Saddam’s Appeal Begins

by Kevin Jon Heller

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.

4 Responses

  1. On the letter of the Convention: the question of whether a state party to the Convention is bound by it in respect of its acts of extraterritorial jurisdiction is surely among the thornier issues, but I will hazard a few observations nonetheless:

    Under Article 1 of the Convention, its guarantees apply to ‘everyone within [the high contracting parties’] jurisdiction’. This means primarily the territory of any state party, but also extraterritorial jurisdiction, where a state party in fact exercises ‘effective control’ (note: not the Nicaragua test, see Tadic, at para. 128) over some other territory Loizidou v Turkey, at paras. 59-64), or even only over persons outside their own territory (Ocalan v Turkey, at para. 91). Such control must come close to the kind of control a state exercises within its territory; it must therefore affect everyone subject in a number of respects, and it is not enough if a state only has some control over some limited rights and positions of a person (see Bankovic and Others v Belgium &Ors, at para. 75).

    (All this was, incidentally, accepted by the English Court of Appeal in holding recently that the ECHR and the Human Rights Act 1998 applied to certain British prisons in Iraq on the grounds of effective control, but, on the same grounds, not to the region accupied by British forces as a whole: see R (Al-Skeini) v Secretary of State for Defence (The Redress Trust intervening) [2005] EWCA Civ 1609, [2006] 3 WLR 508.)

    Therefore, the fact that the UK (and other European states in the Coalition) held and hold some influence over the Iraqi government is not enough to impute responsibility for their acts – or, for that matter, acts of the US as another member of that Coalition.

    Indeed, this has been put beyond much doubt in a recent decision of the European Court, Hussein v Albania &Ors (yes, that Hussein; the complaint related to his arrest and detention).

    In fact, this may not so much be an issue of ‘jurisdiction’ within the (somewhat special) meaning of Art. 1 ECHR, but simply one of attribution, as I have argued in post at my blog. However this fits into Art. 1, or the more general regime of responsibility under the ECHR (if any), it seems clear that the UK is not to blame for what others are doing.

    Clearly, it cannot itself expose anyone to the risk of serious mistreatment at the hands of another state, or of anyone else (Soering v UK), but I fail to see how it could be said to have done anything like this.

    Whether the coalition has done anything of the kind mighty be a slightly more interesting question, but the UK would still not be responsible for this. As the Court noted in Hussein (supra), the Coalition works on the basis of a ‘separation of labour/power’, not on the basis of joint responsibility. Even if might be argued that states parties to the ECHR can be responsible for the acts of international organisations formed by them and non-parties (for the case of organisations formed only by states parties, see Matthews v UK, at paras. 29-35), this is not such a case, simply because the acts in question were not acts of the organisation as such.

    I would therefore think that even if the UK government ever conceived itself as bound by the ECHR in respect of Saddam Hussein, or the question of the death penalty in Iraq more generally, it was in error.

    The English decision in Al-Skeini (supra) and the Hussein case (also supra) may well have changed this.

  2. Tobias,

    I don’t think that the question of state jurisdiction in Article 1 of the ECHR is directly related to a test of attribution, e.g. the Nicaragua effective control test or the Tadic overall control test.

    It is an entirely different animal, a threshold criterion akin to ‘armed conflict’ in IHL treaties, which determines whether a legal obligation exists at all, not whether a violation of this obligation is attributable to a state. In terms of the ILC Articles on State Responsibility, whether someone is within a state’s jurisdiction is an Article 2(b) issue, not an Article 2(a) issue. If you look, for example, at ECHR cases from Loizidou to Ilascu, you will see that they nowhere discuss or mention Nicaragua or Tadic when they talk about ‘effective overall control.’ See more here , at p. 586 et seq.

    What state jurisdiction over a person entails is not the attribution to the state of all violations against that person, but its positive obligation to secure that person’s human rights from the interference of others. So, if the UK did now have jurisdiction over Saddam, it would not be responsible for executing him, but for failing to prevent his execution. Nitpicking, I know, but I do think it’s important.

    Anyway, as the Hussein decision you point out makes clear, the UK and other European states do not have jurisdiction over Saddam, as he is in US custody, and consequently owe him no human rights obligations. So, I would agree with Kevin, what is really violated here is the spirit of the Convention, and what is galling is the hypocrisy of the UK government, which seems to be rather content with being pro-death penalty outside Europe.

  3. Marko,

    agreed. Of course, having effective control over a person does not impute violations of that person’s rights to the state exercising such control. That would be quite absurd, in that it would completely fail to allow for the possibility that a person is, even within the relevant state’s own terrirory and hence very much within its control in the Loizidou-sense, the victim of an attack by private actors for whose actions the state is not (directly) responsible.

    But Loizidou used the term ‘effective control’ in two different senses. Overall, the question was whether Turkey exercised ‘effective control’ over Northern Cyprus. This it did through the ‘TRNC’, and the Court said that it would not be necessary that ‘Turkey actually exercises detailed control over the policies and actions of the authorities of the “TRNC”.’ (This submission sounds a lot like Nicaragua, does it not?) It was sufficient that there was ‘effective overall control’ (para. 56).

    It was this passage that Tadic (at para. 128) referred to as supporting its approach to attribution, rather than Nicaragua which the ICTY did not believe was correctly decided. There is, I would suggest, something to be said for this interpretation of the passage in Loizidou.

    But you are right, and I was not, in that the second sense in which Loizidou employed the term ‘effective control’ (arguably, the Nicaragua/Tadic sense), does not have a place in a general description of Art. 1 ECHR. It refers not to the way in which a state can exercise ‘jurisdiction’ in the sense of that provision abroad (answer: by exercising effective control over persons), but to the question when a state will be held to do so where such control (in the Loizidou / Bankovic sense) is exercised by an entity distinct from that state, but over which the state has a certain measure of control (in the Loizidou / Nicaragua / Tadic sense) (answer: if it exercises sufficient control over the entity factually in power there).

    I stand corrected, although I would maintain my error wasn’t as terrible as it may have appeared.

    (Incidentally, I haven’t read your EJIL paper yet – I don’t have access to it online – but I do look forward to it)

  4. Of course, later cases such as Bankovic or Öcalan never raised again what I have described as the second Loizidou concept of effective control, the Tadic / Nicaragua one. They were all concerned with sets of facts in which the ‘effective control’ (in the Art. 1 or Bankovic sense) was, if at all, definitely exercised by state organs (of course, Bankovic was a bit more difficult in that the relevant organ had belonged to one of a number of states, but not to all of them; but this issue was, of course, never decided). There was no question of attribution in which the second concept of effective control would have had any role to play.

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