LEGITIMACY AND IRAQI LAW

"What Saddam’s trial can do, however, is to contribute to the growing jurisprudence on genocide. It is much more important for the development of this area of law that Saddam’s current trial for the Anfal campaigns against the Kurds and the upcoming one on the gassing of the town of Halabja continue unabated. President Talabani, a Kurd himself, should stay the execution of Saddam until the completion of those two trials."
~ Michael J. Kelly, Professor of Law and author on genocide, Jurist.

There's a very interesting article at Der Spiegel on the unofficial video of Saddam's execution.

I imagine that quite a few people in the US have seen the sanitized "official" video which aired on all the major media over the weekend, but the unofficial version, apparently shot by cell phone, gives a much different atmosphere. The unofficial version also makes clear that the execution was hijacked by the Sadrists. According to Der Spiegel, a spokesman for al-Maliki claims that the unofficial video gives the Sadrists a bad name, but I doubt that the Sadrists needed this video for that purpose. Additionally, the spokesman vows that the government will get to the bottom of the incident.

Sure it will.

US authorities held Saddam in custody until the execution to prevent him being humiliated publicly or his corpse being mutilated.

That makes no sense. If the US kept Saddam in custody "until the execution" to ensure that his corpse would not be mutilated, then how would the US have prevented his corpse from being mutilated? Unless the US insisted upon retaking custody after execution as well, something that it must have done since it flew the corpse to Tikrit for burial. Does that mean that the US was too squeamish to actually carry out the execution? Hard to believe.

Der Spiegel quotes British Deputy Prime Minister John Prescott as if he were thoroughly scandalized by the execution proceedings. Again, hard to believe. I suspect he gives the appearance of being scandalized because someone present at the execution undermined the official, "sanitized" version of the affair.

Reuters is quoted as insisting that the US wanted the Sadrists to hold off on the execution for up to two weeks, to avoid Kurban Bayrami. Again, hard to believe, and I say let Khalilzad prove it. Even at this, it would not have been enough time to see Saddam through the Anfal trial. Instead, all involved insured that history would record that justice was carried out against Saddam for the murder of 148 Shi'a and not for the murder of 182,000 Kurds.

Der Spiegel also quotes Kurdish judge, Rizgar Mohammed Amin:

The first judge in the Dujail trial, Rizgar Mohammed Amin, said Saddam's execution during Eid al-Adha was illegal according to Iraqi law.

"The implementation of Saddam's execution during Eid al-Adha is illegal according to chapter 9 of the tribunal law," he said. "Article 27 states that nobody, even the president, may change rulings by the tribunal and the implementation of the sentence should not happen until 30 days after publication that the appeals court has upheld the tribunal verdict."

He added that the timing of the execution also contradicts Iraqi and Islamic custom. "Article 290 of the criminal code of 1971 (which was largely used in the Saddam trial) states that no verdict should be implemented during the official holidays or religious festivals," he said.

If it's not the Baker-Hamilton's of the world attempting to manipulate the Iraqi constitution for their own purposes, it's al-Maliki and his Sadrist thugs getting away with it. Why should Kurdistan be in thrall to this?

But, given that there is such flaccid leadership in the South, I guess we can expect nothing else. For example, from a Reuters article, we learn that Talabanî didn't have the guts to invoke his sacred pledge against the death penalty, even though he'd been blabbing about this forever. Instead, his "advisors" doctored up some "letter" to get him out of the dirty job:

Talabani has been reluctant to sign death warrants for personal reasons but the constitution gives him no power of pardon for war crimes. Many of his fellow Kurds were also keen to see Saddam convicted of genocide against them.

In the end, officials said, presidency advisers provided a letter simply stating that no presidential decree was needed and that senior clerics told Maliki the holiday provided no grace.

I wonder what Judge Rizgar would have to say about that cheap little maneuver?

From Opinio Juris, August, 2006:

Iraqi President Jalal Talabani, himself a Kurd, said earlier this year that Saddam should be tried for all his crimes before any of the verdicts are implemented and any death penalty could prove controversial.

[ . . . ]

Interestingly, Jalal Talabani, the President of Iraq, is personally opposed to the death penalty. In 2005, he refused to sign the death warrants of the first three Iraqis sentenced to death under the new regime (although he did allow his deputy to sign them). Talabani has made contradictory statements, however, about whether he would authorize the execution of Saddam. Although he has insisted on two occasions that he would resign before doing so, he has said more recently that he would simply be absent when the three-person Presidency Council decided whether to authorize Saddam's execution.

Talabani's most recent comment, it is worth noting, is an inaccurate statement of Iraqi law. As I discuss in my Grotian Moment post, although Paragraph 286 of the Iraqi Code of Civil Procedure traditionally empowered the President of Iraq to commute a death sentence, that provision was superseded by Article 27(1) of the IHT Statute, which specifically provides that “[n]o authority, including the President of the Republic, may grant a pardon or mitigate the punishment issued by the Court.” So if the Presidency Council did refused to sign a death warrant for Saddam, it would do so in direct violation of Iraqi law.

What must Talabanî have been afraid of? Resigning, as he said he would? I think he should be afraid of Kurdish reprisals for his utter cowardice in not defending the continuation of a trial that would have properly documented the Arab genocide of the Kurdish people. Instead, his was the chickenshit way to escape a political battle.

As for the continuation of the Anfal trial, and the question of finding Saddam posthumously guilty, more from Opinio Juris:

As for the possibility of trying Saddam posthumously... what can one say? Such a trial may satisfy the (understandable) desire of the Kurds to hear an Iraqi court label the Anfal campaign as genocide, but it would only destroy whatever shred of legitimacy the IHT has left. The Nuremberg Tribunal might have prosecuted Martin Boorman in absentia, but it was never foolish enough to try to prosecute Hitler!

Of course, they aren't going to try Saddam posthumously. His execution removed him from the defendant's list in the Anfal trial. I mean, come on . . . Legitimacy!

Since the Baghdad government doctored up some "letter" to let Talabanî slip out of his presidential duties, and since it violated its own law by executing on a religious festival, then it could have doctored up something or violated its own law again by keeping Saddam alive until all the other trials were concluded . . . including the Anfal trial.

The Baghdad government is Sadrist and al-Maliki is Moqtada's man. Again, how is it that Kurdistan can remain in thrall to a government that pushed for a swift execution for Saddam's murder of 148 Shi'a, while he was still on trial for the murder of 182,000 Kurds? And while other trials, for the Marsh Arabs and the 1991 uprising, were on the horizon?

Let's face it: Kurds don't rate, especially with the Kurdish leadership, who have beat a hasty retreat instead of demanding justice for 182,000 Anfalized Kurds, their survivors, and the entire Kurdish people.

Scandalous and disgusting!