DE-BAATHIFICATION AND THE IRAQI HIGH TRIBUNAL

S E C R E T SECTION 01 OF 02 BAGHDAD 000352 SIPDIS SIPDIS E.O. 12958: DECL: 02/05/2016 TAGS: PGOV PHUM KJUS KCRM KDEM IZ SUBJECT: DE-BAATHIFICATION AND THE IRAQI HIGH TRIBUNAL Classified By: Ambassador Zalmay Khalilzad for reasons 1.4 (B) and (D). ¶1. (S) SUMMARY: On February 4, 2006, Ambassador and Regime Crimes Liaison Kevin Dooley met with Iraqi Deputy Prime Minister Ahmed Chalabi to discuss how the January 18, 2006 order of the High National Commission of De-Ba'athification (HNCD) - which declared Judge Sa'eed Mousa Alhamash as subject to exclusion from public sector employment - would impact the IHT process. The purpose of the meeting was to convince Dr. Chalabi to exert his influence with the HNCD to reverse the January 18, 2006 order and to cease HNCD action against the court. Without such action, it is feared that the HNCD will continue to exert political pressure on the IHT such that its independence will become compromised and the court may cease to function properly. END SUMMARY. -------------- -------------- Background of Political Interference with the IHT -------------- -------------- ¶2. (S) During the week of July 17, 2005, the HNCD sought the dismissal of four IHT investigators from the court. In addition, while RCLO has not seen any order listing names, the IHT advises RCLO that the HNCD was targeting 19 IHT judges and prosecutors for removal (including Chief IHT Investigative Judge, Raid Juihy). In response, RCLO understands that the United States Government brokered a compromise with the ITG whereby the HNCD agreed that it would not interfere with the IHT judiciary -- i.e., judges, prosecutors, and investigators. The HNCD was granted authority to remove from the IHT any administrative personnel who were linked to the Ba'ath party. As a result of this intervention, all public efforts by the HNCD to remove IHT judges and prosecutors ceased. ¶3. (S) In late 2005, however, IHT personnel learned privately that the HNCD might renew its efforts to remove certain judges and prosecutors. At the urging of the IHT, on December 15, 2005 Dr. Khudhair Fadhil Abbas (the Secretary General of Iraq's Council of Ministers) issued a notice which stated that the Council of Ministers was the sole entity with authority to enforce any HNCD decision. The notice also prohibited the HNCD from sending de-Ba'athification notices directly to any ministry or government entity, requiring that that all HNCD notices be issued through the Council of Ministers. ¶4. (S) On December 29, 2005, Dr. Abbas issued another notice which stated that the judges and prosecutors of the IHT were not subject to the jurisdiction of the HNCD. In that notice, Dr. Abbas stated that IHT administrative employees were subject to the HNCD's jurisdiction, but only after the IHT submitted information about such persons to the Council of Ministers. -------------- Immediate Attempts to Interfere Politically -------------- ¶5. (S) On January 9, 2006, the presiding judge of the Ad-Dujayl trial, Judge Rizgar Amin, submitted his letter of resignation to the IHT. The next most senior judge on the Ad-Dujayl trial chamber, Judge Sa'eed Mousa Alhamash, assumed the position of acting presiding judge while the Prime Minister considered whether to accept Judge Rizgar's resignation. ¶6. (S) On January 18, 2006, the HNCD submitted a notification directly to the IHT which stated that Judge Sa'eed was not eligible to serve as a public sector employee because he had been a member of the Ba'ath party. On the morning of January 22, 2006 (two days before trial was set to recommence),the President of the IHT, Judge Jamal (a Kurd),issued an order which removed Judge Sa'eed (a Shiite) from Trial Chamber 1, placed Judge Sa'eed on Trial Chamber 2, and appointed Judge Raouf Abd Al-Rahman (a Kurd) in his place. (COMMENT. While the IHT President arguably has the authority to transfer judges from one panel to another, there is no legal authority in the IHT Statute or IHT Rules of Evidence and Procedure which grants the IHT President the authority to name a permanent Presiding Judge. Rather, a Presiding Judge is elected by his colleagues on the trial chamber. END COMMENT.) ¶7. (S) RCLO informed Judge Jamal of its serious concerns about his decision to enforce the HNCD order against Judge