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The Iraqi High Tribunal (IHT), or Iraqi Higher Criminal Court, previously known as the Iraqi Special Tribunal (IST), announced Nov. 5, 2006, that it was sentencing former Iraqi dictator Saddam Hussein Al-Majeed to death by hanging. The verdict comes in the first prosecution Saddam has faced before the tribunal, for the 1982 mass killing of villagers in the Shia town of Dujayl and related atrocities. Bringing Saddam and his henchmen to justice has posed unique challenges to an Iraq that seeks to make a former totalitarian dictatorship subject to rule of law, and in the process respect rule of law by providing fair trials. Unclear is the extent to which efforts to establish an historical record of atrocities, and undertake national healing, would be thwarted by executing Saddam before he can be tried for additional incidents. Of added significance are concerns raised by some voices that the death penalty itself is immoral and inconsistent with rule of law.
Saddam stood accused of murder, torture, and forced expulsions in connection with the deaths of 148 Iraqis from the town of Dujayl, 35 miles north of Baghdad, killed in reprisals following a 1982 assassination attempt by a handful of anti-Saddam militants. The trial, which started on Oct. 19, 2005, reportedly involved 130 witnesses, was the subject of antics and outbursts by Saddam and his co-defendants, saw multiple changes of the presiding judge, and spawned assassinations including the murders of defense attorneys.
Other sentences handed out included:
· Awadh al-Bandar, a former revolutionary court judge, who handed down death sentences for more than 140 Dujayl residents after the 1982 incident, sentenced to hang
· Barzan al-Tikriti, Saddam’s former intelligence chief and half-brother, also sentenced to hang
· Taha Yassin Ramadan, former Iraqi vice president, life imprisonment
· three minor Ba’ath Party officials from the village, sentences of up to 15 years in prison
· a minor defendant was acquitted for lack of evidence
The court has thus far failed to provide its written opinion but is expected to do so in the coming days. An automatic appeal is expected to be completed by early 2007, with executions, if they take place, set for 30 days after the final appeal.
Meanwhile Saddam continues to stand trial for genocide against the Kurds.
The imposition of the death penalty threatens to fuel controversy, with officials from the European Union, Germany, France, Italy, the United Kingdom and the Vatican joining other voices opposing executions.
Constitutional provisions and statutes
Death sentences and presidency council
Under Article 72 of the Iraqi constitution, as amended by Article 137, Iraq’s presidential council must ratify death sentences. The Presidency Council currently consists of Iraqi President Jalal Talabani and the two deputy presidents, Adil Abd Al-Mahdi and Tariq al-Hashimi. Under Article 137, decisions by the Presidency Council must be unanimous, but reportedly all three men agreed at least six months prior to the verdict that they would not overrule a death sentence handed down against Saddam.
Other provisions of the Iraqi constitution also come into play. Article 133 explicitly authorizes the IHT, which it terms the “Iraqi Higher Criminal Court:”
The Iraqi Higher Criminal Court shall continue its duties as an independent judicial body, in examining the crimes of the defunct dictatorial regime and its symbols. The Council of Representatives shall have the right to dissolve by law the Iraqi High Criminal Court after the completion of its work.
Evolving statutes covering special tribunal
The law governing IST prosecutions was enacted after the overthrow of the Saddam regime but before ratification of the Iraqi permanent constitution, then was amended just after the ratification of the permanent constitution to cover the tribunal, renamed as the IHT. As seen below, the Statute of the Iraqi Special Tribunal (SIST) was adopted by the interim Iraqi Governing Council (IGC) on Dec. 10, 2003, the Iraqi constitution was ratified by popular vote on Oct. 15, 2005, and the SIST was superseded by a later version adopted by the interim Iraqi General Assembly three days later on Oct. 18, 2005. Saddam’s trial started the next day on Oct. 19, 2005.
The Iraqi Special Tribunal (IST) was established under the Statute of the Iraqi Special Tribunal (SIST), to address war crimes, crimes against humanity, acts of genocide, and violations of certain other Iraqi laws committed between July 17, 1968, and May 1, 2003. (July 17, 1968, was the beginning of the second and most recent reign of the Ba’athists in Iraq, with Saddam becoming leader in 1979.) Its focus was on acts committed by Iraqi nationals or Iraqi residents, and committed within Iraq “or elsewhere,” explicitly including crimes committed in connection with Iraq’s wars against Iran and Kuwait.
The SIST became effective Dec. 10, 2003, during which time Iraq was ruled by the U.S.-led occupation authority, the Coalition Provisional Authority (CPA). The SIST predates Iraq’s March 8, 2004, interim constitution and the June 28, 2004, transfer of authority to the Iraqi Governing Council (IGC), which served as an interim government prior to the formation of the Iraqi National Assembly after elections Jan. 30, 2005. The IGC signed the SIST, which references the IGC and any successor government as the appointing authority for the tribunal’s judges. The IGC adopted the SIST as Statute No. 1/2003, published in the Iraqi official newspaper (al-Waqaa’e) issue no. 3980.
