SWISS AMBASSADOR: OUR RELATIONSHIP WITH LIBYA IS DEAD

SWISS AMBASSADOR: OUR RELATIONSHIP WITH LIBYA IS DEAD

1.(C) Summary: Despite concluding a bilateral investigation into the events surrounding last July's arrest in Geneva of Hannibal al-Qadhafi, son of Muammar al-Qadhafi, the Swiss Ambassador judges that Swiss-Libyan relations are "dead". A senior Swiss delegation recently visited Tripoli, but was unable to overcome an impasse regarding differing interpretations of the legality of Swiss police officers' actions and the timeliness of the consular notification. Characterizing the affair as an exercise in saving face for the al-Qadhafi family, the Ambassador said he now realizes the initial Swiss position was too soft, and that Switzerland has little leverage with which to negotiate a satisfactory resolution. The GOL has so far not taken action to enforce an order that all Swiss companies cease operations in Libya before January 31; several of those companies intend to raise a complaint under the terms of a Swiss-Libyan Investment Protection Agreement. The Swiss embassy expects Hannibal's older brother, Saif al-Islam al-Qadhafi to conduct quiet bilateral talks on the margins of the Davos Summit later this week, but hold little hope that there will be a breakthrough. The Libyans have also inexplicably decided to send their charge back to Bern, an action the Swiss are unable to decipher. The GOL apparently seems content to sacrifice their relationship with Switzerland in the near to mid-term in what it views as a campaign to protect the al-Qadhafi family's image. Doing so is a high-stakes approach, however, as it risks providing other European countries with ready evidence that deals with Libya can easily be voided if the notoriously ill-behaved and capricious first family changes its mind. That is not a message EU members will welcome as they gear up for another round of EU Framework Agreement negotiations in Tripoli next month. End summary. NO AGREEMENT ON FACTS OF THE CASE

2.(C) Swiss Ambassador Daniel von Muralt (strictly protect) told the Ambassador on January 26 that a January 21-22 visit by a senior Swiss delegation had failed to resolve the diplomatic crisis that has raged between Tripoli and Bern since Muammar al-Qadhafi's son, Hannibal, was arrested in Geneva last July . The bilateral commission charged with investigating the incident concluded its work without achieving consensus on the language of its final report. While Swiss negotiators were prepared to criticize Geneva police for using "unnecessary and humiliating" measures to detain Hannibal, the Libyans have insisted on a finding of legal culpability for the officers involved (ref A). Libya is also seeking a Swiss admission that Geneva authorities violated Hannibal's human rights and their duties under Article 36 of the Vienna Convention on Consular Relations. Von Muralt told the Ambassador the Geneva police notified the Libyan People's Bureau (embassy-equivalent) within 50 hours of Hannibal's arrest, well within the 5-day window for notification that the Swiss consider to be the norm; however, the GOL has insisted that the Convention calls for notification within 24 hours. (Note: The GOL rarely provides consular notification in arrest cases involving foreign nationals or access for foreign missions to their detained citizens. End note.)

3.(C) Insisting that the Libyans continued to misrepresent the basic facts of the case, von Muralt presented the Ambassador with a three-page note, apparently written by Geneva canton officials, describing the events surrounding the arrest (ref B). GOL negotiators decried Hannibal's inhumane treatment, claiming he was removed from the hotel premises with a hood over his head after police officers broke down the hotel room door. In fact, police entered with a hotel key and Hannibal was escorted - wearing only handcuffs, not a hood - to an armored Mercedes usually reserved for visiting heads of state. Defending what the GOL has characterized as an "aggressive" response by police, von Muralt cited Hannibal's previous arrests in Paris (for allegedly beating his pregnant girlfriend and then brandishing a firearm when stopped by traffic police) and in Rome (for attacking an individual with a fire extinguisher and injuring police officers). Officers in Geneva waited outside the hotel door for an hour and a half for Hannibal to surrender before deciding, based on his history of violent behavior, to take action lest the situation become more explosive. Adding insult to injury was the rumor circulating that Saudis (with whom Qadhafi has had troubled relations) had photographed Hannibal's arrest and distributed the images around.

WITH NO SENSE OF IRONY, LIBYA TAKES SWITZERLAND TO TASK ON RULE OF LAW

4.(C) Libya now seems intent on slowing reconciliation on legal grounds. Bemused, but insulted that the GOL would doubt the TRIPOLI 00000059 002.2 OF 003 competency and transparency of Switzerland - a model "state of laws" - von Muralt explained that the Swiss federal government could not assume original jurisdiction of the Geneva case. Even if the GOL was disappointed with a Geneva court's hypothetical ruling on the legality of police action, Libya could appeal to Swiss federal courts in Bern, and then to the EU Court of Justice. According to von Muralt, Switzerland does not recognize a legal precedent in international law defining consular notification without delay, but in practice notifies within five days. Swiss authorities notified the Libyan People's Bureau within 50 hours of Hannibal's arrest and allowed him to make a telephone call. As reported ref B, he tellingly chose not to call his father, whose wrath he had previously endured after his arrests in Paris and Rome, but rather his sister, Aisha al-Qadhafi, who arrived in Geneva within 48 hours of his arrest and immediately undertook a media campaign in which she accused Swiss authorities of having acted inappropriately. Von Muralt joked that he was tempted to tell the Libyans to try their luck at the Hague on the issue of consular access. SWISS GIVE A YARD, LIBYA DEMANDS A MILE

