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Former Iraqi President Saddam Hussein has been declared an enemy prisoner of war, but is still resisting pressure to help his American interrogators after three weeks in custody.
The former dictator, captured almost a month ago, is being given all the rights due him under the Geneva Conventions on enemy prisoners of war, a Pentagon spokesman said on Friday.
The prisoner of war status means Saddam must be treated in accordance with the Geneva Convention. The status grants the International Committee for the Red Cross access to Saddam and makes the former president eligible for a war crimes trial.
The Geneva agreements say POWs can be tried for crimes against humanity only by an international tribunal or the occupying power, which in Iraq is the United States.
How good for a POW?
The International Committee of the Red Cross, which monitors the adherence to the conventions in conflicts across the globe, has been trying to arrange for a visit with Saddam.
According to Article 17 of the Geneva Conventions, prisoners of war are not required to divulge anything more than their name, rank, date of birth and serial number, and may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment to force more information from them.
Some critics say the video of Saddam undergoing a medical exam soon after his capture " images broadcast around the world showing the once-feared leader with matted hair, a beard, and opening his mouth for inspection " may violate the conventions" prohibition against humiliation of a prisoner.
Also, Saddam's classification as a POW means that he can be tried only under the authority of occupying forces, which might require a US military trial. That would interfere with US plans to turn the former Iraqi leader over to an Iraqi war crimes tribunal. The US plans to transfer sovereignty to a provisional Iraqi government by July 1.
Also, a Pentagon official said if new information came to light about Saddam, provisions within the conventions could lead to changes in his status.
For example, if it was found that Saddam lead the post-war insurgency, he might be considered a terrorist leader and not eligible for POW status.
How is Saddam now?
According to British officials, the US administrator in Iraq, Paul Bremer, told Tony Blair in Basra last week that Saddam was being treated gently in an effort to coax him into talking, but that he was "not offering information of an operationally useful kind."
"They are taking their time, trying to get him to talk so that he can feel comfortable that he can talk in captivity," a British official reported him saying.
But Blair was told that documents found in a briefcase in the house near where Saddam was found had helped the US forces to track Iraqi insurgents. The results of his capture were "greater than expected," Blair was told.
War crimes trial?
The US’s declaration that Saddam Hussein is a prisoner of war gives him certain protections, but leaves open the possibility of a war crimes trial, the International Red Cross said on Saturday.
The main burden for determining legal procedures for Saddam rests on the United States, said Ian Piper, spokesman for the Geneva-based International Committee of the Red Cross.
"It is the requirement on the occupying power and the detaining power to establish the judicial procedures if there is going to be any sort of trial," Piper said.
The decision by Pentagon lawyers to treat Saddam as a prisoner of war makes little difference to Saddam's immediate rights as a detainee.
"The area of crimes against humanity and war crimes is an entirely different matter." It's an area of international law which has been evolving since the Allied trials of Nazi war criminals at Nuremberg after World War II, said Piper.
The Americans "have obligations to clarify the situation and for due process to eventually take place," Piper said.
"But it is their responsibility to announce at some stage what process of law is going to be applied to prisoners of war in their hands, including Saddam Hussein."
Iraqis disappointed
Iraqi officials expressed fears that a Pentagon decision to confer prisoner of war status on Saddam Hussein will prevent them from putting the ousted leader on trial.
US officials in Baghdad sought to assure Iraqis that no deal was made to keep them from trying Saddam and that Iraq will have a "substantial leadership role" when he finally faces justice.
"There is no need for concern by anybody because the ultimate designation (of Saddam's status) will be determined down the road," Dan Senor, a spokesman for the US-led occupation authority, told reporters on Saturday.
"I am surprised by this decision," said Dara Nor al-Din, a former appeals court judge and member of Iraq's US-backed Governing Council. "We still consider Saddam a criminal and he will be tried on this basis."
Iraq's justice minister, Hashim Abdul-Rahman, called the Pentagon comments "mere views" and insisted that Iraqis themselves would determine Saddam's fate.
"It is a political decision, not a legal one," Abdul-Rahman said.
Senor, however, sought to play down the significance of the Pentagon comments. The US says Saddam's government killed at least 300,000 Iraqis, including thousands of Iraqi Kurds in a poison gas attack in 1988.
However, no Red Cross representatives have yet seen Saddam, whom the US says is being held in a safe location. Iraqi officials say he is being held in Baghdad.
On the streets of the Iraqi capital Saturday, some Iraqis speculated that the Americans were trying to deny Iraq the chance to try Saddam for fear he would expose secret contacts between Washington and Baghdad.
Handing Saddam back
Bremer, said handing Saddam over to the Iraqis could take place after July, when the Coalition Provisional Authority hands power to a provisional Iraqi government.
In an interview with the London-based al-Hayat newspaper, Bremer said the process of forming a court to put Saddam on trial in Iraq was "extremely complicated and requires international standards."
Bremer denied reports that Saddam was drugged when he was captured. He added that Saddam recognized neither him nor US military commander in Iraq Ricardo Sanchez when they met him following his capture in December.
Geneva Conventions
The 1949 Geneva Conventions on the conduct of war, endorsed by 191 nations, including the United States, spell out legal and other rights of prisoners of war which the International Red Cross say apply to Saddam Hussein.
Concerning the treatment of POWs, the convention in general requires the detaining power to give POWs the same legal treatment it gives its own soldiers.
Article 84 of the convention says a prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect to the particular offense alleged to have been committed by the prisoner of war.
In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality. Article 99 goes on to say that no moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused. No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel.
Meanwhile, Article 101 states that if the death penalty is pronounced on a prisoner of war, the sentence shall not be executed before the expiration of a period of at least six months.
(People’s Daily January 12, 2004)
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