January 22, 2004
On December 13, U.S. forces in Iraq captured former Iraqi leader Saddam Hussein. On January 9 the United States officially declared that he was a prisoner-of-war (POW) under the 1949 Geneva Conventions. The decision raises a number of issues under international humanitarian law, also known as the laws of war.
- Is Saddam Hussein entitled to POW Status?
- How will POW status affect Saddam Hussein’s treatment?
- Can Saddam Hussein still be tried for war crimes and other past offenses?
- Is the special tribunal envisioned for prosecuting Saddam Hussein legal?
The Third Geneva Convention provides detailed rules for the humane treatment of POWs. An important protection for POWs is that they cannot be punished for refusing to provide more than their name, rank, serial number and birth date. This however does not prohibit a detaining state from questioning a POW on other matters. In no circumstance may a detaining state torture or otherwise ill-treat a prisoner in order to compel him or her to provide information. This protection is due all detainees, not just those with POW status.
Human Rights Watch is particularly concerned that, to date, the International Committee of the Red Cross (ICRC) has not had access to Saddam Hussein. The ICRC is specifically empowered under the Geneva Conventions to have unfettered, multiple access to POWs and all other persons detained during an armed conflict or occupation. (See, e.g. Third Geneva, arts. 9 & 125.) The ICRC is in the best position to ensure that U.S. authorities are treating Saddam Hussein, as well as other persons held by Coalition forces, in accordance with the Geneva Conventions. ICRC access to Saddam Hussein should be immediate.
But the Geneva Conventions provides that all persons implicated in war crimes must be prosecuted for their actions (see Third Geneva, art. 129). In Saddam Hussein’s case, this would include alleged war crimes committed during the 1980-88 Iran-Iraq war and the 1991 Gulf War. He could also be prosecuted for crimes against humanity and genocide such as the for the 1988 Anfal campaign against Iraqi Kurds, the large-scale killings that followed the failed 1991 uprisings in the north and south of Iraq, and the brutal repression of the Marsh Arabs. While Saddam Hussein could also be tried for common crimes under Iraqi law, he could not be prosecuted under criminal laws enacted ex post facto (after the fact) by the Iraqi Governing Council or a foreign state.
If the U.S. directly prosecutes Saddam Hussein for war crimes, under the Third Geneva Convention (art. 84) it would be required to try him before a U.S. court-martial or a federal court. It could not lawfully try him before a military commission like those being established to try terrorist suspects held at Guantánamo Bay. The United States could turn Saddam Hussein over to another state for prosecution — including a sovereign government in Iraq — so long as that state is a party to the Geneva Conventions. Otherwise the United States remains primarily responsible for ensuring that he is prosecuted in accordance with international fair trial standards.
The statute of the Special Tribunal lacks key provisions to ensure trials are conducted in accordance with basic international human rights standards. Among Human Rights Watch’s concerns:
- The Special Tribunal statute fails to ensure the tribunal's competency as required under Article 14 of the International Covenant on Civil and Political Rights (ICCPR) by not requiring that judges and prosecutors have experience working on complex criminal cases or cases involving serious human rights crimes. Likewise, the statute prohibits the appointment of non-Iraqi prosecutors or investigative judges with relevant experience working on these types of cases.
- The Special Tribunal statute does not ensure that guilt must be proven beyond a reasonable doubt. The U.N. Human Rights Committee has stated in its General Comment to Article 14 of the ICCPR that "[b]y reason of the presumption of innocence, the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt."
- The Special Tribunal statute does not prohibit the death penalty. International human rights law, as codified in Article 6 of the ICCPR, favors the abolition of capital punishment. In addition, recent state practice recognizing that the death penalty violates basic human rights has fueled a growing movement around the world to eliminate the death penalty.
- The Special Tribunal statute mandates that Iraqi criminal law and procedure will supply the principles of criminal law, individual criminal responsibility, and liability for punishment where not otherwise articulated within the statute. Iraqi law contains provisions that are contrary to international standards, for example by permitting coerced confessions and the exclusion of counsel during questioning under certain circumstances.
There are also important questions concerning the legitimacy under international law of establishing a domestic tribunal such as the Iraqi Special Tribunal during an occupation. The Coalition Provisional Authority has failed to articulate any basis in international humanitarian law by which the tribunal could be established. Moreover, the drafting of the statute was highly secretive without any opportunity for broad consultation or public comment.