Is The Death Penalty An Option In the Trial of Saddam Hussein?
Issam Michael Saliba*
In its closing argument on June 19, 2006, the prosecution in the al-Dujail trial demanded the death penalty for Saddam Hussein and three of his co-defendants. The demand raises the issue of whether the death penalty is available under Iraqi law for the offense of crimes against humanity. While this paper addresses the issue, it should not in any way be interpreted as advocating a particular outcome or expressing an opinion as to the final interpretation of Iraqi law by the court in the present trial.
There is currently an active debate within the international legal community on whether and to what extent customary international law prohibits the death penalty . Over the last decade, the international legal community has witnessed the establishment of a variety of international and national tribunals that have had to come to terms with capital punishment. The latest tribunal formed, and perhaps the most prominent, is the Iraqi tribunal where Saddam Hussein has been accused of crimes against humanity. In light of judicial opinion and available learned commentary, as well as the prosecution’s June 19 death penalty demand, it is timely and relevant to ask whether the death penalty is legally available as an option in the trial of Saddam Hussein for the offense of crimes against humanity.
This paper is the second in a series intended to bring to the forefront legal issues related to the ongoing trial. The purpose of doing so is to stimulate discussion among those in the legal community who are interested in the present trial and its impact on the future development of international criminal law.
II. The Charges Against Saddam Hussein
Saddam Hussein and his co-defendants are charged in the present trial with the international offense of crimes against humanity. It is not clear whether the charges are based on international or domestic criminal law. While international criminal law has recognized this offense for about sixty years, Iraq has not yet incorporated this offense in its domestic law. Law Number 10 of 2005, a statutory framework that established a special tribunal to try Saddam Hussein, mentioned this offense in the course of determining the jurisdiction of the newly created tribunal. Its inclusion in Law Number 10 as an offense is interesting because it has not been declared a crime nor has it been assigned a penalty in either the Iraqi Penal Code or other Iraqi criminal statutes.
- One or more acts consisting of: premeditated murder; genocide; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, sexual enslavement, forcible prostitution, forced pregnancy, or any other form of sexual violence of such degree of gravity; persecution of any specific group or collectivity of population for political, racial, national, ethnic, cultural, religious, gender or other reasons prohibited under international law, in connection with any of the aforementioned acts of sexual violence of such degree of gravity; forcible disappearance of persons; other inhumane acts of similar nature intentionally causing severe suffering or serious injury to body or to mental or physical health;
- When the acts are committed repeatedly as part of a widespread or systematic attack and with knowledge of the attack directed against any group of the civilian population; and
- The attack is in pursuance or in furtherance of a state or organization policy to commit such an attack.
It must be highlighted that while the international offense of crimes against humanity has not been incorporated in Iraqi domestic law, as we have explained, the underlying acts constituting its physical elements such as murder, rape and enslavement, are each a separate crime under Iraqi criminal law.
An important question for the trial, then, is: If the defendants were to be found guilty for violating Iraqi Law Number 10 as charged, what penalties may the court impose upon them and is the death penalty an option? The provisions relevant to answering this question are to be found in the Iraqi Penal Code Number 111 of 1969  and the Supreme Iraqi Criminal Tribunal Law Number 10 of 2005.
III. Penalties Under the Iraqi Penal Code
The Iraqi Penal Code is divided into two main parts. Part One contains provisions applicable to all offenses and covers general rules dealing with basic elements of criminal responsibility, including the types of penalties available to be imposed when the evidence supports a conviction. Part Two defines the various criminal offenses, their particular elements and the penalties assigned to each of them.
Article 85 in Part One enumerates the penalties allowed under the law as follows:
- the death penalty;
- perpetual incarceration;
- incarceration for a term;
- rigorous imprisonment;
- regular imprisonment;
- detention in a school for delinquent boys; or
- detention in a reformatory school.
The death penalty is described as the hanging until death of the convicted person . Perpetual incarceration is the confinement in a penal institution for a period of 20 years. Incarceration for a term is the confinement for a period as determined in the judgment.
Article 23 classifies criminal offenses into three categories: felonies, misdemeanors and infractions. The classification is based on the degree of severity of the penalty assigned to the specific offense. A felony is defined as an offense for which the law assigns the death penalty, perpetual incarceration or incarceration for a term from five to fifteen years (article 25). A misdemeanor is defined as an offense for which the law assigns more than three months or up to five years rigorous or regular imprisonment or a fine (article 26). An infraction is defined as an offense for which the law assigns twenty-four hours to three months regular imprisonment or a fine not to exceed thirty dinars (article 27).
