers described ideas to add language to the 
treaty/statute overriding claims of immunity below the head 
of state level or requiring states asserting such immunity to 
do so formally -- which could then lead the UNSC to act. 
 
¶7. (SBU) Evincing no enthusiasm for proposals to amend the 
treaty/statute to set the stage for a Chapter VII resolution 
-- on the grounds that they would delay the process of 
approving the treaty -- French and British experts suggested 
that the P-3 instead advise OLA to include language in the 
SYG's report that could serve as a trigger for a Chapter VII 
resolution.  Noting that the SYG would have to certify that 
the tribunal had become operational -- after the GOL 
parliament ratifies the treaty and presumably after the court 
hires a prosecutor and judges -- the British expert proposed 
that OLA recommend that this certification be accompanied by 
a resolution conferring the same authority on the tribunal 
that the Commission currently enjoys.  By welcoming the SYG's 
report in the exchange of letters that follows the Council's 
review of the draft treaty, the UNSC could then set the stage 
for a Chapter VII resolution when the tribunal becomes 
operational. 
 
Funding: When to Cut off Assessed Contributions 
--------------------------------------------- -- 
 
¶8. (SBU) UK and French experts shared USG views that the 
tribunal ought to be funded through voluntary contributions, 
but did not have formal positions on OLA's request that the 
prosecutor's office continue to receive funding from assessed 
contributions as long as the investigation continues (ref B). 
 The French expert predicted Paris would be tempted to 
support OLA's request given the need to ensure continuity in 
operations between UNIIIC and the tribunal, while the British 
expert seemed more reluctant on this point.  In terms of 
funding options longer-term, the British expert noted that 
HMG would have no problem with 100 percent GOL funding as 
long as it is transparent.  The French expert suggested that 
some degree of international funding would be important 
politically but had no formal views to report. 
 
 
USUN NEW Y 00001899  003.2 OF 003 
 
 
Comment and Action Request 
-------------------------- 
 
¶9. (SBU) Comment:  Presuming OLA still believes the SYG must 
certify that the tribunal has become operational, this 
reporting requirement offers a good opportunity to push for a 
Chapter VII resolution and to mark a clean break between 
funding for the Commission and the tribunal.  In this 
scenario, the P-3 could argue that the tribunal needs the 
same legal authority to compel cooperation that the 
Commission enjoys under UNSCR 1636 in order to become truly 
operational.  The Commission could also receive funding from 
assessed contributions until this point -- which we could 
argue the tribunal should reach only once a case is ready for 
trial and judges have been appointed -- after which assessed 
contributions would cease and the tribunal would function on 
the basis of voluntary contributions. 
 
¶10. (SBU) Action Request:  We will request that OLA share 
with us a revised version of the draft treaty as soon as it 
concludes its discussions with the Lebanese judges.   USUN 
requests Department views on the issues described in paras 
5-8, particularly the issue of the tribunal's temporal 
jurisdiction, no later than OOB October 4 to enable us to 
engage in a timely fashion with OLA. 
BOLTON