The controversy surrounding the refusal of the Iraqi presidency to sign an execution order for Sultan Hashim – a defence minister of the former regime sentenced to death for his actions against Iraqi Kurds in the lethal Anfal campaign in the late 1980s – has brought to the fore some interesting statistics regarding the death penalty in Iraq. According to recently-revealed statistics from the federal supreme court, out of 516 death penalties sent to the presidency by the court since 2009, only 83 or less than a fifth have been confirmed by presidential decree to date. A spokesperson for the federal supreme court added that they were “awaiting presidential confirmation for the remainder of the verdicts”, meaning that all or most of those remaining death sentences have yet to be implemented.
This remarkable piece of statistical information inevitably raises the question of whether the Iraqi presidency possesses appellate powers in cases involving the death penalty. As far as the constitution is concerned, the position is somewhat unclear. Signing execution orders is indeed enumerated as a presidential prerogative in article 73. But no specific authority to issue a pardon is mentioned (unless the prime minister specifically recommends it) , and the constitution does not say what should happen if the president refuses to sign an execution order. It is noteworthy in this respect that there is a certain parallel to the presidential “prerogative” to issue laws: In that case the constitution says laws are automatically considered issued within 15 days, meaning that they become law whether the presidency likes them or not. This kind of automaticity is not specified as far as execution orders are concerned.
On the other hand, one should perhaps not go too far in pontificating about the “intentions of the framers” in the case of the Iraqi constitution in 2005, since it was adopted in such a hurried atmosphere and is so full of glaring contradictions that the assumption of any coherent “intention” behind the document is sometimes quite difficult to maintain. And in practice, since 2005, Iraqi judges have frequently made the case that strictly speaking no presidential decree is needed to implement a death sentence. This issue became acute back at the time of the sentencing of Saddam Hussein in 2006 since President Jalal Talabani is an avowed opponent of the death penalty. In that and other cases, however, the deputies of the president signed presidential decrees, thereby completing the procedure specified in the constitution.
The current problem relates to cases where President Jalal Talabani seems to go beyond his opposition to the death sentence in principle and instead is attempting to furnish the institution of the presidency with real appellate powers. This came on the agenda in a serious way in autumn 2010 when the death sentence against Tariq Aziz was passed. Talabani’s reference to the Christianity of Aziz as a basis for attempting to pardon him inevitably came across as somewhat odd, but the more important point that emerged from that as well as the more recent case of Sultan Hashim is the apparent willingness of Talabani to block the presidency as a whole from issuing execution orders in selected cases. This impression has only got strengthened by the case of Sultan Hashim, since it was widely believed that the selection of Khudayr al-Khuzaie (a Daawa hardliner) as third deputy president was in part based on a desire by Shiite Islamists to have a presidential deputy that would be prepared to sign execution orders for members of the previous regime in cases where the president himself or Tareq al-Hashemi (his only other remaining deputy after the resignation of Adel Abd al-Mahdi in late May) might be reluctant to do so.
Politically, this is an interesting issue too. It comes amidst a growing number of instances where Kurds and the secular Iraqiyya have found common ground, pitting them against the Shiite Islamists in the National Alliance. A case in point are the recent protests against Iranian incursions into the Kurdish areas, to which the Kurds have reacted vociferously, but with the Shiite Islamist response slow and seemingly ambivalent. Of course, given the largely secular orientation of many Kurdish leaders, there have been instances of such confluences of interests with Iraqiyya in the past that nonetheless ended up with frustration in the final instance, as seen most pointedly in the case of the Kurdish embrace of a second premiership for Nuri al-Maliki in the autumn of 2010.
This time, the death-sentence dispute comes at a time when Iraqiyya is wavering between deeper integration in the second Maliki government and calls for early elections. It is only the Kurds that can make the final push against Maliki, and in making that choice the discussion about death penalties is only one piece in a much bigger puzzle for the Kurds.