Ali Hasan Al Majid executed

The BBC reported on 25 January 2010 that Ali Hasan Al Majid (known as ‘Chemical Ali’) was hanged on 25 January 2010.

As previously noted, he received a 4th death sentence on 17 January 2010.

Rule 90 of the Rules of the Iraqi High Tribunal provide that judgments of the tribunal are implemented in accordance with the Criminal Procedure Code No. 23 of 1971. The 1971 Code states as follows:

Article 285
A. The person condemned to death is placed in prison until steps have been taken for carrying out the sentence.

B. The death sentence is only carried out on a decree of the Republic in accordance with the provisions of the following articles.

Article 286
If the Court of Cassation confirms the death sentence as issued, it will send the case file to the Prime Minister, who is responsible for passing it on to the President of the Republic to seek the necessary decree for carrying out the sentence.

The President of the Republic issues the decree for carrying out the sentence, or for commuting it, or for pardoning the condemned person. If he issues the decree for implementation, the Prime Minister issues an order to that effect, including the decree of the Republic, in accordance with legal provisions.

Article 287
A. If the condemned person is pregnant when the order for implementation arrives, it is the responsibility of the prison administration to inform the head of the Public Prosecutor’s Office to present a notification to the Minister of Justice to delay execution of the sentence, or to reduce it. The Minister of Justice then submits this notification to the President of the Republic. Implementation of the sentence is delayed until another order is issued by the Minister of Justice in accordance with the decision of the President of the Republic. If the renewed order rules for implementation of the death sentence, it is not carried out until four months after the date of delivery of the child, whether the delivery is before or after the arrival of the order.

B. The judgment in sub-paragraph A is applicable to a condemned person whose child is delivered before the arrival of the order for implementation if the period of four months from the date of her confinement has not expired. The sentence is not carried out until four months have elapsed from the date of her confinement, even if the renewed order for implementation arrives.

Article 288
The sentence of death is carried out by hanging within the prison, or any other place in accordance with the law after the issue of the decree of the President of the Republic for the sentence to be carried out in accordance with Article 286 . The execution is witnessed by the Implementation Board, comprising a Misdemeanour Court judge, a member of the Public Prosecution, if available, a representative of the Ministry of the Interior, the director of the prison and the prison doctor, or any other doctor delegated by the Ministry of Health. The accused’s legal representative is excused from attendance if he so requests.

Article 289
A. The director of the prison reads the Republic decree for the implementation of the sentence to the condemned person at the place of execution, so that the others present can hear.

B. If the condemned person wishes to make a statement, the judge notes down what is said and this is endorsed by the other members present.

C. Once sentence has been carried out, the director of the prison signs a form, on which he doctor confirms death, and the time this took place, and the remainder of those resent sign the document accordingly.

Article 290
The death penalty cannot be carried out on official holidays and special festivals connected with the religion of the condemned person.

Article 291
It is the responsibility of the relatives of the condemned person to visit on the day before sentence is to be carried out. It is the duty of the prison administration to info them of the date accordingly.

Article 292
If the religion of the condemned person requires him to make confession before death, the necessary arrangements are to be made for him to meet a cleric of his religion.

Article 293
The corpse of the executed person is handed over to relatives if they so request. Otherwise the prison authorities will carry out the burial at government expense, but there will be no funeral ceremony.

Note that Articles 285 to 293 having been suspended by CPA Memorandum 3, Section 4(m), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003 were re-instated by Law 13 of 2007 which purported to give them retrospective effect to 8 August 2004, the date on which Order 3 of 2004: Re-instating the Death Penalty, published in the Official Gazette, issue 3987 of September 2004 came into force.

The references to the Prime Minister in Article 286 are echoed in some up to date legal texts but not others. There seems to be some uncertainty as to whether the Prime Minister or the Minister of Justice is to exercise this role.

It is unclear whether the references to the Court of Cassation and the Minister of Justice in Article 286 and 287 have any applicability to Iraqi High Tribunal executions given that the High Tribunal has its own appellate body and given the operation of CPA Memorandum 12 which replaces the role of the Minister of Justice with that of a relevant member or body from the Federal Judiciary. This in itself presents a theoretical difficulty as the High Tribunal system is completely divorced from the normal federal judicial system.