VZCZCXYZ0001
OO RUEHWEB

DE RUCNDT #2046/01 2992007
ZNR UUUUU ZZH
O 262007Z OCT 06
FM USMISSION USUN NEW YORK
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0578
INFO RUEHLB/AMEMBASSY BEIRUT IMMEDIATE 0823
RUEHDM/AMEMBASSY DAMASCUS IMMEDIATE 0312

UNCLAS USUN NEW YORK 002046 
 
SIPDIS 
 
SIPDIS 
 
FOR IO:KSILVERBERG, L/AN:LJACOBSON, NEA/ELA:ADONICK 
 
E.O. 12958: N/A 
TAGS: UNSC PGOV PREL PTER KCRM SY LE
SUBJECT: UN LEGAL COUNSEL REPORTS ON EFFORTS TO CONCLUDE 
TEXTS ESTABLISHING HARIRI TRIBUNAL 
 
REF: A. STATE 166376 
     ¶B. USUN 1366 
 
¶1. (SBU) BEGIN SUMMARY:  Legal Adviser John Bellinger and 
Ambassador Wolff met with UN Legal Counsel Nicolas Michel and 
his deputy, Larry Johnson, October 25, to discuss Lebanese 
and key Council members' views on the draft statute and 
agreement to establish a tribunal to try those responsible 
for the assassination of former Lebanese Prime Minister Rafiq 
Hariri.  Michel said the Russians had presented extensive 
objections to the texts, arguing among other things that the 
tribunal should exercise jurisdiction only over Hariri's 
assassination and sentences should be served in the 
defendants' states of nationality.  After consulting with the 
Lebanese and the Secretary-General, the Office of Legal 
Affairs (OLA) has decided to wait to send the texts 
officially to the Lebanese until the P-5 have reached 
agreement.  Stressing the need to conclude the texts soon, 
Bellinger and Wolff urged OLA go back to the Russians 
promptly to answer Russian questions about the texts, to 
offer edits where possible, and to stress that OLA would not 
accept all of Russia's proposed changes.  Finally, Michel 
summarized his October 25 discussions with the Syrians and 
their UK lawyer, Philippe Sands.  END SUMMARY. 
 
¶2.  (SBU) At an October 25 meeting, UN Legal Counsel Michel 
updated Legal Adviser Bellinger and Ambassador Wolff on his 
consultations with the Lebanese, the P-5, Japan, and Qatar, 
concerning the draft texts to establish the Hariri tribunal. 
Michel said the Lebanese had assented unofficially to the 
texts.  Russia, France, the U.S., and Japan provided 
comments, with Russia expressing extensive concerns about the 
draft texts, and indicating that its list of concerns was 
"preliminary."  Japan focused its comments on financing, but 
said the tribunal should only exercise jurisdiction over 
Hariri's assassination.  (Comment:  USUN believes Japan has 
some flexibility on the jurisdictional question and will not 
block the texts if OLA does not amend the language.  End 
Comment.) 
 
------------------- 
Russia's Objections 
------------------- 
 
¶3.  (SBU) Reading from Russia's five-page response to OLA, 
which provided Russia's "preliminary" views, Michel 
identified 12 Russian objections or concerns: 
 
--Jurisdiction (Article 1 of Statute):  Russia called the 
references to the "terrorist attack" and "terrorist attacks" 
in this article "prejudicial."  Russia said this provision 
should be narrowed to limit the tribunal's jurisdiction to 
the Hariri case.  Russia argued that extending jurisdiction 
to the "other related terrorist attacks of a similar nature 
and gravity which occurred in Lebanon between 1 October 2004 
and 12 December 2005 or any later date decided by agreement 
of the Parties and the consent of the Security Council" 
exceeds the Secretariat's mandate under UN Security Council 
Resolution 1664 (2006). 
 
--Applicable Law (Article 2(c) of Statute):  Russia 
questioned the inclusion of this paragraph, which refers to 
"the provisions of international law applicable to Lebanon in 
relation to the prosecution and punishment of the crimes 
referred to" in Article 2(a).  Bellinger said the United 
States also did not understand the need for this provision. 
Michel argued that the provision was necessary to preserve 
the tribunal's "international character." 
 
--Individual Criminal Responsibility (Article 3 of Statute): 
Russia questioned the inclusion of language concerning 
vicarious liability that would cover any person who 
"otherwise participated in the planning, preparation or 
execution of a crime," and make such persons individually 
responsible for a crime.  The Russians apparently argued that 
there was no need for any such provision and that the issue 
of vicarious liability should be governed by existing 
Lebanese law. 
 
