An illegal hanging

Besides being barbaric, the execution of Saddam Hussein may well be illegal

The Iraqi High Tribunal's rejection of Saddam Hussein's appeal was the kind of judicial exercise that gives rubber stamps a bad name. After the trial chamber handed down its 298-page judgment on 23 November, defence lawyers had less than two weeks to file their challenge - which was then dismissed without even a hearing. No reasons were given. The haste with which Saddam was then hanged inspires little confidence that politics did not infect his execution, much as it infected every other aspect of his trial.

Although the Iraqi judiciary is unlikely to address the issue, there remains great uncertainty over the most fundamental question of all: whether it was lawful to kill Saddam.

It is worth noting that he went to his death pursuant to a process that violated international law in one way, and possibly two. It is arguable, first, that the imposition of the death penalty was itself wrong. Saddam was convicted not of murder, but crimes against humanity - an offence against international law for which Iraqi law stipulates no penalty. The statute establishing the Iraqi High Tribunal states that in such cases the court's choice of punishment should (among other things) be "guided by judicial precedents and relevant sentences issued by the international criminal tribunals".

Given that the death penalty has not been imposed by an international court since the end of the Second World War, it is hard to see that the IHT paid regard to this. Had it done so, it would have been guided by the precedents of the former Yugoslavia, Rwanda and Sierra Leone - the only three "international criminal tribunals" to have sentenced anyone for crimes against humanity since 1948. None is permitted even to consider capital punishment.

More serious is that Iraqi law purports to rule out any possibility for clemency. The constitution stipulates that the president has the power to ratify capital sentences, but says nothing about when he should exercise it. The only word on this comes from the IHT's foundation statute, which says: "No authority, including the president of the Republic, may grant a pardon or reduce the penalties issued by this tribunal. Penalties shall be enforceable within 30 days of the sentence or decision reaching finality."

This provision directly violates Article 6(4) of the International Covenant on Civil and Political Rights, which states that "anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases." Iraq ratified the treaty in 1971, and although the Ba'athist government ignored its obligations at least as often as it happened to follow them, the present regime supposedly has a less cavalier attitude towards international norms. In any event, it remains bound as a matter of international law to ensure that Article 6(4) is observed. Not only did it fail to do so, it chose to execute Saddam at the start of Eid, a festival associated with mercy, when criminals are customarily released across the Muslim world.

The eagerness to hang Saddam triumphed over the niceties of legalism, as it had throughout the trial. Arguments over the deficiencies of Iraq's sentencing laws and commutation procedures are presumably about to become equally redundant for his erstwhile co-defendants. But in case anyone outside the White House believes that snapping Saddam's neck at dawn represented a milestone on Iraq's march towards normality, Baghdad's departure from international practice should be recorded. From a legal point of view, Iraq has just taken another step away from the family of nations that it was once supposed to have rejoined.

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