Anfal Issue #2: Will Saddam Live to Hear the Verdict in the Anfal Trial?

Maybe – by Kevin Jon Heller

Cite as: Michael P. Scharf, Gregory S. McNeal & Brianne M. Draffin, A Teacher's Guide and Supplement to Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 10 (2007).

In his excellent and provocative post on the Anfal trial (#37), Michael Scharf says that “(s)ince the Anfal case is scheduled to begin immediately after the close of the Dujail trial (while the Dujail verdict is being appealed to the Appeals chamber of the IHT), this means that whatever the Dujail verdict, Saddam Hussein will be available to face his accusers in the Anfal trial.” A close examination of the relevant Iraqi law, however, indicates otherwise. Saddam may well live to see the Anfal trial, which is scheduled to begin today, August 21st – but if he does, it will almost certainly be because of politics, not law.

The IHT Trial Chamber is expected to deliver its verdict in the Dujail case on October 16th. Assuming that Saddam is sentenced to death – a safe assumption – that verdict would be automatically reviewed by the Court of Cassation; Paragraph 254(A) of the Iraqi Code of Criminal Procedure (ICCP) specifically provides that “(i)f the Criminal Court has issued a sentence of death or life imprisonment, it must send a file on the case to the Court of Cassation within ten days of the issue of the judgement, so that it can be reviewed for cassation, even if an appeal has not been lodged.”

The Court of Cassation would thus have Saddam’s case file by October 26th. It would not, however, immediately begin its review. ICCP ¶ 254(B) provides that “(t)he Court of Cassation accepts statements submitted by the accused and those involved in the case before it issues its decision.” The ICCP is silent on how long the defense and the prosecution would have to submit those statements, but it is reasonable to assume that they would be due within 30 days of the Trial Chamber’s verdict – ICCP ¶ 252(A) requires all petitioners to the Court of Cassation (prosecution and defense alike) to file their petitions within that time-frame.

At the latest, then, the Court of Cassation would begin its review of the Dujail verdict on November 16th. It is impossible to know precisely how long the Court would take to complete its review; Iraqi criminal law does not impose a time limit. There is no reason to believe, however, that the Court’s deliberations would be protracted; indeed, the Chief Prosecutor in the Dujail case, Jaafar al-Moussawi, has told Newsweek that because the Court has no backlog of cases, the review “would only take days.”

Even if al-Moussawi is being overly optimistic, the Court of Cassation should reach a decision by the end of 2006. At that point, assuming that the Court upheld Saddam’s death sentence, the judgment would become final not long after January 31, 2007 – ICCP ¶ 266(A) gives the convicted person 30 days to request correction of a legal error in a Court of Cassation decision.

Once Saddam’s death sentence became final, it would have to be carried out within 30 days. The IHT Statute is explicit on this point: Article 27(2) provides that “(t)he punishment must be executed within 30 days of the date when the judgment becomes final and non-appealable.”

Even a generous interpretation of Iraqi criminal law, in short, leads to the conclusion that Saddam would be executed no later than March 1, 2006 – little more than six months after the Anfal trial began. That simply is not enough time to complete the Anfal trial, which Michael Newton has described as “an ambitious undertaking that would stretch the resources and capacity of almost any judicial body around the world.” His assessment is sound; the Anfal trial includes charges of genocide in addition to war crimes and crimes against humanity, and genocide – to quote Michael Scharf – is “the worst crime known to humankind, and… the hardest crime to prove.” Indeed, the much less complicated Dujail trial will have lasted more than ten months by the time the Trial Chamber hands down its verdict.

The conclusion is thus inescapable: if the IHT follows the law, Saddam will not live to see a verdict in the Anfal trial. There is more than a touch of irony in this; although ICCP ¶ 286 traditionally gave the President of Iraq the authority to commute a death sentence, that provision was superseded by Article 27(1) of the IHT Statute, which specifically provides that “(n)o authority, including the President of the Republic, may grant a pardon or mitigate the punishment issued by the Court.” By enacting Article 27, the Iraqi government not only placed Iraq in violation of its obligations under Article 6(4) of the ICCPR, which requires States to guarantee that “(a)mnesty, pardon or commutation of the sentence of death may be granted in all cases,” it eliminated the one legal mechanism that it could have used to avoid executing Saddam prematurely.

None of this, of course, means that we will never see a verdict in the Anfal trial. But it does mean that, if we do, it will be because the IHT decided that justice for Saddam’s Kurdish victims was more important than the rule of law. An understandable trade, to be sure – but one that would bode ill for the future of the Iraqi judicial system.

Posted @ 8:59 AM | Experts Debate the Issues: The Anfal Trial