Can a Corpse Cross-Examine the Witnesses Against Him?

According to an unnamed U.S. official, the Iraqi High Tribunal may try Saddam Hussein posthumously if he is executed before a verdict is reached in the Anfal case, which is about to begin:

The Anfal trial is to begin on Monday, but a verdict in the other case is expected on October 16, when Iraqi judges will rule on whether the former strongman ordered the illegal execution of 148 Shiite villagers.

If found guilty, Saddam could face execution or life imprisonment, in which case he would have an automatic right to appeal.

“If the tribunal decides on the appeal during the Anfal trial and if it upholds the death penalty the sentence has to be carried out within 30 days of the decision on the appeal,” the US official said.

“Which means theoretically, that if Saddam is given the death penalty and if everything falls in place, he can be executed and the Anfal trial can carry on posthumously,” he added.

Iraqi President Jalal Talabani, himself a Kurd, said earlier this year that Saddam should be tried for all his crimes before any of the verdicts are implemented and any death penalty could prove controversial.

As I explain in a post on The Grotian Moment that should be up in the next couple of days, if the IHT follows Iraqi law, Saddam will almost certainly be executed before the end of the Anfal case. But that’s a big “if”: assuming that the IHT sentences Saddam to death — a safe assumption — there is no doubt that the Iraqi government will put tremendous pressure on the Tribunal to keep Saddam alive at all costs. Given how little respect the IHT has shown for the rule of law to date, there is every reason to believe that it would quickly cave to government pressure.

Interestingly, Jalal Talabani, the President of Iraq, is personally opposed to the death penalty. In 2005, he refused to sign the death warrants of the first three Iraqis sentenced to death under the new regime (although he did allow his deputy to sign them). Talabani has made contradictory statements, however, about whether he would authorize the execution of Saddam. Although he has insisted on two occasions that he would resign before doing so, he has said more recently that he would simply be absent when the three-person Presidency Council decided whether to authorize Saddam’s execution.

Talabani’s most recent comment, it is worth noting, is an inaccurate statement of Iraqi law. As I discuss in my Grotian Moment post, although Paragraph 286 of the Iraqi Code of Civil Procedure traditionally empowered the President of Iraq 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.” So if the Presidency Council did refused to sign a death warrant for Saddam, it would do so in direct violation of Iraqi law.

As for the possibility of trying Saddam posthumously… what can one say? Such a trial may satisfy the (understandable) desire of the Kurds to hear an Iraqi court label the Anfal campaign as genocide, but it would only destroy whatever shred of legitimacy the IHT has left. The Nuremberg Tribunal might have prosecuted Martin Boorman in absentia, but it was never foolish enough to try to prosecute Hitler!

UPDATE: My colleague Scott Optican asks a puzzling question: if Saddam was tried posthumously, convicted, and sentenced to death, would the IHT exhume his grave and posthumously execute him?