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Cablegate: Urgent Demarche: Urge Support for Special

VZCZCXRO3343
OO RUEHBZ
DE RUEHC #0478/01 1430052
ZNR UUUUU ZZH
O 230044Z MAY 07
FM SECSTATE WASHDC
TO UN SECURITY COUNCIL COLLECTIVE IMMEDIATE
INFO RUEHLB/AMEMBASSY BEIRUT IMMEDIATE 5939
RUCNDT/USMISSION USUN NEW YORK IMMEDIATE 7380

UNCLAS SECTION 01 OF 04 STATE 070478

SIPDIS

SENSITIVE
SIPDIS
KINSHASA PASS TO BRAZZAVILLE

E.O. 12958: N/A
TAGS: UNSC LE PREL PTER
SUBJECT: URGENT DEMARCHE: URGE SUPPORT FOR SPECIAL
TRIBUNAL FOR LEBANON

REF: A. USUN 384

B. USUN 393

1. (SBU) SUMMARY AND ACTION REQUEST: Department instructs
Ambassadors (or Chiefs of Mission) to seek urgent meetings
with host governments at the highest level possible to press
for support for immediate UN Security Council action to
establish the Special Tribunal for Lebanon. The P-3 shared
the draft resolution text with all Security Council members
last week. Except for Belgium and Slovakia, other Council
members raised a number of questions/concerns (Refs A and B).
Posts should draw from the material in paras 4-13 below to
address these concerns and confirm support. Demarche may be
delivered by phone and must be delivered within 24 hours of
receipt in order to permit UNSC action by May 25. Demarche
may be delivered in conjunction with French and British
counterparts, if appropriate. End Summary and Action Request.

2. (SBU) OBJECTIVES: Department requests Embassies pursue
the following objectives:

-- For Embassies Paris, London, Brussels, and Bratislava:
Inform host government that we are making this demarche,
express appreciation for its support of the resolution, and
ask host government to engage with other UNSC members to urge
UNSC support of the resolution.

-- For all other posts: Urge host government to instruct its
mission to the UN to support the P-3 draft resolution on the
Special Tribunal for Lebanon when it is formally tabled in
the Security Council, which could happen as early as May 23,
and to support a UNSC vote on the resolution this week.

-- Note that, as UN Legal Advisor Michel reported to the
Security Council, all parties in Lebanon support in
principle the establishment of the Tribunal. Express our
full appreciation of the importance of respecting the
internal processes of member states, but stress that this is
a case where the subversion of that process - through
terrorism and other threats of violence - is itself the heart
of the problem.

-- Underscore the importance of the Tribunal for the future
stability of Lebanon. Stress Prime Minister Siniora,s
conclusion last week that "Lebanon cannot sustain the failure
to establish a tribunal." Note that the only way to stop
future political assassinations is for those responsible to
be held accountable. Emphasize that the international
community must help ensure that there is no impunity for
political assassinations.

-- Emphasize that the Tribunal must be established soon for
operational reasons and in the interest of justice and
stability. It would take at least a year for the Tribunal to
become operational.

3. REPORTING DEADLINE: Embassy should report results of
demarche to IO/UNP: Anneliese Reinemeyer before May 24.

----------
BACKGROUND
----------

4. (SBU) The assassination of former Lebanese Prime
Minister Rafiq Hariri on February 14, 2005, led to widespread
protests and the withdrawal of Syrian troops from Lebanon in
April 2005. At the GOL's request, the UN established the UN
Independent International Investigation Commission (UNIIIC)
and has worked with the Lebanese Justice Minister and other
Lebanese officials to negotiate the Tribunal statute.
Approval of the Tribunal has become a key element in the
current political tension in Beirut, which pits PM Siniora
and his March 14 allies (the Saad Hariri faction) against the
pro-Syrian Hizballah-Aounist Alliance. (Note: March 14
commands a majority in the Parliament where the
Hizballah-Aounist alliance represents a minority. End note.)
The UN and the Lebanese Cabinet have approved the Tribunal
Agreement and Statute; however, Hizballah and Syrian
sympathizers have prevented the Parliament from convening to
ratify the Agreement in an attempt to leverage this issue to
gain a blocking minority in the Lebanese Cabinet.

5. (U) The Lebanese Parliament, which was scheduled to
reconvene its regular session on March 20, has still not

STATE 00070478 002 OF 004


met. A majority of the Lebanese Parliamentarians have
documented more than once their intent to ratify the
Tribunal, if only the Speaker of Parliament would allow them
to convene. These members of the parliamentary majority, who
took office after free and fair elections monitored by
international observers, have actively sought Security
Council assistance to establish the Tribunal. The P-3 have
drafted a resolution that keeps the substance of the
Statute/Agreement as negotiated by the Government of Lebanon
and the UN in place. The P-3 plan to table this resolution
as early as May 23 for a vote later this week.

