Do IHT Death Sentences Have to Be Ratified — And If So, by Whom?

The death penalty, I think it’s safe to say, has been a disaster in Iraq. The Iraqi government’s early and unwavering insistence on permitting the Iraqi High Tribunal to impose the death penalty effectively ended international involvement with the Tribunal. Then the IHT executed Saddam before his conviction became final — and turned him into a martyr in the process. And now the U.S. government is refusing to transfer Chemical Ali and two of his co-defendants to the Iraqis for execution, because the Iraqi government can’t agree on what Iraqi law requires concerning the ratification of death sentences:

Saddam’s cousin Ali Hassan al-Majeed, former Defence Minister Sultan Hashem and former army commander Hussein Rashid Muhammad are being held in U.S. military custody while officials argue over who has the authority to transfer them for execution.

They were convicted of genocide for their roles in a campaign against Iraq’s Kurds in 1988, but the U.S. military has said it will not hand them over until it receives what it calls an “authoritative government of Iraq request.”

What constitutes such a request is at the centre of a row between Prime Minister Nuri al-Maliki’s Shi’ite-led government and President Jalal Talabani, a Kurd, and Sunni Arab Vice President Tareq al-Hashemi.

Government spokesman Ali al-Dabbagh told Reuters on Friday Maliki had sent a letter to Bush last week in which he “demanded the three convicts be handed over.”

“The U.S. forces do not have the right to interfere in a (judicial) case and decide whether it was legal or not,” Dabbagh said. “Only Iraqi authorities have the right to do so.”

The U.S. embassy in Baghdad had no comment on the letter.

Maliki has said the U.S. embassy in Baghdad has played an “unfortunate role” in preventing the handover of the three.

Talabani and Hashemi say Iraq’s constitution stipulates that the three-man presidency council — made up of the president and two vice presidents — should sign the order.

Maliki’s government says the council has no such right.

His letter to Bush indicates his government’s impatience to carry out the sentence, which was upheld by an Iraqi court in September. Under Iraq’s constitution, the death sentence should have been carried out within 30 days.

Hashemi has threatened to resign if the government goes ahead with the executions without a presidential decree. He said he narrowly stopped the government from executing them in September.

Neither position is technically correct, although the law, which is admittedly far from unambiguous, seems to indicate that Talabani alone has the authority to ratify — and thus, by implication, refuse to ratify — death sentences.

Maliki is almost certainly relying on Article 27 of the IHT Statute, which provides that “[n]o authority, including the President of the Republic, may grant a pardon or mitigate the punishment issued by the Court.” The problem with his position is that Article 70(H) of the Iraqi Constitution says that “[t]he President of the Republic shall… [r]atify death sentences issued by the competent courts.” Constitutional provisions normally trump legislative ones, even though there is no specific provision in the Iraqi Constitution to that effect. (Article 2(c) of the Constitution does provide that “[n]o law that contradicts the rights and basic freedoms stipulated in this constitution may be established,” but the President’s authority to ratify a death sentence is neither a right nor a basic freedom.) The better interpretation of Iraqi law thus seems to be that, notwithstanding Article 27 of the IHT Statute, the President of Iraq does, in fact, have the authority to ratify death sentences.

Notice, though, that Article 70(H) refers to the President of Iraq, not to the Presidency Council — seemingly contradicting Talabani and Hashemi’s insistence that the Council has to approve a death sentence. Here is where things get interesting. Consider the text of Article 134 of the Iraqi Constitution:

The expression “the Presidency Council” shall replace the expression “the President of the Republic” wherever it is mentioned in this Constitution. The provisions related to the President of the Republic shall be reactivated one successive term after this Constitution comes into force.

According to Article 134, the Presidency Council assumes all of the powers of the President for “one successive term” after the entry into force of the Iraqi Constitution. The question, then, is whether that term has already elapsed. That determination must be made with reference to Article 139:

This Constitution shall come into force after the approval of the people thereon in a general referendum, its publication in the Official Gazette, and the seating of the government that is formed pursuant to this Constitution.

The Iraqi government was sworn in on May 21, 2006 — a little more than 18 months ago. So has “one successive term” elapsed?

It would seem that it has. Article 55 provides that “[t]he Council of Representatives shall have one annual term with two legislative sessions lasting eight months,” implying that a “term” for purposes of Article 134 lasts one year. The “provisions related to the President of the Republic” should have been reactivated, therefore, no later than May 21, 2007 — which means that the Iraqi President, Talabani, is now solely responsible for ratifying death sentences.

ADDENDUM: It is worth noting that if Talabani and Hashemi prevail in their power struggle with Maliki, there is no way that Talabani will ratify Sultan Hashim Ahmad al-Tai’s death sentence, because he believes that Hashim — Saddam’s former Defense Minister — secretly assisted Kurdish efforts to overthrow Saddam:

“Personally, I will not support executing Sultan Hashim,” he said at a news conference in Sulaimaniyah, a city in the autonomous Kurdish region 160 miles northeast of Baghdad.

“If the court will carry out its verdicts without referring them to the presidency council that is something else,” he said. “But if they will refer them, then we will register reservations these verdicts.”

He said the reservations would include executing former Iraqi army officers because many of them had been forced to implement orders by death threats, although he stressed that did not justify their crimes against the Iraqi people.

“But a character like Sultan Hashim, with whom we had contacts during Saddam Hussein’s era, is something else. We were urging him to work against the government, so how can I now vote for his execution. I will never ever do that,” Talabani said.

Interestingly, Talabani’s support for Hashim is shared by the CIA — which likely explains why the US is proving unusually reluctant to hand over the three condemned men to the Iraqis:

For more than a year, Rick Francona, then an Air Force lieutenant colonel, was part of a secret CIA task force working to overthrow Saddam Hussein, the Clinton administration’s failed attempt at regime change in Iraq.

Now an NBC News analyst, Francona is talking for the first time about his role in recruiting generals for that mission seven years before the US invasion, and laying out why he thinks the US should try to stop the hanging of former Iraqi Defense Minister Sultan Hashim Ahmed, one of the generals recruited in that effort.

[snip]

“I moved in and out of northern Iraq, as well as the countries bordering Iraq,” says Francona. “We were involved in what was known inside the Agency as “DBACHILLES” – the overthrow of Saddam Hussein.

“We at CIA had tried to contact and co-opt as many Iraqi military officers as we could, hoping to convince them that they should not fight when and if an invasion or coup attempt occurred. That program had some successes.”

Francona says that he does not know what help Hashim provided, but notes that there is ample evidence he offered to help and that he was told that Hashim even volunteered to have communications gear hidden at his estate north of Baghdad in preparation for a coup attempt. Moreover, Jalal Talabani, the man who brought Hashim to the CIA’s attention, and now President of Iraq, has said publicly that the defense minister “cooperated” in the effort, Francona notes

[snip]

Talabani explained that he was working with Hashim on the overthrow of Saddam. Francona understood instantly the importance of . He had been the Deputy Director of Operations of the Iraqi armed forces in March 1991, the man who had surrendered to Schwartzkopf at Safwan in southern Iraq.

“Talabani told us, the Central Intelligence Agency, that he had been in contact with Sultan Hashim Ahmed, and that Sultan Hashim was willing to cooperate with us in removing Saddam Hussein from power,” says Francona.

Fascinating stuff…

UPDATE: I have adjusted the numbering of the articles in the Iraqi Constitution to bring them in line with the translation drafted by the UN Office for Constitutional Support and approved by the Iraqi government. That translation is available here.