--UNIIIC/Tribunal:  Russia questioned the relationship 
between the tribunal and the International Independent 
Investigation Commission, questioning the need to establish 
the tribunal before the Commission has completed its mandate 
and arguing that the prosecutor should not conduct another 
investigation.  Russia also said the tribunal's judges should 
have discretion to review evidence collected by the 
Commission and then decide whether to admit it. 
 
--Trials in Absentia (Article 22 of Statute):  Russia 
 
 
complained that no other tribunal statutes permit trials in 
absentia. 
 
--Election of Officials (Articles 9 and 11 of Statute): 
Judges and prosecutors should be elected by the Security 
Council, not appointed by the Secretary-General, Russia said. 
 Only governments should nominate candidates. 
 
--Defense Office (various provisions of Statute and GOL/UN 
Agreement):  The defense office should have the same status 
as the prosecutor's office, apparently meaning that the 
defense would have the same authority to compel documents and 
testimony as the prosecution. 
 
--ICTY/ICTR (Articles 24, 26, 28 of Statute):  Russia 
cautioned against letting the tribunal be guided by the 
practice of the International Criminal Tribunals for the 
Former Yugoslavia and Rwanda; instead, the tribunal should be 
guided by the norms and standards of the UN. 
 
--Enforcement of Sentences (Article 29 of Statute): 
Convicted defendants should serve their sentences in their 
countries of nationality or permanent residence. 
 
--Russia opposes the establishment of a Management Committee 
(Article 6 of GOL/UN Agreement). 
 
--Entry into Force (Article 19 of GOL/UN Agreement):  Michel 
did not elaborate on Russia's concerns. 
 
--Termination (Article 21 of GOL/UN Agreement):  The 
agreement and statute should terminate automatically in three 
years, unless the Security Council and the Lebanese agree to 
extend the tribunal. 
 
---------------- 
Syrian Reactions 
---------------- 
 
¶4.  (SBU) Michel also said he met with Syrian PermRep 
Ja'afari and the Syrian legal adviser, along with Philippe 
Sands, a professor of international law at University College 
London who is representing Syria, on October 25.  According 
to Michel, Sands dominated the discussion and referred 
specifically to all of the previous draft texts OLA had 
prepared.  Among other things, Sands questioned the deletion 
of the "crimes against humanity language," arguing that 
eliminating that language would dilute the tribunal's 
international character.  The Syrian ambassador made three 
political points:  1) the tribunal's jurisdiction should be 
limited to the Hariri case, 2) judges representing the state 
of nationality of the accused should be appointed; and 3) the 
criminal law of a defendant's state should apply. 
 
---------- 
Next Steps 
---------- 
 
¶5.  (SBU) Michel, Bellinger, and Wolff then discussed how 
best to conclude the texts soon.  Once OLA has secured key 
Council members' agreement on the texts, OLA intends to 
provide the texts officially to the Lebanese, who would then 
indicate their preliminary official consent.  The Lebanese 
would send the texts to the Cabinet of Ministers and 
Parliament only after the Security Council has approved the 
texts, however.  Michel said he had wanted to send the drafts 
formally to the Lebanese this week, but after consulting with 
the Lebanese and the Secretary-General had decided to try to 
reach consensus among the P-5 first.  He said the French have 
demarched the Russians in Moscow, and as a result, Moscow has 
instructed the Russian Mission to show "flexibility," 
particularly on the question of expanding the tribunal's 
jurisdiction beyond Hariri, though it remains to be seen 
exactly how this greater flexibility will translate. 
 
¶6.  (SBU) Michel said the Secretary-General is prepared to 
convene the P-5 ambassadors in an effort to work out an 
agreement, but Bellinger and Wolff advised OLA to go back to 
the Russians first.  They recommended that OLA edit the texts 
where possible and then provide the Russians detailed 
responses to some of the other comments they had raised.  For 
example, they suggested that OLA could modify the text to 
require the Council to undertake a review of the tribunal 
within three years.  The tribunal would not be terminated 
automatically unless the Council and the Lebanese agreed 
following that review.  But OLA also would tell the Russians 
that OLA could simply not make all of the changes the 
Russians seek.  Michel said he would meet the Russians on 
October 25 or 26. 
 
 
 
----------- 
P-3 Meeting 
----------- 
 
¶7.  (SBU) Later on October 25, Bellinger briefed French Legal 
Adviser Edwige Belliard and UK Legal Adviser Daniel Benjamin 
on the U.S. meeting with Michel.  Both were scheduled to meet 
with Michel (on October 25 and 26, respectively) and agreed 
that OLA should work with the Russians without conceding much 
ground.  All agreed that the French would likely have the 
most diplomatic leverage over the Russians. 
 
BOLTON