Defining Justice

By Dave Johns

The Death Penalty

Nugra Salman prison

The fact that tribunal defendants may get the death penalty has caused major concern for international human rights groups and governments that don’t support capital punishment. Per Iraqi law, it is likely that former regime leaders will be hanged if convicted of egregious crimes. For this reason, among others, the United Nations has refused to lend the tribunal moral, technical or financial support.

Is the death penalty legal under international law?

The death penalty is not outlawed under international law. The International Covenant on Civil and Political Rights allows states to impose the death penalty “for the most serious crimes in accordance with the law in force at the time of the commission of the crime.” In the Nuremburg Trials, 12 defendants were executed. Today, a majority of countries still impose the death penalty, and some that have abolished it can make exceptions for egregious violations of human rights. Iraq is a Muslim country, and the death penalty is allowed under sharia, or Islamic law. In October 2003, the CPA’s chief administrator, Paul Bremer, suspended the death penalty in Iraq, but it was reinstated –– under protests from the United Nations and the United Kingdom –– in August 2004. On May 26, 2005, three men alleged to belong to the insurgent group Ansar al–Sunna Army were sentenced to death for murder, rape and kidnapping.

Why is the death penalty in play for the tribunal?

Scharf says that during the training of the Iraqi tribunal judges, they insisted the court should have a death penalty. The judges pointed out that Iraq has always had a death penalty, dating back to the 2,700–year–old Code of Hammurabi, the world’s first criminal code. They felt they needed it as insurance that former Ba’ath leaders could never return to power. A lesson in history comes from 1815, when Napoleon escaped from exile in Elba and sparked the terrible Napoleonic Wars. In Iraq, there is widespread support for the death penalty. Leaders of the Shi’iah Muslim–led United Iraqi Alliance, with the notable exception of President Jalal Talabani, who is against the death penalty, have insisted Saddam must be executed for his crimes.

Are there concerns with how the death penalty may be applied in Iraq?

Iraqi law forbids the execution of anyone over 70 years old. Saddam is 68, and some critics worry that a desire to execute him before he reaches 70 could lead to a hasty trial. There’s also concern that if Saddam is convicted of war crimes in one of the first trials, he could hang before being tried for his other crimes. Tribunal law doesn’t allow the death sentence of any Iraqi official, including the president, to be commuted and says the execution of the defendant must happen within 30 days of a final judgment. Such haste to execute, critics say, would deny the Iraqi people of a thorough accounting of the crimes committed under the dictator’s rule. Several Iraqi politicians, including Vice President Adel Abdul Mahdi and Defense Minister Hazem Shaalan, have publicly called for Saddam’s execution as soon as possible. During their training, Scharf says, the judges generally agreed that enforcing the death penalty at the end of the first case would “undercut one of the main purposes of the [tribunal], which is to create a historic record of the worst atrocities of the Saddam Hussein regime.” Scharf is confident that the tribunal judges will stay execution until the defendants have stood trial in the major cases against them.

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