HUMAN RIGHTS WATCH CRITIQUE OF IRAQ COURT

UNCLAS SECTION 01 OF 02 BAGHDAD 000181 JUSTICE PASS TO JOHN EULER, ANDREW NORMAN SENSITIVE SIPDIS E.O. 12958: N/A TAGS: PHUM PGOV SOCI IZ SUBJECT: HUMAN RIGHTS WATCH CRITIQUE OF IRAQ COURT IGNORES CONTEXT Reference: A. 08 Baghdad 2980 ¶B. 08 Baghdad 3486 ¶1. (SBU) SUMMARY: As the primary tribunal handling terrorism and other serious criminal cases, the Central Criminal Courts of Iraq (CCCI),with courthouses in Karkh and Rusafa, play a key role in promoting Rule of Law in Iraq. A recent report by Human Rights Watch (HRW) on the CCCI alleges a number of shortcomings, including undue delay, coerced confessions, flimsy evidence, and inadequate defense counsel. While some criticisms leveled at the CCCI in the report are valid, HRW's investigation was incomplete and failed to take into account the environment in which the Iraqi criminal justice system operates. Moreover, several USG initiatives are underway that address some of the issues raised by HRW. These initiatives were not taken into account by HRW. END SUMMARY. Historic Background ¶2. (U) The Coalition Provisional Authority (CPA) established the Central Criminal Court of Iraq (CCCI) in July 2003 to hear cases involving serious criminal offenses, including terrorism, organized crime, government corruption, acts of sabotage and sectarian or ethnic violence. While the primary purpose of the CCCI was to try terrorism cases, particularly attacks against Coalition Forces, the court has much broader jurisdiction and now adjudicates a variety of criminal cases from all corners of Iraq. ¶3. (U) The CCCI has nationwide jurisdiction and can pre-empt local jurisdiction to hear serious cases that require a secure judicial environment. Other Iraqi courts can refer cases to the CCCI. In addition, CCCI judges travel outside Baghdad to handle cases where local judges have been unable or unwilling to investigate or try cases. Karkh CCCI ¶4. (SBU) The Karkh CCCI, formed in 2003, employs 10 trial judges, 32 investigative judges and 18 prosecutors for its three trial panels and juvenile court. Coalition Forces have worked closely with the court, providing technical assistance and guidance on prosecution of cases involving individuals detained under the United Nations Security Council Resolutions. The 2008 statistics for the Karkh CCCI document the large volume of cases handled by the court: 1,866 investigative hearings were conducted, 1,034 cases were referred to trial, and 636 of the cases resulted in conviction. 
 ¶5. (SBU) COMMENT: Once the U.S. withdraws, some functions at Karkh may suffer. Specifically, the U.S. plays a large role in the security of the Karkh courthouse. Although the U.S. provides training to Iraqi security, there are still concerns that the Iraqis will not provide the same level of security when the U.S. leaves. END COMMENT. Rusafa CCCI ¶6. (SBU) The Rusafa CCCI, founded in 2007, focuses on complex investigations of serious Iraqi crimes. With three trial panels and 50 judges, the court receives assistance with security, witness transportation and evidence collection from Multi National Forces-Iraq (MNF-I) through the Law and Order Task Force (LAOTF) and the Baghdad Provincial Reconstruction Team (PRT). In 2008, the Rusafa CCCI moved into the new "Palace of Justice at Rusafa" that was constructed with U.S. funds. ¶7. (SBU) LAOTF and the Baghdad PRT have focused on improving the availability and quality of defense attorneys for criminal defendants before the Rusafa CCCI. They established the Rusafa Legal Defense Center, which employs 24 Iraqi attorneys to provide legal counsel to thousands of detainees. Since its inception in May 2008, the center has averaged 83 detainee consultations per day and Q2008, the center has averaged 83 detainee consultations per day and has conducted more than 4,200 detainee consultations overall. Due to the center's work, there have been 2,176 releases or transfers of inmates. ¶8. (SBU) LAOTF's pimary mission is to increase the efficiency of CCCI Rusafa to reduce the large backlog of criminal cases. They mentor judges, work closely with the CCCI Rusafa administrative office, and provide training to Rusafa's defense attorneys on a myriad of topics, to include the use of forensic evidence. As a result of this training, defense lawyers at the Rusafa CCCI are better prepared than their counterparts at the Karkh CCCI. The Rusafa clinic provides far better defense services for indigent defendants than is the norm in Iraq. At Rusafa, the legal clinic's attorneys are required to develop a client file