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political and legal controversies in the anfal case

NIQASH –Walzi, 28 November — On 24 June 2007 the Iraqi High Tribunal (IHT) issued its verdict in the Anfal case. The tribunal found Ali Hasan al-Majid, also known as “Chemical Ali”, Sultan Hashem, former defense minister, Hussein Rashid Muhammad, former deputy head of army operations, guilty of “genocide”, “war crimes” and “crimes against humanity” during the Anfal campaigns led by the Iraqi government between 1986 and 1989 and sentenced them to death by hanging. With the issuing of the verdict and the promises made to Sultan Hashem by the US troops when he gave himself up after 2003 war and the fall of Baghdad, controversies were aroused within the Iraqi political circles. The president of the republic and the Sunni vice president Tariq al-Hashimi strongly oppose the execution of the verdict against Sultan Hashem, while the government, and Prime Minister Nuri al-Maliki in particular, are trying to execute the verdict being upheld by the Iraqi Court of Cassation and thus reaching finality.

Article 27 of the Supreme Iraqi Criminal Tribunal states that “no Iraqi authority, including the President, may grant a pardon or reduce the penalties issued by the Tribunal. Penalties shall be enforceable within 30 days of the sentence or decision reaching finality.” The article also states that a presidential decree ratifying capital sentences should be issued.

Jalal Talabani, President of the Republic, has repeatedly said that he will not sign the verdict issued by the IHT. In a press conference held in Sulaymaniyah at the beginning of October, Talabani expressed his reservation regarding the verdict saying that, “Personally, I do not support the death sentence against Sultan Hashem … If the court is going to execute its verdicts without the approval of the Presidential Council, this could be another issue … If it asks us, we will give our comments on the verdict.” He added that his reservations do not only include Sultan Hashem but also all former Iraqi army officers who were forced to participate in military operations. However, he stressed that he does not justify the crimes committed by these former officers against the Iraqi people. These statements are in line with the stances taken by the Sunni vice president Tariq al-Hashimi who stressed, in a statement issued by his office, that he has conducted meetings to explain his view point regarding the illegitimate execution of verdicts by the IHT without a decree issued by the Presidential Council. In a statement published by al-Hashimi’s office on the internet, he added that, “the prime minister has previously interfered on 4 September and demanded from the Ministry of Justice to hand over the three defendants to execute the death sentence against them,” adding that executing the death verdict against the three convicted persons is a violation to the constitution given the fact that the Presidential Council is the body entrusted to give the permission to execute death verdicts. Al-Hashimi expressed his surprise because the IHT did not submit a copy of the court verdict to the Presidential Council to examine it and to decide whether to issue or not a Presidential decree. Ja’far al-Musawi, the public prosecutor, told Associated Press that, “if there is a law which exempts Sultan Hashem, we will support it.” The US Embassy in Baghdad has earlier announced on 12 November 2007 that its forces will not hand over Ali Hasan al-Majid and the other convicted persons for execution by the Iraqi authorities until these authorities settle their judicial differences over the case. Mirembe Nantongo, US Embassy spokesperson in Iraq, said that, “there continue to be differences in viewpoint within the government of Iraq regarding the necessary Iraqi legal and procedural requirements for carrying out death sentences issued by the Iraqi High Tribunal,” and added that, “coalition forces will continue to retain physical custody of the defendants until this issue is resolved.”

Al-Maliki’s government has earlier demanded from the US troops to hand over the former regime officials convicted in the Anfal case to execute the death verdict issued against them. Al-Maliki accused the Iraqi Presidential Council of violating the constitution by refusing to ratify death verdicts issued against the convicted former officials saying that the Council “instead of monitoring the implementation and application of the constitution in the right manner has interfered to stop the death verdict which led to a violation in the implementation of the constitution.” Al-Maliki added that, “we insist on the importance of implementing the law and this means that all the convicted persons should be handed over to the judiciary according to the will and ruling of the judiciary.”

At the same time, relatives of the Anfal victims loudly expressed their demand to execute the death verdict. A lawyer of the Center of Halabja against Anfalization and Genocide of Kurds, C.H.A.K announced that the center, which has been earlier formed to follow-up on the Anfal and Halabja cases, has filed a lawsuit on 22 November 2007 at the Federal Court against Jalal Talabani, the President of the Republic, and Vice President Tareq al-Hashimi for not issuing a decree ratifying the verdict. He accused them of interfering in the judiciary affairs and violating the constitution and laws. Some cities in Kurdistan Region saw demonstrations demanding the execution of verdicts issued against defendants in the Anfal case. Nuri Talabani, a Kurdish political and law figure in Iraq went a step further and demanded an apology from the Iraqi government to the Kurdish people for the Anfal crimes. He called upon Kurdish politicians to abandon political formalities when dealing with the Iraqi government on such issues.

Will the Presidential Council respond to calls demanding the execution of verdicts against all the convicted person and issue a presidential decree on this issue? Or would things be settled in another manner where Sultan Hashem would be discharged? Tariq Harb, an Iraqi legal expert, told Niqash that the only way to save Sultan Hashem from the rope is through ratifying a special amnesty law by an absolute majority in the parliament to pardon or reduce his verdict. It is important to mention that Sultan Hashem is also accused of participating in the suppressing the Uprising of the South in 1991, a new lawsuit he will face in the IHT, in case he is not hanged before.

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