Confusion reigned as the US formally named Saddam Hussein a prisoner of war, but is the furore a red herring? asks Nyier Abdou When the Pentagon classified Saddam Hussein an enemy prisoner of war (POW) earlier this month, speculation rose to a fever pitch that the US was backtracking on its commitment to hand the deposed leader over to be tried by an Iraqi tribunal. Hussein, routed out of hiding on 13 December by US forces, has reportedly been largely uncooperative with his captors, but his capture delivered the US its most satisfying victory since US President George W Bush declared major combat operations over in Iraq on 1 May. More than a month later, many are asking, What next? POWs are awarded significant rights under the 1949 Geneva Conventions, which adjudicate the so-called laws of war. The US administration has come under considerable fire for its refusal to designate as POWs foreigners detained during the war in Afghanistan, many of whom are being held at the US naval base in Guantanamo Bay, Cuba, instead classifying them as "illegal combatants". The administration's take on the war in Iraq, however, has been more conventional. Antonella Notari, spokeswoman for the International Committee of the Red Cross (ICRC) in Geneva, told Al-Ahram Weekly that with regard to the conflict in Iraq, the US has largely applied the Geneva Conventions under what it deems a "classic example of armed conflict" -- a position, Notari notes, that is "very different" from the administration's position on the 2001 conflict in Afghanistan. Notari suggests that in terms of armed conflict, Iraq was "legally more clear for them". The din over the legal implications of Hussein's POW status could actually be much ado about nothing. One of the first concerns that arose was that it would preclude interrogation, but again, Notari points out that this is not the case. "POWs can be interrogated," she says. "He may refuse to answer, but nothing hinders his being questioned." Notari stresses that being a POW does not offer any "immunity" under the law. Saddam Hussein, she notes, "will be accountable to the law". James Ross, senior legal advisor at the New York-based Human Rights Watch, agrees. "His formal classification as a POW was completely proper," he told the Weekly. "It doesn't affect his being prosecuted for war crimes, crimes against humanity or genocide." A POW, as defined by the Third Geneva Convention, is not required to offer anything other than his most basic information -- name, rank, serial number, date of birth, etc. However, under the Geneva Conventions, until a prisoner's status is determined, he is presumed to be a POW, and he would be entitled to the same rights. Most of the rights afforded a POW in terms of treatment are ensured to all detainees under a host of international conventions, such as the International Covenant on Civil and Political Rights (to which both the US and Iraq are signatories) and the Universal Declaration of Human Rights. Combatants who are not named as POWs are considered "protected persons", under the Fourth Geneva Convention. The most significant difference is that a POW, as a legal combatant, cannot be tried for taking part in hostilities. He is also entitled to visits from the ICRC and to communicate with his family. An ordinary enemy soldier taken as a POW in the course of a conflict would be released following the cessation of "active hostilities". Although Bush declared major combat operations in Iraq over on 1 May, the Geneva Conventions still apply under an occupation, and will continue to do so until the coalition leadership transfers power to a sovereign government or pulls out of Iraq unilaterally. Joanne Mariner, a human rights attorney and FindLaw legal expert notes that Bush's declaration was "not decisive" of the question of whether the war was over. "The existence of an armed conflict is purely a factual question, to be assessed according to the level of hostilities," she told the Weekly. Most wars, Mariner points out, are in fact undeclared, but the Geneva Conventions still apply. Under international humanitarian law, she suggests, the continuing hostilities in Iraq "probably rise to the level of an armed conflict". There has, however, been a shift in the way the US perceives the conflict, despite rising attacks on coalition targets. Large numbers of POWs and "security detainees" have been released in recent weeks and Eric Metcalfe, director of human rights policy at the London-based legal watchdog JUSTICE, reasons, "If the war isn't over, why let your prisoners go? The US must believe the war is over." Since it is clear that the US intends to see Hussein tried for war crimes and crimes against humanity, it is obvious that he would never be released upon the end of hostilities. Pentagon Spokesman Dan Senor noted last week that the designation of Hussein as a POW still "leaves his final status undetermined". But even after the end of hostilities, Mariner argues, Hussein would remain a POW. Former Panamanian leader Manuel Noriega, who was removed in the US invasion of Panama in 1989 and sentenced to 40 years by a US court on charges of drug trafficking and money laundering, is still considered a POW and receives regular visits from the ICRC. Members of the Iraqi Interim Governing Council (IGC) expressed surprise and concern over the designation of Hussein as a POW. IGC member Dara Nuraddin, who has helped to set up Iraq's newly established war crimes tribunal, said the council was "shocked", then dismissed the declaration as irrelevant: "The Pentagon declaration does not matter to us," Nuraddin said. "He is a criminal. [He] will be judged in Iraq in front of an Iraqi tribunal." When US administrator in Iraq announced the capture of Hussein, he also declared that Hussein would be tried before the new Iraqi tribunal, thus ruling out talk of an ad hoc UN war crimes tribunal along the lines of those for the former Yugoslavia and Rwanda. The IGC seems to have interpreted Hussein's POW status as precluding an Iraqi trial for the former leader, but this assessment has been flatly rejected by legal experts. The confusion over whether Saddam will ultimately be tried in Iraq is actually quite unrelated to his status as a POW. "As a practical matter, it is not likely to make a difference," says Human Rights Watch's James Ross. There is, however, some debate among international lawyers about the US handing Hussein over to the new tribunal. Occupying powers can only change existing legal systems to the extent necessary for security reasons, Ross explains. "Creating a whole new court with its own rules goes beyond that." Formally detaining Saddam Hussein as a POW, however, "will have little effect on any charges that may be brought against him," notes Ross. Under the Geneva Conventions, a POW charged with war crimes should be tried as a soldier from the detaining country would be tried. That means that the Hussein must be given the same justice a US soldier would receive. The "basic rule", says JUSTICE's Metcalfe, would be to try him in a military court -- in other words, a US courts-martial. But the Uniform Code of Military Justice leaves room for the US "to make exceptions", notes Metcalfe. For the "really big crimes", he suggests, a civilian tribunal is better suited. The Geneva Conventions also allow for other options. Legal experts are clear that a POW doesn't have to be tried by the detaining power. The UN Security Council could set up a special tribunal -- an option that the US has evidently shied away from, given its reluctance to support the entrenchment of international justice. Hussein could also be turned over to another government, such as Kuwait, so long as the state has ratified the Geneva Conventions and there is good reason to believe they will be enforced. So why is the IGC so nervous? The capture of Hussein unleashed a torrent of excitement among council members about reinstating the death penalty. "We will get sovereignty on the 30th of June," declared former prisoner and IGC member Mouwafak Al-Rabii. "I can tell you, he could be executed on the 1st of July." Current council head Adnan Pachachi had estimated putting Hussein in the dock by March. The announcement by the US, some commentators suggest, could be a way to slam on the brakes and assert their own timescale. "I think [the US] was slightly concerned about the speed with which the IGC is planning to set up the trial," says Metcalfe. The classification, he suggests may be a "warning shot" not to play "fast and loose" with what will inevitably be a trial with far-reaching significance.
