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Experts Debate the Issues: The Dujail Trial

September 22nd, 2005

Issue #4: Should Saddam Hussein Be Exposed to the Death Penalty?

YES by Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 106 (2006).

When I was training the IST judges, I learned that the United States had tried to dissuade the Iraqi negotiators from including the death penalty in the IST Statute because it would make it difficult for the United Kingdom and United Nations to support the IST, but that the Iraqis insisted on it. I asked them why the death penalty was important. They gave me four answers.

First, Iraqis are fiercely proud of their legal tradition, as the country that created the first criminal code (the Code of Hammurabi) some 2,700 years ago. Since then, Iraq has always had a death penalty, and Iraqis consider its continued existence an important part of their cultural heritage.

Second, they wanted to avoid the “paradox of inversion” that marked the experience of the International Criminal Tribunal for Rwanda. The most culpable perpetrators of the Rwandan genocide are prosecuted by the International Tribunal, where they can get at most a life sentence, while lower level offenders are prosecuted by Rwandan domestic courts, where they are often subject to capital punishment for their crimes.

Third, they were worried that persons convicted of the most heinous crimes known to humankind (genocide, crimes against humanity, and grave breaches of the Geneva Conventions) might later be granted amnesty by a subsequent Iraqi regime. Citing the Napoleonic precedent, the Iraqis were extremely concerned that without the death penalty, convicted leaders could one day return to power, as Hussein himself had done after being released from prison in 1968.

Finally, they pointed out that international law does not outlaw the death penalty. The International Covenant on Civil and Political Rights permits capital punishment “for the most serious crimes in accordance with the law in force at the time of the commission of the crime.” Twelve of the defendants tried by the Nuremberg Tribunal after WWII were sentenced to death. Today, more than half the countries of the world still impose capital punishment, and many States that have abolished the death penalty in recent years still maintain an exception for serious violations of international humanitarian law.

I am personally not a proponent of the death penalty, especially in the United States where studies show that it is often carried out in a discriminatory manner. But in the context of an Iraqi trial for Iraqi leaders accused of the worst crimes known to humankind, I can understand the Iraqi insistence on the availability of capital punishment. When the democratically elected Iraqi Transitional National Assembly re-promulgated the IST Statute on August 11, 2005, it reconfirmed the Iraqi people’s desire that capital punishment be available to the Iraqi Special Tribunal. As a sovereign country and fledgling democracy, Iraq’s decision should be accorded deference from the international community.

This does not mean that Saddam Hussein, if convicted, will be executed forthwith. The IST Statute does not allow trials in absentia. Thus, if Saddam Hussein is convicted and sentenced to death in the first trial, the IST will issue a stay of execution to enable Saddam Hussein to be tried for other incidents so that a historic record of the abuses of his regime can be developed.

No: by William Schabas

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 104 (2006).

The Statute of the Iraqi Special Tribunal does not make any express reference to the possibility that convicted persons be subjected to capital punishment. The reference is indirect, a concession to the British lawyers involved in drafting the instrument. But there seems little doubt that Saddam Hussein is on trial for his life.

As a sovereign country, Iraq is of course free to choose the penalties it wishes to impose on convicted persons, subject to international human rights norms. Iraq is a party to the International Covenant on Civil and Political Rights, which allows States which have not abolished the death penalty to impose it ''for the most serious crimes in accordance with the law in force at the time of the commission of the crime […"> pursuant to a final judgment rendered by a competent court''.

In October 2003, the US viceroy for Iraq, Paul Bremer suspended the death penalty in Iraq. He was not required to do this under the Geneva Conventions, which allow prisoners of war and even civilians to be executed by the occupying power under certain conditions. Rather, he was responding to concerns by his partners in the occupation, the United Kingdom. As a State party to the European Convention on Human Rights, and its two protocols concerning abolition of the death penalty, Britain cannot participate in executions of persons ''within its jurisdiction''. Recent case law of the European Court of Human Rights indicates that occupied territories are protected by the European Convention and its protocols, even if they are outside Europe.

The Bremer order suspending capital punishment proves that Britain understood it was bound by the European Convention and its protocols with respect to criminal justice in Iraq. It also confirms that the United Kingdom was not a silent and ineffective partner in the occupation, but rather one capable of insisting that its own human rights obligations be honoured.

But the European Convention not only prohibits actual execution, it also forbids European States from handing over suspects to jurisdictions that might impose capital punishment. Otherwise, they would be able to do indirectly what they cannot do directly.

As a partner in the occupation, Britain should not have allowed Saddam Hussein to be handed over to Iraqi civilian authorities without obtaining assurances that the death penalty would not be imposed. The United Kingdom must ensure that Saddam is not executed. While the Iraqi justice system is not bound by European law, it surely owes some respect to the British and should ensure that London does not transgress its international obligations.

Such an approach was followed in 2001 by US Courts, in a case involving one of the El Qaeda terrorists who bombed the embassies in East Africa. The suspect has been apprehended in South Africa and handed over to FBI agents without obtaining assurances that the death penalty would not be imposed. The South African Constitutional Court later determined that this violated the suspect''s rights. A New York court honoured the South African position and refused to impose the death penalty.

