Why Saddam’s Execution Was Unlawful

Two days before Saddam was executed, Iraq‘s deputy justice minister, Bosho Ibrahim, told the Associated Press that executing Saddam within 30 days of the Cassation Panel’s decision to uphold his death sentence would violate Iraqi law. “The law does not say within 30 days,” he said, “it says after the lapse of 30 days.” The Cassation Panel rejected Ibrahim’s claim, insisting “that the law stipulated the sentence be implemented within 30 days.”

Ibrahim, however, was absolutely right.

The key is Article 27(Second) of the IHT Statute, which provides that “The punishment must be executed within 30 days of the date when the judgment becomes final and non-appealable.” The Cassation Panel obviously assumed that Saddam’s death sentence became “final and non-appealable” when it issued its decision upholding the sentence.

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.