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C O N F I D E N T I A L SECTION 01 OF 03 BEIRUT 003732 
 
SIPDIS 
 
SIPDIS 
 
NSC FOR ABRAMS/DORAN/MARCHESE/HARDING 
 
E.O. 12958: DECL: 11/30/2016 
TAGS: PREL PTER KCRM LE SY
SUBJECT: CITING BERRI, RIZK FLOATS NEW APPROACH ON TRIBUNAL 
 
Classified By: Jeffrey Feltman, Ambassador, per 1.4 (b) and (d). 
 
SUMMARY 
------- 
 
¶1.  (C)  Minister of Justice Charles Rizk pitched a new idea 
for establishing the Special Tribunal for Lebanon.  Meeting 
the Ambassador on 11/30, Rizk argued that both approaches 
currently under discussion to establish the tribunal are, and 
will remain, blocked.  With pro-Syrians murdering politicians 
and Parliament Speaker Berri playing procedural games, the 
Lebanese constitutional approval process simply won't work. 
But the fallback option of the UNSC invoking Chapter VII to 
create the tribunal unilaterally won't work either, due to 
legal questions and likely Russian objections.  Instead, Rizk 
argued, the Lebanese cabinet should ask the UN for changes in 
the draft (regarding financing of the tribunal and duration 
of the tribunal) that would allow the cabinet, per Article 52 
of the Lebanese constitution, to pass the tribunal without 
reference to parliament.  Rizk claimed that this idea 
actually originated with Berri, who doesn't want his 
association revealed.  UN envoy Geir Pedersen (who saw Rizk 
separately) said that he would quietly float the Rizk/Berri 
idea in New York.  Earlier, Minister of Culture (and Acting 
Foreign Minister) Tariq Mitri and Minister of Social Affairs 
Nayla Mouawad debated whether PM Siniora should proceed now 
in sending a letter to the UNSC requesting Chapter VII 
creation of the tribunal.  Eventually, they concurred with 
Siniora's own view, which is to try to pursue the cabinet 
approval first while hoping that quiet consultations can take 
place in New York on the issue simultaneously.  PM Siniora 
reaffirmed his support for this approach in a brief 
pull-aside with the Ambassador on the margins of the signing 
of the U.S. Trade and Investment Framework Agreement on 
11/30.  End summary. 
 
ARTICLE 52 -- NOT ALL TREATIES 
NEED TO GET PARLIAMENTARY NOD 
------------------------------ 
 
¶2.  (C)  Asking to see the Ambassador urgently on 11/30, Rizk 
brandished an English-Arabic copy of Lebanon's constitution, 
asking the Ambassador to read Article 52:  "The President of 
the Republic shall negotiate and ratify international 
treaties in agreement with the Prime Minister.  These 
treaties are not considered ratified except after approval by 
the Council of Ministers.  They shall be made known to the 
Chamber and Deputies whenever the national interest and 
security of the state permit.  However, treaties involving 
the finances of the state, commercial treaties, and in 
general treaties that cannot be renounced every year shall 
not be considered ratified until they have been approved by 
the Chamber of Deputies."  In other words, there is 
considerable leeway, Rizk said, for international treaties to 
be adopted in Lebanon without any reference to parliament. 
As for the president's constitutional role, Rizk argued that 
he is covered by Lahoud's participation in the cabinet 
session in which Rizk was given authority to negotiate the 
documents concering the Special Tribunal for Lebanon. 
 
OTHER WAYS OF ESTABLISHING 
THE TRIBUNAL ARE BLOCKED 
-------------------------- 
 
¶3.  (C)  This article, Rizk said, is the key to the 
establishment of the Special Tribunal for Lebanon.  After 
all, the two ways under discussion now -- cabinet and 
parliamentary approval by Lebanon, or UNSC invocation of 
Chapter VII authority imposing the tribunal unilaterally -- 
are both dead ends.  Syria will work to kill two more 
ministers or enough MPs to prevent adoption of the tribunal 
documents in Lebanon.  Even if murder fails, Berri will play 
procedural games to prevent the tribunal documents from 
reaching the parliamentary floor.  As for Chapter VII, 
renegotiating the documents so that they meet Chapter VII 
requirements and drop the references to Lebanon's approval 
will take too much time, "six months or more."  There are 
legal questions that will be difficult to answer if Lebanon 
is not an active partner.  And Russia, and perhaps China, 
will likely block, even veto, a tribunal established 
unilaterally by the UN. 
 