Under international human rights obligations, the United Kingdom should not have allowed Saddam Hussein to be turned over to Iraqi justice without obtaining assurances concerning the death penalty. Yet under article 77 of the fourth Geneva Convention, States are required, at the end of occupation, to turn over all detained persons. This conflict of legal norms raises problems about the relationship between human rights law and international humanitarian law. According to recent pronouncements of the International Court of Justice, humanitarian law is lex specialis, and this suggests that the Geneva Convention obligation takes precedence over the human rights provisions. But General Comment 29 of the Human Rights Committee takes the position that the norm more favourable to the individual is the one that takes precedence. This difficulty shows that human rights law and international humanitarian law are not always compatible. Depending upon the interpretative approach that is followed - that of the International Court of Justice or that of the Human Rights Committee - the answer to this question may be different.

Yes: by Michael Newton

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 102 (2006).

The people of Iraq have a legal and moral right to build a structure for the prosecution of the leading figures in the Ba''athist regime, and the sovereign government representing those people has every right under international law to preserve preexisting Iraqi laws that permit the imposition of the death penalty. Both international human rights law and occupation law explicitly permit the imposition of capital punishment provided that the judicial process comports with recognized standards of justice. The Statute of the Iraqi Special Tribunal will be implemented against the backdrop of Rules of Procedure that have been carefully calibrated to mesh with the provisions of Iraqi procedural law to produce such a fair process. The people of Iraq suffered through the years in which the regime spearheaded by Saddam systematically perpetrated some of the most inhuman and large scale crimes in world history. The best estimates indicate that 50,000 to 100,000 Kurds were murdered under Ba''athist rule, while some 2,000 Kurdish villages were destroyed. 900,000 Iraqi civilians were driven from their homes, while an estimated 10,000 political opponents were summarily executed. The mass graves of Iraq are filled with the loved ones of average citizens who simply disappeared. The one common experience shared by all Iraqis, whatever their religion or class, was an osmosis of fear and uncertainty that is the very antithesis of the rule of law. Under these circumstances, it would be the worst form of legal colonialism and international paternalism to dictate appropriate punishments from outside Iraq.

Just four days after the Iraqi Governing Council promulgated the Statute of the Iraqi Special Tribunal, I was in Baghdad as a member of the team of international experts presenting a seminar on investigating and prosecuting international crimes in accordance with international norms. The diverse group of 96 Iraqi judges, prosecutors, and lawyers who gathered in Baghdad were among the first Iraqis outside the Governing Council to review the Statute. I was in the room with those Iraqi judges and prosecutors when they learned of the successful capture of President Hussein. As the celebratory AK-47 fire began outside, the normally dignified audience responded to the electric news with a frenzy of joy and palpable relief. One of the judges hugged me and exclaimed "Today is day one!" His spontaneous vision captured the sense of many Iraqis that the definitive end of the Hussein regime was a watershed event for those dedicated to leading Iraq towards stability and sovereignty founded on respect for human rights and the rule of law.

Ambassador Bremer''s temporary abrogation of the Iraqi law permitting the imposition of the death penalty had nothing to do with any extraterritorial application of the European Convention of Human Rights, and everything to do with his obligations as the temporary occupation authority in Iraq. In Resolution 1483 passed on May 22, 2003, the Security Council unanimously exercised its Chapter VII authority to call upon the members of the Coalition Provisional Authority (CPA) to "comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907." All members of the United Nations have specifically accepted the principle that their obligations under the United Nations Charter prevail over "any other international agreement." Thus, the CPA exercise of Chapter VII authority superseded the obligations of any of those individual states that are parties to any treaty limiting the imposition of capital punishment.

Resolution 1483 affirmatively required the CPA to exercise its temporary power over Iraq in a manner "consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory." The law of occupation found in the IVth Geneva Convention presaged the subsequent development of human rights norms by protecting the basic right of citizens in the occupied territory to a fair and effective system of justice. Pursuant to these principles of occupation law and the binding Chapter VII mandate of the Security Council, the CPA cited its duty to ensure the "effective administration of justice," when it issued CPA Order Number 7 on June 9, 2003 that suspended the imposition of capital punishment in the criminal courts of Iraq and prohibited torture as well as cruel, inhumane, and degrading treatment in occupied Iraq. The suspension of capital punishment was only one aspect of the larger effort to suspend or modify laws that "the former regime used … as a tool of repression in violation of internationally recognized human rights." It had nothing to do with an external treaty obligations related to capital punishment that some members of the coalition had accepted as a matter of their sovereign prerogative outside Iraq.

Though CPA policy directives effectively aligned Iraqi domestic procedure and law with the requirements of international law, it was at best a stopgap measure that was neither designed nor intended to bear the full weight of prosecuting the range of crimes committed by the regime. The original CPA mission statement pointed to its purpose as the "the temporary governing body which has been designated by the United Nations as the lawful government of Iraq until such time as Iraq is politically and socially stable enough to assume its sovereignty." After the return of full sovereignty, the decisions about guilt or innocence of any particular defendant charged in the IST and the subsequent punishment should appropriately be determined by the judges applying the laws of a sovereign Iraq. If the judges of the Iraqi Special Tribunal believe that the evidence has established the guilt of a particular official, they should be free to impose any punishment permitted by law which they deem to be the most beneficial to restoring an Iraq in which people are free to live their lives and love their families secure in the knowledge that the rule of law protects them.

