What does it mean that Saddam is a P.O.W.? IGC Annoyed
Just when you think you’ve got Rumsfeld figured out, he throws a spit ball that loops around your elbow. I thought Iyad Alawi’s declaration that the Interim Governing Council would try Saddam in a secret trial was probably the last word on the subject. Bush had said Saddam would be turned over to the Iraqi for trial. But now the Department of Defense lawyers have designated Saddam Hussein a prisoner of war (a no-brainer since he was the commander in chief of the Iraqi army!). The US military pays a lot more attention to the Geneva Conventions than do a lot of law professors.
It is worth reading The Third Geneva Convention Relative to the Treatment of Prisoners of War, especially articles. 99-108 on judicial proceedings. It requires that the prisoner be tried immediately in a kind of court-martial by the occupying power, and not be confined for more than 3 months.. The experts in international law quoted in most news sources on Saturday said that it would be illegal now for the US to simply turn Saddam over to the Iraqi Interim Governing Council!
The IGC is alarmed at this turn of events.
AFP reports, “Kurdish Governing Council member Dara Nuraddin told AFP Saddam could be tried in six months time before an Iraqi war crimes tribunal, but he expressed irritation that the Pentagon did not consult Iraqis about his legal status. “Maybe you will see Saddam on trial in the next six months or possibly more,” said Nuraddin, an independent judge who heads the Governing Council’s judicial committee. “There will be Iraqi judges and we might take some assistance from international judges,” said Nuraddin, who helped craft Iraq’s war crime laws. Saddam would most likely be tried for the 1988 gassing of some 5,000 Kurds in Halabja, as well as the mass expulsion of Kurds from their homes during his 24-year rule, the judge said. Nuraddin added that Saddam would also likely be tried for the persecution of the Shiite Marsh Arabs in southern Iraq in the 1980s and 1990s, as well as for war crimes against Iran and Kuwait. On December 10, Iraq adopted a war crimes tribunal statute, setting up five-man tribunals to judge those members of Saddam’s regime suspected of such crimes. Still, the judge expressed dismay about the Pentagon’s latest decision. “We are shocked and are in talks with the Coalition Provisional Authority about it because we were not consulted,” Nuraddin said, referring to the US-led occupation administration. Nuraddin had previously said it would take no less than six months to investigate the former regime’s crimes, with around 20 investigative magistrates working on the dossier.“
James Paul of the Global Policy Forum had earlier made good comments about what international law requires with regard to trying Saddam, which are worth reviewing. He refers to the Amnesty International statement on the issue.
I had also weighed in on how the trial of Saddam in Iraq by the IGC might backfire.
The Pentagon mysteriously said that Saddam’s status might yet “change.” I don’t personally see how it could be legally changed from POW. The US captured him. He is an enemy combatant. He is the US’s POW. By the 3rd Geneva Accords, the US now has to court-martial him.
It is baffling why the Department of Defense has made this ruling. Who pressured it to do so? The State Department? A foreign government that offered a quid pro quo? The UN? Does the Pentagon nevertheless still intend to hand Saddam over to Dara Nur ad-Din? If not, was it afraid that the Iraqi government itself might extract information from Saddam that it could use later against the US somehow? Is it afraid that Ahmad Chalabi and his cronies would ferret out the location of the $40 bn or so that Saddam is said to have squirreled away in secret accounts, and just grab it for themselves as private persons? Is the US trying to protect old allies like Jordan and Saudi Arabia from the airing of dirty laundry by trying Saddam itself? Are the Americans afraid, as I was, that a trial of Saddam might provoke ethnic violence as the old wounds are reopened and the full horror of Sunni Arab troops’ actions against Kurds and Shiites are revealed. Darned if I know. Makes no sense. And government actions that do not obviously make sense mask hidden intentions.