News-Info-Alerts

Re: US and Iraqi POWs

From: POW-MIA InterNetwork

Date: April 19, 2003

"Options on Handling of Iraqi POWs Considered
Geneva Conventions May Complicate U.S. Trial Plans

By John Mintz
Washington Post Staff Writer
Saturday, April 19, 2003; Page A20


With 6,000 prisoners of war in American custody in Iraq, including five top officials of the deposed Iraqi government, the United States is only in the earliest phases of thinking about what kinds of legal proceedings they should face if they are believed to have violated international law, U.S. government officials said.

Unlike the 660 or so captives held at the U.S. Navy base at Guantanamo Bay as part of the American war on terrorism, the POWs in Iraq were combatants in a conventional war, so the United States is bound by the Geneva Conventions in its treatment of them, the U.S. officials said.

This means that if U.S. forces were to capture ousted Iraqi leader Saddam Hussein, the Geneva Conventions could obligate them to inform him of his right to a lawyer and his right to remain silent even before they ever asked him a question, experts in international law said.

The same rights could extend to most or all of the five top Iraqi officials in U.S. custody because the majority of them, like Hussein, were members of the Iraqi armed forces, the legal specialists said. So they would be defined as prisoners of war, and under international law they would have the same rights as U.S. soldiers who are being court-martialed.

The stakes for the United States are considerable. The U.S. military must weigh the legal rights of the Iraqi prisoners against their potential value as sources of intelligence -- for example, in uncovering Iraqi weapons of mass destruction.

Even though the Bush administration has been criticized for not granting hearings to the alleged al Qaeda and Taliban fighters detained in Cuba, historically the U.S. government has scrupulously observed the Geneva Conventions in all conventional conflicts.

When Iraqi forces captured U.S. soldiers in Iraq a few weeks ago, the U.S. military repeatedly pointed out that the Geneva Conventions were binding.

A senior U.S. government official said yesterday that "it's very early in the process" of determining the legal fate of the Iraqi military officials in detention. But the government is inclined to divide those it eventually brings to justice into two groups, allowing Iraqi authorities to try people for "crimes against the Iraqi people," while courts under U.S. auspices would handle "crimes against Americans" such as Iraqi soldiers' waving a white flag before attacking, placing artillery in schools and mosques, and beating U.S. POWs, the official said.

The senior U.S. government official acknowledged the United States is entering uncertain legal territory in Iraq. "We've never had a war-crimes trial in a regular U.S. civil court, or in a court-martial setting, in our 200-plus years of history," he said. Instead, people who committed war crimes against Americans have all been tried before special U.S. military tribunals, the official said.

The United States is also in untested waters in another respect: The last time U.S. officials tried anyone for war crimes was World War II. Since then, the Geneva Conventions, enacted in 1949, have set new global legal standards, and the U.S. military laid out a new set of laws for its personnel in 1950.

"The U.S. didn't prosecute foreigners for war crimes in Korea or Vietnam," said Eugene R. Fidell, president of the Washington-based National Institute for Military Justice, which researches the laws of war. "Applying the [U.S.] rules of military justice to the war-crimes trial of a POW is entirely new ground."

"This could be wild and woolly," Fidell added.

The U.S. military has been following the conventions in handling its Iraqi prisoners. Yesterday the Pentagon announced it had released around 900 of the Iraqi detainees after determining they were "noncombatants," meaning they were not members of the military and did not engage in hostile acts.

"We stated from the beginning that we don't want to hold anybody any longer than absolutely necessary," Maj. Ted Wadsworth, a Pentagon spokesman, told the Associated Press. "The process of sorting people to determine their status has begun." He said coalition forces still hold 6,850 Iraqi prisoners after the release announced yesterday.

Some of those released so far were determined to be noncombatants under a special type of tribunal laid out in the Geneva Conventions. Under those rules, three U.S. military officers weighed the facts of each prisoner's case to determine whether he was an Iraqi soldier.

The conventions will restrict U.S. forces in the way they treat the captives deemed to be members of Iraq's military.

"Under the conventions, all that a POW need say in an interrogation is his name, rank, serial number and date of birth," said Detlev Vagts, a Harvard University expert on international law. "An Iraqi general need only say that. We would be in trouble if we used any kind of coercion."

By contrast, Vagts said, the conventions say that for nonmilitary combatants, interrogators "can put the heat on them, short of torture" but including the use of moderate physical coercion and emotional pressure. POWs must be released at the end of hostilities or a reasonable time afterward, unless they are charged with war crimes.

Iraqi soldiers or officers would enjoy many rights in any trial, as well, under the conventions -- the same as any U.S. soldier being court-martialed. They would have a right to a lawyer of their choosing and the right to cross-examine witnesses. The judge would have to be independent and impartial, and the standard of proof for conviction is "beyond a reasonable doubt." Appeals could be made all the way to the U.S. Supreme Court.

Amnesty International said that if the United States held its own trials of Iraqi officials, it would amount to "victor's justice," and the group urged this country not to do that. Instead, it should allow the United Nations to prosecute war crimes in Iraq, the organization said.


© 2003 The Washington Post Company"