A Translation of the Appellate Decision Affirming The Death Sentence Against Saddam Hussein
Issam Michael Saliba*
The following is a translation of the section containing the reasoning of the appellate decision issued on December 12, 2006, by the Cassation Chamber of the Iraqi High Tribunal affirming the death sentence of the trial court against Saddam Hussein in the al-Dujail case. This translation is not official and is meant to provide English readers with general insights into the holding of the appellate decision.
The translation seeks to remain faithful, stylistically and grammatically, to the original Arabic text. In order to capture the reasoning of the Court as originally expressed in Arabic, the translation is a literal English representation of the decision. The reader will notice that the translation is awkward in style, but this is a fair approximation of the style of the original text. It should be emphasized at the outset also that the substance of the original decision as written in Arabic is difficult to follow. For example it is not clear what the Court meant by the “legitimacy” principle in paragraph 11 or by “part two of the international criminal law” in paragraph 16.
The punctuation as well as the organization and numbering of paragraphs are not a part of the original. They were added to help the English reader better understand the unique expression used by the court. Careful readers will notice that the name “The Iraqi Supreme Criminal Tribunal” used on this website to identify the judicial institution that prosecuted the al-Dujail case differs from the name that appears on the letterhead of the appellate decision, namely the “Iraqi High Tribunal.” While the names are different they both refer to the same special tribunal created to prosecute Saddam Hussein and of which the trial court and the Cassation Chamber are integral parts. The reason for the difference is due to choices made by different translations.
As far as the procedural blueprint of the text goes, the appellate decision summarizes the prior proceedings, concludes that the appeal was timely filed and then affirms the verdict against Saddam Hussein. In so doing the appellate decision adopts the following reasoning starting on page 6 of the original text:
- It has been found that,
- the evidence relied upon by the trial court to issue its guilty verdict against Saddam Hussein al-Majid in his capacity as having had been at the time of the incident and from July 8, 1982 to January 16, 1989, President of the Republic, Supreme Commander of the Military forces and Chairman of the Revolutionary Command Council, and had the legislative and executive powers in his hand;
- in addition to the video and audio recordings that show the accused addressing the residents of al-Dujail, stating that those who fired at him are 2 or 3 and no more than 10;
- and the contents of his statements during the preliminary and judicial investigation, and the orders he issued to those in charge of the security agencies reporting directly to him;
- in addition to the hundreds of official documents in the file the convicted acknowledged they are authentic;
- in addition to his issuing an order to compensate the owners of the orchards that had been destroyed;
- therefore the convicted is responsible for the systematic and widespread attack against the civilian population of the town of al-Dujail that occurred with his knowledge;
- thus, the intent to commit intentional murder as a crime against humanity is realized; the physical element consisting of the criminal behavior (the act of killing), the criminal result consisting of the death of the victims from among the inhabitants of al-Dujail, and the causal connection between that behavior have all been realized;
- and whereas the law defines crimes against humanity as any of the acts specified in article (12) of Law No. 10 of 2005 when committed as a part of a systematic or widespread attack, with the knowledge of the attack, against any group of the civilian population; therefore most of these crimes could occur as a result of a state action or policy carried out by actors who possess official authority or otherwise; but it is clear that if such crimes were committed or directed against civilian inhabitants they should be the result of a state policy carried out by actors who have official authority, or the result of the policy of actors who do not have official authority;
- and whereas the convicted Saddam Hussein had official authority as he held the position of former President of the Republic, and he directed his crimes against the civilian inhabitants of al-Dujail population for the purpose of killing them; therefore he had the intent to kill and thus he is responsible for these crimes as crimes against humanity, and the objections invoked by his attorneys are rejected.
- The convicted cannot hide behind the legitimacy because the basic purpose of the principle of legitimacy is to identify the one who is responsible for the act, and the one who commits the crime of abusing his authority cannot claim that he is not aware of his act.
- The Order Number (48) of December 10, 2003, issued by the Administrator of the Coalition Provisional Authority which granted the Governing Council the authority to establish a special Iraqi tribunal with jurisdiction to try Iraqis or persons residing in Iraq accused of committing genocide, crimes against humanity and war crimes, or of violating specific Iraqi laws, was issued in conformity with UN Security Council resolutions Number (1843, 1500, 1511) of 2003; the government derived its authority to enact such a law from the UN Security Council resolutions that gave the successor government the authority to enact the laws and regulations relating to the situation of the Iraqi people; thus the establishment of the tribunal and the issuing of its statute was done legally, and its legitimacy was not adversely affected by the manner by which the law was drafted, and the tribunal was established and became, under the law, independent of all other Iraqi tribunals and independent of any Iraqi government agencies.