The interim Iraqi National Assembly would be voted in by national elections on Jan. 30, 2005, and author a draft constitution in May 2006, ratified by popular vote in a national referendum on Oct. 15, 2005.
The SIST would be superseded by the Statute of the Iraqi High Tribunal (SIHT), which made limited changes to the SIST provisions and renamed the IST, which now appears to be known, or at least referenced, alternatively as either the Iraqi High Tribunal (IHT) or the Iraqi Higher Criminal Court. The SIHT was adopted by the interim Iraqi National Assembly as Statute No. 10/2005, published in al-Waqaa’e No. 4006 on Oct. 18, 2005. As mentioned above, the Saddam trial started a day later, on Oct. 19, 2005.
Iraqi elections under the permanent constitution would take place Dec. 15, 2005, with a new government forming by March 2006 and a new cabinet formed by May 2006.
Constitution carrying over preexisting laws and legislation governing courts
Article 129 of the Iraqi permanent constitution does provide that existing laws carry forward: “Existing laws shall remain in force, unless annulled or amended in accordance with the provisions of this constitution.”
And Iraqi permanent constitution Article 95 provides that “… law shall regulate the establishment of courts, their types, classes and jurisdiction …” such that Iraqi lawmakers can legislate over the establishment of courts.
Ex post facto concerns: retroactive application of criminal law
But Iraqi permanent constitution Article 19 might raise to concerns about retroactive application: “The criminal law shall not have a retroactive effect, unless it is to the benefit of the accused.”
One question has been how to apply statutes enacted after the fall of the Saddam regime to actions performed during the regime.
In other words, the question is how to apply later-enacted criminal laws to punish acts performed at an earlier time when the government in power, claiming legal authority, was deeming its own atrocities to be legitimate and lawful. That is, the question is how to define and punish bad acts of a heinous nature that were deemed “legal” under a system in place for a particular period of time after that system is later abolished. For example, Nuremburg raised the question of how to punish officials of the Third Reich for acts which the Third Reich itself, the governing authority at the relevant places and times, did not call unlawful.
One solution is to override ex post facto considerations in a domestic context by grounding charges on basic norms of humanity superseding the capacity of a particular regime to gain control and put in place a framework of “law” that violates those basic norms and seeks to “legitimize” crimes against humanity.
In the case of Iraq and the IHT as a general matter, however, i.e., beyond just the specific charges of the recent conviction, one possible argument raised is that Saddam, in fact, violated Iraqi law in place during his regime. For example, it is argued that some of the crimes covered by the SIHT include acts which would be violations of international treaties to which Iraq has long been a party, such as the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) of Dec. 9, 1948, ratified by Iraq Jan. 20, 1959, or the Geneva Conventions of 1949, ratified by Iraq on Feb. 12, 1956. Potentially more complicated are efforts to invoke customary international law, if the effort were made to suggest that customary international law should be viewed to have been a part of Iraqi law in the past to the same extent as treaties, although where jus cogens norms are involved the situation arguably becomes more like that of Nuremberg.
Special attention will have to be paid to the court’s written opinion when it is released, and how various issues are litigated in the forthcoming appeal before the IHT’s Court of Cassation, or appellate body.
Legitimacy of the court
Arguments have been raised over the legitimacy of the SIST and IHT, given that the original SIST was drafted under an occupying authority. In addition, as mentioned above, questions have been raised about what legal authority applied at the time of the massacre itself, whether it is necessary in such cases to apply new laws retroactively, or “ex post facto” in cases where those holding power at the time of an atrocity deemed the crimes “legitimate” at the time they occurred.
Regardless of controversy over the legality of the February-March 2003 military action toppling the Saddam regime, UN Security Council (UNSC) resolutions have endorsed to varying degrees a post-Saddam transition, and indigenous Iraqi governing authorities have endorsed the IST and IHT. And, as seen above, the later statute establishing the IHT was adopted by an interim Iraqi National Assembly that had been voted in by national elections, even if it was adopted by a parliament formed under the CPA-drafted interim constitution, not by the parliament that would be elected under the permanent Iraqi constitution that had just been ratified. So the SIST and IHT have existed under legal authority that evolved from occupying authority supported (as a forward-moving transition) at various times by UNSC resolutions, in conjunction with an appointed interim indigenous authority, to that of a democratically elected assembly, with ratification by the entire Iraqi electorate along the way when they ratified the Iraqi constitution containing a provision reauthorizing the special court.
What has yet to occur is an updating of the SIHT by the Council of Representatives voted in under the permanent constitution, but in any event, the Iraqi people themselves approved the IST when they ratified the Iraqi constitution, containing Article 133 explicitly continuing the IST, along with Articles 95 and 129 provide for courts to be framed by law and for preexisting laws to be open to revision. The interim parliament, as mentioned above, moved three days after the constitution’s ratification to rename and slightly modify the framework of the IST, now the IHT, which then moved to prosecute Saddam.
