Identifier
Created
Classification
Origin
04KUWAIT198
2004-01-19 14:56:00
CONFIDENTIAL
Embassy Kuwait
Cable title:  

(C) S/WCI AMB. PROSPER DISCUSSES IRAQI SPECIAL

Tags:  PREL PHUM KJUS IZ KU KAWC 
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This record is a partial extract of the original cable. The full text of the original cable is not available.
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)

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