Posted @ 9:24 AM | Experts Debate the Issues: The Dujail Trial

 

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The invasion of Iraq may have occurred under false pretenses, or poor intelligence. The debate over this question will continue for quite some time. The ultimate result of the invasion, however, brought to an end a regime that had the blood of hundreds of thousands of its own citizens on their hands. As the leaders of the regime, including Saddam, were systematically located, the question became whether they should face the death penalty. The appropriate response is yes, the Iraqi people should have the independence of a sovereign government to make the decision they feel is appropriate.

I agree with Professor Scharf’s acknowledgement of the cultural importance that the inclusion of capital punishment plays with the Iraqi people. This is especially important, as the government was not only trying to assert its independence, but also needed to dispel the puppet government perception that was developing and threatening the credibility of the Iraqi High Tribunal (See Newton & Scharf, Enemy of the State). The desire of the Iraqi people to hold accountable a leader who had committed atrocities for over two decades with the death penalty resounded through Iraq, both as a sense of identity and national pride (See http://www.cbsnews.com/stories/2003/12/16/iraq/main588789.shtml). Considering the support for the death penalty within the country, I do not believe the international body has the right to question this decision.

International human rights laws, as expressed in the above essay, do not forbid the use of capital punishment and many countries do indeed implement capital punishment in their criminal system (See http://encarta.msn.com/media_461543496/capital_punishment_worldwide.html). As pointed out by Professor Scharf above, the Nuremberg Tribunal sentenced several defendants to death for the atrocities committed during the Second World War. If the international body accepts the use of this form of punishment in this context, then surely the mass murders of Iraqi citizens for such a lengthy timeframe, over twenty years, should be deemed sufficient to find the death sentence appropriate, whether the trial would have been conducted at either an international or national level.

Saddam’s vicious rule and countless acts of mass murder warranted exposure to the death penalty. The U.N. Security Council voted to recognize the transfer of sovereignty back to the Iraqi government on June 9, 2004 thereby affording Iraq the protection granted to independent nations under international law (See http://www.guardian.co.uk/world/2004/jun/09/iraq.iraq1). As such, the ultimate decision of whether Saddam would face the death penalty should fall solely on the independent country of Iraq.

Posted by F8675 on 02/09/2009 @ 02:11 PM

Iraq & the International Community’s Power over the Execution of Saddam

After the capture of Saddam Hussein, President Bush declared that the Iraqi people should decide Saddam’s fate. (See http://news.bbc.co.uk/2/hi/americas/3326311.stm.) Considering the international community’s opposition to the death penalty, to what extent should it be the Iraqi people’s choice to execute Saddam? Under international law, it is wholly the Iraqi people’s right to execute Saddam, but the international community does have the power to influence Iraqi policy without violating Iraq’s sovereignty.

At the time of the execution, Iraq was a sovereign state with the legal rights to do everything necessary to govern itself. (See http://plato.stanford.edu/entries/sovereignty/). Once the US transferred sovereignty to Iraq in 2004, the Iraqi government had the legal and moral right to make a legal code. In the code, the Iraqi’s chose to preserve capital punishment. Professor Michael Scharf explains that the death penalty arose from a deep, legal and cultural tradition that stretches back 2,700 years. (See Newton & Scharf, Enemy of the State. At 37-59). Scharf & Newton also point out that under the International Covenant for Civil and Political Rights, a nation may use the death penalty for “serious crimes.” (See above)

Since Iraq is a sovereign nation, the international community must respect the Iraqi people’s choice to execute Saddam for two reasons: (1) capital punishment is not a violation of jus cogens, and (2) capital punishment is a regionally divided issue. First, since the death penalty is not in conflict with jus cogens the international community can not legally interfere with the government of Iraq, unless capital punishment is used to promote genocide. (see Carter, Trimble, & Weiner International Law. at 120-122). Second, although 137 countries have abolished the death penalty there is a strict regional divide. For example, EU & EC membership requires the abolition of the death penalty, while only one Arab nation has abolished the death penalty. Additional interference with the Arab world may lead to more conflict in the region.

However, the international community can still influence a sovereign country’s policy. First, an international organization or nation can offer or restrict aid and assistance to a country implementing the death penalty for war criminals. (See Newton & Scharf Enemy of the State at 192). For example, Rwanda abolished the death penalty because of pressure from the UN and to appease extradition requests.(see http://warcrimes.foreignpolicyblogs.com/category/uncategorized/Rwanda/). Second, memberships to economic or political unions can require the abolition of the death penalty. For example, Turkey abolished the death penalty in 2002 with the goal of joining the EU. Also, Poland and the Czech Republic, counties with populations in favor of the death penalty, took steps to limit the death penalty before joining the EC.(See http://news.bbc.co.uk/1/hi/world/middle_east/6211741.stm). Third, the UN, as it did in 2007, can pass binding or non-binding resolutions encouraging member states to permanently abolish the death penalty. (See http://www.reuters.com/article/topNews/idUSN1849885920071218)

Therefore, while Iraq or other sovereign nations have the legal and moral right to issue the death penalty, the international community can practically influence a country’s policy.

