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Last Updated: Wednesday, 14 November 2007, 00:48 GMT
Political delay on Iraq death row
By Jim Muir
BBC News, Baghdad

In prison cells guarded by American forces near Baghdad, the notorious "Chemical Ali" and two other former top officials in Saddam Hussein's regime wait, never knowing when the doors will open and they will be handed over to the Iraqi government for execution.

Ali Hassan al-Majid known as 'Chemical Ali' hears the verdict in his trial on 24 June 2007
'Chemical Ali' was sentenced to death in June 2007

It should have happened more than a month ago. The fact that it did not has stirred a tense row between the US embassy and Prime Minister Nouri Maliki's administration.

Both sides are locked in their positions and refusing to budge.

"We insist that the law be implemented and that these men be handed over in accordance with the law," said Prime Minister Maliki.

"The parties concerned were asked to hand over the prisoners but unfortunately the US embassy also played a role in preventing their delivery, or trying to hand over some while delaying others. We will not retreat from this position."

The American embassy and officials of the US-led Multinational Forces (MNF) were equally unyielding.

"There are discussions going on within the government of Iraq over procedures," said an embassy spokesman.

"Until that is resolved, the Multinational Forces will continue to retain physical custody of the convicts. It is imperative the correct procedural steps be followed. They need to come to consensus."

Tight-lipped

It is obviously an extremely sensitive issue.

Tight-lipped US embassy officials refused to discuss any impact the affair may have had on the overall relationship with the Iraqi government, beyond saying, "We have all kinds of relations with the Iraqi authorities."

They would not say how many communications had taken place over the issue, nor would they characterise their tone.

Iraqi officials were only slightly more forthcoming.
Sultan Hashem
Sultan Hashem may have had links to the CIA

"We are upset and sensitive about this," said one, requesting anonymity.

"They need to support the judicial process and respect the new Iraqi law. They're not doing their job as an ally. We are still demanding, and waiting for them to be handed over."

Had it just been two of the convicted men - "Chemical" Ali Hassan al-Majid (a cousin of Saddam Hussein) and Hussein Rashid al-Tikriti, a senior military chief - the story would probably not have exploded into controversy.

Former regime leaders, including Saddam Hussein himself and his half-brother Barzan al-Tikriti, have been handed over by the Americans and hanged by the Iraqi government without significant popular or political repercussions.

There were no US undertakings whatsoever to Sultan Hashem concerning immunities
Ryan Crocker
US ambassador

But the third figure in the current drama, former Defence Minister Sultan Hashem, has become a cause celebre among Sunni politicians and the subject of intense lobbying for a reprieve.

All three men were condemned to death for their role in the 1988 Anfal campaign against the Kurds in the north, in which an estimated 180,000 people died.

But senior Sunni figures, including Vice-President Tareq al-Hashemi, insist that Sultan Hashem was a career soldier just following orders in order to survive.

They argue that sparing him would foster national reconciliation, while hanging him would have the reverse effect, convincing Sunnis that this was sectarian revenge against Sunnis, not true justice.

With Vice-President Hashemi, the most senior and active Sunni figure in the Iraqi political structure, threatening to resign if the execution goes ahead, the Americans are clearly worried about triggering a major political crisis if they hand the men over at a time when the US is desperate to foster reconciliation among Iraqis.

Given assurances?

But there are lingering suspicions that they also regard Sultan Hashem as a special case, amidst unconfirmed reports that he was in touch with the CIA during his time in power and would have co-operated in a coup against Saddam.

There were also reports that when he voluntarily gave himself up to coalition forces in the northern city of Mosul in 2003, he was given assurances about his life.

Iraqi President Jalal Talabani, September 18, 2006
President Talabani opposes the death penalty on principle

The US commander in the area at the time was General David Petraeus, who now commands the entire Multinational Force in Iraq.

But US ambassador Ryan Crocker says he has investigated the allegations, and insists that "there were no US undertakings whatsoever to Sultan Hashem concerning immunities or anything like that."

Embassy officials also insist that there has been no lobbying on Sultan Hashem's behalf from within the US political, diplomatic, military or intelligence community.

They say that as soon as the Iraqis reach "consensus" on the issue, all three men will be handed over.

But the delay in the executions may have also created new legal complications.

Some defence lawyers are now arguing that it would be illegal to hang them now that the deadline has expired.

Another aspect of the controversy centres on a dispute over powers and prerogatives within the Iraqi system.

Vice-President Hashemi insists that the Presidency Council - President Jalal Talabani and his two vice-presidents - are required to endorse any death sentences.

That would not happen, and certainly not in this case, because President Talabani, a former human rights lawyer, opposes the death sentence on principle and would never sign any warrant, although it was his own Kurdish community which suffered in the case in question.

That would leave only the other Vice-President, Adel Abd al-Mehdi, a Shia, as a possible signatory, and one out of three would not be enough.

A Supreme Court ruling on the issue of judicial reviews is still being argued over.

In the meantime the government insists that a presidential sign-off is not necessary.

"The executive authority is the government, headed by the prime minister," said one official. "With all due respect, the presidency council is an honorary body only."

So until the issue is resolved, Ali Hassan al-Majid and his two companions will linger on death row, no doubt hoping that "consensus" will continue to elude the fractious politicians.





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