DE-BAATH LAW REPRESENTS COMPROMISES BUT NO RADICAL

C O N F I D E N T I A L SECTION 01 OF 02 BAGHDAD 003248

SIPDIS

SIPDIS

E.O. 12958: DECL: 09/26/2017
TAGS: PGOV IZ
SUBJECT: DE-BAATH LAW REPRESENTS COMPROMISES BUT NO RADICAL
DEPARTURE

Classified By: POLCOUNS MATT TUELLER FOR REASONS 1.4 (B) and (D)


1. (C REL USA GBR CAN AUS) Summary: On September 19, the
Council of Ministers approved the Law of Accountability and
Justice (the "de-Ba'ath Law") and passed it to the CoR where
it is currently being reviewed by the Legal and
de-Ba'athificaton Committees. It could be voted into law by
the end of October. The draft, which was prepared by
deputies to the political leadership and endorsed in their
August 26 communique, contains elements of previous drafts,
but will expand and codify many of the assumed powers of the
Higher National De-Ba'athification Commission within a new
organization. While aspects of the law, such as an
independent appeals process, are promising, other provisions
will prove troublesome in the path towards significant reform
of the de-Ba'athification process. While not a radical
departure from the former law, the endorsement of the
Shia/Sunni/Kurdish leadership will give the process broader
legitimacy. End Summary.

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Timeline for Passage of the Law
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2. (C REL USA GBR CAN AUS) Following agreement at the
Deputies Meeting on September 17, the Law of Accountability
and Justice (the "de-Ba'ath Law") was approved by the
Presidency Council and the Council of Ministers and submitted
to the CoR, where the Legal and De-Ba'athification Committees
are now reviewing it. The draft will likely come up for a
first reading shortly after CoR sessions resume on October 2,
followed by second and third readings a few days later. If
there are no delays in the discussions of the draft, the
draft could be passed into law as early as October 8th.
(Comment: An October 8th passage would signify a remarkable
efficiency not often demonstrated by the CoR. It is more
likely the draft would come to a vote during the October
16-22 session. The endorsement of the leaders, however, may
influence parliamentarians to expedite the process. End
Comment.)

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Structure of the Higher National Commission
for Accountability and Justice
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3. (U) The law would establish the Higher National Commission
for Accountability and Justice (HNCAJ),which is described as
an independent body, but one which is also subordinate to the
CoR. The law does not clarify this inconsistency. The
HNCAJ, whose functions essentially duplicate those of the
existing Higher National De-Ba'athification Commission
(HNDBC),would be led by seven members who are appointed by
the Council of Ministers, confirmed by the CoR, and ratified
by the Presidency Council. The members of the Commission
would elect their Chairperson, who would supervise a number
of departments within the HNCAJ, including a Financial and
Economic Tracking Department and a Legal Department.


4. (U) The law would also establish the Board of Cassation
for Accountability and Justice, a committee of seven judges
recommended by the Higher Juridical Council, confirmed by the
Council of Ministers, and ratified by the Presidency Council.
This independent board would consider all appeals to the
decisions of the HNCAJ.

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Scope of the HNCAJ
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5. (C REL USA GBR CAN AUS) The draft empowers the HNCAJ to
prevent the Ba'ath party "from returning to power or public
life in Iraq, ideologically, administratively, politically,
or in practice under any appellation" and to "purge the
Ba'ath party system in any form from organizations of the
government sector, mixed sector, civil society, and Iraqi
society." It also says that the HNCAJ will uncover and
reclaim property illegally claimed by the former regime, and
grants the HNCAJ a role as the societal conscience by
"documenting the crimes and illegal practices of the Ba'ath
Party's elements...lest (future generations) fall into the
clutches of oppression, tyranny, and persecution."


6. (U) Under the draft, former Ba'ath party members of rank
Shu'aba (Section Member) and above (an estimated 12,000
individuals) would be removed from civil servant positions
and granted a pension. This scope would allow those of the
Firqa (Division Member, one rank below Shu'aba) level (at
most, approximately 38,000) to return to government service.
However, there are some exceptions to this general rule.
Former civil servants of the rank Firqa would also be removed
from their position and granted a pension if they held the

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rank of Director General or above within a government agency,
and all members of the Firqa (Division Member) rank and
higher would be ineligible for any future position in the
security ministries, the MFA, or the Ministry of Finance
without a waiver from the Council of Ministers. Members of
the "repressive security agencies," including the
Intelligence Service, Military Security, Special Security,
are eligible to receive pensions or to transfer to any other
civil ministry, except for the security ministries, the MFA,
and the Ministry of Finance. Saddam's Fedayeen would receive
no pension rights for that employment.

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Concerns with the draft
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7. (C REL USA GBR CAN AUS) Reinstatement and pension rights
are not granted automatically by the draft. Instead, those
eligible for pension or reinstatement must apply within 60
days of the law coming into effect. The draft does not
specify which organization would receive these applications
or any clear process for reinstatement.


8. (C REL USA GBR CAN AUS) The draft contains a sunset clause
for the existing HNDBC, stating that the HNDBC is to be
dissolved six months after the law goes into effect, but it
puts no explicit end date on the new HNCAJ created by the
law. The CoR can dissolve the HNCAJ by an absolute majority
"after the completion of its mission." It is possible that
the HNDBC and the HNJAC can coexist for some months,
depending on how quickly the HNCAJ is estabished after the
passage of this law. How they would share their
responsibilities is unclear.


9. (C REL USA GBR CAN AUS) The Financial and Economic
Tracking Department within the HNCAJ has a mandate to
enumerate and assess "the financial and economic entities
seized by the former regime's henchmen, monitoring such
property and entities in Iraq and abroad, and submitting
recommendations to the competent agencies for their
recovery." The HNDBC assumed this role in a handful of
cases to freeze the bank accounts of NGOs because a single
member was a former Ba'athist. CPA Order 45, which grants
the Prime Minister's Office authority to regulate NGOs, is
the basis for these actions.

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Comment
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10. (C REL USA GBR CAN AUS) Overall, approval of this draft
will codify much of what the HNDBC has informally added to
its mandate over the past few years, albeit under a different
name. It is not clear how the mandate of the new HNCAJ to
purge Iraqi society as a whole of Ba'athists will affect
civil society, the media, and the rest of the
non-governmental sector, but it is possible that the HNCAJ
would attempt to expand its influence beyond the government,
through provisions like CPA Order 45. The lack of a sunset
clause for the HNCAJ will ensure that it exists for as long
as fear of a Ba'athist return remains; not coincidentally,
the HNCAJ's mandate includes the cautioning of future
generations against such a revival. End Comment.
CROCKER