VZCZCXYZ0020
OO RUEHWEB

DE RUCNDT #2084/01 3061927
ZNR UUUUU ZZH
O 021927Z NOV 06
FM USMISSION USUN NEW YORK
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0640
INFO RUEHGG/UN SECURITY COUNCIL COLLECTIVE IMMEDIATE
RUEHLB/AMEMBASSY BEIRUT IMMEDIATE 0833
RUEHDM/AMEMBASSY DAMASCUS IMMEDIATE 0315

UNCLAS USUN NEW YORK 002084 
 
SIPDIS 
 
SIPDIS 
 
FOR IO:KSILVERBERG, NEA/ELA:ADONICK, L/AN:LJACOBSON 
 
E.O. 12958: N/A 
TAGS: UNSC PGOV PREL PTER KCRM SY LE
SUBJECT: SYG CONVENES P-5 TO SEEK EARLY AGREEMENT ON TEXTS 
ESTABLISHING HARIRI TRIBUNAL 
 
REF: A. USUN 2046 
     ¶B. STATE 166376 
     ¶C. USUN 1366 
 
¶1.  BEGIN SUMMARY:  Secretary-General Annan met with the P-5 
ambassadors on November 1, appealing to the P-5 to show 
flexibility and reach agreement within the next few days on 
the draft GOL/UN agreement and accompanying statute to 
establish a tribunal to try those responsible for the 
assassination of former Lebanese Prime Minister Rafiq Hariri. 
 The meeting was clearly designed to press the Russians to 
withdraw their objections to the draft texts.  Annan stressed 
the tenuous political situation in Lebanon and said Lebanese 
Prime Minister Siniora and the Lebanese want the UN to 
proceed as quickly as possible in concluding the two texts, 
which would lay the legal foundations for establishing the 
tribunal.  Several P-5 ambassadors agreed that the P-5 should 
reach agreement in the next few days, but Russian Deputy 
PermRep Rogachev said Russia did not want to compromise 
quality.  At the end of the meeting, Ambassador Bolton 
suggested the P-5 meet to find a way forward.  END SUMMARY. 
 
¶2.  Ambassador Bolton represented USUN at the 
Secretary-General's November 1 meeting; all other P-5 
 
SIPDIS 
ambassadors attended, except for Russian PermRep Churkin, who 
is away from New York.  (Junior DPR Rogachev represented 
Russia.)  UN Legal Counsel Nicolas Michel and Daphna Shraga 
and Markus Pellek of the Office of Legal Affairs (OLA) also 
attended. 
 
¶3.  Annan opened the November 1 meeting by expressing concern 
about emerging divisions in the Lebanese government and then 
summarizing key objections the Russians have raised to the 
texts that OLA drafted and circulated to the P-5, Japan, and 
Qatar on October 19.  Annan said the Secretariat wants to 
submit the texts for the Council's approval but does not want 
to do so if the Council remains divided.  He asked the P-5 to 
provide final reactions to the Secretariat within one or two 
days. 
 
¶4.  Annan then summarized Russia's objections and concerns. 
Russia has objected to the provision of the statute 
permitting trials in absentia and the provision permitting 
appointment - not Security Council election - of judges and 
prosecutors.  Russia also seeks to amend the statute to 
terminate the tribunal automatically after three years. 
Russia also has questioned the use of the word "terrorist" in 
the statute to characterize the attacks over which the 
tribunal would exercise jurisdiction, the applicability of 
international law to the tribunal, the provision concerning 
individual criminal responsibility, and the reference in the 
statute that permits the tribunal to draw on the 
jurisprudence of international criminal tribunals. 
 
¶5.  UK PermRep Jones-Parry expressed concern that the draft 
statute and agreement do not include a provision to strip 
immunity of Lebanese and third-party officials, as the 
statute establishing the Special Court for Sierra Leone does. 
 Michel said a provision to strip the immunity of Lebanese 
officials would violate Lebanon's constitution, while a 
bilateral agreement would not be sufficient to eliminate the 
immunities of third-country officials. 
 
¶6.  Russian DPR Rogachev said Russia shares the view that the 
situation in Lebanon dictates "some urgency," but cautioned 
that speed should not take priority over the need to ensure 
the quality of the tribunal.  He argued that the trial itself 
should be "very fair" and "developed in accordance with the 
highest standards," saying that the draft text in some places 
set out "minimal standards."  He then said Russia's concerns 
are legal, not political.  Specifically, he said Russia was 
"surprised" to see that non-governmental organizations and 
interested individuals could present the names of judges for 
the Secretary-General to appoint.  Second, he said the 
defense should have the same privileges and immunities as the 
prosecution.  He concluded by saying the texts should be 
concluded in "a matter of days not weeks." 
 
