Global Policy Forum

By Richard A. Oppel Jr. and Alissa J. Rubin

In late June, three of Saddam Hussein's senior military officials were found guilty of war crimes, including the notorious henchman known as Chemical Ali. Iraqi law required that they be executed no more than 30 days after the Iraqi courts rejected their final appeals. That deadline has passed, but the men are still alive and in United States custody. The execution has been delayed because of questions raised by some Iraqi politicians and a spirited behind-the-scenes discussion involving senior Iraqi and American officials over the death sentence of one of the other men, Sultan Hashem Ahmed al-Jabouri al-Tai, the former minister of defense. Now, Mr. Hashem's fate has become a test case for reconciliation and whether Iraq's fractious sects and political alliances can work together to resolve the difficult issues surrounding his death sentence. There are also doubts among some Iraqi officials about the fairness of his punishment.

Beyond the heated arguments about Mr. Hashem's guilt lies the fraught question of whether Iraqis are ready to stop the retributive killing of members of the former government. It seems that some of them are. "We need to show there have been enough deaths; we are tired of it, we need to stop it," said a senior adviser to President Jalal Talabani. The adviser spoke on the condition of anonymity because of the delicacy of the issues. In an emotional press conference in Iraqi Kurdistan last month, Mr. Talabani, who has often spoken against the death penalty, said he refused to ratify Mr. Hashem's execution. Other Iraqi politicians are unwilling to forgive those involved in the atrocities perpetrated by Mr. Hussein and his lieutenants, when so many of their victims were shown no mercy. Both Shiite and Kurdish officials believe that if Mr. Hashem's life is spared, it might set a precedent by which others who committed crimes while the former government was in power would similarly seek to be let off. They also fear that Mr. Hashem would become a hero to many members of the former government, and provide a dangerous rallying point. "All other defendants will say that they were only receiving orders and as a result no one would be tried," said Jalal al-Din al-Sagheer, a member of Parliament from the largest Shiite bloc. "The Al Qaeda militants will adopt the same argument."

Still, the price of insisting on Mr. Hashem's hanging could be high because of the respect he commands in the largely Sunni community of former Iraqi military officers. If the government executes him, it risks alienating potential allies in the fight against Al Qaeda in Mesopotamia, the homegrown Sunni insurgent group that American intelligence officials say is foreign-led. Mr. Hashem's execution would also anger Sunni factions that long composed the backbone of the insurgency but have begun to work with the American military. Despite their new alliance with the Americans, many of these Sunnis deeply distrust the Shiite-dominated central government, and American officials fear that hanging Mr. Hashem would set back hopes for a détente with the government and any larger Sunni-Shiite reconciliation. "Once you execute someone, you can't unexecute him," one American military official said. "Any benefit that could be derived from sparing his life will be lost. It would be better to see what benefit could be brought out, rather than to see what might be lost from his death." The official spoke on the condition of anonymity, like other American officials, because he was not authorized to speak publicly about the issue. The Iraqi Constitution empowers the president to ratify death sentences, but he does not have the power to pardon or commute sentences in cases like this one. Mr. Talabani would like to reduce Mr. Hashem's death sentence, his aides said, but there is no legal mechanism for that.

One possibility raised by several people close to the case would be for a group amnesty to be offered to several members of Mr. Hussein's government, including Mr. Hashem, but that would require new legislation. Mr. Hashem was one of Iraq's top military officers for decades, winning respect from many Iraqis for his professionalism. He was a military leader of the Anfal operation in 1988, in which as many as 180,000 Kurds were killed. That operation was led by Ali Hassan al-Majid, known as Chemical Ali. Mr. Hashem also negotiated a cease-fire with American commanders during the Persian Gulf war in 1991. And he was defense minister when American troops invaded in March 2003. Some American officials say Mr. Hashem helped limit the resistance of the Iraqi Army in 2003. "Had he told the military to dig in and fight, they would have dug in and fought," the American military official said. After the defeat of Mr. Hussein's forces, Mr. Hashem fled to Mosul, his birthplace. In August 2003, Maj. Gen. David H. Petraeus, then the commander of American forces in northern Iraq, wrote a letter praising him as a "man of honor and integrity," and asking him to surrender. "I offer you a simple, yet honorable alternative to a life on the run from Coalition Forces in order to avoid capture, imprisonment and loss of honor and dignity befitting a General Officer," he wrote.

To Mr. Hashem, it was a promise that he would avoid lengthy incarceration, his son, Ahmed Sultan Hashem, said in an interview. "Petraeus said that the investigation would take two to three weeks and after that he would be released and could resume his normal life," he said. "The Americans promised us they would treat him with dignity and respect and keep him alive and release him afterward. They didn't fulfill their promises." General Petraeus, now a four-star general in charge of all American forces in Iraq, never made a promise that Mr. Hashem would be released, said a senior American military official in Baghdad. "It doesn't mean that somebody else may have said that, but General Petraeus did not," the official said. The language about avoiding "imprisonment" pertained solely to Mr. Hashem's time in the custody of General Petraeus's 101st Airborne Division in Mosul, he said. No offer of immunity from prosecution was extended, he said.

While American officials do not want Mr. Hashem executed, they insist that they will turn him over and allow the sentence to be carried out once a proper "authoritative" request is made by the government of Iraq. Iraqi officials asked for him to be turned over in early September, but American officials refused. One senior American official in Baghdad characterized the Iraqi requests as "informal," and cited President Talabani's objections to the execution. "If the president isn't signing the document, then I don't think we have an authoritative request," the official said. "We're not blocking anything. We are awaiting their decision." Mr. Hashem's son says his father believes that he acted appropriately, under orders from commanders. In his last telephone call, he said, his father said, "I am innocent, and I did nothing that I should be ashamed or afraid of."

Khalid al-Ansary contributed reporting.