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.

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