Posted by F1418 on 02/09/2009 @ 08:31 AM

I agree that the death penalty needed to be available to the Iraqi High Tribunal (IHT) as its use dates back to the age of Hammurabi and has formally been in place since the Iraqi Penal Code of 1969. (See Newton and Scharf, Enemy of the State at 189). However, despite Iraq’s concerns that Saddam Hussein might gain amnesty for the crimes he orchestrated, he should have stood trial for the other heinous acts he committed and ordered committed before being executed. Although the imposition of the death penalty was important to the sovereignty of the Iraqi people, its delay may have created a stronger sense of credibility, legitimacy and effectiveness in both the court and the new government. Furthermore, the argument that an expedient execution of Saddam Hussein was needed to eliminate the insurgency in Iraq has proven over time to be somewhat false as violence levels did not fall until the end of 2007 after the U.S. troop surge. (See http://news.bbc.co.uk/2/hi/middle_east/7856618.stm or http://www.nytimes.com/2008/03/12/world/ middleeast/12iraq.html).
The IHT lost the support of the U.N. and other foreign nations with the acquiescence to the death penalty in the Iraqi Special Tribunal. (See Newton and Scharf, Enemy of the State at 191). However, credibility may have possibly been achieved slowly by trying Saddam Hussein for other atrocities such as the Anfal Campaign, which marked the first time a country used nerve gas against its own citizens and caused approximately 100,000 deaths. (See http://news.bbc.co.uk/2/hi/middle_east/4877364.stm).

A delay of Saddam Hussein’s execution coupled with trials for other actions may have moved to eliminate the idea around the world that this was an ad hoc tribunal created solely to prosecute Saddam Hussein for the purposes of political revenge. (See Newton and Scharf, Enemy of the state at 187). This would have allowed the world to witness the fine tuning of the IHT and allowed the justices to demonstrate their capability which certainly would have worked to create a feeling of justice and legitimacy. It could also be argued that delayed use may have helped the IHT to eventually gain the support of the U.N. and the greater international community. An exclusion from U.N. resources based partially on a protest of the invasion and occupation of Iraq could possibly have been lifted if the IHT was able to try Saddam for further offenses. (See Newton and Scharf, Enemy of the State at 191-U.N.’s opposition to IHT). This ultimately may have displayed the level of importance of the IHT to the establishment of a new stable government in Iraq and to rendering justice to an abusive regime.

It was Iraq’s choice as a sovereign nation to establish and enforce the power of capital punishment in the IHT. Therefore, it was important to allow Iraq to choose on its own whether it would institute capital punishment, as it was not and should not have been the western world’s choice. This choice was grounded in culture and history and supported by codified international law in the form of the International Covenant on Civil and Political Rights which allows for capital punishment for the most serious crimes. (See Carter, International Law Selected Documents at 404). As a policy it was desired by a majority of Iraqis; however, it may have better served Iraq and the IHT if its use was delayed to allow Saddam to stand trial for all the crimes he committed.

Posted by F9919 on 02/08/2009 @ 09:20 PM

I don’t believe that Saddam Hussein should not be sentenced to the death penalty.

The international community should make all attempts to conform to the international policies of the countries involved in a dispute. In this case, Saddam was captured by and in the custody of England, who abides by The European Convention. This bars any member country from extraditing a prisoner who will be subjected to the death penalty. Although this is in conflict with Article 77 of the Geneva Conventions, requiring all detained prisoners to be turned over at the end of an occupation, this problem can easily be resolved by acquiescing to the governing international law of the UN, which dictates that when international laws conflict, the one most favorable to the individual should be adopted. From a humanitarian aspect, this would prevent Saddam from being eligible for the death penalty.

Furthermore, guidelines established by the Iraqi High Tribunal say penalties of defendants should be the same as those available in equivalent Iraqi law. When there is no corresponding law, as in this case, then international criminal court precedents should be followed. This again, works against the death penalty. The Rome Statutes of the ICC provide for the most extreme cases a maximum penalty of life imprisonment. And likewise, the European Convention on Human Rights also prohibits the death penalty outside of wartime considerations. Finally, similar other tribunals in Rwanda, Cambodia, and the former Yugoslavia have also eliminated death penalty options.

On a policy note, the majority of legal scholars admit serious flaws in the trial of Saddam. Fairness of conviction should be an utmost consideration when the accused’s life is at stake. If the death penalty was to be an option, a retrial would be necessary to assure a just penalty.

Additionally, the execution of Saddam holds many drawbacks. From an Iraqi standpoint, Saddam would be put to death before he was able to stand trial for his most serious offenses, preventing many of his victims from obtaining a sense of closure. There is another fear that his death could produce a sort of martyrdom that would result in retaliation against western forces.

