AMMAN, 17 June 2004 — Prominent Arab lawyers and academics yesterday cast doubt on the legality of former Iraqi President Saddam Hussein’s trial before an Iraqi tribunal, saying such a step will “run counter” to the provisions of the Third Geneva Convention.
“Under the article 13 of the Third Geneva Convention, the United States cannot hand over Saddam to another party that lacks neutrality and independence, a description seems to be applicable to the interim Iraqi government,” Ghassan Jundi, professor of international law at the University of Jordan, told Arab News. “Latest news about plans to deliver the former president to an Iraqi court apparently runs counter to this article, because the United States has already recognized Saddam as a prisoner of war,” he said.
He pointed out that an Iraqi court “has no right to try the former Iraqi president, simply because it lacks legality in lieu of being appointed by an interim government that did not emerge from the ballots”.
The Iraqi representative of the International Committee of the Red Cross Nada Domani announced on Monday that the ICRC had urged the Iraqi interim government, due to take up power on June 30, to either try or release Saddam, who was detained by the US-led coalition troops on Dec. 13 last year.
US President George W. Bush indicated Tuesday that his administration was mulling Saddam’s handover to the interim Iraqi government, but insisted that he must have assurances the former Iraqi leader will stay in jail and not return to power.
He raised serious concerns about security arrangements once Saddam was out of the US jail, saying, “He’s a killer. He is a thug. He needs to be brought to trial”.
Bush’s remarks seemed in collision with Iraqi Prime Minister Iyad Allawi’s assurances earlier in the day that Saddam would be handed over to the Iraqi authorities after June 30 to face trial inside the country.
Iraq’s Interim President Ghazi Al-Yawar also pledged to ensure Saddam “a fair trial”.
Al-Jundi pointed out that articles 13-16 of the Third Geneva Convention provided for “guarantees” for POWs. “However, Saddam can be tried under the Article 99 if he has committed war crimes during an armed conflict. But the Iraqi Army’s record since the 1991 war over Kuwait indicates that such war crimes did not take place,” he said.
“Accordingly, the former Iraqi president deserves freedom under Article 118 of the Third Geneva Convention,” he added.
The Jordanian scholar contended that if Saddam was put on trial in Iraq before the November US presidential elections, Bush’s re-election chances would receive a severe blow. “I believe if Saddam goes on trial now, many of the present political axioms will disintegrate,” he said, apparently alluding to the controversial legitimacy of the Iraq Governing Council and the interim government that it has given rise to.
“This explains why some Iraqi ministers have urged Saddam’s trial to be conducted behind closed doors,” he added.
These viewpoints seemed to be shared by chairman of the Jordanian Bar Association Hussein Megalli, who also doubles as member of Saddam’s defense panel.
“The occupation authority lacks any legal, ethical or religious legitimacy and this applied to all bodies it creates,” he said. “Therefore, the handover of Saddam, who is still the legitimate president of Iraq, to a court created by the occupation forces is null and void,” he added. Megalli urged all international organizations, including the ICRC, the United Nations and the Arab League to “ensure protection for the Iraqi leader”.
Head of Saddam’s defense panel, Mohammad Rashdan considered Saddam’s trial before any Iraqi court “illegal”.
“The interim Iraqi government lacked legitimacy, because most of its members hold double nationality in violation of the Iraqi nationality law,” he said.
However, Rashdan raised the possibility of attending the trial if it takes place in Iraq. “We did not decide to attend so far, and we are still discussing the issue,” he said.
Rashdan said that he leads a group comprising between 20 and 30 prominent Arab and non-Arab lawyers who had volunteered to defend the former Iraqi leader.
“More than 1,500 Arab lawyers so far registered to defend Saddam, including about 700 bar personnel from Jordan,” he said.
Rashdan said that he had earlier obtained a written authorization from Saddam’s wife, Sajeda, to defend her husband.
