Home > Prisoners in Iraq: The gray zone
By Alexander Casella
GENEVA - The handover of Saddam Hussein to the Interim Government of Iraq (IGI) and his concurrent loss of prisoner of war (PoW) status throws the status of the deposed dictator into uncertainty.
When captured by United States forces late last year, he was recognized as a PoW in his capacity as former supreme commander of the Iraqi army. As is the case with all PoWs, he had the obligation to communicate to his captors his full name, date of birth, grade and identity number, if any. While his captors were entitled to put more questions to him, he had no obligation to answer, nor could he be sujected to torture and inhumane or humiliating treatments.
It is an accepted international practice that when a war is over all PoWs are generally returned to the authorities of their state of origin. The only exception to this rule applies to PoWs who have been indicted for war crimes and are then subject to legal proceedings. Current international law also provides that if a PoW is transferred to a third power, the forces that originally captured him has a residual responsibility for his well-being and must take him back if he is mistreated.
While it is thus clear that the US will retain a residual responsibility as regards the welfare of Saddam, or any other Iraqi prisoners they captured, even after they have been transferred to another power, the issue of the transfer itself is still unclear. On the one hand Saddam has reportedly been transferred to the IGI and is thus under Iraqi responsibility. Given that a state cannot hold its own citizens as PoWs, this would entail his loss of PoW status. On the other hand, Saddam is still said to be physically inr US custody, a situation that would imply that he is still a PoW because he would be held by a foreign power. This is where it gets tricky.
According to international legal experts in Geneva, there are currently two schools of thought as regards detainees in Iraq. The first considers Iraq still under foreign occupation, views the IGI as a US/United Nations proxy and consequently insists that all detainees have PoW status, as they are not under the jurisdiction of their state of origin.
The second school considers that Security Council Resolution 1546, adopted unanimously on June 8, marks the end of the US occupation and the "assumption of full responsibility by an independent interim government". According to the resolution, the coalition force has been replaced by a Multinational Force (MNF) that is in Iraq at the "request" of the IGI and thus cannot be assimilated into an occupying army.
Under this approach, which provides that the US occupation has ended and that Iraq is no longer in a state of international conflict, the US has three options as regards the Iraqi PoWs it still holds: set them free, indict them for war crimes, or hand them over to their state of origin - in the present case the IGI. The IGI, acting in its capacity as the Iraqi ruling power, can either set the free the detainees or re-arrest them and subsequently indict them for war crimes.
International Committee of the Red Cross (ICRC) officials state unequivocally that, whatever the status of Saddam and other detainees in Iraq, both current and future, the Red Cross, based on existing international humanitarian law, still has the right to visit them and make recommendations regarding conditions of detention. Likewise they emphasize that "inhumane" and "humiliating" treatments are still prohibited by international law, regardless of the status of the detained.
It would not be in the tradition of the ICRC either to endorse or refute any stand regarding Iraq, and all the organization will say is that, at the current juncture, it will continue to work while observing the facts. These facts, as of today, are not easy to identify and their implications defy assessment.
Thus, while the ICRC does not explicitly deny the rationale by which Saddam Hussein is no longer entitled to PoW status, the fact that he is apparently under Iraqi "responsibility" while still in US, albeit in the MNF’s "custody", was characterized by a diplomatic source in Geneva as "bizarre". Likewise, the status of members of the Iraqi resistance liable to be taken prisoners by the MNF is still unclear. Based on current practices, they should be entitled to PoW status. However, that status would not continue once they were transferred to the IGI. Thus the same Iraqi insurgent is liable to come under two different statuses depending on the forces that capture him. He would be a PoW if captured by the MNF and a "detainee" if captured by the IGI. Based on the same principle, the MNF would have a residual responsibility as regards the welfare of prisoners that it has captured and subsequently transferred to the IGI, while the IGI would have sole responsibility for the prisoners it captured on its own.
This climate of uncertainty extends to the upcoming trial of Saddam Hussein. Under normal circumstances an international tribunal modeled on those set up by the UN Security Council regarding Rwanda and former Yugoslavia would have dealt with such a case. On the positive side, such a tribunal would have had the credibility derived from international endorsement, reputable judges, established rules of procedure and transparency. On the negative side, UN tribunals are notoriously slow and excessively expensive.
These shortcomings notwithstanding, what carried the day was the fact that Washington was opposed to the creation of a UN tribunal and insisted that Saddam Hussein be tried before an Iraqi court. To this effect, the now-defunct Coalition Provisional Army last year created an Iraqi Special Tribunal and selected the judges, with the nephew of embattled Iraqi politician Ahmad Chalabi as president. It was this tribunal that presented Saddam, on July 1, with seven preliminary charges. But legal experts in Geneva are of the opinion that these charges do not constitute a formal indictment and that if Saddam, as of now, is no longer a PoW and not yet an indicted criminal, the legal grounds for his detention are, to say the least, tenuous. Similar reservations are expressed regarding the Special Tribunal. Not only have its rules and procedures not been formally publicized, but even the integrity and qualifications of the judges are considered beyond scrutiny.
While all these uncertainties will not hinder the ICRC from doing its work, which consists of monitoring conditions rather then reasons for detention, international legal experts believe that as of now, the prerequisites for a fair, honest and credible trial of Saddam Hussein are far from being met.