[Deathpenalty] death penalty news----worldwide
rhalperi at mail.smu.edu
Sun Nov 16 13:39:18 CST 2008
Iraqis accused of murdering British troops not seeking asylum----British
lawyer says his clients should receive a fair trial in Britain, rather
than risk torture and execution in Iraq.
2 Iraqis accused of murdering British troops in 2003 are "not interested"
in seeking asylum in Britain, their lawyer told me this morning.
Phil Shiner said he had no instructions to seek refugee status for Faisal
Al-Saadoon and Khalaf Mufdhi if they were brought to Britain for trial but
The 2 former Ba'ath party officials are currently held by the British
authorities in Basra. Mr Shiner is challenging the Ministry of Defence
over its plan to hand the defendants over for trial by an Iraqi court.
They are accused of killing Staff Sergeant Simon Cullingworth and Sapper
Luke Allsopp in cold blood during the beginning of the Iraq war in 2003.
Mr Shiner says the 2 Iraqis should be brought to London and tried for war
crimes at the Old Bailey, so that relatives of the 2 soldiers can attend.
The question of political asylum would arise only if the 2 were acquitted
or the trial did not go ahead for some reason. It strikes me as unlikely
that men suspected but unconvicted of killing British troops would want to
live in Britain.
"What we are seeking is to prohibit the men's transfer to the Iraqi court
and their safe passage out of Iraq," Mr Shiner said.
As the Telegraph reported today, Patrick Mercer, the Tory MP for Newark
and a former infantry commander, said: "It seems totally wrong to me that
these men are being given legal aid. Would we have given legal aid to
Nazis who committed war crimes in the Second World War? Of course not
this is arrant nonsense."
In fact, the Nazis tried at Nuremberg were allowed defence lawyers. Some
were even acquitted. I am not aware of any Nazi defendant being refused a
lawyer because of inability to pay, but they may have been funded by their
supporters rather than by the tribunal. Legal aid is certainly provided by
all the current war crimes tribunals.
Imagine, though, that the 2 Iraqis were denied legal aid. Is Mr Mercer
suggesting that they should be brought to London to argue their case with,
I presume, little English and no knowledge of English law? Is he proposing
that their lawyers should act for nothing? Or is he arguing that they do
not have a case worth putting to the English courts?
If the latter, then the judges are against him. The 2 Iraqis have been
given permission to seek judicial review and the case will open before a
2-judge divisional court on Tuesday.
The men's lawyers have 3 main points to argue:
That there is a flagrant risk of a trial in Iraq being unfair because the
court has a fundamental bias against former members of the Baath party.
That the defendants are at risk of being sentenced to death, despite
Britain's policy of not handing prisoners over if they face execution and
despite a plea for clemency from the family of one of the soldiers killed.
That the defendants risk torture or ill-treatment in prison, contrary to
Article 3 of the Human Rights Convention.
How, though, can the European Convention on Human Rights apply in Iraq?
The answer is to be found in a ruling by the House of Lords last year in a
case called Al-Skeini, which dealt with the death of the Iraqi hotel
worker Baha Mousa in British military custody. That case establishes that
the Human Rights Act applies to a British military detention unit abroad.
Despite that, the Ministry of Defence does not accept that the duties not
to send a defendant to a country where he may be tortured or executed are
engaged in this case.
The 2 men have been held in British custody for 5 years or more. We are
told by the Government that Britain has received assurances from the Iraqi
government that Mr Al-Saadoon and Mr Mufdhi will be treated humanely in
Iraqi custody and that Britain finds these assurances "credible". We have
not been told of any assurances that the 2 will not be sentenced to death.
The question of principle raised by this case is whether our courts should
hold the British Government to higher standards than those we encounter in
countries such as Iraq or, indeed, the United States. In my view, they
(source: Joshua Rozenberg; The Telegraph)
Vote on death penalty motion expected by mid-week
THE House of Representatives spent 2 days last week debating the
controversial issue of capital punishment, but will not vote on the motion
until Tuesday or, possibly, Wednesday.
