US embassy cable - 05BAGHDAD3069

S E C R E T SECTION 01 OF 02 BAGHDAD 003069 
 
SIPDIS 
 
E.O. 12958: DECL: 07/13/2015 
TAGS: PGOV, PHUM, PINS, PTER, MOPS, KJUS, IZ, Parliament 
SUBJECT: LEGISLATION PROPOSING CHANGES TO IST STATUTE 
 
REF: A. BAGHDAD 2984 
     B. BAGHDAD 2985 
 
Classified By: Deputy Chief of Mission David M. Satterfield for reasons 
 
 1.4 (b) and (d) 
 
1.  1.  (S) SUMMARY. The Transitional National Assembly (TNA) 
is actively considering legislative changes to the Iraqi 
Special Tribunal (IST) statute.  These proposed changes 
raise significant concerns for the USG, as they either 
call into question the independence of the IST or threaten 
to undercut the IST's ability to provide defendants with 
a fair trial.  Embassy has engaged President Talabani and 
will raise with DPM Chalabi the matter, 
along with TNA and other Iraqi officials in an effort to stop 
this attempt to politicize the IST. END SUMMARY. 
 
2.  (S) Embassy learned on July 18 that the TNA is 
considering significant changes to the IST Statute. 
The changes, if enacted, would have a significant 
adverse impact on the independence of the Tribunal. 
We prefer that the TNA make no changes to the IST Statute. 
The TNA is committed to making certain of these changes, 
however, in large part to place an Iraqi imprimatur on the 
Tribunal and thus better to inoculate the IST against 
defense counsel motions challenging the legitimacy of the 
IST. (COMMENT: While we do not share this view, some IST 
judges believe this course of action well advised.)  We 
have prepared a non-paper setting out the proposed changes 
to the IST of concern to us, our reasons for concern, and 
possible alternative language, and will use it to press 
our case with Iraqi interlocutors. 
 
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IST Legislative Changes 
----------------------- 
 
3. (S) The six problematic legislative changes are: 
 
-- Moving the IST into the federal judicial system and thus 
under the Higher Juridical Council (HJC):  Under current 
law and rules of procedure, only the IST can transfer or 
remove IST judges.  Placing the IST within the federal 
judiciary (and thus under the HJC) renders the judges liable 
to removal or transfer upon the decision of an entity outside 
the IST.  We recommend retaining existing language in the 
Statute, clarifying that the IST is an independent entity and 
is not associated with any Iraqi government departments. 
 
-- Continuing the threat of removal on de-Ba'athification 
grounds:  The existing IST Statute precludes former Ba'ath 
members from holding positions in the IST.  Nearly all 
current personnel, however, were members of the Ba'ath party 
at the lowest level for professional reasons.  Accordingly, 
it would have been nearly impossible to seat experienced 
judges for the IST who were not members of the Ba'ath 
party.  Moreover, the former membership status of IST 
personnel was known and discussed during the appointment 
process.  The proposed change affirms the appointment of 
all sitting IST judges and prosecutors, but subject to de- 
Ba'athification review.  Under the proposed language, 
virtually all sitting judges would be subject to removal, 
including the best trained and experienced judges.  We 
recommend that the TNA limit the scope of the de- 
Ba'athification provision to any person who held a senior 
rank within the Ba'ath Party. 
 
-- Revoking the existing Rules of Procedure and Evidence 
(ROPE), to be replaced with the Iraqi Criminal Procedure Law 
and yet-to-be-determined additional ROPE:  The existing 
rules, approved by the IST, incorporate due process aspects 
of international tribunals not found in Iraqi domestic law 
(e.g., direct and cross examination of witnesses).  Post 
recommends that the TNA simply ratify the existing Rules.  As 
an alternative, the IST could apply Iraqi Criminal Procedure 
Law and continue to apply the existing ROPE until their 
modification by the IST (rather than the TNA). 
 
-- Requiring sentences to be executed within thirty days of 
the judgment becoming final and non-appealable:  Most major 
defendants before the IST face multiple trials.  Carrying out 
a death sentence soon after the first trial is final 
necessarily precludes future trials for that defendant, the 
chance to publicize that person's other atrocities to the 
world, and the chance to provide justice to the victims of 
those other acts.  Post recommends language stating that the 
punishment must be executed within a reasonable time from the 
date when the judgment becomes final, with consideration 
given to other judicial proceedings involving the defendant. 
-- Expanding the jurisdiction of the IST to encompass civil 
claims.  If the IST were to become a civil claims court, it 
would have to expand dramatically.  The enormous number of 
Sadaam's war crimes victims might lead to their claims 
dominating the court's work; the problem would be exacerbated 
if the claims process permitted citizens of Iran and Kuwait 
to file war claims. (Comment: The current proposal is unclear 
whether non-Iraqi victims could file claims).  We recommend 
that the TNA delete the provision entirely. 
 
-- Expanding the jurisdiction of the IST to include 
terrorist acts and certain other Iraqi Penal Code 
violations.  Two proposed changes would expand the IST's 
jurisdiction to include terrorist acts and violations of 
the Iraqi Penal Code (IPC) in cases in which the evidence 
does not support all elements of a charge under Articles 
11-14, but does establish a violation of the IPC.  This 
type of jurisdictional expansion would detract from the 
IST's primary focus on war crimes, crimes against humanity, 
and genocide. 
 
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Current Status and Plans 
------------------------ 
 
4.  (S) We have found out on the basis of a July 23 
conversation with TNA Secretariat staff that the IST 
legislative package was not scheduled for a floor vote on 
July 24, as originally expected. The TNA may have started 
serious debate on the various provisions as early as July 24, 
but there is little chance that the matter will come to a 
vote in the next few days. DCM has raised the issue with 
President Talabani, who has promised to veto any harmful 
legislation.  Ambassador will engage Deputy Prime Minister 
Chalabi on July 25 and TNA Deputy Speaker Shahrastani on July 
26 to discourage any attempt to expand the ongoing 
de-Ba'athification efforts and to push for a commitment to 
amend the IST legislative proposal to reflect RCLO's 
recommendations. 
 
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UPDATE ON DE-BA'ATHIFCATION EFFORTS 
----------------------------------- 
 
5.  (S) Contrary to press reports, the number of IST 
administrators terminated as a result of de- 
Ba'athification Committee intervention remains nine.  The 
Committee is expected to terminate four investigators on July 
24th, and has added the name of a fourteenth judge to its 
termination requests.  No judges have been terminated as a 
result of the Committee's demands to date. 
Khalilzad