I am empathetic to the position of the Iraq people in demanding Saddam’s execution. His crimes were obviously heinous. But claims of neoimperialism are misplaced. While the death penalty has been a historic certainty in Iraq, so too have been dictatorships, conflict, and inequality. There are no similar claims of paternalism when those other practices are attempted to be abolished. Humanitarism should prevail over traditionalism.

Some Iraqis are apprehensive about imprisoning Saddam, considering the Napoleonic possibility of a future pardon and return to power. While it may be speculative, I would argue that the international community has taken a stand to prevent this from happening and would ensure his continued imprisonment.

Posted by Carlie (email) on 02/04/2008 @ 10:06 AM

An argument has been made that the IHT was wrong to execute Saddam because he was unable to stand trial for the other crimes he committed. Although this is a valid argument, I believe the IHT made the right decision to execute Saddam. Moreover, the victims in the other cases ultimately will still get justice for the crimes against them. There are several reasons I support the IHT’s decision to execute Saddam.

First, the death penalty should be reserved for the most atrocious crimes known to mankind. What could be more atrocious than genocide and the war crimes Saddam committed and ordered? Second, I believe the strongest argument for the death penalty is the fear that Saddam may later be granted amnesty by a future Iraqi government. This fear is legitimate due to the instability of the country. Furthermore, having Saddam sit in an Iraqi jail would only encourage insurgents.

Finally, Iraq reserves the right to impose the death penalty. Western views of the death penalty should not be imposed on Iraq. Mr. Schabas argues that Iraq should respect Britain and its international legal obligations by not executing Saddam. However, the United Nations Security Council recognized the Iraqi government as sovereign in Resolution 1546. This ended the occupation by the United States and Britain allowing the country the right to decide, as a sovereign state, its judicial system, including continuing the imposition of the death penalty. Although there were some problems and issues with the execution of Saddam, overall I believe the IHT made the right decision.

Posted by Anonymous on 02/04/2008 @ 10:00 AM

Ultimately, I do believe that international law, as outlined in the major conventions, covenenants, and treaties (including the Geneve Convention and the International Covenenant of Civil and Political Rights) allowed for the legal execution of Saddam following a fair trial. However, there are legitimate reasons why the IHT judges should have decided against the use of the death penalty in Saddam's sentencing.

The most obvious and startling reason that Saddam should not have been exposed to the death penalty is because of the fact that he can now only be held accountable for his many other crimes posthumously. It seems that with any case involving covert, government genocide, one of the most important goals is exposing what really went on and making those found guilty accountable to the moral judgment of the world. This was true for the trials of Nuremberg as well as the Truth and Reconciliation Commission of South Africa. Many commentators have remarked how the knowledge of Saddam’s crimes in the Dujail case was widespread, but what about the crimes of Saddam that were less exposed to the public eye? Consider Simone Monasebian’s essay, “Sex Matters: The Invisibility of Women at the Iraqi Tribunal.” In her writing she points out that, “(Saddam’s) regime is alleged to have systematically used rape for political purposes. Like its predecessors… the IHT is empowered to try such crimes as sexual and gender violence.” This is of course just one example of the many atrocities linked to Saddam’s regime. With the dictator dead, the likelihood that the Iraqi Tribunal will still attempt to bring these other atrocities to light seems doubtful.

Now the obvious response to my argument would be that I am still supporting Saddam’s execution, I am just saying that it should have been delayed. Actually, I believe that Saddam should not have been executed and should have been allowed to die a natural death. This is so Saddam could always be accountable for and able to be questioned about the crimes of his regime. It would also serve to motivate the Iraqi Tribunal to continue to investigate the different types of genocide that occurred in Iraq. The dangers of keeping Saddam alive, such as those Professor Scharf pointed out concerning the paradox of inversion and the return of Saddam (in the manner of Napoleon), should have been outweighed by the legitimacy the IHT would have achieved had it chose to make Saddam legally accountable for all his crimes.

Posted by Michael Pontone (email) on 02/03/2008 @ 05:52 PM

Proponents against the use of the death penalty in the Saddam trials focus, in part, on the use of the death penalty in previous international tribunals. Article 77 of the International Criminal Court specifically excludes capital punishment in response to crimes against humanity. Likewise, both the statute for the International Criminal Tribunal for the former Yugoslavia (ICTY) and the statute for the International Criminal Tribunal for Rwanda (ICTR) contained provisions preventing judges from imposing the death penalty regardless of the gravity of the crime.

But historical precedent cannot be enough to justify a ban against use of the death penalty in the Saddam trials. A decision to disallow the tribunal from applying the death penalty would signal the imposition of western ideals on the Iraqi people. Accordingly, since neither international law nor the statute of the Iraqi High Tribunal prohibit the use of capital punishment, the decision to permit the death penalty should clearly be left to the IHT.

