LEGISLATION PROPOSING CHANGES TO IST STATUTE

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 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. -------------- 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. -------------- 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. -------------- 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