Dilemma over Iraqi prisoners

In the absence of a proper legal status for the 16 high-ranking officials of the ousted Saddam Hussain regime in custody of the Anglo-American alliance in Iraq, there is a lot of speculation on the nature of a system that can be established to bring them to trial on charges that are yet to be defined.

No decision has been taken as yet about who will lead the case against the 55 "wanted" Iraqis and the venue for their prosecution.

Speaking to Los Angeles Times, months before the war, Pierre-Richard Prosper, the U.S. State Department's war crimes ambassador, said: "We'll take the lead in setting the tone. From there, it's hard to say. We know Saddam and his dirty dozen are believed to be the leaders responsible for all the atrocities that have occurred there for well over a decade. We know that over 100,000 people have been killed."

Prosper was cautious enough not to label them as war criminals.

However, President George W. Bush has time and again asserted that Saddam and his ousted regime should be tried for war crimes, genocide and crimes against humanity. To bring to justice those accused of such grave offences is the responsibility of the UN and it is not for a state to unilaterally decide what to do with the citizens of another state. In the past the UN has tried such cases with the establishment of appropriate tribunals.

On its own accord

However, in the case of Iraq, the U.S. administration cannot move the UN on its own accord to establish an international war crimes tribunal similar to those in Rwanda and the former Yugoslavia.

The UN incorporated these after the approval of appropriate resolutions in the Security Council and the General Assembly.

In the case of Iraq, such a scenario is likely to widen the rift among the permanent members of the Security Council since the war was launched amid reservations from France, China and Russia, and without the approval of most UN member-nations.

The U.S. and the "coalition of the willing" took the last resort of waging a war due to the ambiguity of UN Resolution 1441 on the disarmament of Iraq by exploiting the "material breach" clause.

At the International Criminal Tribunal for Former Yugoslavia (the trial of Slobodan Milosevic) and Rwanda, the defendants were tried as war criminals. They were charged and brought to the tribunals within a short period of the commission of the alleged crimes.

Except for the Nazi war criminals, the statute of limitations has not been applied to regimes accused of crimes against humanity. Legal experts are divided on the enforcement of this legal aspect on Iraq as 12 years have lapsed since Iraq invaded Kuwait and more than that since the Iran-Iraq war.

If the statute of limitations was in force, and had the UN pressed war crime charges against the Iraqis, most of those now in the custody of the Anglo-American forces could have been arrested during their trips abroad following Operation Desert Storm. But this was not done.

Nevertheless the international body, of which the U.S. and Britain are members with veto power (China, Russia and France are the other three), took preventive measures to tame the Iraqi despot by imposing sanctions and tried to make good Kuwaiti losses through channelling off a part of the oil-for-food proceeds. And Saddam was allowed to rule.

Just before the Anglo-American troops took Baghdad, Saddam's regime was recognised by most countries, including the UN, after he apologised for the "mistake" he made for invading his neighbouring country.

Now referring them to the International Criminal Court requires the assent of the Security Council as the ICC falls under the aegis of the UN. The U.S., however, is unlikely to pursue such an option due to its opposition to the Rome Statute under which the global court was established.
The Statute, outlining the creation of the court, was adopted at an international conference in Rome on July 17, 1998.

Iraq, too, rejects the court's jurisdiction. Moreover, the ICC only has jurisdiction over crimes committed after it came into being on July 1, 2002. Thus, it cannot hear the cases related to any of the earlier actions carried out by the ousted Iraqi regime.

Despite this drawback, the ICC could still have had jurisdiction to try the Iraqis by prohibiting the defence based on the plea that actions were carried out under the orders of superiors (called the defence of superior orders) and after obtaining a Security Council referral had the Iraqi forces used chemical and biological weapons against the Anglo-American alliance within Iraq.

Oppose move

Again, the U.S. would have opposed such a move since the Bush administration would not favour the use of the ICC against citizens of a state that has not signed up to it as it would have set a precedent that is likely to work against the interests of the U.S. After all, the main reason the U.S. did not sign up to the ICC was due to the fear of Americans being tried by the court for their actions in any part of the world.

The next option the U.S. may resort to will be the claim that the war on Iraq is an extension of their "war on terrorism" and the captured Iraqis are "terrorists" with alleged links to Al Qaida. The UN, Nato and most countries have authorised the U.S. to fight terrorism and its sponsors after 9/11.

The Pentagon has established military tribunals to try prisoners caught in America's war on terrorism. Those convicted by the tribunal could face the death penalty and are termed "unlawful combatants", not prisoners of war. The Iraqis, however, cannot be termed unlawful combatants since they were part of a legitimate government, unlike the members of Taliban and Al Qaida.

Recently, when the Pentagon issued rules for military tribunals to try prisoners caught during its war on terrorism and authorised that the trials could take place at the U.S. naval base at Guantanamo Bay, a U.S. military official was quoted by Reuters as saying "the rules were not intended for military trials of 'a simple enemy prison of war in a conflict with Iraq', although it was possible that suspects captured in Iraq could go before them."

Deliberating on the trial for the Iraqi prisoners, a group of panelists at the ABA Midyear Meeting in Seattle this month was of the opinion that coming up with a suitable trial venue won't be easy.

"A U.S. court, whether civilian or military, probably would not be most effective for reasons of both jurisdiction and procedural fairness," said Michael P. Scharf, one of the panelists and director of the War Crimes Research Office at Case Western Reserve University of Law in Cleveland.

In practical terms, Scharf noted, U.S. laws do not grant universal jurisdiction to federal courts that allow them to try officials of foreign governments for war crimes, genocide and crimes against humanity under international law.

It may be noted here that when the U.S. invading troops captured Panama dictator Manuel Noriega, he was tried and convicted in a U.S. federal court on charges of drug trafficking and not as a war criminal. As for Uganda's dictator, Idi Amin, who, during his eight-year rule killed 100,000 of his own countrymen and