The length of the debate will depend on how many more MPs want to speak.
When Speaker, Delroy Chuck, adjourned the debate last Wednesday to deal
with some other matters, it was obvious that several others wanted to
It has been a very emotional debate so far, with members supporting or
opposing the retention of capital punishment seated on both sides.
For example, while Opposition MP, Dr Patrick Harris (North Trelawny) and
Government members Joseph Hibbert, Laurie Broderick and Ernie Smith (South
West St Ann) spoke passionately in support of retaining the punishment,
Opposition MP Phillip Paulwell (East Kingston and Port Royal) and
Government MPs Horace Chang, Gregory Mair (North East St Catherine) and
Everald Warmington (South West St Catherine) were strongly opposed.
The motion, which is being debated, was moved by Prime Minister Bruce
Golding last Tuesday and reads as follows:
"Whereas it is provided by law that the maximum penalty for murder in
specified circumstances is death, and whereas contrasting views exist
among the public as to whether the death penalty should be retained or
"Be it resolved that this Honourable House: (a) affirms its support for
the retention of the death penalty as specified in the Offences Against
the Person Act; or (b) declare its support for the removal of the death
penalty as specified in the Offences Against the Person Act."
Explaining why the motion was so worded, Golding admitted that "it is one
of those very rare resolutions". He said that, in all his years in the
House (since 1972), he could not recall any previous resolution being
framed in that way.
"A resolution asks for either yes or no. (But) we couldn't do that in this
case because, in order to do that, we would have had to put a question
which favours one side or the other of this issue and then invite a yes or
no answer," he pointed out.
The vote could be taken on Tuesday, and it seems very likely that it will
be overwhelmingly in favour of retaining capital punishment. However, the
issue will then be, how?
There is some confusion, however, in terms of how the debate is
proceeding. While it is supposed to be a conscience vote, the Opposition
seems to be substantially following a party line as far as its amendment
In fact, senior spokesman Robert Pickersgill and Leader of Opposition
Business, Derrick Kellier, have already made it clear that the party wants
the amendment voted on.
The Opposition's amendment states:
"Be it further resolved that the Constitution of Jamaica be amended to
remove the 5-year stricture in relation to the carrying out of the death
penalty after conviction, and also that the rulings of the Governor
General's Privy Council concerning the prerogative of mercy cannot be
inquired into in a court of law."
Under this amendment, the Governor General's Privy Council in Jamaica
would have the final say in granting pardons, reducing sentences or
referring cases back to court for further review.
The government considers this an attempt to replace the Privy Council in
London as the final arbiter.
This development threatened to stall the debate. Pickersgill insisted that
the Opposition would not continue without an undertaking to deal with the
issue of the Privy Council's 5 year stricture from the Pratt and Morgan
Golding's first response was that the reason for the cases stretching
beyond 5 years was the slow Court process. But, he felt that this can be
addressed by the reform process, including the increased number of judges
and courthouses as well as the application of technology which the
government has been pursuing.
It is obvious that Goding's position has not satisfied the Opposition.
Both sides discussed the issue last Wednesday prior to the sitting and
reached a compromise. But even the compromise is not clear to all members.
Golding said that it is based, primarily, on the need to ascertain the
will of the House on the issue of capital punishment prior to debating
"What is agreed, is that the debate will proceed...with a clear commitment
that, in the event that a final vote is for the retention of capital
punishment, we will support the position for an amendment to the
constitution to facilitate the extension of the 5-year period," he added.
He pointed out that if the vote is against capital punishment then there
would be no need for the amendment.
Kellier confirmed that this was the agreement, but, it is still unclear
how the Government will deal with it. Will they support the Opposition's
proposal re the Privy Council, or will they come with their own proposals?
(source: The Jamaica Observer)
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