 
TWO "SMALL" CHANGES NEEDED 
TO AVOID REFERENCE TO PARLIAMENT 
------------------------------- 
 
 
BEIRUT 00003732  002 OF 003 
 
 
¶4.  (C)  The existing tribunal documents, Rizk argued, only 
need two substantive changes to meet the constitutional 
requirement for cabinet approval only.  First, the 
requirement for Lebanese financing needs to be taken out of 
the draft.  Acknowledging the ambassador's point that 
financing is not a minor issue and that Lebanon should pay 
its share, Rizk said that the tribunal documents could make 
reference simply to a voluntary fund to pay for the tribunal. 
 There does not need to be any reference to Lebanon's 
financial obligations.  Then, separately, when the GOL 
submits its budget, it can have a line item for its voluntary 
contribution to the tribunal.  The important point is to 
avoid any financial obligation on the GOL in the tribunal 
documents, in order to avoid triggering the parliamentary 
approval process. 
 
¶5.  (C)  Second, the three-year duration of the tribunal 
needs to be dropped, in favor of what Rizk called 
year-by-year automatic renewal, for three years, "unless one 
of the parties objects."  The Ambassador noted that this 
provides a certain risk, if a Syrian-dominated Lebanese 
cabinet should come to power.  The greater risk, Rizk argued, 
is that the tribunal is never established.  Moreover, he 
said, one could be creative with the clock, pushing the 
official starting date far to the future.  For example, the 
three-year clock in the current draft starts with the 
appointment of the prosecutor-general.  Maybe the clock 
should begin only with the issuance of indictment papers, 
allowing the UNIIIC to continue its investigation until that 
point. 
 
¶6.  (C)  In terms of process for GOL approval under this new 
idea, Rizk reviewed the now-familiar steps involving the 
cabinet. First, the cabinet would have to send proposed 
changes back to the UN for circulation in UN/OLA and the 
UNSC.  Then the UN would have to return the approved, revised 
documents to Lebanon, at which point the cabinet would 
formally approve them.  After the 15-day waiting period when 
President Lahoud would no doubt refuse to sign the decision 
approving the tribunal documents, the cabinet would meet 
again and approve them.  At this point, the cabinet would 
also authorize Rizk or Mitri to sign the documents with the 
UN.  No parliamentary action is required.  Rizk noted that 
the risk of Syria-inspired murder still exists, but at least 
the time is shorter than what would be needed to fight for 
parliamentary adoption. 
 
IDEA ORIGINATES WITH BERRI 
-------------------------- 
 
¶7.  (C)  Rizk claimed to have consulted with Judges Ralf 
Riachi and Choukri Sadr, both of whom agreed that what Rizk 
floated is constitutionally sound.  But, lowering his voice 
to a conspiratorial whisper, Rizk revealed that he had not 
come up with this idea on his own:  it was actually handed to 
him in a meeting the previous day with Berri.  Describing the 
UN and Rizk's lawyers as "stupid," Berri announced that he 
wanted nothing to do with the tribunal.  "But you don't have 
to ask me," he told Rizk.  In describing his proposal, the 
Speaker claimed that he wouldn't mind at all if the tribunal 
was established, as long as he could avoid any participation 
in its creation.  Rizk asked Berri whether he wouldn't 
denounce the tribunal or use its establishment in this manner 
to brand the March 14 majority as power-mad and in further 
violation of the constitution.  Berri promised Rizk he would 
stay quiet, as long as he was not expected to bless the 
tribunal in any way. 
 
