TRANSITIONAL JUSTICE NGO COMMENTS ON DE-BA'ATH LAW

C O N F I D E N T I A L SECTION 01 OF 02 BAGHDAD 004116

SIPDIS

SIPDIS

E.O. 12958: DECL: 12/17/2017
TAGS: PGOV PREL IZ
SUBJECT: TRANSITIONAL JUSTICE NGO COMMENTS ON DE-BA'ATH LAW

Classified By: Deputy Chief of Mission Patricia A. Butenis for reason 1
.4 (b) and (d).


1. (C) Summary: The International Center for Transitional
Justice, a U.S.-based NGO, has delivered an analysis of the
Law of Accountability and Justice to the GOI and CoR
leadership that criticizes the current draft. The analysis
warns the CoR that the draft will not further national
reconciliation and that the newly formed commission would be
subject to political whimsy. Post assesses that the analysis
provides ammunition that opponents of the current draft could
seize upon to object to quick passage. The ICTJ has
indicated that it has already delivered the analysis to the
President, both Vice Presidents, the entire Prime Ministerial
council, and the CoR leadership; in addition, it plans to
deliver the letter to all parliamentarians. It would not be
surprising if discussion of de-Ba'ath reform centers around
some of these issues when the CoR reconvenes. While the CoR
leadership's momentum and understanding of the need to pass
the law are high, we may see significant debate and further
amendments to the draft based on these ideas. End Summary.


2. (U) The International Center for Transitional Justice
(ICTJ) provided us with a copy of a letter submitted to CoR
Speaker Mashadani and other GOI officials containing the
NGO's analysis of the Law of Accountability and Justice. The
ICTJ analysis asserts that passage of the current draft law
will not further the aims of reconciliation and that
fundamental problems remain with its implementation.
Appropriate portions of the letter are reprinted below.


3. (U) Begin Text:

The International Center for Transitional Justice (ICTJ) is a
non-governmental organization that assists countries and
societies pursuing accountability for past mass atrocities or
human rights abuse.

One of the Center's areas of expertise is the reform of
abusive government institutions including the vetting of
public employees. Vetting seeks to exclude from public
service those who have committed serious human rights abuses
or been involved in gravely corrupt practices.

The Center has monitored Debaathification closely since 2003.
We held a major seminar with Iraqi policymakers and
international experts in April 2007, and also wrote to
policymakers in June 2007 regarding flaws in the draft laws
to revise Debaathification that were then in circulation.

The Center recognizes several improvements in the most recent
draft of the "Justice and Accountability" law when compared
to previous versions. In particular, we commend the effort
to put a strict timeline on exclusion and readmission
procedures, as well as the envisaged dissolution of the
Higher National Debaathification Commission.

Despite these improvements, the new drafts contain a number
of serious shortcomings. We are writing to you now to bring
some of the most important of these to your urgent attention.
We fear that if these flaws are not addressed they could
create serious problems in the implementation of the law.

In particular, the most recent draft contains the following
serious shortcomings:

- The draft continues to give the new Commission multiple
aims. No single organization can or should fulfill all these
functions; each requires its skills, resources, and
institution. We recommend that the Commission focus on one
or two key tasks, such as the exclusion of wrongdoers from
government institutions. Other tasks, such as the
preservation of historical memory, should be allocated to
other institutions. New institutions should be established
if necessary.

- The new Commission does not have sufficient independence.
It will be vulnerable to political manipulation because of
its very strong links to the Council of Representatives, who
will have very great influence over the selection of
Commissioners and the Commission's Chairman. We recommend
the Commission be constituted in such a manner that would
protect it more strongly from day-to-day politics and give it
greater legitimacy amongst the wider public.

- We note that the Commission's powers of enforcement are not
clearly specified. Unclear powers may mean that enforcing
decisions will be difficult. Or it may mean the Commission
will use the lack of clarity to claim excessive powers or
abuse them. The legislature should clearly specific what
measures the Commission is able to take in order to enforce
its decisions.


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- We understand that the Council of State has recommended
that provisions related to the Supreme Cassation Panel be
deleted from the draft law because these provisions threaten
the independence of the judiciary. We agree. It is vital
you consult with the Supreme Council of the Judiciary so that
an impartial cassation panel may be created that is
practically, legally, and financially independent of the new
Commission.

- We understand the Council of State has recommended that
provisions related to the creation of a prosecutor's office
be deleted from the draft because these provisions threaten
the independence of the judiciary. Again, we agree. There
is the risk that a very powerful mechanism is created with
insufficient controls that may do great damage in the future.
We urge you to consult with the Supreme Council of the
Judiciary so that an impartial and effective investigative
mechanism be created. We continue to suggest that the
prosecutor's office be changed to some kind of mechanism that
could refer allegations of wrongdoing to a specialized unit
within the regular justice system.

- There are still no basic fairness guarantees in the law.
To meet international legal standards, we strongly recommend
that people subject to the process should:

-- receive reasonable notice of the case against them prior
to dismissal or exclusion from retirement benefits;-- be
informed of the specific allegations against them;-- be able
to examine the evidence used to draw up that allegation;--
have the right to contest that evidence in a hearing in front
of a legally constituted and impartial body;-- be evaluated
according to known and reasonable criteria; and,-- be able to
appeal an adverse decision to an impartial entity that is
independent of the body that conducted the vetting hearing.

- The law creates several mechanisms to collate, organize,
and publish personal information about many thousands of
individuals. Some of this information is very sensitive, but
the law contains no controls as to who can obtain access to
it. Therefore, it will be easy to spread false information,
or corrupt persons may use the information for blackmail.
Such issues have created severe problems in the former East
Germany and elsewhere. We recommend that strict procedures
are put in place so that sensitive information and materials
gathered by the new Commission be protected against misuse.

- The new law will create a new Accountability and Justice
Commission and dissolve the Higher National Debaathification
Commission. But the draft appears to lack any arrangement
for the new Commission to take over the files, information,
and other relevant resources of the Debaathification
commission.

- We urge you to put in place well-designed selection,
appointment, promotion, and disciplinary procedures for all
public positions, based on merit and integrity. Iraq still
lacks mechanisms to prevent the appointment of or to
discipline government employees who are unfit for public
service but were not members of the dissolved Ba'ath party.
Such procedures would prevent individuals who have committed
severe human violations from being appointed to government
service, or provide for their dismissal if he or she already
holds a government position. Such selection, appointment,
promotion, and disciplinary procedures are vital for Iraq's
future.

- Finally, we note that the system envisaged in the draft law
continues to be based on group membership rather than
individual wrongdoing. Such programs are only partially
effective because they use the wrong criteria to catch
wrongdoers: they are too wide (dismissing innocents who were
members but not involved in serious wrongdoings) and too
narrow (failing to dismiss those abusers who were not
members). They create resentment, are unfair, and lack
credibility. The new draft changes the number of people
affected, but it does not tackle this fundamental problem in
a serious manner.

Iraq has taken some important steps to deal with its past,
but they have not been well-coordinated. We strongly
recommend that you develop a coherent strategy to address
victims' suffering, deal with the past and prevent the
repetition of abuses in the future. Such a strategy could
link compensation, prosecution, truth-telling and vetting
efforts, and so improve accountability and justice for all
Iraqi victims, and contribute to social reconstruction and
the rule of law.

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