5.(S/NF) Acknowledging that the Swiss diplomatic response and misperception of the Libyan playbook had exacerbated the situation, von Muralt pointed fingers at the DFA, up to the level of Foreign Minister Micheline Calmy-Rey. Bern's misunderstanding of Libya's cultural perspective - one simply does not arrest or otherwise publicly disgrace a member of the al-Qadhafi family - compounded by the readiness of the al-Qadhafi family to stake the bilateral relationship on a face-saving mission, led to a situation in which "[the Swiss] gave the tips of our finger and they want our whole arm". Alluding to the GOL's aggressiveness, von Muralt added, "We started off much too soft and are probably too soft now - if we stay in this situation, they will continue to increase their demands". He didn't expect the Swiss Federal Government to develop a coordinated response to the crisis, due in part to Calmy-Rey's reticence to offend her Geneva constituency. (Note: Von Muralt summarized the Minister's position by quoting her as having said "Geneva will be Geneva," which he laughed off as being "typically Swiss" thinking. End Note.)

PROGNOSIS: RELATIONSHIP "DEAD" OR ON LIFE SUPPORT?

6.(C) Von Muralt was not hopeful that the two sides could find a way forward, calling the diplomatic relationship "dead" and saying it was nearly pointless to maintain a mission in Tripoli as Swiss diplomats could not process visas, undertake commercial advocacy or perform normal diplomatic functions. On the other hand, he noted positively that Khaled Qa'im, Undersecretary-equivalent at the General People's Committee for Foreign Liaison and International Cooperation (MFA-equivalent) regularly called him in as a "back-channel" after visits from Bern. Two Swiss nationals whom the GOL has refused to give permission to leave the country (because they are under investigation for alleged commercial misdeeds) are still living at the Swiss Embassy compound and Swiss DCM Francois Schmidt told us the GOL has continued its campaign of harassment of Swiss officials.

7.(C) With respect to the deadline for Swiss companies to cease operations in Libya and liquidate their assets fast approaching (it nominally expires on January 31), von Muralt doubted that the Libyans would strictly enforce the ban. Unnamed Swiss executives were considering lodging a complaint under an Investment Protection Agreement between the two countries, though they would have little recourse if Libya ignored their grievance. The best the Swiss could hope for, in von Muralt's view, would be for the GOL to realize that the al-Qadhafi family's game had put other potential international agreements, especially a EU Framework currently under negotiation - in jeopardy.

WITH LITTLE LEVERAGE, SAIF MAY BE LAST HOPE

8.(C) After six months of meeting Libya's demands, Switzerland has little leverage left with which to negotiate. According to von Muralt, Switerland's DFA realized too late that visa issuance was a powerful carrot they failed to dangle before joining the Schengen area in December. (Note: Before the kerfuffle began last July, the Swiss embassy here issued approximately 10,000 visas to Libyans, who traveled regularly to Switzerland to take advantage of safe banking and advanced medical facilities. End Note.) Nationalizing Libyan-owned Tamoil, which has two refineries and over 300 filling stations TRIPOLI 00000059 003.2 OF 003 in Switzerland, could only happen if the Swiss government declared a constitutional state of emergency, and seizing privately-held bank accounts was too dangerous a game to play. At the same time, Libya can do little more to damage the relationship: all direct flights between the two countries have been cancelled and commercial activity has largely wound down. According to von Muralt, Libya would be hurt more by a Tamoil shutdown due to Swiss flexibility and the fungibility of petrol on the world market. With the relationship on its last legs, the Swiss embassy hopes Hannibal's older brother, Saif al-Islam al-Qadhafi, can effect a breakthrough during meetings on the margins of this week's Davos Summit. .

9.(C) Comment: Swiss diplomats here see the negative trajectory since last July as a product of Hannibal's misrepresentation of what actually occurred, sister Aisha's enmity to the West, and the al-Qadhafi family's willingness to use the tools of state in a misguided attempt to protect the family name, whatever the cost. A large part of the clan's willingess to do so stems from the fact that to compromise with the Swiss would be a tacit acknowledgment that Hannibal's behavior was less than exemplary. Rumors that a constitution may be considered for adoption and questions about succession make family matters particularly important in the context of Libyan domestic politics. Unless a high-level (i.e., Qadhafi family member) interlocutor can help ease the tension, the GOL seems content to sacrifice their relationship with Switzerland in the near to mid-term in what it views as a campaign to protect the al-Qadhafi family's image. Doing so is a high-stakes approach, however, as it risks providing other European countries with ready evidence that deals with Libya can easily be voided if the notoriously ill-behaved and capricious first family changes its mind. That is not a message EU members will welcome as they gear up for another round of EU Framework Agreement negotiations in Tripoli next month.