6. (U) In expert level meetings in New York, UNSC
delegations have raised a number of concerns (refs a and b).
Posts may respond to these specific issues drawing on the
points in paras 7-14 below. Posts may leave these points
with the host government as a non-paper.

7. (SBU) WILL COUNCIL ACTION UNDERMINE LEBANESE
SOVEREIGNTY? The United States continues to fully support
the immediate establishment of the Special Tribunal to try
those responsible for perpetrating the terrorist attack that
killed Rafiq Hariri and 22 others. We believe the
establishment of the Tribunal is necessary to see that
justice is done. The Tribunal will serve as a deterrent to
those who in the future might be tempted to engage in similar
violent crimes intended to undermine Lebanon's democracy,
sovereignty and independence. While we would prefer Lebanese
parliamentary approval, this is no longer a realistic option.


Although established by the Security Council under Chapter
VII, the Tribunal will retain all the key Lebanese
Components. Lebanon will continue to have a role in choosing
judges and the Lebanese deputy prosecutor and in consulting
with the UN on a Headquarters Agreement. Additionally, the
Tribunal will work in accordance with Lebanese law. A
Chapter VII Tribunal will strengthen sovereignty by working
integrally with Lebanon to see that justice is done.

This is a case where international pressure can help free a
country from internal and external threats to its
sovereignty. Lebanon,s sovereignty is imperiled when
political leaders, journalists, and citizens are targeted for
assassination because of their political views.

8. (SBU) WHY NOW?

-- First, the Lebanese people,s right to justice should be
neither denied nor delayed. The Tribunal will demonstrate
that there is no impunity for politically-motivated violence
and thereby deter further violence. In the current highly
volatile political situation in Lebanon, all political
leaders, journalists, and citizens must feel free to express
their views without threats or fear of assassination. The
need for this freedom of expression is even more urgent as
Lebanon approaches its fall Presidential elections. Without
the Tribunal and the assurance of justice, all political
leaders may fear they are vulnerable.

-- Second, the Tribunal must be established soon for
operational reasons, since it will take at least a year for
the Tribunal to become operational.

-- Third, the unresolved question of the Tribunal has
prevented Parliament from addressing the other important
political issues facing Lebanon, including economic reform, a
new electoral law, and the disarmament of militias.
Parliament will not convene until the issue of the Tribunal
is resolved by the Security Council.

-- Fourth, Prime Minister Siniora has requested urgent UNSC
action on this issue to bolster his democratically-elected
government against attempts by parties in Lebanon and the
region to undermine its authority.

9. (SBU) ARE THERE OTHER OPTIONS? While Parliamentary
ratification would have been far preferable, the ratification
process is definitively blocked. The opposition refused to
discuss specific concerns about the Statute with UN Legal
Advisor Nicolas Michel and continues to use the Tribunal as
leverage in its negotiations with the government to gain a
blocking minority in the Cabinet. The Lebanese domestic
courts are unable to take on sensitive political prosecutions
because of the high-risk security situation. The only
realistic option for justice is for the Security Council to
act on the request of the democratically-elected Government
of Lebanon and take a &binding8 decision to bring the
Tribunal Agreement into force.

STATE 00070478 003 OF 004

-- (IF ASKED ONLY) WHAT ABOUT THE ICC? The International
Criminal Court is not an appropriate venue for the
prosecution of those responsible for the Hariri
assassination, a terrorist action that violated Lebanese law.
The ICC prosecutes war crimes, crimes against humanity, and
genocide, which are offenses within the jurisdiction of the
ICC. A referral to the ICC would also be inconsistent with
respect for Lebanese sovereignty; Lebanon itself should have
the lead in the prosecution of those responsible for
terrorist acts on its soil.

10. (SBU) WILL COUNCIL ACTION LEAD TO INSTABILITY?

-- Lebanon already suffers from a high level of instability
resulting from the threat of violence from Lebanon,s armed
militias and their foreign sponsors, who use this threat to
control Lebanon,s internal political dialogue. We have no
information that the clashes between the Lebanese Armed
Forces and Fatah al-Islam are connected to the issue of
Security Council Action to establish the Special Tribunal for
Lebanon. The establishment of the Tribunal, with its promise
of ending impunity, will increase stability by deterring
politically-motivated violence and permitting Lebanese
leaders to address the serious, underlying political issues
facing Lebanon.

