AL DUJAIL CASE REFERRED TO IRAQI SPECIAL TRIBUNAL

UNCLAS SECTION 01 OF 02 BAGHDAD 002984

SIPDIS

SENSITIVE

LONDON FOR TSOU

E.O. 12958: N/A
TAGS: PGOV PHUM KJUS IZ
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.
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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