Only the Los Angeles Times picked up
the issue about repatriation and how it would actually facilitate Saddam's trial by the Iraqi government. Most newspapers focused on how the 3rd Geneva Convention would protect Saddam while he's in U.S. hands, and then concluded that it would impede his trial. Even though the NY Times talked to the right people (like Prof. Ruth Wedgwood), they missed
this issue entirely. The AP misses the issue too, because they focus too closely on what will happen to Saddam while he's in U.S. custody
, instead of how he can be tried after repatriation
. The Washington Post obliquely hits
the issue. (If only the Wall Street Journal
printed on Saturdays... their reporters almost always pick these subtle issues up.)So just to recap, here's a quick legal summary:
(1) The 3rd Geneva Convention
Relative to the Treatment of Prisoners of War lays out the law in this area.
(2) Art. 4
of this document defines what a POW is, according to several sets of criteria. Once captured, prisoners are presumed to be "prisoners of war", according to a "rebuttable presumption" found in Art. 5
. If any doubt exists as to the status of a prisoner -- whether he's a POW or not -- the detaining authority must convene a "competent tribunal" under Art. 5
to determine whether the POW meets the criteria in Art. 4 or not. Without such a determation, the prisoner is
a POW. The Pentagon's lawyers
determined that Hussein met
the test of Art. 4, and that the presumption of POW status applied to him. But they really didn't have to say or do anything. In the absence of any competent tribunal's finding, Saddam was a POW all along, despite the semantic maneuvers of various U.S. spokesmen.
(3) Art. 84
allows for trial of a POW by a "military court" for crimes committed while in captivity, and Art. 85
mentions the possible trial of POWs for crimes committed prior to capture. Art. 99
specifies that a POW cannot be tried for a crime not in existence at the time the act was committed. (Note: this could impede any prosecution under the Iraqi Governing Council's tribunal
, because it did not exist at the time of the crimes alleged by Hussein.) The subsequent articles outline procedural protections for POWs who are tried by the detaining power. But these sections are only relevant if we were try to Saddam while he's in captivity, in a U.S. military court.
(4) Art. 118
states that "Prisoners of war shall be released and repatriated
without delay after the cessation of active hostilities." [emphasis added] This effectively forces the U.S. to hand Saddam over to the Iraqis at the cessation of hostilities, which presumably will occur when the new Iraqi government becomes official. Once he's repatriated, it's up to the Iraqis what to do with him. The 3rd Geneva Convention no longer applies to Saddam once he's repatriated
. And if the Iraqi government has taken root, and the U.S. is no longer an occupying power, then it's not clear whether the 4th Geneva Convention
Relative to the Protection of Civilian Persons in Time of War would apply either.
(5) The Iraqi Governing Council
has said that it will try Saddam according to its laws, in a special tribunal
constituted for this express purpose. At this point, the 3rd Geneva Convention won't apply to Saddam anymore, since he will be a repatriated POW. The Art. 99 problem I mentioned above will be moot. The Iraqis may try Saddam subject to their laws, and if they so decide, execute him. Nothing in international law obviates a state's ability to subject its own citizens to its own domestic courts. This is a fundamental precept of state sovereignty, a principle which has been the bedrock of international law for hundreds of years.
(International human rights lawyers will quibble with this point, saying that international law does forbid inhumane practices like torture and the deprivation of due process. But I think you'd be hard pressed to say that a state doesn't have the right to try its own citizens, especially if the trial carries some indicia of fairness and due process.) That's all folks
. It's really quite simple when you frame the issues this way. By giving POW status to Saddam, we actually make it easier
to give him back to the Iraqis so they can try him, because there's no discretion involved. Art. 118 mandates that we hand Saddam back to the Iraqis at the cessation of hostilities -- end of story. This is probably why the Pentagon chose this course of action. Here we have a situation where American interests coincide with the dictates of international law. How could the choice be any easier?Update
: The Pentagon issued a press release today (1/10) saying that Saddam is a POW, but that his status could still change. WTF?
. . . Coalition Provisional Authority spokesman Dan Senor told reporters that Hussein's POW status may change, depending on any evidence that may be uncovered pertaining to his alleged crimes against humanity.
Hussein "is now technically an enemy prisoner of war, but that status, his ultimate designation, is neither affected nor determined by that (POW) designation," Senor explained, noting "until further information comes forward, that is his status."
That doesn't seem right. It looks like the political and legal arms of the Pentagon aren't talking, or maybe they're not in agreement yet. Even if evidence comes out that Saddam committed "crimes against humanity" (and his prior bad acts surely qualify), that doesn't affect his status as a POW. Nor does it really make an iota of difference if what we really want to do is repatriate him so the Iraqis can try him. I'm not sure why the Pentagon is hiding the ball on this one; it seems relatively straightforward to me.
Indeed, more evidence of Saddam's 'crimes against humanity' could only frustrate the current U.S. plan to let Iraq try (and possibly execute) him. The Iranian, Turkish, and Kuwaiti governments all have significant interests in trying Saddam, as do the Kurdish people and other groups. U.S. military courts may also want to try him for his unlawful use of unconventional warfare (e.g. the Fedayeen Saddam disguised as civilians) during the second Gulf War. The more evidence we produce of these other crimes, the more pressure we create for an international
trial. And that's the one thing that our government has said it doesn't want.