Furthermore, disallowing the use of the death penalty in the trials would inevitably lead to significant problems, particularly the “paradox of inversion” whereby high-level officials tried before the IHT would not be subject to the death penalty and lower level officials tried before domestic courts would be subject to the death penalty. The experience in Rwanda should indicate the obvious need to revisit the debate without exclusive reliance on moral sentiments against the death penalty or deference to major western powers. If Iraq bans the death penalty domestically (perhaps after the problematic execution of Saddam), then it might be appropriate to allow the ban on the death penalty for the trials. Until then, it would be illogical to allow defendants to be executed from domestic trials but not from the more internationally flavored IHT trials that will inevitably decide the most egregious cases of crimes against humanity.

Posted by erin (email) on 04/02/2007 @ 11:54 AM

Even though Saddam has already been executed, seemingly making this issue not as relevant, it is still important to solidify the sound logic behind imposing the death penalty, as it will be one more step in bringing closure to this quagmire.
It seems that there are two main issues that keep resurfacing in the debate: whether international human rights obligations should have forbid the death penalty, be it Iraq’s obligations or coalition forces’; and whether there will be justice for the historical record.
In regards to the first issue, it has already been well established that Iraq was within its legal means to impose the death penalty on Saddam, for the reason that the ICCPR allows the penalty for the most serious crimes. But I feel that even more emphasis must be placed on Iraq’s sovereignty, and more deference given to their long-standing legal system. Many on this site have argued that the IHT is just a puppet and made a mockery out of the legal system, but what would be said if the British and the coalition forces refused to turn over Saddam without assurances that there would be no death penalty? Surely, that kind of deal would have shown a clear sign of disrespect to the sovereignty and autonomy of the Iraqi government, and equally, would have raised just as many criticisms, if not more, about a puppet court.
Concerns for an accurate historical record of all the crimes that Saddam had committed are also understandable, but I feel pale in comparison to the other concerns of the Iraqi people already expressed by Mr. Scharf. Although he incorrectly argued that there would be a stay of execution so that there would be an historic record of the abuses of Saddam’s regime, I feel that the historic record has already been well enough established to create justice, and that the only historic record of value is objectivity, perspective and time, which is something that is best served by years of study by academics in the decades to come, and not by a court that is enthralled in politics and turmoil. Even though Saddam was tried only for atrocities related to Dujail, I believe that victims of other atrocities, even without Saddam’s conviction thereof, feel vindicated.

Posted by mde (email) on 04/01/2007 @ 05:06 PM

In commenting on whether the IHT Statute should include the ability to sentence defendants to capital punishment, Mr. William Schabas failed to present reasoning for his position that the death penalty is inappropriate. He began by insisting that Iraq is a sovereign country and should choose its own criminal penalties based on international human rights norms, yet international norms, including the ICCPR, permit capital punishment for “the most serious crimes.” Surely no reasonable person could label the crimes Saddam Hussein was charged with as anything other than “the most serious crimes.” Since Iraq created the first criminal code 2700 years ago, which included capital punishment, and because it is consistent with current international human rights norms, as a sovereign state, Iraq has the right to utilize the death penalty as part of the IHT Statute.

Furthermore, Schabas seems to have correctly interpreted Article 77 of the fourth Geneva Convention, yet ignored the meaning of that interpretation. Although Britain abolished capital punishment, as the occupying power in Iraq, it is required to turn over all detained persons at the end of occupation. As a party to the Geneva Convention, the UK could not exert its will on sovereign Iraq and require abolition of capital punishment before transferring Saddam. The weight of Iraq’s history, the Geneva Convention, the ICCPR and customary international humanitarian law, which permits the death penalty, all establish the right for the IHT Statute to permit capital punishment in justifiable cases.

Posted by jsgstudent on 04/01/2007 @ 03:16 PM

Ishtar is quite right about the feast of sacrifice.I spoke with a prominent muslim leader yesterday about that aspect.
Saddam should have been dealt with by the international community in the international courts...Our way.
Bush will want to send in more troops after hes got rid of saddam on saturday.Tough guy,heavy handed approach.
He will do his got rid of the bad guy John Wayne thing on TV.....but a lot more men and women will be sent to Iraq to die in a place they do not belong.
You have created a good website .God wanted thats the way we do things....Creative and not destructive.
Its easy to love your friends Mr Scharf,but the real tough guys love thier enemies.
You should have been a bit tougher training those Iraq judges..taught them about being tough.Hope you do that next time.Pity this opportunity was missed.
john
the truth will win

Posted by john (email) on 12/29/2006 @ 05:33 PM

Mr Sharf ..So what about Milosevic..
...........He would not have been executed.
You evade the real point.
So what about fair trial or not fair trial.
The point is Mr Scharf,would you put the rope around Saddams neck and pull the leaver of execution?Could you murder him yourself?

You said " Iraq has had the death penalty for 2700 years" and so what.

To think, that this kind of thing is going on at christmas time.Jesus taught forgiveness..Revenge is for the barbarians such as yourself Mr Scharf.

Yes Mr sharf ,Iraq has had the death penalty for 2700 years and thanks to people like you the execution show will go on.They will be executing each other left right and centre forever now.

Showing forgiveness for Saddam would have set a good example to the people of Iraq to forgive each other....But, all hell will break loose in Iraq and there will be a lot of executions going on.

Saddam was removed from power by international force and should have been put on trial by the appropiate international court as Milosevic.







