JURIST Guest Columnist Nadia Bernaz of Middlesex University Law Department says Iraq is not complying with its obligation to respect international law on the right to life, and the UN should, at a minimum, demand that Iraq limit its use of the death penalty to its own justification: fatal acts of terrorism…

By February 9, 2012, Iraq had executed 65 people since the beginning of the year. This figure is shocking — even for a country that has experienced high and sustained levels of violence since the US-led invasion in 2003. Less than two months into 2012, Iraq is already among the worst executioners in the world, having reached a record high execution rate. To the outside observer, the situation seems to be racing out of control. As pointed out by Joe Stork from Human Rights Watch, “the Iraqi government seems to have given state executioners the green light to execute at will.” Even more disturbing, the executions have occurred amidst continued reports mentioning unfair trials and wide use of evidence obtained under torture in criminal proceedings, despite the assertion by the Iraqi authorities that “all legal guarantees are provided to the accused in all stages of prosecution and until the sentence is carried out.”

The government apparently has no plan to abolish capital punishment in the near future, although they maintain that this is their ultimate goal. In 2010, in their submission to the UN Universal Periodic Review exercise, the Iraqi delegation defended their continuing use of the death penalty on the grounds that this was necessary to address the terrorism situation, both as a deterrent and to provide justice for the victims’ families. They also pointed out that the death penalty was only used for the most serious crimes so as to limit the number of executions. Despite official claims of a reasonable use of capital punishment, the high number of executions and the issues related to fair trial guarantees indicate that Iraq is far from breaking with its troubled past.

During the rule of Saddam Hussein, which lasted from 1979 until 2003, the death penalty, as well as arbitrary executions, torture and other serious crimes, were widely used for political repression as a way to protect the regime against its opponents. More generally, such practices allowed the regime to control the population under a reign of terror. An Amnesty International report refers to thousands of executions during this period.

On June 10, 2003, following the invasion of Iraq by coalition forces, the death penalty was suspended by Section 3(1) of Coalition Provisional Authority Order No. 7 [PDF], which read: “Capital punishment is suspended. In each case where the death penalty is the only available penalty prescribed for an offense, the court may substitute the lesser penalty of life imprisonment, or such other lesser penalty as provided for in the Penal Code.” The explanation for suspending the death penalty as well as other provisions of the Iraqi Penal Code was the fact that the former regime had used the code as “a tool of repression in violation of internationally recognized human rights standards,” and therefore it ought to be set aside.

On August 8, 2004, only two months after the new Iraqi interim government replaced the Coalition Provisional Authority as the ruling power in Iraq, the death penalty was reinstated by Decree No. 3 for offenses that were punishable by death before the suspension as well as new offenses such as abduction. The reinstatement of the death penalty has been strongly criticized by the UN Assistance Mission for Iraq who remains concerned by the lack of fair trial guarantees in the country.

In 2005, the Supreme Iraqi Criminal Tribunal was established to prosecute perpetrators of gross human rights violations, among other serious crimes. The Statute of the Tribunal indicates that the penalties should be in line with the Iraqi Penal Code, therefore including the death penalty in the list of applicable sentences, which led the UN to disengage entirely from the process. Tried before this tribunal in 2006, former president Saddam Hussein was sentenced to death, and eventually executed on December 30, 2006.

As a state party to the International Covenant on Civil and Political Rights, Iraq is under the obligation to respect Article 6 on the right to life which provides that a sentence of death may be imposed only for the most serious crimes, “it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences,” as mentioned in the 1984 UN Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty. Iraq is currently in violation of this obligation since, for example, rape, kidnapping and drug trafficking are all punishable by death. Moreover, Iraq was among the minority of states to vote against the UN General Assembly resolutions calling for a worldwide moratorium on executions in 2007, 2008 and 2010.

Although the use of the death penalty has significantly decreased since the fall of Saddam Hussein’s regime, the current rise in executions show that the Iraqi authorities continue to see the death penalty as a non-exceptional sentence, and as a way to address the country’s immense difficulties. All retentionist countries argue that their specific circumstances call for the continuing use of capital punishment. In the case of Iraq, terrorist attacks, which undoubtedly fall under the “most serious crimes” category, are the main justification for retaining it. However, the death penalty is currently imposed for various offenses, including crimes that are unrelated to terrorism. In a way, the country’s situation is used to justify a wide use of the death penalty with no apparent logic. One strategy for the UN could be to beat the Iraqi authorities at their own game and demand that the death penalty be used exclusively for terrorist offenses that resulted in death, as opposed to calling for a moratorium on all executions. Though not satisfactory for the abolitionists, the adoption of this strategy would limit the number of executions and make the use of the death penalty truly exceptional, which could eventually lead to a complete abolition.

Nadia Bernaz is a Senior Lecturer and the Program Leader of the MA Human Rights and Business at Middlesex University. Her research includes international law, human rights and business and the death penalty.

Suggested citation: Nadia Bernaz, The Death Penalty in Iraq: A Difficult Break With the Past, JURIST – Forum, Feb. 20, 2012, http://jurist.org/forum/2012/02/nadia-bernaz-death-penalty.php.