- On March 8, 2004, the Iraqi Constitution was issued and among other things, it established a road map for the creation of an Iraqi tribunal, and it confirmed the creation of the law of the special Iraqi tribunal on June 28, 2004; and after the end of the occupation of Iraq and the formation of a full sovereign Iraqi government and its receiving the authority to govern in accordance with the provisions of the Constitution and the Security Council resolutions and its remaining in power until May 3, 2005; and during its time in office it financed, supported and allowed the tribunal to function, and indeed the judges of the tribunal were appointed and a separate budget was allocated to allow it to function; and on May 3, 2005, the interim Iraqi government elected by more than 60% of the Iraqi people replaced the interim government; and the powers of the government were described in the Constitution; and it was recognized as a government with full sovereignty and it continued to finance the tribunal until a permanent Iraqi government assumed power on May 20, 2006, and a new law for the Tribunal was issued as Law number (10) of 2005 and the Tribunal was named the Iraqi High Tribunal.
- The law was issued by a government elected by 78% of the Iraqi people and in a national referendum and it is therefore a legitimate tribunal and any objections to this effect are rejected.
- As to the objection based on the immunity of officials we say the immunity is the practical immunity which comes for the purpose of the position; it is not possible for any person to claim that he committed crimes and that his actions are outside the reach of the law; the immunity is limited to the time in the position and does not continue thereafter, and it is tied in its existence and non-existence to the position, and it is not given to the benefit of a person who clings to the position, but it is given for the benefit of society.
- The immunity does not violate part two of the international criminal law and the constitution; no state has the right to give its officials immunity from prosecution for crimes against humanity and genocide, and if immunity constitutes a means to avoid prosecution this principle has disappeared after World War II and immunity has no more effect. The establishment of criminal courts is nothing but a sign of the end of the immunity principle and since the law of the tribunal permits the trying of any person accused of committing a crime irrespective of his official position even if the person were president or member of the government or its council because his position does not protect him from punishment or constitute a mitigating circumstance, and whereas the law of the tribunal contains penalty provisions, therefore the claim of immunity of head of state or that the act was committed by the accused in his official capacity does not constitute an acceptable defense or a reason to reduce the sentence, and therefore the immunity does not prevent the tribunal from using its jurisdiction to try those persons for the crimes they committed and over which it has jurisdiction, and therefore the immunity must be a cause to increase the sentence and not to reduce it, because whoever enjoys immunity normally has the power to influence a great number of people which increases the seriousness of the losses and damages resulting from the crimes.
- The head of state is responsible internationally for the crimes he commits against the international community because it is not logical or just to punish the subordinates who carry out illegal orders issued by the president and his assistants and spare the president who ordered and planned the commission of these crimes and he is therefore considered a gang chief and not a head of state who respects the law and therefore the supreme president is to be considered responsible for the crimes committed by his subordinates not only on the basis of his knowledge of those crimes but for his negligence in not obtaining such knowledge; and the non-action is considered equal to a positive action in light of article (13/1) of the Third Geneva Convention of 1949 which provides that any illegal action or abstention on the part of the authority which causes death or exposes the safety of prisoners of war to danger is prohibited and constitutes a serious violation of this convention.
- The responsibility of leaders and presidents for crimes committed by those who are under their command is a responsibility for acts committed by subordinates under his command and authority provided the said leader knew that his forces are committing or about to commit any of these crimes; thus it considered the high government position occupied by the accused itself as an aggravating circumstance because he is supposed to know what is happening and because he exploited his position by the commission of the crimes.
- Besides, the failure of a leader or a person to take all reasonable and necessary precautions within his authority to prevent the commission of those crimes exposes him to legal accountability. Furthermore the overlooking of crimes is considered as a sign to his subordinates to continue the commission of his crimes without fear of punishment; the principle dictates an obligation on the leader to prevent his subordinates from committing international crimes, and his responsibility is proven irrespective of the intent to admit whenever he fails willfully or negligently to prevent their commission.
- The act of the subordinate should be considered unlawful because it neglects the interests under his protection and confers on them illegitimacy, and does not comply with what the domestic criminal law stipulates; a subordinate is a human being who possesses the faculties of awareness and understanding and is not a tool that executes without thinking the orders he receives; rather he has the obligation of examining the orders and abstaining from carrying them out unless they are in compliance with the rules of the law; the subordinate is one of the persons of law who has equal standing as his superior and is required to discharge all the duties that the law imposes on him; his responsibility to uphold these duties is direct and therefore the immunity defense is also rejected.
