Can the Iraqi Special Tribunal sentence Saddam Hussein to death?

Journal of International Criminal Justice

Volumn 3, Issue 2, 2005, Pages 463-468

  Bohlander, Michael ^a  

^a DURHAM UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 26844566812     PISSN: 14781387     EISSN: None     Source Type: Journal    
DOI: 10.1093/jicj/mqi044     Document Type: Article

References (13)

1. See, e.g. the concerns expressed by J.E. Alvarez, 'Trying Hussein: Between Hubris and Hegemony', 2 JICJ (2004) 319;
2. D. Zolo, 'The Iraqi Special Tribunal: Back to the Nuremberg Paradigm?', 2 JICJ (2004) 313;
3. O. Olusanya, 'The Statute of the Iraqi Special Tribunal for Crimes Against Humanity: Progressive or Regressive', 5 German Law Journal (2004) 859.
4. Article 24. a The penalties that shall be imposed by the Tribunal shall be those prescribed by Iraqi law (especially Law Number 111 of 1969 of the Iraqi Criminal Code), save that for the purposes of this Tribunal, sentences of life imprisonment shall mean the remaining natural life of the person. (b) Subject to paragraph (a) above, the penalties for crimes under Article 14 shall be those prescribed under the relevant provisions of Iraqi law. (c) The penalty for crimes under Articles 11 to 13 shall be determined by the Trial Chambers, taking into account the factors contained in paragraph (d) and (e) below. (d) A person convicted of: 1. An offence involving murder or rape as defined under Iraqi law; or 2. An offence ancillary to such offence of murder or rape; shall be dealt with as for an offence of, as the case may be, murder or rape or the corresponding ancillary offences in relation to murder or rape. (e) The penalty for any crimes under Articles 11 to 13 which do not have a counterpart under Iraqi law shall be determined by the Trial Chambers taking into account such factors as the gravity of the crime, the individual circumstances of the convicted person and relevant international precedents. (f) The Trial Chambers may order the forfeiture of proceeds, property or assets derived directly or indirectly from that crime, without prejudice to the rights of the bona fide third parties. (g) In accordance with Article 307 of the Iraqi Criminal Procedure Code, the Tribunal has authority to confiscate any goods prohibited by law regardless of whether the case has been discharged for any lawful reason.
5. Article 48 [Iraqi Special Tribunal] (A) The statute establishing the Iraqi Special Tribunal issued on 10 December 2003 is confirmed. That statute exclusively defines its jurisdiction and procedures, notwithstanding the provisions of this Law. (B) No other court shall have jurisdiction to examine cases within the competence of the Iraqi Special Tribunal, except to the extent provided by its founding statute. (C) The judges of the Iraqi Special Tribunal shall be appointed in accordance with the provisions of its founding statute.
6. Article 26 [Old Laws, CPA-Laws] (A) Except as otherwise provided in this Law, the laws in force in Iraq on 30 June 2004 shall remain in effect unless and until rescinded or amended by the Iraqi Transitional Government in accordance with this Law. (B) Legislation issued by the federal legislative authority shall supersede any other legislation issued by any other legislative authority in the event that they contradict each other, except as provided in Article 54(B). (C) The laws, regulations, orders, and directives issued by the Coalition Provisional Authority pursuant to its authority under international law shall remain in force until rescinded or amended by legislation duly enacted and having the force of law.
7. See www.iraqcoalition.org/regulations/20030610_CPAORD_7_Penal_Code.pdf (visited 7 February 2005).
8. See www.iraqcoalition.org/regulations/20030921_CPAORD31.pdf (visited 7 February 2005).
9. It was not possible to ascertain the exact wording of the law, but for the reasons mentioned below, that is also irrelevant.
10. See report by Reuters at www.iol.co.za/ index.php?sf=2813&art_id=qw1091976122311B262 (visited 8 February 2005).
11. See, e.g. H.-H. Jescheck and T. Weigend, Lehrbuch des Strafrechts, Allgemeiner Teil (5th edition, Berlin: Duncker and Humblot, 1996), 139.
12. Copy on file with the author.
13. The press releases of the days after the reinstatement suggest that no clear indication as to retroactivity for the temporal jurisdiction of the IST was made. See the article of 9 August 2004 by S. Yacoub, 'Iraq reinstates capital punishment: BAGHDAD, Iraq - Iraq reinstated capital punishment for people guilty of murder, endangering national security and distributing drugs, the government announced Sunday, saying the death penalty was necessary to help put down the country's persistent insurgency. The announcement came a day after the government offered an amnesty to Iraqis who committed minor crimes since the fall of Saddam Hussein's regime last year. The two laws were part of a carrot-and-stick approach by the government to try to put down the 15-month-old campaign of violence. Capital punishment was suspended during the U.S. occupation. Under Saddam's regime, some 114 offenses could garner the death penalty. The new law was more restrictive than that had been. "This is not an open door to execute anyone and everyone, or people whom the government dislikes. This is not Saddam's law," Minister of State Adrian al-Janabi said. Many Iraqis also wanted the death penalty reinstated so it could be applied to Saddam, who faces trial on war crimes charges. It was not immediately clear how the new law would effect Saddam. In announcing the law, Janabi and Human Rights Minister Bakhtiar Amin said they regretted the need to bring back the death penalty, but it was needed to fight the militants destabilizing the country with car bombings, kidnappings, sabotage and other violence.