US embassy cable - 04KUWAIT198

C O N F I D E N T I A L SECTION 01 OF 02 KUWAIT 000198 
 
SIPDIS 
 
STATE FOR S/WCI, NEA/NGA, NEA/ARP 
 
E.O. 12958: DECL: 01/18/2014 
TAGS: PREL, PHUM, KJUS, IZ, KU, KAWC 
SUBJECT: (C) S/WCI AMB. PROSPER DISCUSSES IRAQI SPECIAL 
TRIBUNAL WITH GOK 
 
Classified By: CDA FRANK URBANCIC; REASON:  1.4 (B, D) 
 
1.  (C) SUMMARY:  The GOK pressed for special attention to be 
given to prosecuting crimes of the Saddam Hussein regime 
committed against Kuwaitis.  At S/WCI Amb. Prosper's 
suggestion, the GOK agreed to work on putting together a team 
of investigators to assist the Iraqi Special Tribunal in its 
investigation of crimes committed against Kuwaitis, subject 
to Iraqi approval.  Amb. Prosper  promised to explore placing 
a Kuwaiti legal expert within CPA to facilitate cooperation 
and support for the process.  He invited Kuwait to consider 
helping to fund a storage facility in Baghdad for documents 
of the deposed Iraqi regime.  Regarding the twelve Kuwaiti 
Guantanamo detainees, he urged the GOK to discuss informally 
what measures it would be prepared to take case-by-case, as 
soon as its delegation returns from visiting Guantanamo. 
END SUMMARY. 
 
2. (SBU) S/WCI Amb. Pierre Prosper, accompanied by Jonathan 
Crock of S/WCI and Pol Chief, met January 18 with MFA 
Director of Follow-Up and Coordination Amb. Khaled Maghamis, 
Deputy Attorney General Sultan Bou Jarwa and Kuwait 
University law professor Dr. Mohammed Buzubar (all three are 
members of the GOK's committee dealing with Iraqi war crimes, 
which Bou Jarwa chairs). 
 
(C) IRAQI SPECIAL TRIBUNAL 
-------------------------- 
 
3.  (C) The Kuwaitis were familiar with the Statute of the 
Iraqi Special Tribunal (IST), and were keen to discuss how 
the GOK can participate to the fullest in bringing Iraqi war 
criminals to justice.  Amb. Prosper informed them he had just 
come from lengthy discussions in Baghdad with the Iraqi 
Governing Council (IGC) and Coalition Provisional Authority 
(CPA), which have set up a joint team with him to discuss the 
workings of the IST and foreign involvement.  The IGC point 
of contact is Salem Chalabi (Ahmed's nephew).  Working with 
CPA, Prosper hoped to have submitted to the IGC within a week 
a list of countries that he would be prepared to approach on 
their behalf to seek support for the IST, and Kuwait would be 
on the list.  He would seek IGC's official acceptance of this 
list, which he hoped would include as many Arab countries as 
possible.  Meanwhile, he assured the Kuwaitis, the IGC agreed 
the Saddam regime's crimes against Kuwait needed to be 
prosecuted, and that preliminary indications are that it was 
willing to receive help from Kuwait, including personnel to 
assist with investigations and provide expert advice.  He 
suggested that the GOK put together a team of five to ten 
investigators that would focus (not necessarily exclusively) 
on crimes against Kuwaitis.  The team should be prepared to 
visit Baghdad to discuss with Salem Chalabi and CPA what 
types of assistance Kuwait can provide, just as soon as IGC 
approves the list of countries. 
 
4.  (C) Bou Jarwa made clear that Kuwait prefers to have key 
advisor positions in the IST filled by non-Iraqis, and that 
it hopes there will be a court chamber reserved for crimes 
against Kuwait.  The GOK would like to place advisors as 
close as possible to court presidents, because the Statute 
grants them the power to make and amend rules of procedure. 
He said his government has spent years documenting the Saddam 
regime's crimes against Kuwait, and is "90 percent" ready to 
present evidence to the IST.  He sought confirmation that 
non-Iraqis could provide evidence.  Amb. Prosper assured him 
they could, citing Article 7(i) and Article 18 of the 
Statute:  the investigating judge can receive information 
from any source. 
 
5.  (C) Bou Jarwa also wanted to know if Kuwait could help 
shape the IST judges' thinking on rules of procedure.  Amb. 
Prosper explained that the IGC is drafting a proposed set of 
procedures.  Bou Jarwa stressed that it was vital to ensure 
the admissibility of any evidence Kuwait provides.  His 
greatest fear was that a judge would accept it, then 
summarily dismiss it.  As Maghamis remarked:  "it would be 13 
years of work for nothing."  Amb. Prosper took the point, 
assuring his hosts that the early draft is very similar to 
the procedures used at the International Criminal Tribunal 
for the former Yugoslavia, which allow all evidence as long 
as it is probative. 
 