Part Two of the Iraqi Penal Code, on the other hand, defines specific crimes and assigns specific penalties or range of penalties to such crimes. For example, facilitating the intoxication of a person under the age of eighteen is an infraction because it is mentioned in part two as an action punishable by up to ten days imprisonment or by a fine of up to twenty dinars.
The Iraqi Penal Code does not include a penalty for the international offense of crimes against humanity because the offense has not been made a part of the domestic law. The only reference to this offense in Iraqi domestic law was made in Law Number 10 of 2005 and in its predecessor 2003 statute.
IV. Penalties under Law Number 10 of 2005 (PDF, 2.21MB)
Iraqi Law Number 10 of 2005 is a legislative act which established a special tribunal outside the Iraqi regular judicial system for the purpose of trying Saddam Hussein and members of his regime for certain international and domestic criminal offenses. This law abolished a similar prior law issued in 2003 by The Coalition Provisional Authority during the direct administration of Iraq by the United States-led occupation. Among the crimes within the jurisdiction of the court is the international offense of crimes against humanity. While Law Number 10 provides a detailed definition of the offense, it does not assign a specific penalty to it or make it a part of any permanent Iraqi legislation. The law, however, contains a number of articles relevant to the issue of penalties.
Section one of article 24 stipulates the following:
The penalties that the court imposes are the penalties provided for in the penal code number 111 of 1969, except that the penalty of perpetual incarceration shall extend to the end of the convicted person's natural life, taking into consideration the provisions of article 17 of this law.
Article 17 provides as follows:
First: - When no legal provisions exist in this law or the rules annexed thereto, the general provisions of criminal law to be applied for the indictment and trial of the accused persons shall be those provided for in the following codes:
A- For the period between July 17, 1968, and December 14, 1969, the Baghdadi Penal Code of 1919.
B- For the period between December 15, 1969, and May 1, 2003, the Iraqi Penal Code that was in force in 1985 (Third Edition.)
C- The Military Penal Code Number (13) of 1940 and the Military Criminal Procedures Code Number (44) of 1941
Second: The trial and cassation courts may, when interpreting the provisions of articles (11), (12) and (13) of this law, resort to the judgments of the international criminal courts.
Third: The provisions of the Penal Code shall apply in a manner not to contravene with the provisions of this law and the international legal obligations relevant to the offenses over which the tribunal has jurisdiction when dealing with exemption of criminal responsibility.
Fourth: The offenses provided for in articles (11), (12), (13) and (14) of this law shall not be subject to the statute of limitations applicable to the prosecution of the case or to the penalties.
Moreover, section one of article 24 has to be read also in conjunction with sections three, four and five of the same article.
Section three stipulates that:
Taking into consideration sections four and five of this article, the criminal court shall determine the penalties for the offenses provided for in articles (11), (12) and (13) of this law.
Section four states that:
A convicted person shall be sentenced as provided for in the penal code if: A-The person committed the offenses of murder or rape under the Penal Code. B- Or contributed to the commission of the offenses of murder or rape.
And section five stipulates that:
When determining the penalties for any of the offenses provided for in articles (11), (12) and (13) of this law which have no similarities in the Iraqi law, the court shall take into consideration specific factors such as the seriousness of the offense and the personal circumstances of the convicted guided by the judicial precedents and the penalties dispensed in this regard by the international criminal courts.
V. Questions To Be Asked
It is clear from the foregoing that Iraqi law did not assign specific penalties to the offense of crimes against humanity, as defined in article 12 of Law Number 10 of 2005. The Iraqi legislators apparently delegated the determination of such penalties to the trial judges of the special court as provided for in article 24. This raises two fundamental questions:
- Does granting the judges of the special court the authority to determine penalties for crimes against humanity, as provided for in section 5 of article 24 of Law Number 10, constitute a legally permissible delegation of legislative authority; and
- Does the delegated authority allow the judges to impose the death penalty for crimes against humanity?
While the first question is not within the scope of this short essay, we shall note that legal scholars specializing in international criminal law have questioned the legality of any such grant of authority. Cherif Bassiouni, Professor of Law at De Paul University College of Law, suggests that such a grant constitutes a delegation of legislative authority and that such a delegation is legally suspect. In an article published in Cornell International Law Journal, he concluded:
The delegation of legislative power by the IST [predecessor of the present court trying Saddam Hussein] to the judges to determine penalties for crimes under Articles 11 through 13 [Article 12 defined crimes against humanity] of the statute expressly conflicts with the principle that there can be no penalty without an expressed provision in the law.
