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UNCLAS SECTION 01 OF 02 BAGHDAD 002984 SUBJECT: AL DUJAIL CASE REFERRED TO IRAQI SPECIAL TRIBUNAL 1. (SBU) SUMMARY. On July 17, the chief investigative judge for the Iraqi Special Tribunal ("IST") referred the Al Dujail case to the IST's trial chambers. The case, in which Saddam Hussein is a defendant, will focus on the killing of hundreds of people from the town of Al Dujail. Under the IST's Rules of Procedure, the trial cannot start before a 45-day period elapses, during which the defendants may prepare for trial, file motions in the trial chambers, or appeal the case's referral. Post's best estimate is that the trial is unlikely to start before mid-October. END SUMMARY. ------------------Al Dujail Referral ------------------2. (U) In 1982, Saddam Hussein made an official visit to the town of Al Dujail; once there, members of the Shia-affiliated Da'wa party attacked his motorcade. Saddam escaped injury. In the ensuing weeks, his regime allegedly retaliated against the entire town, executing hundreds of people after sham trials conducted by a special court under Saddam's control. The regime allegedly also

destroyed the town's date palm orchards, the primary source of revenue for Al Dujail. On July 17, 2005, the chief investigative judge for the IST referred the Al Dujail case to the IST's trial chambers. The named defendants in the referral are Saddam Hussein; Barzan Ibrahim al-Tikriti; Taha Yaseen Ramadan; and Awad Hamad Badr al-Bandar. The referral may contain up to six additional defendants as well. We have not seen the referral document in English, but we believe that all are charged with crimes against humanity under Article 12 of the IST statute. RCLO currently is having the entire investigative file, which contains the referral document, translated into English. --------------------------------------------What Happens Now? Trial Date and Proceedings. --------------------------------------------3. (U) We expect the trial chamber to set a trial date soon. Under the IST's Rules of Procedure, at least 45 days before the trial, the prosecutor must disclose to the defendant all evidence, including all witness statements, and the prosecutor and defense must exchange names of witnesses. No evidence yet has been turned over by either side. The defense may choose to make motions of an evidentiary nature to the trial court (including motions objecting to lack of defense counsel access to the defendant, inadequate investigation by the investigative judge, and lack of access to witnesses). The defense also may choose to file an appeal to the Appellate Chamber. The grounds for appeal could include jurisdictional challenges, invocation of immunity or amnesty, violations of Iraqi criminal procedure, an argument that the court has not been properly constituted in

accordance with its own requirements, and other issues of this nature. Thus, by virtue of the 45day discovery rules, the Al Dujail trial can occur no sooner than the second week in September. However, in RCLO's view, it is unlikely that the Al Dujail trial will occur before mid-October. RCLO anticipates, however, that the Appellate Chamber quickly will decide any issue brought before it. 4. (U) Trial Proceedings. The IST trials will unfold differently than U.S. trials do. First, both the Iraqi and IST criminal justice systems are "crime-based," rather than "defendant-based." Thus, the investigative judge is required to consider all of the evidence relating to a particular criminal event, and incorporate into one investigative record all claims and defendants relating to that event. Saddam Hussein and others will stand trial in multiple cases; Saddam will not be charged in one large indictment for all of the crimes of which he is accused. Second, as in other civil systems, virtually all of the information is gathered before the trial, rather than at the trial. By the time of the trial, the investigative judge, prosecutor, and defense counsel will have had an opportunity to interview all witnesses they deem relevant to their case; the trial chamber will have resolved all pretrial motions; and the parties will have had time to review the investigative record. The main purpose of the trial is to present the investigative record to the trial chamber and to allow the trial chamber to engage in a dialogue with the defendant on the merits of the investigative record. The trials therefore likely will unfold in a lower-key way than U.S. trials do.

----------------Remaining Issues ----------------5. (SBU) Several issues remain to be resolved prior to the start of trial proceedings. These include establishing a defense counsel assistance office, appointing international advisers / observers, strengthening witness security measures, improving media relations, and improving courtroom logistics and technology. RCLO continues to work with the IST to resolve these issues. 6. (SBU) Housing. We have heard complaints from the Iraqi government and in the press that trials cannot move forward until the IST judges are safely housed in the International Zone. The USG has made housing in the IZ available to all IST judges, including investigative, trial, and appellate judges. Although not all judges have opted to accept that housing, RCLO stands ready to provide housing to any IST judge that so desires. 7. (U) REO HILAH, REO KIRKUK, MOSUL minimize considered. Satterfield (Edited and reading.) reformatted by Andres for ease of REO BASRAH, REO