US embassy cable - 05BAGHDAD2984

UNCLAS SECTION 01 OF 02 BAGHDAD 002984 
 
SIPDIS 
 
SENSITIVE 
 
LONDON FOR TSOU 
 
E.O. 12958: N/A 
TAGS: PGOV, PHUM, KJUS, IZ, Ad Dujayl trial, Saddam Hussein 
SUBJECT: AL DUJAIL CASE REFERRED TO IRAQI SPECIAL TRIBUNAL 
 
1. (SBU) SUMMARY.  On July 17, the chief investigative judge 
for the Iraqi Special Tribunal ("IST") referred the Al Dujail 
case to the IST's trial chambers.  The case, in which Saddam 
Hussein is a defendant, will focus on the killing of hundreds 
of people from the town of Al Dujail.  Under the IST's Rules 
of Procedure, the trial cannot start before a 45-day period 
elapses, during which the defendants may prepare for trial, 
file motions in the trial chambers, or appeal the case's 
referral.  Post's best estimate is that the trial is unlikely 
to start before mid-October. END SUMMARY. 
 
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Al Dujail Referral 
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2. (U) In 1982, Saddam Hussein made an official visit to the 
town of Al Dujail; once there, members of the Shia-affiliated 
Da'wa party attacked his motorcade.  Saddam escaped injury. 
In the ensuing weeks, his regime allegedly retaliated against 
the entire town, executing hundreds of people after sham 
trials conducted by a special court under Saddam's control. 
The regime allegedly also destroyed the town's date palm 
orchards, the primary source of revenue for Al Dujail.  On 
July 17, 2005, the chief investigative judge for the IST 
referred the Al Dujail case to the IST's trial chambers.  The 
named defendants in the referral are Saddam Hussein; Barzan 
Ibrahim al-Tikriti; Taha Yaseen Ramadan; and Awad Hamad Badr 
al-Bandar.  The referral may contain up to six additional 
defendants as well. We have not seen the referral document in 
English, but we believe that all are charged with crimes 
against humanity under Article 12 of the IST statute.  RCLO 
currently is having the entire investigative file, which 
contains the referral document, translated into English. 
 
 
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What Happens Now? Trial Date and Proceedings. 
--------------------------------------------- 
 
3. (U)  We expect the trial chamber to set a trial date soon. 
 Under the IST's Rules of Procedure, at least 45 days before 
the trial, the prosecutor must disclose to the defendant all 
evidence, including all witness statements, and the 
prosecutor and defense must exchange names of witnesses.  No 
evidence yet has been turned over by either side.  The 
defense may choose to make motions of an evidentiary nature 
to the trial court (including motions objecting to lack of 
defense counsel access to the defendant, inadequate 
investigation by the investigative judge, and lack of access 
to witnesses).  The defense also may choose to file an appeal 
to the Appellate Chamber.  The grounds for appeal could 
include jurisdictional challenges, invocation of immunity or 
amnesty, violations of Iraqi criminal procedure, an argument 
that the court has not been properly constituted in 
accordance with its own requirements, and other issues of 
this nature.  Thus, by virtue of the 45-day discovery rules, 
the Al Dujail trial can occur no sooner than the second week 
in September.  However, in RCLO's view, it is unlikely that 
the Al Dujail trial will occur before mid-October.  RCLO 
anticipates, however, that the Appellate Chamber quickly will 
decide any issue brought before it. 
 
4. (U) Trial Proceedings.  The IST trials will unfold 
differently than U.S. trials do.  First, both the Iraqi and 
IST criminal justice systems are "crime-based," rather than 
"defendant-based."  Thus, the investigative judge is required 
to consider all of the evidence relating to a particular 
criminal event, and incorporate into one investigative record 
all claims and defendants relating to that event.  Saddam 
Hussein and others will stand trial in multiple cases; Saddam 
will not be charged in one large indictment for all of the 
crimes of which he is accused.  Second, as in other civil 
systems, virtually all of the information is gathered before 
the trial, rather than at the trial.  By the time of the 
trial, the investigative judge, prosecutor, and defense 
counsel will have had an opportunity to interview all 
witnesses they deem relevant to their case; the trial chamber 
will have resolved all pretrial motions; and the parties will 
have had time to review the investigative record.  The main 
purpose of the trial is to present the investigative record 
to the trial chamber and to allow the trial chamber to engage 
in a dialogue with the defendant on the merits of the 
investigative record.  The trials therefore likely will 
unfold in a lower-key way than U.S. trials do. 
 
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Remaining Issues 
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5. (SBU)  Several issues remain to be resolved prior to the 
start of trial proceedings.  These include establishing a 
defense counsel assistance office, appointing international 
advisers/observers, strengthening witness security measures, 
improving media relations, and improving courtroom logistics 
and technology.  RCLO continues to work with the IST to 
resolve these issues. 
6. (SBU) Housing.  We have heard complaints from the Iraqi 
government and in the press that trials cannot move forward 
until the IST judges are safely housed in the International 
Zone.  The USG has made housing in the IZ available to all 
IST judges, including investigative, trial, and appellate 
judges.  Although not all judges have opted to accept that 
housing, RCLO stands ready to provide housing to any IST 
judge that so desires. 
 
7. (U) REO HILAH, REO KIRKUK, REO BASRAH, REO MOSUL minimize 
considered. 
Satterfield