Death Penalty
While CPA Administrator L. Paul Bremer had suspended the death penalty in Iraq in October 2003, it was reinstated by the Iraqi interim government in August 2004.
The President George W. Bush administration has hailed the conviction as a milestone for the Iraqi transition, and establishment of Iraqi rule of law, but the imposition of the death penalty risks international and domestic controversy. While there is not yet a consensus that the death penalty violates international law, in other contexts differences between the United States and European allies over the death penalty have raised the prospect of confounding terrorism extraditions, and the prospect of the death penalty in the Iraqi high tribunal has prevented the United Nations from supporting its work.
Imposition of the death penalty also may complicate other goals of the Iraqi High Tribunal, such as to establish a more comprehensive historic record of the whole range of atrocities of the Saddam regime, in the process potentially clouding the purported humanitarian aspects of the overthrow.
In any event, if the Saddam execution is carried out, the Iraqi tribunal risks the criticism that, like Saddam and the insurrectionists, it views killing as an appropriate means for serving a goal.
And on the level of domestic U.S. politics, President Bush, recently having already antagonized the conservative portion of his political base by endorsing “Plan B” chemical abortions, risked reminding an appreciable portion of that same base, persons who, perhaps for faith-based motivations, oppose the death penalty for similar reasons that they oppose abortion, that he also differs from that subgroup in his views on the adjudicated killing of prisoners. History will judge whether such moves were wise on the eve of mid-term Congressional elections.
Links and further reading:
“Background Note: Iraq,” U.S. State Department, October 2006, http://www.state.gov/r/pa/ei/bgn/6804.htm
President George W. Bush, “President's Statement on the Saddam Hussein Verdict,” White House transcript, Nov. 5, 2006, http://www.whitehouse.gov/news/releases/2006/11/20061105-1.html
“Chief prosecutor says appeals court to rule on Saddam's verdict and death sentence by mid-January,” AP, Nov. 6, 2006, http://www.wtnh.com/Global/story.asp?S=5637607&nav=menu29_2
Stephen Farrel, “Death penalty returns as Najaf attacks continue,” Times Online, Aug. 9, 2004, http://www.timesonline.co.uk/article/0,,7374-1208495,00.html
Dave Johns, “Saddam’s Road to Hell: Defining Justice: Death Penalty,” PBS, Jan. 24, 2006, http://www.pbs.org/frontlineworld/stories/iraq501/defining_penalty.html
“Iraq,” The World Fact Book, Central Intelligence Agency, Nov. 2, 2006, https://cia.gov/cia/publications/factbook/geos/iz.html
“Iraq court names new Saddam judge,” BBC, Jan. 23, 2006, http://news.bbc.co.uk/2/hi/middle_east/4639488.stm
Iraqi constitution, http://www.iraqigovernment.org/Content/Biography/English/consitution.htm
Iraqi High Tribunal home page (English): http://www.iraq-iht.org/en/orgenal.html
Mussab Al-Khairalla and Alastair Macdonald, “Shaken Saddam sentenced to hang,” Reuters, Nov. 5, 2006, http://today.reuters.com/news/articlenews.aspx?type=
topNews&storyID=2006-11-06T005916Z_01_IBO132069_
RTRUKOC_0_US-IRAQ.xml
Megan K. Stack, “Reactions vary on Saddam verdict,” Los Angeles Times, Nov. 6, 2006, http://www.latimes.com/news/nationworld/world/la-ex-
saddam6nov07,0,33727.story?coll=la-home-headlines
Ambassador Zalmay Khalilzad, “Statement by U.S. Ambassador Zalmay Khalilzad on Verdicts Issued by the Iraqi High Tribunal,” U.S. Embassy Baghdad news release, Nov. 5, 2006, http://iraq.usembassy.gov/iraq/20061105_khalilzad_on_verdict.html
Law of the Iraqi Higher Criminal Court, Statute No. 10/2005, published in Official Gazette of the Republic of Iraq Al-Waqaa’e No. 4006, http://law.case.edu/saddamtrial/documents/IST_statute_official_english.pdf
Bassem Mroue, “Saddam Trial: 9 Months of Outbursts,” AP, Nov. 6, 2006, shttp://www.washingtonpost.com/wp-dyn/content/article/2006/11/06/AR2006110600150_pf.html
Steve Negus, “Saddam Hussein sentenced to hang,” Financial Times, Nov. 5, 2006, http://www.ft.com/cms/s/551622ca-6cb3-11db-9a4d-0000779e2340.html
“Sharing of Evidence and Notification of Trial Date,” Iraqi Special Tribunal news release, Oct. 3, 2005, http://www.iraq-ist.org/en/press/releases/0024e.htm
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