-- As Prime Minister Siniora said last week: "Lebanon cannot
sustain the failure to establish a tribunal. It touches the
heart and essence of fundamental justice in the country and
will lead to the continued obsession with assassinations; it
will be a sword hanging over the necks of the Lebanese." (Ya
Libnan, 05/17/2007)

-- Now that the Tribunal has been referred to the UNSC, all
parties in Lebanon and the region consider it a fait accompli
and are not likely to respond violently.

-- As long as there is impunity for politically-motivated
violence, the Lebanese Cabinet, the Lebanese Parliament,
journalists, the Lebanese people and UNIFIL are all at risk.
Lebanon can only have a secure future when the killers know
they will be held accountable for their actions.

11. (SBU) WHY SHOULD THE COUNCIL PICK SIDES IN AN INTERNAL
DISPUTE? WHY SHOULD THE COUNCIL LISTEN TO PRIME MINISTER
SINIORA RATHER THAN PRESIDENT LAHOUD - BOTH HAVE SENT
LETTERS? The establishment of the Tribunal is not a partisan
political issue, it is an issue of justice. The Council is
not picking sides ) all political sides in Lebanon have
professed their support for the Tribunal in principle.
Unfortunately, the opposition in Lebanon is attempting to
leverage the universal support for the Tribunal for their
political gain in an unrelated political issue. By linking
the Tribunal to its demand for a blocking minority in the
Cabinet, the opposition has politicized the Lebanese people's
desire for justice. Council action to establish the Tribunal
will depoliticize the Tribunal and the search for justice.

President Lahoud's letter does not argue against the
Tribunal; rather he argues against Prime Minister Siniora's
request for Council action to establish the Tribunal.
President Lahoud has indicated on many occasions that he
supports the Tribunal; in fact, the full Lebanese Cabinet,
with President Lahoud presiding, authorized Lebanese judges
to negotiate the Tribunal Agreement and Statute with the
Secretariat. Despite this history of support, President

SIPDIS
Lahoud refused to sign the Tribunal Agreement following
approval by the Cabinet.

12. (SBU) WHAT IS THE LEGAL BASIS FOR 'BRINGING AN
AGREEMENT INTO FORCE'? CAN THE UNSC NOW RATIFY AGREEMENTS
FOR COUNTRIES THAT HAVE FAILED TO DO SO THEMSELVES? (Note:
Posts are encouraged to deflect this question and
rely on the political arguments found elsewhere in this
cable. However, if necessary, posts can draw from the
following points. End note.)

-- We understand your concerns about having the UN Security
Council decide that a state shall be a party to
an international agreement to which it has formally decided
not to become a party. But there is an important
distinction between the Security Council taking action that
would impose obligations on a state, on the one hand,
and the UNSC taking action that would require a state to
become a party to a particular treaty, on the other hand.

-- There are in fact numerous examples of the former in
Council practice. For instance:

STATE 00070478 004 OF 004

-- In UNSC resolution 1593, the Security Council decided that
the Government of Sudan "shall fully cooperate with and
provide any necessary assistance" to the ICC, even though
Sudan was not a party to the Rome Statute creating the ICC.
Thus, the Council imposed these substantive obligations that
a party would have under the Rome Statute, even though Sudan
was not a party and had not consented to the Rome Statute.

-- In UNSC resolution 1737, the Council called upon Iran to
ratify the Additional Protocol with the IAEA, but did not
require Iran to become a party to that agreement. At the
same time, the Council required Iran to provide the same kind
of access and cooperation with the IAEA that it would have
had to provide if it were a party to the agreement.

-- In this case, the proposed resolution would decide that
the "provisions" of the Agreement would enter into force,
with the effect that Lebanon would be required to comply with
them. Lebanon would be required to take the actions
described by the provisions of the resolution, but the
resolution would not say that Lebanon had agreed or consented
to the Tribunal Agreement.

-- This is especially appropriate in a case like this, where
Lebanon has been involved and supported the process
from the outset, where (as verified by UN Legal Advisor
Michel) all parties in Lebanon support in principle the
establishment of the Tribunal, and where the inability of the
Lebanese Parliament to act results from threats of
further violence and terrorism. We understand fully the
importance of respecting the internal processes of member
states, but this is a case where the subversion of that
process - through terrorism and other threats of violence
- is itself the heart of the problem.

13: (U) DOES CHAPTER VII HAVE MILITARY IMPLICATIONS? This
resolution would do no more than make the provisions
of the Agreement legally binding, just as if the Lebanese
Parliament had approved it. There were no implications that
foreign militaries would intervene to enforce the agreement
if the Lebanese Parliament had approved it, and there would
be none under this resolution.

14. (U) POINT OF CONTACT: Please contact IO/UNP:
Anneliese Reinemeyer at (202) 647-0046 or via e-mail for
further background information or with questions.
RICE

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