Sa'eed. RCLO warned Judge Jamal that, if he continued to allow the HNCD to manipulate the IHT and the political tampering with the judiciary that it represented, the RCLO may be required to withdraw support from the IHT. Later that evening, Judge Ra'id met with Iraqi Deputy Prime Minister and HNCD supporter Ahmed Chalabi, whose nephew Salim Chalabi was BAGHDAD 00000352 002 OF 002 removed as IHT President by then-Prime Minister Ayad Allawi in 2004. Judge Ra'id advised RCLO that Ahmed Chalabi would permit Judge Sa'eed to return to the Ad-Dujayl Trial Chamber if he did not serve as the presiding judge. ¶8. (S) On January 24, 2006, the Ad-Dujayl trial was set to continue without the presence of Judge Rizgar. Because of the unresolved political situation regarding Judge Sa'eed and the HNCD, the U.S. Embassy advised RCLO to delay trial for at least one day in order to resolve the matter. After negotiations among the IHT President, Presiding Judge Ra'ouf, and RCLO, trial was adjourned until Sunday, January 29, 2006. ¶9. (S) Concurrently, Mr. Dooley and Judge Ra'id met with Judge Jamal to reach a compromise over the matter. Rather than continue the dispute, Mr. Dooley explained to Judge Jamal that the IHT and RCLO would work together to reach a solution. Judge Jamal agreed and confirmed with Mr. Dooley that an acceptable compromise to the RCLO would include the return of Judge Sa'eed to Trial Chamber 1, but with Judge Raouf remaining as Presiding Judge. ¶10. (S) Judge Jamal also advised Mr. Dooley that Judge Sa'eed was required to resolve the matter directly with the HNCD and that Judge Jamal was not a party to that dispute. Judge Jamal continued that Ahmed Chalabi had the power to resolve the matter and that, if the allegations against Judge Sa'eed were dropped, Judge Jamal would reinstate him to the Ad-Dujayl Trial Chamber. ¶11. (S) Between January 24, 2006 and January 29, 2006 RCLO and U.S. Embassy officials made repeated unsuccessful attempts to contact Dr. Chalabi, who had left Iraq for Davos. Despite the lack of any resolution on the political interference issue by January 29, 2006, the RCLO decided that trial should continue without Judge Sa'eed. As a result, the Ad-Dujayl trial recommenced then and continued on February 1 and February 2 even though Judge Sa'eed was not present. -------------- Direct Discussions with Ahmed Chalabi -------------- ¶12. (S) On February 4, 2006, U.S. Chief of Mission Zalmay Khalizad, Mr. Dooley, and several others met with Ahmed Chalabi to discuss several matters, including the HNCD actions against the IHT. Dr. Chalabi stated that the HNCD lacked the power to remove anyone from the IHT and that its sole responsibility was to advise Iraqi government agencies of evidence that certain employees were former Ba'athists. Dr. Chalabi also stated that the HNCD was obligated to do this so that defense attorneys could not challenge any IHT conviction on the ground that it was issued in violation of Article 33 of the IHT Statute. (COMMENT. Article 33 of the IHT Statute prohibits any member of the Ba'ath party from serving on the Court. END COMMENT.) Besides Judge Sa'eed, Dr. Chalabi stated that the HNCD had "solid evidence" of Ba'ath party ties against fourteen other IHT judges. Pointedly, Dr. Chalabi mentioned by name Chief Investigative Judge Ra'id Juhy but did not explain why the HNCD had not sent letters against Judge Ra'i d or any other judges. ¶13. (S) In response, Mr. Dooley explained that, under Articles 131 and Article 1 of the IHT Statute, the IHT was independent and that the HNCD lacked jurisdiction over it. Mr. Dooley also stated that, in view of the fact that Judge Sa'eed had sat on the court for 20 months, the timing of the HNCD's order against him was suspicious. Mr. Dooley reiterated that, if political attacks on the IHT continue, the court may cease to function. Mr. Dooley demanded that the HNCD stop these attacks and issue an order acknowledging its lack of jurisdiction over the IHT and stating that it lacked any evidence against Judge Sa'eed. Dr. Chalabi stated that he would resolve the matter with respect to Judge Sa'eed and that the HNCD would not issue letters against IHT judges in the future. Dr. Chalabi stated further that he would meet with the HNCD the next day and that the matter would be resolved within one week. KHALILZAD