Posted by john (email) on 12/29/2006 @ 04:42 PM

As creator of this Website, I am very happy that it has engendered such divergent viewpoints. And we "Grotians" do read every posting in response to our essays and the breaking news stories. I usually don't weigh in to defend myself, even when bloggers take unwarranted personal shots at me, but in response to Ishtar's posting, I do want to reaffirm that I've never been paid anything by the US Government (Pentagon or any other branch) for my assistance to the Tribunal. Indeed, I recently returned from Cambodia, where I was asked to provide similar (pro bono) training and assistance to the new UN established Khmar Rouge Genocide Tribunal (the ECCC). As an academic and war crimes expert, this is what I do. My students and I at Case provide legal research memos to the Rwanda Tribunal, Special Court for Sierra Leone, International Criminal Court, in addition to the IHT and Cambodia Tribunal.

As I've written in my book, "Saddam on Trial," I too had misgivings about many aspects of the Iraqi High Tribunal process, but I decided it would be better to get involved and help make the process as fair as possible than to stay on the sidelines hurling insults through Op Eds and law review articles. And at times I have been as critical of the Tribunal's decisions as anywone on this website. This is one of those times...

As for the timing of Saddam's execution, I was interested to learn from Ishtar's posting about the Moslem holiday known as "Eid al -adha" or "Feast of Sacrifice." The timing is indeed troubling. All I can say is that we should put this in perspective. This is not the first war crimes tribunal to manifest poor political timing. You may recall that Slobodan Milosevic was surrendered to the International Criminal Tribunal for the Former Yugoslavia on July 28, 2001, the anniversary of "St. Vitus Day," the day in 1389 when the Ottoman Turks defeated Serbian forces at the battle of Kovosov Polje. The Tribunal and Serb government should have known that surrendering Milosevic on this most important of Serb historic holidays would fuel the perception that Milosevic was a martyr, rather than a war criminal. International justice does seem too often to march to its own (often poor) timing, whether that means releasing the Dujail Trial verdict two days before the American Congressional election or executing Saddam on an Islamic holy day "of sacrifice."

Posted by Michael Scharf on 12/29/2006 @ 03:53 PM

Istar, that is very interesting. I thought the timing was because George Bush said to execute President Hussein by the end of the year. They are running out of days.

I doubt that George Bush has ever heard of the Eid festivals. When I met the Grotians a few months ago, I saw that none of them could speak a word of Arabic. Even the ones living in the Green Zone could not comprehend "Enti tarfi arabi?" They would not be thinking about Eid al ahda.

Probably none of them have realized the significance of executing Saddam Hussein during Eid al ahda, but if their deadline is the end of the year, this is when it will be. How strange.

Posted by Paul Wolf (email) on 12/29/2006 @ 10:29 AM

Mr. Scharf is what they call a Pentagon contractor. So his motives are personal and political. He, with other contractors, has arranged the whole show trial, so it is reasonable and predictable that he should defend the illegal trial. Just remember that the Appeal court took only 3 days to review the 1500 papers of the case, to delibrate and decide. It is outragous, but Mr. Scharf must defend the trial which he helped to create in anticipation for future demand by the Pentagon for his expertise.

The haste of the apeal court is driven by the fact that the Moslem's Eid al -adha "Feast of Sacrifice" is on this Saturday, so they want to make Saddam Hussein the sacrifice. The holy custom in this Feast is that moslems should slaughter a sheep for God, symbolic of the sacrifice of Ismael son of Abraham.

Ofcourse because the thugs of the puppet government are always dumb and foolish, they are forgetting these facts:

1- Ismael was son of a prophet.
2- the symbol of that story is: giving oneself as a sacrifice for the salvation of the whole humanity, like the symbol of Jesus.
3- the symbolic story is religous.

As a consequence, the sacrificing of Saddam Hussein is seen by his people and the whole arab and moslem world as such. He is now not only a martyr but on the level of prophets. He will be the inspiration of generations to come. Already,yesterday a Sudanese woman in Khartoum gave birth to a boy which was named Saddam.

You may find that my reasoning is different from yours of western world, but this is the way we think and live, we , people of the east. This is why they say East and West never meet. But to understand us you should know that we mix the divine with the earthly. We believe now that if Saddam Hussein is dead in the body, his soul will live on in each of us, his people.

Posted by ishtar (email) on 12/29/2006 @ 08:30 AM

Maybe the death penalty would be more palatable if the trial that preceded it had not been so questionable. There were more judges and lawyers that one can easily recall. I don’t know if Saddam is most worthy of due process, but I think that Iraq deserved better than this.

Posted by Jacob Uriel on 12/29/2006 @ 01:23 AM

This is a straightforward situation,Saddam should not be executed in accordance with the democratic standard in the UK.I WOULD LIKE TO REMIND Mr Scharf ,that the UK goverment does not hang, shoot or electricute criminals to death...no matter how bad the crime or crimes.
Members of the British armed forces do not risk thier lives to establish any governments anywhere that use capital punishment.They risk thier lives to ensure that a proper democratic civilised democracy with proper respect for human rights and life arises....
This revengeful barbaric practice does take place in some of the states in the US.I expect Mr Scharf orginates from one of those.
To kill people is wrong.Saddam did a lot of that.But when a so called democratic goverment does the same thing in the cold light of day..thats even worse.
By supporting the death penalty you are a murderer just the same as Saddam.
Would you put the rope around saddams neck Mr Scharf....PULL THE HANDLE.
IF so then you are just another murderer like saddam.



