Nathan Brown on the Trial of Saddam
Nathan Brown, an eminent political scientist at George Washington University, shared with me the
following with regard to issues around the trial of Saddam and Coalition Provisional Authority
attitudes to the law of occupation. He kindly permitted me to reprint his comments here.
“You have speculated about the intentions of the US and the CPA with regard to the IGC and a trial for Saddam Husayn. In one sense, there is not that much of a need to speculate. [Before] the Pentagon classified him as a POW, the CPA [had] issued a regulation allowing it to deputize its authority to try war criminals to the IGC: http://www.cpa-iraq.org/regulations/20040110_CPAORD48_IST.pdf Of course, the relevant Iraqi statute had already been issued by the IGC. I cannot believe the timing of the CPA regulation was coincidental, though I’ve seen no comment on it. Rumsfeld’s comments yesterday seem to be in line with an American inclination to turn him over to the IGC but perhaps to keep a finger in the trial.
Incidentally, I see that you also subscribe to a fairly strict reading of the 1907 Hague convention. The language of the convention does appear to be fairly confining with regard to civil law; Article 43 provides “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” But I would say that the CPA seems to subscribe to a broader interpretation of what it means to be “absolutely prevented” from respecting laws in force. Not only has it issued fiscal and financial regulations that are potentially far reaching in their implications, it has also issued regulations on the judiciary and NGOs. There should be a snippet on these in the upcoming Arab Reform Bulletin. My impression is that such regulations are likely to survive the CPA. In the closest local precedents we have, the PNA actually retained almost all legal enactments issued by the Israeli military government and civil administration (though it was loathe to admit that it had done so). And if the Americans follow British precedent, they will seek some explicit language on the matter when sovereignty is restored to an Iraqi government.“
Cole: Other experts in international law have told me that the Third Geneva Accord does not absolutely require the occupying power to try the POW, but allows it to do so. The US apparently may hand Saddam over to an Iraqi government without violating international law.