Crimes and Punishment
Bentley, David, The World Today
In December, 85 members of the United Nations signed a declaration expressing 'deep concern' at the continued use of the death penalty across the world, and calling for a moratorium as a step towards its abolition. Italy, which has made previous calls for a moratorium, now says it will reopen the issue at the UN, looking to the signatory countries for support. The Mayor of Rome has illuminated the Colosseum at night as a symbol of the change in attitudes to the taking of human life since the days of the gladiators. Events surrounding the hanging of former Iraqi President Saddam Hussein and his co-accused have reopened an intense debate.
IN 1982, AT THE VILLAGE OF AL DUJAIL, shots were fired at the motorcade of the President of Iraq, Saddam Hussein. His response was swift and terrible. Last November, Saddam was found guilty by the Iraq High Tribunal of 'committing deliberate killing as a crime against humanity' and sentenced to death by hanging. The killing of 148 villagers, in the Al Dujail case, and other atrocities, demonstrated a 'systematic, calculated plan implemented ... against everybody who would even entertain the idea of doing something like this'. His appeal was dismissed by the Tribunal's Appeals Commission and he was hanged in the early hours of December 30. A number of co-defendants were also sentenced to hang.
Few would dissent from Egyptian President Hosni Mubarak's condemnation of 'the way in which Saddam was executed - they turned him into a martyr, and die problems in Iraq remained'. But many will also agree with United States President George Bush that 'he was given justice, the thousands of people he killed were not.'
Quite apart from the circumstances or wisdom of his execution, questions about the legality of the proceedings and the infliction of die death penalty need to be addressed. The position on die death penalty taken by Britain and other European states is a useful starting point.
The British Foreign and Commonwealth Office Human Rights Report for last year sets out its aims and notes worldwide developments. Britain has abolished die death penalty and ratified protocols to the International Covenant on Civil and Political Rights and die European Convention on Human Rights banning the use of die death penalty in all circumstances, including time of war.
Britain, with other European Union states, is working towards the universal abolition of the death penalty, meanwhile lobbying those countries which retain it and seeking to enhance the due process of law where the penalty still exists. Under the British presidency in 1998, the European Union agreed guidelines for making representations in individual cases to countries which retain the death penalty, including humanitarian considerations.
But there is no absolute and general prohibition on the death penalty in international law. Following Saddam's execution, Ban Ki-moon, the successor to Kofi Annan as Secretary General of the United Nations, said that 'capital punishment is for each and every state to decide', while urging restraint on the Iraqi authorities, who later carried out the sentences on the other Al Dujail accused.
Legal in Iraq
The Iraqi Tribunal - in a judgment on the Al Dujail case running to nearly three-hundred pages - held that the death penalty was available for crimes against humanity as a matter of Iraqi law, and that it would not be in breach of international law. The position under Iraqi law has been a matter of debate. There is a helpful discussion in writings by Issam Michael Saliba, a foreign law specialist at the Law Library of Congress in Washington. Although the Iraqi Tribunal was given jurisdiction over crimes against humanity, the Iraqi legislation provides no specific penalty.
In a careful analysis of the complex legislation, the judges held that capital punishment was long established in Iraqi law, in particular for murder, and was the appropriate sentence in this case. …