03 Jan Why Saddam’s Execution Was Unlawful
Two days before Saddam was executed,
Ibrahim, however, was absolutely right.
That assumption is incorrect. According to Paragraph 266 of the Iraqi Code of Criminal Procedure, “the convicted person… may request the correction of a legal error in the decision issued by the Court of Cassation, provided the request is submitted within 30 days, counted from the date a convicted, imprisoned or detained person is notified of the Court of Cassation decision.” The Court of Cassation (what the IHT calls the Cassation Panel) must then accept or reject that request. At that point – and only at that point – does its previous decision become final and non-appealable, triggering the 30-day execution window established by Article 27(Second).
Paragraph 266 – to which Ibrahim was clearly referring in his comments to the Associated Press – was binding on the Cassation Panel in Saddam’s trial. Rule 66(First) of the IHT Rules of Procedure and Evidence explicitly provides that “the judgment shall be implemented in accordance with these rules and the provisions of Iraqi Criminal Procedure law No.23 of 1971.”
Because the Cassation Panel upheld Saddam’s death sentence on December 26, Saddam had the legal right until January 25 to ask the Panel to correct legal errors in its decision. At the time of his execution, therefore, his death sentence was neither final nor non-appealable – making the execution a blatant violation of Iraqi criminal procedure.
To many, such arcane legal considerations may seem trivial. There was, of course, little if any chance that the Cassation Panel would grant a request for correction. Regardless, the Panel’s failure to understand its own law – or, more likely, its decision to intentionally disregard it – should trouble anyone who is concerned with the future of the Iraqi judiciary, which is struggling to emerge from its long slumber under Saddam’s regime. The IHT has already buried Saddam. We can only hope that it does not bury the rule of law along with him.
It seems to me the Iraqi judiciary has the final word on the meaning of Iraqi law, not Prof. Heller. This post reminds me of a conservative saying that the US Supreme Court acts “unlawfully” when it issues a ruling with little textual justification. I guess you now know how textualists feel.
You should accept that the Iraqi judiciary has endorsed a free-wheeling, evolving, living, breathing approach to interpretation and stop trying to intimidate the independent judiciary!
I somewhat agree with Nom’s assertion. It would be more accurate to say that the panel’s decision is poorly decided, from a flawed reading of the law.
People don’t really talk about abortion being “unlawful” because Roe vs. Wade was such a mess, do they?
I don’t want to seem like I reject the concept of legal indeterminacy — I don’t — but there is a fundamental difference between interpreting an ambiguous and contested constitutional provision and applying a clear and uncontroversial rule of criminal procedure. Paragraph 266 is not difficult to understand: once the Cassation Panel issues its decision, any party has 30 days to ask for a correction of legal errors. How is the IHT’s decision to ignore that rule not, as I wrote originally, “a blatant violation of Iraqi criminal procedure?” A question for Nom and Matthew, whose comments I appreciate: if the Texas Supreme Court authorized executing someone who was still within the statutory period for filing a motion for reconsideration, would you write the execution off on the ground that it’s the supreme court that has “the final word” on the meaning of Texas law, or say that the decision was “poorly decided”? I know I sound like a conservative judicial scholar here, but Paragraph 266 is not an internal rule of IHT procedure; it is part of the statutory appellate process enacted by the Iraqi Parliament more than 35 years ago. The IHT’s decision to ignore the plain language… Read more »
I’m no expert on Iraqi law. But one could read 266 as providing the equivalent of certiorari, rather than appeal. So, the conviction would have to be final and non-appealable before the defendant could submit a petition to correct an error.