La condanna a morte di Saddam Hussein. Riflessioni sul divieto di pena capitale e sulla 'necessaria sproporzione' della pena nelle Gros Violations

摘要

[Abstract] The death sentence of Saddam Hussein is one of those extreme cases that put intension the foundations of the absolute prohibition of the capital punishment, still morein the moment in which we think to extend its capacity in a universal sense and consi-dering the fact that numerous States (Arabic Countries, China, United States, Japan,etc.) maintain it, comprised therefore occidental or liberal political systems, and notonly authoritarian or religious-political systems: the compact exclusion of Europe fromthat group moreover regards an entity that has financed yearlong Saddam, giving himenormous amounts of war materials, also chemical, thanks which were realized thegenocides that he was charged with, included the crime of the 148 died of Dujail (apartfrom the tortured ones, deported etc.), killed for reprisal after his assassination attempt,and on which the criminal trial has condemned him has been focused. Looking throughthe accusations and the numerous violations of the defensive guarantees of the process,moreover it is pointed out that the trial of Saddam Hussein has been an effective pro-cess, not like the ghost-trial that in 1984 the Iraq Revolutionary Court celebrated inorder to condemn to death penalty 148 men, women and children suspected opponentsof the regimen, 46 of which already were died at that time for the tortures or other cau-ses. The vastness of the ascribed crimes to Saddam could not know “a proportioned”penalty in any case, therefore the punishment in the “gross violations” of the interna-tional criminal law is necessarily out of proportion. In this necessary disproportion canwe identify a possible humanistic valence of the criminal law based on the principle(able to renew the foundation of the absolute prohibition of capital punishment) todaysummarized in the idea that the value of a person cannot be compared with whicheverfact he/she committed, because the value of the person is not entirely expressed by thesingle facts she realizes. The proportion judgment on which the capital punishment isbased, results then impossible between one person (his life) and the committed facts. Onsuch positive principle of “unmeasurability” of the distance between the value of a per-son and his conducts, may we refuse the capital punishment as a typical penalty of the“criminal law of the enemy”. Humanistic and religious reflections converge on this con-clusion, in a multicultural dimension, which is more positive then a merely secular pointof view. The criminal law culture can today carry out a task of singular importance if itindeed agrees to assert the absoluteness of that prohibition, avoiding the “church” of thewestern (United States) and of the oriental fundamentalisms, and remarking, from aEuropean point of view, the human “corresponsibility” on which the refusal of deathpenalty is based.