Giovanni Di Stefano [lawyer for Ali Hassan al-Majid, dubbed "Chemical Ali", Studio Legale Internazionale, Rome] applauds the US refusal to transfer al-Majid and his co-defendants to Iraqi custody for execution until a Iraqi legal debate on the executions is resolved.
Di Stefano adds this official statement from the al-Majid defense team: "We from the Defence Lawyers appreciate and applaud the stance taken by the US Government in the refusal of handing over Mr Al Majid et al for an execution that is by far consistant with the law. The US Government will not hand over any of the three sentenced to death until all our application have been heard and dispensed with by a competant court. We have at all material times copied the US Embassy in Baghdad with our applications including (1) application to remit sentence to President Talabani (2) Constitutional challange in the High Court of Iraq (3) application chalanging the legitimate expectation to the High Court and we have now identified a further issue which is in our view pertinant to both the US and the UK.
The Convention on the Prevention and Punishment of the Crime of Genocide
Adopted by Resolution 260 (III) A of the U.N. General Assembly on 9 December 1948.
Entry into force: 12 January 1951 deals with the question of Tribunals in Art.
VI and Iraq, as well as US and UK are signatories.
Article VI of the convention reads:
"Article VI: Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction."
The key word here is 'competent' and in accordance with the maxim 'pacta sunt servanda', it is to be presumed that Iraq, US and the UK intends to honour its international relations. Thus the words in the Convention are to be given the meaning that is most favourable to that construction.
In our submission the Iraqi High Tribunal can not be certified by any independant body to fall anywhere near the word 'competent' Tribunal having received criticiusm from each and every body including but not limited to the UNHCR, Amnesty International, Human Rights Watch, and the UN Secretary General in pro per.
It follows that until the issue as to whether or not in the literal sense the Iraqi High Tribunal can be classed within the word 'competent' which in our view it cannot, any sentence from an 'uncompetent' Tribunal may lead to intervention as regard the execution of sentences from such a Tribunal in Iraq, US, or UK.
The Iraqi High Tribunal fails the test of competency required to comply with Art.VI and as such cannot, in our submission dispense justice let alone impose upon third party signatories to the Convention any obligations as such would de facto and potentially de jure make those third party countries accomplices. We will not hesitate to take the appropriate action in the unlikely event that our clients are executed and have indeed brought this matter to the attention of the UN."
GIOVANNI DI STEFANO
MUQDAD S AL JOBOURI