Anger at Saddam POW Status

Tuesday, 22 February, 2005

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Adnan Karim

The American decision to designate Saddam Hussein a prisoner of war has sparked intense criticism from Iraqi leaders, many of whom believe that the move is an excuse to try the deposed president abroad, possibly even in secret.

Members of Iraq's Governing Council - which had been preparing to try Saddam in Iraq - expressed anger with the decision and the failure of the Americans to consult them in advance.

"I am surprised by the American declaration considering Saddam a prisoner of war," said Dara Nureddin, a former judge on the council who has been involved in preparations for the trial.

"We should have discussed this subject with the coalition," he insisted.

Nureddin was also surprised at the Pentagon's rationale for its decision, that Saddam was commander-in-chief of the armed forces. "Major combat operations finished in May," he pointed out.

Iraqis are disappointed by the move to declare Saddam a prisoner of war, said council member Muwafiq al-Rabie, "Iraqis want to see Saddam in the cage [where defendants are held during trials] and for Iraqis to try him publicly.”

The Geneva Convention holds that POWs should be tried by the occupying power under its own laws, using the same courts that it would use to try its own nationals.

Iraqi and foreign legal experts, however, have noted that the POW designation does not preclude Saddam's prosecution under the Iraqi criminal code or international law for crimes against humanity.

"This decision does not give him immunity from the crimes he committed," said Baghdad University law professor Mohammed al-Fayri.

That will please Iraqis up and down the country who want simple justice for the crimes Saddam committed against the nation.

"I want to cut him to pieces," shouted one Kurdish demonstrator from the northern town of Halabja, where Iraqi warplanes killed thousands of men, women, and children during 1988 chemical weapons attacks.

“Basra sentences you to death - that is your destiny, Saddam.” That’s how one slogan summed up feelings in the southern port city, where Saddam’s troops suppressed an insurrection in 1991, killing an estimated 300,000 people in the process.

But the designation of Saddam as a POW suggests that the Governing Council may have lost control over the process of trying the former ruler.

Some analysts argue that the body was hoping to boost its credibility at home and abroad by showcasing due process and dispensing justice to the former dictator.

The ministry of justice was preparing a massive series of tribunals, in which 10 different preliminary courts would hear the initial evidence against the former president.

After that, Saddam was to be tried in four different criminal cases, with up to 20 prosecutors arguing before 60 judges.

Ministry officials say they would form committees to take complaints from ordinary Iraqis against Saddam, some of them possibly turning into criminal charges.

Before the Pentagon's declaration, the Governing Council also had prepared for a degree of international participation in the process.

The council said they might call on international judges to sit in the tribunal, as well as lawyers or other legal experts to assist with the prosecution.

Meanwhile, prosecutors in Iran were preparing files on Saddam's alleged crimes during the 1980-88 Iran-Iraq war, while lawyers in Kuwait were collecting evidence on atrocities during Iraq’s occupation during the 1990-91 Gulf War.

In Jordan, 400 lawyers even registered their names with the bar association as volunteers to defend Saddam.

Minister of Justice Hashim al-Shibli has agreed that Arab lawyers may participate in the leader's defence, but only if they follow Iraqi laws and do not directly intervene in the activities of the courtroom.

Although the overwhelming Iraqi preference is for a public trial, at least one prominent voice has called for Saddam to be tried in camera.

Governing Council member Iyad Allawi told the London-based daily al-Hayat in December that Saddam on trial might mention the names of states and people to whom he has given bribes and wealth.

“We don't want him to mention all that on television,” Allawi said, lest it damage Iraq's external relations.

Legal experts say that an Iraqi court has the right to order a secret trial either to protect the victim - such as in a rape or defamation case - or, more relevantly, to protect national security.

But few people believe the council would opt for a secret trial, given the political capital it would reap from trying Saddam publicly, and the suspicions that a secret trial would undoubtedly raise.

Adnan Karim and Salaam Jihad are IWPR trainee journalists.