Saddam Hussein's Trial and the Handover of Power in Iraq

On July 1, Saddam Hussein appeared in front of an Iraqi tribunal to be arraigned on charges that include the use of chemical weapons against the Kurds, the violent suppression of the Shi'ites in southern Iraq, the invasion of Kuwait and the killing of political opponents. The hearing followed the transfer of political authority in Iraq from the U.S.-led Coalition Provisional Authority to the country's new interim government on June 28, and the Iraqi government's assumption of “legal custody” over Saddam Hussein and eleven other “high-value detainees” on June 30.

The court before which Saddam and the other defendants were charged was created by a statute drawn up by Iraqi and coalition lawyers and adopted by the Coalition Provisional Authority last December. Judges, investigators, and prosecutors will be predominantly Iraqi (though there is a provision for non-Iraqi judges to be appointed) with a requirement that international advisors be involved in the trial process.

The idea that Saddam Hussein and the other defendants should be tried before an Iraqi court is in keeping with the notion (embodied in the International Criminal Court statute) that countries bear the first responsibility for prosecuting violations of international law by their citizens. But there is clearly a major international interest that the trial be fair – both because of the involvement of the United States in deposing Saddam and installing the interim government, and because crimes against humanity, genocide and war crimes (all of which may have been committed in this case) are inevitably an international concern.

An important question remains about the standards of procedure and evidence that will be used in the trials. The president of the court is responsible for drafting these, and the statute says that “he shall be guided by Iraqi Criminal Procedure Law.” Human rights experts have pointed out that there is no clear prohibition in Iraqi law against using evidence obtained by coercion, nor any requirement that defendants be allowed legal representation for pre-trial proceedings, or that guilt be proved beyond reasonable doubt. Amnesty International has objected to the fact that Saddam and the eleven other defendants were not provided with lawyers before their initial hearing. However this hearing did not require Saddam or the other defendants to enter a plea – merely to confirm that they understood the charges. The court has stated clearly that defendants will be allowed to choose their own legal representation for the trials themselves, and will have the right to remain silent.

Although the coalition suspended the death penalty in Iraq during the period of occupation, the interim government has reintroduced it. During the arraignment proceeding, Saddam and most other defendants were informed that their cases would be considered under Article 406 of the Iraqi criminal code, which covers acts of murder that constitute capital offences.

Saddam Hussein and the other “high-value detainees” arraigned with him were not required to enter a plea in response to the charges which were sketched out (detailed specific indictments will follow), but some of their comments indicate the defences they may adopt. Saddam said, “I did all these things as President,” suggesting that he may argue that he is not legally liable for actions taken as head of state. (This argument would provide an ironic echo of some of the claims in the so-called “torture memos” written by lawyers in the U.S. Justice Department and by a Pentagon working group, which suggested that President Bush could override U.S. laws if he deemed it necessary for national security.) However international law has held since the Nuremberg trials that heads of state can be held accountable for war crimes, crimes against humanity and genocide. Moreover the statute of the Iraqi tribunal clearly states that “the official position of any accused person, whether as president, prime minister… [or other official rank] shall not relieve such person of criminal responsibility nor mitigate punishment.”

The statute also enshrines international standards on command responsibility, stating that a commander is responsible for the crimes of his subordinates “if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to submit the matter to the competent authorities for investigation and prosecution.” Following orders, the statute continues, does not relieve defendants of responsibility for crimes, but may be considered in mitigation of punishment.

Saddam Hussein has been held in a secret location by U.S. forces as a prisoner of war since his capture in December 2003. Now that he and the other high-value detainees have been returned to the “legal custody” of Iraq , they are no longer POWs but are held as criminal suspects. However they remain under the physical control of U.S. forces, by agreement with the interim government, until Iraq has a prison system strong enough to guarantee their safety and prevent them from being freed. The arrangement is in line with the “security partnership” agreed between the new Iraqi government and the U.S.-led multinational force, which says the multinational force will “assist in providing a secure environment” while acting “in full recognition of and respect for Iraqi sovereignty.”

Until international law, both prisoners of war and civilian detainees must be released (and if appropriate repatriated) after the end of hostilities. These rules are set out in Article 118 of the 3rd Geneva Convention (on POWs) and Article 133 of the 4th Geneva Convention (on internees). In theory, the formal end of occupation marks the end of an international armed conflict and it would therefore be appropriate for POWs and other detainees to be freed or handed over to domestic authorities as soon as possible. The transfer of Saddam and the other eleven detainees to Iraqi “legal custody” appears designed to satisfy this requirement, while the fact that they remain held by U.S. forces reflects the complex situation on the ground in Iraq.

U.S. troops are still holding a number of other prisoners of war (the International Committee of the Red Cross had estimated there were around fifty being held, including the twelve who have now been arraigned) and several thousand “security detainees.” The legal position of these prisoners is unclear. Despite the formal end of occupation, it seems plausible to say that hostilities of some description are still occurring in Iraq.

The United States has around 140,000 troops in Iraq (there are also around 25,000 troops from other countries) and it has been left deliberately ambiguous whether the Iraqi government has authority over the operations they engage in. As the ICRC noted in a recent statement, “the rules applicable to a situation are determined by the facts on the ground.” For this reason, Sir Adam Roberts, Professor of International Relations at Oxford University, has suggested that an argument can be made that “coalition forces are entitled to maintain security measures” against the insurgency and “to support the interim government in its measures against the insurgents.”

The situation in Iraq has features of both an international armed conflict (to the degree to which U.S. forces remain outside the control of the Iraqi government) and non-international or internal conflict (to the degree that outside forces are assisting the Iraqi government in its suppression of the insurgency).  This complex situation is paralleled by the ambiguous position of the U.S.-held detainees, who remain in U.S. military custody with an untested degree of notional consent by Iraqi authorities. 

Clearly, however, this ambiguous situation would necessarily be resolved if the interim government demanded the release or transfer of some or all U.S.-held prisoners.  As Professor Roberts has noted, the U.S.-led multinational force cannot lawfully retain control of the detainees against the opposition of the interim Iraqi government. If U.S. forces continued to hold prisoners without the endorsement of the Iraqi government, this would indicate one of two things: either that the United States was violating its obligations under international humanitarian law to return POWs and internees at the end of occupation, or that the proclaimed "transfer of sovereignty" was merely a fiction.

Marianne Schulze contributed research and reporting to this article.

Related Links

The End of Occupation in Iraq

By Sir Adam Roberts

International Humanitarian Law Research Initiative (registration required)

June 28, 2004

Iraq: What the Geneva Conventions Say About Persons Deprived of their Freedom

International Committee of the Red Cross

June 16, 2004

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