6.  (C) Bou Jarwa's other main fear was that the crimes 
against Kuwait constituted such a small part of the total 
committed by the Saddam regime that they could get lost in 
the mix.   Amb. Prosper said he would recommend that one of 
the investigating judges be dedicated to crimes against 
Kuwait.  He also promised to explore urgently the possibility 
of a Kuwaiti legal expert joining CPA.  He emphasized that 
this person would need to have fluent English, strong 
inter-personal skills and a good grasp of practical 
realities, in addition to legal expertise.  Bou Jarwa 
replied:  "we are awaiting your okay to proceed with the 
five-plus-one team" (i.e. five investigators and one expert 
seconded to CPA). 
 
7. (C) Bou Jarwa said the GOK would like to have access to 
the documents of the Saddam regime that are now in coalition 
hands.  They may contain information pertinent to prosecuting 
ex-Iraqi regime figures for crimes against Kuwait, and they 
may shed light on the fate of some of the 605 Kuwaiti missing 
persons from the Iraqi occupation.  (Note:  about 60 bodies 
have been recovered and positively identified since the 
overthrow of the Saddam regime, thanks to the strong 
cooperation of the CPA and Coalition forces.  End Note.) 
Amb. Prosper took the point and said he was working to 
arrange the transfer of these documents -- some of which were 
being reviewed for security purposes by another part of the 
USG -- to CPA.  He would also seek urgent funding to 
establish secure storage where IST investigators could search 
them.  He invited the GOK to consider helping to fund this 
storage project, and noted that seconding a Kuwaiti expert to 
CPA would enable Kuwaiti access to these documents.  He 
stressed that it would take at least another month to 
complete this transfer, for which he did not yet have final 
agreement on protocol within the USG.  He assured Bou Jarwa 
that everyone understands the need to make these documents 
available before IST trials are held. 
 
8.  (C) Buzubar asked whether declaring Saddam a POW meant 
that he would be tried before an international tribunal. 
Prosper explained that the decision to declare Saddam a POW 
was made on narrow legal grounds, because the war to liberate 
Iraq was fought under the Geneva Conventions and he was the 
commander in chief of enemy forces.  That status, he added, 
is not relevant to the periods before and after the major 
combat operations.  Indeed, President Bush has stated that 
Saddam will be tried by the IST; the expectation is that once 
a sovereign Iraqi government is in place, he could be 
transferred to its custody. 
 
9.  (C) In closing this portion of the meeting, Maghamis said 
the GOK war crimes committee would meet on January 20 and 
seek to move quickly on the points just discussed.  Bou Jarwa 
and Buzubar then departed the meeting. 
 
(U) GUANTANAMO 
-------------- 
 
10.  (C) Neither side had heard any feedback about the 
ongoing visit of a GOK delegation to Guantanamo.  Amb. 
Prosper stressed that President Bush wants to move quickly on 
disposition of the Guantanamo detainees case-by-case, either 
by prosecuting them, releasing them, or transferring them to 
their home countries for investigation/prosecution or 
monitoring.  He urged Maghamis to be in touch with him or the 
Embassy as soon as possible after the return of the 
delegation, to indicate informally what the GOK would be 
prepared to do in the case of each of the twelve Kuwaiti 
detainees:  e.g. travel restrictions, surveillance, 
detention, prosecution.  Maghamis replied that there was no 
problem with imposing travel bans, withholding passports, 
requiring individuals to report frequently to the Police, and 
other forms of monitoring; on the other hand, prosecution 
would be difficult, at least in some cases.  Amb. Prosper 
repeated his suggestion of informal contact as soon as 
possible, ahead of any formal negotiating.  Maghamis 
emphasized his desire for quiet diplomacy away from the 
media.  He was under intense pressure from the National 
Assembly and the families of the detainees, but he was sure 
the issue could be worked out between two such friendly 
countries. 
 
11.  (C) COMMENT:  Amb. Prosper's substantive engagement with 
the GOK is very timely and lays the groundwork for 
integrating Kuwait into the IST process firmly and quickly. 
This will go far towards helping the GOK demonstrate to its 
people that its cooperation with us is preserving its 
equities in this most politically sensitive area. 
 
12.  (U) Amb. Prosper has cleared this message. 
 
13.  (U) Baghdad minimize considered. 
URBANCIC