¶7.  Annan and Michel then addressed Russia's comments. 
First, Michel said OLA has consulted carefully with all of 
the P-5 to ensure that the texts reflect P-5 concerns and 
consulted with international judges to be sure the texts 
reflect international standards.  Michel also questioned 
Russia's claim that the remaining issues are only legal in 
nature, noting that the key question of whether the tribunal 
should exercise jurisdiction over the Hariri attack only over 
other attacks is a policy - not a legal - question. 
 
 
¶8.  Michel explained that OLA had revised the texts last week 
to try to address Russia's concerns, sharing the revisions 
with Russia only.  Among other things, he said OLA redrafted 
Article 1 of the draft statute (concerning subject-matter 
jurisdiction) to address Russia's concerns.  The revision 
contained one sentence stating that the tribunal has 
jurisdiction over the Hariri attack.  The second provision 
said if three conditions were met, then some of the other 14 
attacks might also be covered.  Specifically, the attacks 
must be related to the Hariri attack, of a similar nature, 
and of a similar gravity, he says.  Because Russia had not 
accepted OLA revisions, however, Michel clarified that OLA 
had retracted them and would not share them with others.  The 
texts OLA circulated to the P-5 on October 19 would remain 
the working drafts. 
 
¶9.  Michel then responded directly to some of Russia's other 
objections.  He said OLA modeled the provision concerning 
appointment of judges on the mechanism by which judges are 
appointed to the Cambodia tribunal.  For that tribunal, two 
independent judges participate along with representatives of 
the Secretariat in a selections panel, and all participants 
have considered that process to be effective. 
 
¶10.  Concerning Russia's concerns about the provision 
permitting trials in absentia, Michel said Lebanese law 
permits them and the draft statute permits these trials if a 
defendant is represented by counsel, something the European 
Court of Human Rights has established as a condition to 
protect defendants' human rights.  Michel continued that four 
of Russia's other objections relate to the international 
character of the court, stressing that OLA thinks 
international elements must be a part of the statute of the 
tribunal.  Finally, on the issue of whether the tribunal 
should terminate automatically, Michel thought OLA could find 
language to address Russia's concern that the tribunal should 
not continue indefinitely, while ensuring that an arbitrary 
decisions of one of the partie would not force it to stop 
working. 
 
¶11.  French PermRep de La Sabliere pressed Rogachev on 
whether Russia could accept OLA's new proposal on the scope 
of jurisdiction.  Rogachev said Russia's "precondition" is 
that attacks other than the one on Hariri must be related to 
the Hariri attack if the tribunal is to exercise jurisdiction 
over them.  The mere fact that suicide bombers perpetrated 
six of the other attacks does not establish a relationship, 
he argued, saying that a reference to the other attacks in 
one of Serge Brammertz's reports is not sufficient to 
establish a relationship.  The notion of a "relation" should 
be established according to criminal law principles, he 
argued.  Michel responded that the revised draft article uses 
the word "if," showing that the issue of relationship has not 
been prejudged.  Annan agreed, saying the draft statute is 
the key text - not a paragraph in a Brammertz report to the 
Council. 
 
¶12.  Ambassador Bolton sought clarification on whether 
Brammertz agrees with the UN's desire to move quickly to 
establish the tribunal.  Michel said he has spoken with 
Brammertz on a regular basis and Brammertz has not objected, 
and Annan agreed to secure written confirmation from 
Brammertz.  Michel also clarified that the UN does not intend 
to appoint judges and create a working tribunal immediately 
after the texts are concluded.  Instead, the UN wants to 
ensure that the legal bases for the tribunal are clear, 
allowing Brammertz to ensure that his investigation is 
conducted consistent with the rules and procedures of the 
tribunal.  In practice, it would take months, if not a year, 
to bring the tribunal into operation because the UN would 
have to conduct an assessment mission, identify a location, 
and secure funding, among other things. 
 
¶13.  At the end of the meeting, Ambassador Bolton stressed 
that all parties want to move quickly.  He then suggested 
that the P-5 ambassadors should meet to move the process. 
BOLTON