PEDERSEN TO FLOAT IDEA QUIETLY IN UN 
---------------------------------- 
 
¶8.  (C)  The Ambassador asked Rizk if he had shared this idea 
with other Lebanese ministers.  He said that he preferred to 
wait until he knew from the USG, France, Russia, and the UN 
whether this might work.  He said that he would see the 
French and Russian ambassadors over the next few days.  Geir 
Pedersen, who heard Rizk's arguments a few hours before the 
Ambassador did, said that he would float the idea quietly in 
New York.  While noting that he was intrigued, Pedersen 
cautioned that no one should underestimate the financial 
complications of removing the Lebanese assessment.  But he 
agreed that overcoming the financial issues appears 
ultimately less difficult than overcoming the political 
issues, and murder, now hindering establishment of the 
tribunal. 
 
SINIORA, MITRI, MOUAWAD 
 
BEIRUT 00003732  003 OF 003 
 
 
AGREE ON PARALLEL TRACKS 
------------------------ 
 
¶9.  (C)  Earlier in the day, the Ambassador and PM Siniora 
witnessed AUSTR Shaun Donnelly and Minister of Economy and 
Trade Sami Haddad sign the Trade and Investment Framework 
Agreement.  In a conversation on the margins, Siniora said 
that he did not believe that the time was yet ripe for him to 
send a letter to the President of the Security Council asking 
that Chapter VII authority be invoked to create the tribunal 
without further reference to Lebanon.  While hoping that "the 
experts" are already discussing that possibility in New York 
and capitals, Siniora said that he would be able to stand on 
stronger grounds in sending such a letter once it becomes 
clear that the parliamentary route is blocked.  So, for now, 
he urged that the Lebanese constitutional process play itself 
out -- while strong messages are simultaneously sent to Syria 
to lay off the assassinations.  "Let's have three parallel 
tracks," Siniora said:  attempt to use Lebanon's 
constitutional process, strong messages to Syria, and quiet 
consultations on Chapter VII fall-back options in New York. 
 
¶10.  (C)  The Ambassador also met with Minister of Culture 
(and Acting Foreign Minister) Tariq Mitri and Minister of 
Social Affairs Nayla Mouawad.  Mouawad initially argued that 
the UNSC should be able to move ahead without requiring a 
letter from Siniora in creating the tribunal.  "Don't put 
anything more on Fouad's shoulders," she begged.  Listening 
to the Ambassador's arguments about why that is not a 
politically feasible approach, she then vowed to push Siniora 
to send a letter "immediately."  Mitri intervened, echoing 
the PM's remarks about letting Lebanon's constitutional 
process go forward until it is obviously blocked, per 
Siniora's suggested approach.  After considerable, spirited 
back-and-forth, Mouawad eventually agreed.  Both Mitri and 
Mouawad, however, urged quiet consultations on a potential 
usage of Chapter VII in parallel with the Lebanese 
constitutional process. 
 
COMMENT 
------- 
 
¶11.  (C)  While we defer to the lawyers and USUN, what Rizk 
(or Berri) proposes is surely not easy, especially as it 
makes financing the tribunal less certain.  And there are 
surely many traps in this approach, such as the fact that a 
less friendly Lebanese cabinet could cancel the tribunal each 
year on the anniversary of the tribunal's official 
establishment.  But the current approach -- of hoping for 
Lebanese parliamentary approval -- in the current hypertense 
political atmosphere appears to to be rooted in wishful 
thinking, given Berri's apparent orders to stop the 
tribunal's adoption by the parliament.  The most intriguing 
element, of course, is Berri's alleged authorship of this 
approach.  We hope that Rizk, who sometimes talks first and 
thinks second, protects the source in this case. 
Intentionally flattering Rizk's presidential ambitions, we 
suggested that, if this new approach proves feasible, Rizk 
protect Berri by taking credit himself.  Rizk sincerely seeks 
a way forward -- both for the tribunal and for himself. 
FELTMAN