Saddam’s Appeal Begins
The AP has a story today on Saddam’s pending appeal that implies very strongly that Saddam will be executed before the Anfal trial is completed:
If the nine-judge appeals panel upholds the death sentences, they could be ready for signing early next year, according to a schedule laid out Monday by chief prosecutor Jaafar Moussawi.
Moussawi said the Iraqi High Tribunal must send the entire case file to the appeals panel within 10 days, or by Nov. 15.
On the same day that the defense appeal is given to the High Tribunal – the deadline is Dec. 5 – that court is required to send it to the prosecutor general for study and preparation of counter-arguments.
The prosecutor has no time limit to answer the appeal, but Moussawi told AP he would submit his brief within days of receiving the defense appeal.
While the appellate court also has no deadline for its ruling, Moussawi said it would act quickly because it had no other cases under consideration.
“The appeals panel will take less than a month to make its decision,” Moussawi said.
The story also notes that the Presidential Council has indicated that it will sign a death warrant for Saddam if his sentence is upheld by the Cassation Panel — as it almost certainly will be:
If the appeals court upholds the sentences, all three members of the Presidential Council – President Jalal Talabani and Vice Presidents Tariq al-Hashimi and Adil Abdul-Mahdi – must sign death warrants before executions can be carried out.
Talabani said Monday that although he had once signed an international petition against the death penalty, his signature was not needed to carry out Saddam’s death sentence. Talabani, a Kurd, has permanently authorized Abdul-Mahdi, a Shiite, to sign on his behalf. Abdul-Mahdi has said he would sign Saddam’s death warrant, meaning two of three signatures were assured.
Al-Hashimi, the other vice president and a Sunni, gave his word that he also would sign a Saddam death sentence as part of the deal under which he got the job April 22, according to witnesses at the meeting, which was attended by U.S. Ambassador Zalmay Khalilzad.
“We wanted a written promise before the first meeting of the new parliament. But later and during a meeting in the presence of American and British ambassadors and other politicians, the promise became oral in which he vowed not to oppose important rules and laws – especially those related to Saddam,” Deputy Parliament Speaker Khaled al-Attiyah told the AP.
Two things are worth noting here. To begin with, Talabani’s willingness to sign the death warrants has no practical importance. It is true that Paragraph 286 of the Iraqi Code of Criminal Procedure implies that his signature is required:
If the Court of Cassation confirms the death sentence as issued, it will send the case file to the Minister of Justice, who is responsible for passing it on to the President of the Republic to seek the necessary decree for carrying out the sentence.
The President of the Republic issues the decree for carrying out the sentence, or for commuting it, or for pardoning the condemned person. If he issues the decree for implementation, the Minister of Justice issues an order to that effect, including the decree of the Republic, in accordance with legal provisions.
Article 27(Second) of the IHT Statute, however, specifically prohibits the President of Iraq from commuting or pardoning a person who is sentenced to death:
No authority, including the President of the Republic, may grant a pardon or mitigate the punishment issued by the Court. The punishment must be executed within 30 days of the date when the judgment becomes final and non-appealable.
Article 27, in short, only permits the President to approve a death sentence. He has no other options. Talabani’s well-publicized “opposition” to the death penalty is thus beside the point.
I also think it is interesting that the British ambassador to Iraq was present when Talabani promised not to interfere with Saddam’s execution. As Bill Schabas noted when Saddam was first handed over to the Iraqis, the European Convention of Human Rights obligates Britain to do what it can to prevent him from being executed:
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.
I don’t know whether the British ambassador’s apparent encouragement of Saddam’s execution actually violates the ECHR. But it’s clear that Britain is violating the spirit of the Convention, if not its actual letter.