JURIST Contributing Editor Michael Kelly of Creighton University School of Law says that the execution of "Chemical Ali" for the Anfal genocide against the Iraqi Kurds should be postponed so that his role in subsequent cases exploring other atrocities can be fully explored...
On June 24, 2007, al-Majid was convicted on charges of genocide, war crimes and crimes against humanity as a key ringleader in the military reprisals known as the "Anfal Campaigns" that claimed the lives of up to 180,000 Iraqi Kurds during the waning years of the Iran-Iraq War. Al-Majid often supplemented his attacks against civilian targets and villages with chemical weapons - hence the sobriquet "Chemical Ali." He drew the death sentence in that trial and, per Iraqi law, his case was immediately forwarded to an appellate chamber for automatic review. If confirmed by the appellate court, also per Iraqi law, his execution must be carried out within 30 days.
This same procedure played out in December, 2006, when Saddam's death sentence in the Dujail trial for the massacre of 182 Shi'a was hurriedly and amateurishly carried out after confirmation by the appellate court. At the time of his execution, Saddam was half-way through the Anfal trial. Many observers, including myself, argued strenuously for Saddam's execution to be postponed until all seven trials could be completed, or at least the Anfal trial itself; or, in the alternative, have the trial continue posthumously against him so that the record of his involvement and guilt could be established. Instead, not only was Saddam executed, but the Iraqi High Tribunal declined to continue the trial posthumously against him. Moreover, all charges against Saddam in the Anfal genocide were dropped.
Thus, Saddam got away with murder. His role in the Anfal Campaigns was not officially established through a court process, flawed as that process is. The storytelling function of a criminal trial is vitally important for the victims involved. In the case of Saddam's legally required but premature execution, Iraq's Kurds were denied that function. And although the Shi'a of Dujail got their day in court against Saddam, the Kurds did not. Similarly, the Shi'a of southern Iraq will not get their day in court against al-Majid in the 1991 Shi'ite Uprising trial that the Kurds got in the Anfal trial.
The best institutions learn from their mistakes. The IHT and the Iraqi government should learn from the mishandling of the Saddam proceedings. My advice to the Iraqi government and the IHT on the matter of al-Majid remains the same as it was with Saddam. Postpone al-Majid's execution so that his role in the suppression of the Shi'ites can be fully explored with his active defense. Do not rescind it, or commute it, just postpone it. Failing that, at least let the trial against him continue posthumously. And at the very least avoid dropping the charges against him. To drop the charges is not only an insult to the survivors, but to the memory of the victims as well.
Michael J. Kelly is Professor of Law at Creighton University School of Law in Omaha, Nebraska. He is author of Nowhere to Hide: Defeat of the Sovereign Immunity Defense for Crimes of Genocide & the Trials of Slobodan Milosevic and Saddam Hussein (Peter Lang 2005) with a foreword by Desmond Tutu, winner of the 2006 Book of the Year Award from the U.S. National Chapter of L'Association Internationale de Droit PÃ©nal.