GOI RELUCTANTLY AGREEING TO POSTPONE EXECUTION OF

C O N F I D E N T I A L SECTION 01 OF 02 BAGHDAD 003061 SIPDIS SIPDIS E.O. 12958: DECL: 09/10/2017 TAGS: PGOV PHUM PREL IZ SUBJECT: GOI RELUCTANTLY AGREEING TO POSTPONE EXECUTION OF CHEMICAL ALI REF: BAGHDAD 3025 Classified By: Charge d'Affaires, a.i. Patricia A. Butenis for reasons 1.4(b) and (d). ¶1. (C) Summary: In separate meetings on September 10, Charge conveyed to the PM's Chief of Staff, Tariq Abdullah, and to President Talabani the need to delay action on executing Ali Hassan Al Majid ("Chemical Ali"),Sultan Hashim, and Hussain Rashid Muhammed -- all sentenced to death in the Anfal trial -- until pending Iraqi legal and constitutional issues were resolved. A ruling by the Iraqi Constitutional Court on President Talabani,s submitted question on whether Presidency Council ratification is necessary to carry out death sentences from the Iraqi High Tribunal would likely resolve the disputed legal and constitutional issues, allowing for broader political acceptance of implementation of the sentences. Abdullah could not confirm that Maliki was willing to wait on the court ruling, but in a meeting with Maliki later in the day, Charge made clear that MNF-I is unable to transfer custody of the three men until the constitutional questions are resolved. Talabani appears content to wait for the ruling, and believes the court will come down on the side of requiring ratification. He also noted that such a ruling will not settle the question of what happens if the Presidency Council refuses to ratify, and said that question must be settled by the Council of Representatives. Maliki is still dissatisfied with the U.S. position, and if he is unhappy enough to go public about it, we could be put in the position of appearing to defend Chemical Ali or to be imposing our interpretation of Iraqi law over the GOI,s interpretation. We believe we are in a good position to refute such charges, having been clear with the Iraqis that we are in no way defending Chemical Ali, and have no preferred legal outcome, but simply need to be sure that all elements of the GOI agree that the full legal process has been followed. End Summary. ¶2. (C) On September 10, Charge met first with PM Maliki,s Chief of Staff, Tariq Abdullah, and then with President Talabani to continue discussing the legal uncertainties surrounding the death sentences resulting from the Anfal trial. Charge explained to Abdullah that with Sunni VP Hashemi,s threat to resign if any execution takes place before the Constitutional Court issues its ruling (reftel), there still appears to be disagreement within the GOI about whether or not the Iraqi legal process has run its course. She made clear that since MNF-I has custody of Chemical Ali and the other two generals, the U.S. must be sure that all legal requirements have been met before turning over custody. ¶3. (C) Abdullah said that the PM,s office is willing to accept any legal deliberations on the laws applicable to those death sentences, but he noted that no one has the authority to delay implementation of the sentences. In any event, he continued, the decision belongs to the court. Despite this, Abdullah would not confirm that Maliki was willing to wait for the court ruling before trying to carry out Chemical Ali,s execution. He agreed to put the question to Maliki, and promised an answer later in the day. When Charge saw Maliki later that evening, Maliki still disputed the need to wait for the court,s decision, but was left in no doubt of our position, namely that we need the Iraqi judicial system to clarify the legal questions before proceeding any further. ¶4. (C) In a separate meeting, President Talabani suggested that the U.S. should convince PM Maliki to hold off on all three executions until the court issues its decision. He noted that even if that decision is that the Presidency Council must ratify any death sentence, the Presidency Council still has no right of amnesty and will have no power to overturn a death sentence. At most, the Presidency Council would be able to delay implementation of the sentence, but "How long can we postpone?" he inquired rhetorically, saying that would be a question for the Council of Representatives (CoR) to decide. ¶5. (C) In answer to a query from Charge, he said he believed the Constitutional Court ruling would uphold the law passed in April by the CoR that required Presidency Council ratification of all death sentences but that the ruling would not address the question of what happens if the Presidency Council refuses to ratify. Talabani reiterated that such a ruling would not give the Presidency Council authority to overturn a sentence and so it would be up to the CoR to decide what happens if the Presidency Council refused to BAGHDAD 00003061 002 OF 002 ratify a sentence. ¶6. (C) Talabani commented that he did not believe VP Hashemi would follow through on his threat to resign; and that Maliki was pushing for Chemical Ali,s execution to take place immediately because that is what his advisors were telling him to do. (We have seen Talabani's written reply to Hashemi's letter threatening to resign in which the President takes the Vice President to task severely for the language used in the initial correspondence as not being in accordance with the spirit of cooperation and brotherliness that should exist among the leadership.) ¶7. (C) Comment: While Talabani now seems content to wait for the Constitutional Court decision before proceeding, Maliki is still dissatisfied and has told CoS Tariq Abdullah to continue daily conversations with us about this. If Maliki is unhappy enough to go public about this, we could be put in the position of appearing to defend Chemical Ali or to be imposing our interpretation of Iraqi law over the GOI,s interpretation. We have made it very clear to both Maliki and Talabani that we are by no means defending Chemical Ali; we simply need to be absolutely certain that the GOI itself is in agreement that due legal process has been followed before we can turn over custody of any of the three sentenced men. We have also been unambiguous in conveying to the Iraqis that we have no preferred legal outcome in this case, but until the GOI is in agreement about the legal status of proceeding with the executions we are not in a position to turn over any of the three men. We believe we are in a good position to be able to refute any charges of interference, but we should be prepared for such accusations. End Comment. BUTENIS