and represent the detainee through both the investigative and trial phases. This process helps to ensure professional representation. ¶9. (SBU) While the Rusafa defense clinic has been successful in BAGHDAD 00000181 002 OF 002 providing counsel to those who otherwise would not have seen an attorney prior to trial, there are problems. Rusafa CCCI officials cite corruption as pervasive. Reportedly, bribes are routinely required for prisoner releases, even where release orders have been issued. For the longer term, the Rusafa defense clinic does not appear to be sustainable. There is no indication the Iraqis will financially support the clinic after U.S. funding dries up at the end of 2009 (see reftel A). Response to Human Rights Watch Report on CCCI ¶10. (U) The Human Rights Watch (HRW) report of December 14, 2008 entitled "The Quality of Justice: Failings of Iraq's Central Criminal Court" was critical of the CCCI. HRW alleged a number of shortcomings of the CCCI, including undue delay, coerced confessions, flimsy evidence, and inadequate defense counsel. ¶11. (SBU) HRW found that the CCCI trial "relied almost exclusively on confessions and summarized testimony of witnesses and informants." However, under the Iraqi civil law system, the critical phase of the Iraqi criminal case is not the trial hearing, but the investigative phase before the investigative judge. Contrary to the U.S. system, confessions made to police carry little weight and are set aside if recanted before the investigative judge. This is key because confessions relied upon by trial panels were either made or adopted by the defendant while in court, a non-coercive environment. Justice in Iraq is far more deliberate than Human Rights Watch credits. ¶12. (SBU) HRW also claimed that Iraqis do not rely on physical evidence and recounted a case in which an arrest for bomb-making was made without an explosives residue test. Iraqi courts have historically relied on testimonial evidence and are hesitant to consider forensic evidence. They are however making progress in this area and often dismiss cases based upon insufficient evidence or unsubstantiated confessions that have been recanted. ¶13. (SBU) The U.S. and its Coalition partners have sought to build capacity by offering training in crime scene investigation, investigative techniques, and forensic evidence. The British Government has funded three separate trips to the Judicial Institute in Jordan to train judges and police on forensics. Moreover, a forensic conference is being planned for April of this year and will take place in Iraq. Generally speaking, there is an increasing acceptance of forensic evidence by Iraqi judges (see reftel B). ¶14. (SBU) HRW called defense counsel in Iraq "perfunctory at best" and cited the example of one court-appointed lawyer who received the case file immediately before the hearing began. It is true that increased efforts should be directed toward appointing defense counsel earlier in the legal process and referral files should be made available in time to permit effective representation. The HRW report paid little attention to the robust efforts made to set up the Rusafa CCCI defense counsel clinic, and also ignored the fact that most defense lawyers at Rusafa are brought into the process much earlier, often accompanying Investigative Judges to interviews of suspects. ¶15. (SBU) HRW also charged that the CCCI failed to provide judicial hearings within a reasonable period of time. This too is a valid criticism, and cases before the CCCI need to be moved more expeditiously. However, HRW failed to take into account the obvious wartime setting of the court which continues to flood the Iraqi judicial system with individuals captured in operations. The Qjudicial system with individuals captured in operations. The inability of the judiciary to reduce the caseload despite the large number of cases processed by the CCCI is indicative of the difficult environment in which the court operates. Comment ¶16. (U) The CCCI courts are functioning courts that handle some of the most serious and complex crimes. The U.S. and Coalition partners are continuing to provide training and mentoring to Iraqi judges and police to ensure detainees are treated humanely. We are encouraging the implementation of systems that are sustainable. Although limited progress has been made we recognize that the criminal justice system is not perfect. The path ahead must include technical training for judges, lawyers, law enforcement and detention personnel that inculcates respect for human rights. CROCKER 1