Assuming, however, that the answer to the first question is in the affirmative, the answer to the second question depends on the interpretation the judges of the trial court give to the relevant provisions of Iraqi Law Number 10 and The Iraqi Penal Code. In this respect they must choose between two conflicting views.
A. The View that the Death Penalty Is Authorized
Some may argue that Iraqi law does authorize the death penalty for the offense of crimes against humanity. This view is supported by the claim that article 24, section 1 of Law Number 10 stipulates that the penalties to be imposed by the tribunal are those provided for in the Iraqi Penal Code, and that the legislature has by this stipulation already assigned to the international offense of crimes against humanity the range of penalties prescribed in article 85 of the Penal Code, which include capital punishment. Even if the legislature did not assign this range of penalties to crimes against humanity, section 1 of article 24 would have to be interpreted as giving the judges of the trial chamber the authority to assign such penalties from within that range prescribed in the Penal Code.
Furthermore, one may argue that the penalties to be applied to those convicted of committing the international offense of crimes against humanity must be equivalent to those penalties assigned to underlying crimes which constitute the physical elements of the international offense, such as murder and rape. Penalties for such crimes include capital punishment. The logic of this argument is strengthened by virtue of the fact that it would be hard for the public to accept a decision where a lesser offense, such as murder, gives rise to capital punishment while a more serious crime, such as the offense of crimes against humanity, gives rise to only a prison sentence.
B. The View that the Death Penalty Is not Authorized
Others may assert that the law does not authorize the death penalty. For them article 85 of the Iraqi Penal Code simply defines the criminal penalties authorized under Iraqi law, and the role of the legislature is to assign one or more of these penalties to each crime, as is the case in Part Two of the Penal Code and other criminal statutes. Because the Penal Code did not include the international offense of crimes against humanity as a domestic crime or assign specific penalties for it, the reference to such penalties in article 24, section 1 of Law Number 10 of 2005 does not have any effect on the issue of determining the penalties for this offense.
Likewise the argument goes that any interpretation suggesting that the penalties for the international offense of crimes against humanity are those assigned to its underlying crimes are misconceived on the basis that an international offense is separate and distinct from its underlying crimes. This argument is supported by the sentencing judgment in The Prosecutor v. Drazen Erdemovic, in which the International Tribunal for the former Yugoslavia rejected the proposition that the penalties for the international offense of crimes against humanity must derive from the penalties applicable to its underlying crime. The court held that:
It might be argued that the determination of penalties for a crime against humanity must derive from the penalties applicable to the underlying crime. In the present indictment, the underlying crime is murder …. The Trial Chamber rejects such an analysis. Identifying the penalty applicable for a crime against humanity - in the case in point the only crime falling within the international Tribunal's jurisdiction - cannot be based on penalties provided for the punishment of a distinct crime not involving the need to establish an assault on humanity.
Further support that capital punishment is inappropriate may be found in section 5 of article 24. This section directs the judges to follow the precedents and penalties imposed by other international criminal tribunals if the penal code has no relevant provisions. By reviewing the statutes, precedents and penalties of international criminal tribunals, one would recognize clearly that the death penalty is not permitted in any of these international forums. As an example, article 77 of the International Criminal Court (external link) specifically excludes the death penalty as a punishment for crimes against humanity or any other international offenses. The Court is allowed to only impose imprisonment for a specified term not to exceed thirty years or a term for life "when justified by the extreme gravity of the crime and the individual circumstances of the convicted person."
Article 24 of the Statute of the International Criminal Tribunal for the Former Yugoslavia (external link) (ICTY) provides that "the penalty imposed by the Trial Chamber shall be limited to imprisonment." The Tribunal is not authorized, therefore, to impose the death penalty, regardless of the circumstances and the gravity of the crime. Article 23 of the Statute of the International Criminal Tribunal for Rwanda (external link) contains a similar provision, which prevents the trial judges from imposing the death penalty. Article 19 of the Statute of the Special Court for Sierra Leone (external link) provides that "the Trial Chamber shall impose upon a convicted person, other than a juvenile offender, imprisonment for a specified number of years." Because there are no death penalty judgments issued by any international criminal courts subsequent to those issued by the Military Tribunal of Nuremberg in 1946 (external link), it may be argued that the special court trying Saddam Hussein cannot, under section 5 of article 24, legally impose the death penalty where there is conviction for crimes against humanity.
