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.

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IST Legislative Changes
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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
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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
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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