- As to the defense of non-retroactive application of criminal law we say that criminal legislation normally does not apply retroactively in the field of criminal law, and this is called the principle of non-applicability of the criminal law to the past and means that the effects of criminal law does not reach into the past but apply to the facts that took place after its enactment; this principle has been adopted by the Iraqi Criminal Code Number (111) of 1969 and was referred to in article (2/F1) but article (1/Second) of the law of the Tribunal made the law applicable to the crimes committed between 7/17/1968, and 5/1/2003, as provided for in Law Number (1) of 2003 and Law Number (10) of 2005; the said two laws did not violate this principle because these crimes are provided for in articles (11, 12, 13, and 14) and have also been provided for since the 1950s of the past century and were included in international treaties; the crime of genocide was stipulated in the international treaties of 1948, ratified by Iraq on 1/20/1959, therefore the ratification of the treaties is considered as a part of the Iraqi law and Iraq is obligated by their provisions which were stipulated in paragraphs one and two of the law of the tribunal and they are therefore in effect and Iraq is obligated to comply with them by virtue of its explicit ratification of them;
- As to article (12) of the law of the tribunal concerning crimes against humanity, despite the fact that their original source is international customary law since there is no international treaty that regulates their provisions and provides explicitly for them, the international customary law and the international practice are settled on considering these crimes as international crimes, and because Iraq is a part of the international community, it is also committed to them pursuant to the United Nations Charter;
- As to article (13) concerning war crimes which represent the serious violations of the Geneva Conventions of 1949, Iraq ratified them on 2/12/1956, and Iraq is therefore bound by them, and they are considered a part of its laws, therefore those committing these crimes shall be accountable; furthermore Iraq ratified the international treaties concerning civil and political rights approved by the General Assembly of the United Nations on December 16, 1966, to which Iraq acceded by Law Number (193) of 1970, and which became effective on March 23 1976; therefore, and pursuant to the principles of justice, no criminal can avoid punishment on the basis of this principle because the legal principles were given for the welfare of society and not the welfare of the criminal.
- The legal rule is not eternal but can expire and be replaced by another rule; therefore, the provisions of criminality can not have retroactive effects; and the criteria of the non-retroactivity of the law goes back to the time before the Roman system in accordance with the same criteria which determine the scope of the legitimacy principle on the basis that the non-retroactivity is considered a logical result of the legitimacy principle; therefore the principle of criminality can not have a retroactive effect.
- Based on the foregoing if a provision in an international treaty or agreement criminalizes a specific act, the application of this provision to acts committed prior to its enactment does not mean that the provision has been applied retroactively, because this provision was preceded by an international custom that makes the act illegitimate, and the provision did not do anything other than record the substance of the prior custom under which the act was committed; therefore the principle of the legality of crimes and punishment is compatible with the principles of justice because it is among the principles adopted in all the legal systems including international criminal law; therefore the defense based on the non-retroactivity of the law is also rejected.
- As to the defense based on the principle of applying the lesser penalty, this court is of the view that when the law is amended in the period between the commission of the criminal act attributed to the accused and the time the verdict is issued against him the lesser of the penalties shall apply to the accused, and the only restriction on the court against the application of the death penalty is the Coalition Provisional Authority’s order Number (7/F3) issued during the period of the occupation of Iraq by the Coalition Provisional Authority, and the purpose of this principle as provided for in article (2) of the Iraqi Criminal Code Number (111) of 1969, is to give the accused the opportunity [to benefit] from the value judgment of the society, and since Order Number (7/F3) of the Coalition Provisional Authority was not the product of the Iraqi Legislative authority and did not reflect the standards of the public opinion but reflected the necessity that the coalition used in light of the power granted to it in accordance with the occupation law in its capacity as the provisional caretaker of the actual situation in Iraq, and did not have any sovereignty over the occupied region, and therefore the coalition authority was as a separate authority, and in accordance with established international laws the Iraqi High Tribunal is not bound to apply the [coalition’s] decisions or its law, and the Coalition Provisional Authority’s order which suspended the death penalty was simply and at best a temporary action imposed by a temporary authority and can not be considered as a law issued prior to the verdict and by which the death penalty is eliminated as an option of judicial decisions, and pursuant to international law the death penalty is a legitimate penalty that also exists in the Iraqi present law and is among the penalties allowed for felonies and was in force prior to the formation of the government in 1919, and chapter 5, part one provided for the death penalty. And the Iraqi Law continued to apply the death penalty without any changes as with respect to the present case.
- In addition the Iraqi people has the legal and moral right to establish an entity to try the leading personalities in the former regime, and if the Iraqi High Tribunal is to accomplish the objectives for which it was established its decisions shall be compatible with the international standards of justice and in accordance with international law; as to the death penalty, it is a legitimate penalty existing in Iraqi law and conforms to the accepted international law if applied in accordance with the International Convention for Civil and Political Rights and to which Iraq has been a party since January 25, 1971, and there is a universal consensus that war crimes, genocide and crimes against humanity are among the most serious violations of the law, and because of their seriousness these crimes go far beyond the simplest of the requirements of the International Convention for Civil and Political Rights which says that the death penalty shall not be used as a penalty except for crimes that are considered very dangerous according to law; therefore in a domestic trial for commission of these crimes the sentence of death is considered a legitimate penalty allowed under both domestic and international law, and therefore this defense is also rejected.
- As to the other defenses the accused were given what is sufficient to conduct a just trial against him,he was informed promptly of the nature of the crimes filed against him, he was given enough time to prepare his defense and received legal assistance from those whom he personally chose, and was given the opportunity to defend himself with the help of his lawyer consultants, and was given the opportunity to examine the prosecution and defense witnesses, and he used his right to defend himself fully, and was not forced to say anything he did not want to say; therefore the objections he raised to this effect are also rejected.
*Issam Saliba is a member of the Beirut Bar and serves at the Law Library of Congress as Foreign Law Specialist for the Middle East and North African Arab States.
Last Updated: 07/03/2007