The reason why Law Number 10 did not assign capital punishment to the offense of crimes against humanity and other international offenses may have been the result of the Iraqi Authorities adopting a draft law intended originally for the creation of an international court, not a domestic court. In his article Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal, Cherif Bassiouni stated the following in regard to the 2003 law that established the Iraqi Special Tribunal, which was the precursor to the present law Number 10:
Salem Chalabi relied on the draft statute that this author [Bassiouni] prepared in March 2003, which was intended for a UN Security Council mandated institution.
A further issue concerning international criminal law that may merit greater research is the legislative order issued by the Coalition Provisional Authority (external link) (CPA) abolishing the death penalty in Iraq. Although the death penalty was later reinstated, the question remains whether the defendants could rely on paragraphs 2 and 10 of article 19 of the Iraqi Constitution (external link)  to claim the right to be sentenced under the above-mentioned CPA order.
VI. Concluding Remarks
The views stated above are not exhaustive arguments on either side of the issue but are sufficient to outline an important jurisprudential point for further consideration. The development of the rule of law in Iraq is of critical significance to the evolution of a fair, just and democratic political entity. It is essential that the special Iraqi tribunal ensure, assuming a finding of guilt for crimes against humanity is made, that the sentencing decision is rendered legally and correctly.
*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.
1. As an indication of the emerging International customary law on this issue we may refer to an international court decision. In Ocalan v. Turkey (App. No. 46221/99, 37 Eur. Ct. H.R. 238 (2003)), for example, the European Court of Human Rights, sitting as a Grand Chamber, addressed the issue of whether the imposition of the death penalty constituted an inhuman and degrading treatment in violation of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. A majority of thirteen votes to four ruled in the affirmative. While the majority agreed that capital punishment in peace time has come to be regarded as unacceptable form of punishment, the majority chose to narrow its ruling and base it only on the fact that the punishment resulted from an unfair trial. Judge Garlicki, who voted with the majority, dissented on the limited scope of its ruling. In a separate opinion, he wrote: "…, the Court should have decided, in the operative provisions of its judgment, that Article 3 had been violated because any imposition of the death penalty represents per se inhuman and degrading treatment prohibited by the Convention."
2. Aliraqiya [Official Gazette], The Supreme Iraqi Criminal Tribunal Law, Oct. 18, 2005, No. 10. [Back to Text]
4. Id. at 2. [Back to Text]
5. Id. at 3. [Back to Text]
6. Id. art. 86, at 3. [Back to Text]
7. Id. art 387, at 3. [Back to Text]
8. Cherif M. Bassiouni, Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal. 38 Cornell International Law Journal 378 (2005), available at
http://www.law.case.edu/saddamtrial/documents/Bassiouni_Article_on_IST.pdf (external link) (PDF). [Back to Text]
9. Sentencing Judgment, The Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-T, T.Ch. I, Nov. 29, 1996, available at http://www.un.org/icty/erdemovic/trialc/judgement/erd-tsj961129e.htm (external link). [Back to Text]
10. Id. [Back to Text]
11. Rome Statute of International Court, July 1, 2002, art. 77, available at http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_120704-EN.pdf (external link) (PDF). [Back to Text]
12. Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. Doc. S/25704 at 36, annex (1993) and S/25704/Add.1 (1993), adopted by Security Council on May 25, 1993, U.N. Doc. S/RES/827 (1993), art 24, available at http://www1.umn.edu/humanrts/icty/statute.html (external link). [Back to Text]
13. Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States, between 1 January 1994 and 31 December 1994. Adopted by Security Council resolution 955 (1994) of Nov. 8, 1994. Amended by Security Council resolutions 1165 (1998) of Apr. 30, 1998; 1329 (2000) of Nov. 30, 2000; 1411 (2002) of May 17 2002; and 1431 (2002) of Aug. 14, 2002, art. 23, available at http://www.ohchr.org/english/law/itr.htm (external link). [Back to Text]
14.Statute of the Special Court for Sierra Leone, Jan. 16, 2002, art.19, available at http://www.specialcourt.org/documents/Statute.html (external link). [Back to Text]
15.Id. at 8 [Back to Text]
Last Updated: 07/03/2007