Posted by john (email) on 12/28/2006 @ 02:12 PM

He should rot in jail....killing him is doing him a favor- he should suffer for what he did.

Posted by jessica (email) on 11/21/2006 @ 06:23 PM

It may be useful to look at the simple mechanics of the Iraqi criminal law after the CPA, under the principle of "lex mitior", to decide whether the IST has the death penalty at all. I do not think it does, because CPA Order no. 7 of 9 June 2003 has in effect abolished, not just suspended it, for all practical purposes. The IST's temporal jurisdiction ends in 2003. Any revival of the death penalty, as it were, after CPA order no. 7 would mean an increase in severity of punishment and would be precluded under Iraqi law, to which the IST statute refers, even in its present revised form.

For my arguments in detail I refer to my short paper

Can the Iraqi Special Tribunal Sentence Saddam Hussein to Death?
Journal of International Criminal Justice 3 (2005),463 -468

Once you use the law to deal with human monsters, there may be unpleasant surprises because the law does not recognise the monster as a separate category of accused over which the prosecution, the courts and the politicians can run roughshod as they please.

Posted by Professor Michael Bohlander (email) on 10/31/2005 @ 10:49 AM

Should Saddam Hussein be exposed to the death penalty?
Response to Michael Scharf

Michael Scharf argues that Saddam should get death penalty, bringing four arguments:

1. In Iraqi legal tradition (Code of Hammurabi, 2700 years ago) the death penalty is part of the Iraqi culture. If we look back into the history, every country will find the death penalty in its traditions. The question is shall we look back into the history, or shall we look forward into the 21st century? If the former, catholic countries may well decide to re-establish the Inquisition…

2. “Paradox of inversion” and comparison with ICTR. There are two ways of resolving the ‘paradox of inversion’: either domestic trials abolish death penalty or international tribunals re-establish death penalty. I don’t think Scharf would like the latter. On the opposite, one of the results from this paradox is that the domestic courts in Rwanda are recently less enthusiastic to impose death penalty.

3. Saddam may return to power as Napoleon did. This is a too old historical comparison to be seriously believed. Some people can hypothesize everything, but scholars should limit the use of such ‘argumentations’. Saddam already returned to power after being in prison in 1968. The comparison is speculative – Saddam was not a mass murderer in the 1960s. In line with such ‘advocacy’ one can demand that Mandela should have been executed, not left in prison.

4. International law does not outlaw death penalty. It depends which part of the international law we look at. The European Convention for Human Rights is also part of the international law and it rejects the death penalty. Accordingly, Britain, as a party to the Convention and occupying power in Iraq, should have obtained assurance against death penalty, when the coalition handed over Saddam. There are many different grounds for opposing the death penalty one of the most cogent is on the basis that it debases the executioners and the society that supports it.

Scharf continues that he is ‘personally not a proponent of the death penalty, especially in the US’. But his writing suggests that, he is a very strong proponent of the death penalty in Iraq and maybe elsewhere, apart from the US. Is not this kind of selective justice?

In the last paragraph, Scharf suddenly expresses ‘sympathy’ and suggests that Saddam should not be executed immediately after the first trial, the IST should ‘issue a stay of execution to enable Saddam to be tried for other incidents, so that a historic record can be developed’. This is a brilliant innovation of torture - to leave someone on a death row for many years ahead and prosecute him for further, even more serious charges. How one can imagine a sentenced person on a death row to be motivated and able to defend himself effectively in future trials?

----------------------------
Vesselin Popovski

Posted by Vesselin Popovski (email) on 10/20/2005 @ 02:06 AM

Yes.
I agree with the arguments put forth by Professors Scharf and Newton. There is no question that, if convicted, Saddam Hussein's actions rise to the level of "the most serious crimes." Justice could not be served by a life sentence in this case.
Iraqi citizens should have a right to govern themselves, subject to international norms. I find it ironic that anyone would question the right of a people to administer justice - consistent with international law - against one man who violently terrorized those people in violation of international law.

Posted by K Mitchell (email) on 09/26/2005 @ 06:26 PM

"Peace, order and good government" would probably be better served if the death penalty is imposed rather than incarceration, if he is convicted. The advice of Machiavelli in a very different context seems oddly more apposite than a policy based on Western humanitarianism or the political pressures of European alliance.

Niccolo Machiavelli
He who establishes a tyranny and does not kill Brutus, and he who establishes a democratic regime and does not kill the sons of Brutus, will not last long.
The Prince



Niccolo Machiavelli
If an injury has to be done to a man it should be so severe that his vengeance need not be feared.
The Prince


quotations from
http://www.philosophers.co.uk/quotations/

Posted by S Salter (email) on 09/23/2005 @ 07:31 PM


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