The US administration was accused of gross hypocrisy yesterday after granting Saddam Hussein the legal rights that for more than two years it has denied the 660 detainees held in Guantanamo Bay.
The treatment of Saddam as a prisoner of war under the terms of the Geneva Conventions and the promises he will be given a fair trial contrast sharply with the status of the "illegal combatants" picked up by the coalition forces in the war against terror.
The decision has been made by the Pentagon irrespective of whatever role Saddam may have had in orchestrating the resistance to the occupation, including the suicide bombings which have claimed the life of the UN representative Sergio Vieira di Mello and those of many Iraqi civilians. Insurgents have also killed almost 200 US soldiers since major combat ended in May.
While the Americans have consistently referred to the deposed dictator as a sponsor of world terrorism and guilty of crimes against humanity, the Guantanamo detainees still do not know the charges upon which they are being held.
Peter Carter QC, chairman of the Bar's human rights committee, said that the Americans and the Iraqi provisional council had guaranteed Saddam access to a lawyer, the right to be tried within a reasonable period and adequate facility to prepare his own defence. "As a prisoner of war they can only interrogate him for the purposes of a specific crime. I'm not sure that under international human rights laws they can even ask him about the whereabouts of weapons of mass destruction," said Mr Carter.
The category "illegal combatant" confers no such rights on the Guantanamo Bay detainees. Louise Christian, a lawyer representing some of the families of the detainees, said: "I think it's appalling that someone like Saddam Hussein, who many people believe has committed crimes against humanity, is enjoying a privileged status in relation to people who are not in that category at all and have no advocates to argue for them."
She added: "Human rights apply to everyone and I think it's right that Saddam should be given the benefit of a fair trial. But that right should also be afforded to those still being held in Guantanamo Bay."
Instead of flying Saddam to Camp X-Ray, the American authorities have wasted little time in in effect designating him a prisoner of war. The US Defence Secretary, Donald Rumsfeld, confirmed yesterday that Saddam was being accorded "the protections of prisoners of war". He defended the Pentagon's release of a videotape of Saddam after his capture, saying Iraqis needed to see proof he was "off the street, out of commission".
Mr Rumsfeld rejected charges that the videos breached the Geneva Conventions, which bar PoWs from being displayed publicly as objects of ridicule, saying that "by a reasonable definition of the Geneva Convention", Saddam had not been treated in a demeaning fashion.
Some US officials have suggested Saddam's PoW status could yet be revoked. But international human rights lawyers say that is now impossible. Yves Sandoz, an academic and a former senior legal adviser at the International Committee of the Red Cross, said Saddam benefited from protection under the Geneva Conventions as the head of his country's army.
"It's very clear in the Geneva Conventions that they apply to specific people, and to Saddam Hussein as supreme chief of the armed forces, from the moment he is captured and until he is freed," said Mr Sandoz. "A prisoner of war can be sentenced for war crimes, that's clear, and he can be prosecuted for crimes committed before the conflict."
Lawyers said the prospect of a public trial could backfire on the West if Saddam decides to call evidence of international compliance in his bloody war with Iran. He might also employ the defence used by the prominent Nazi Hermann Goering at the Nuremberg war crimes trial, when Goering argued that it was not a crime to wage an aggressive war.
Further questions are also being raised about the competence of the Iraqis to conduct a fair trial in accordance with international standards.
Stephen Jakobi, the director of Fair Trials Abroad, said the Iraqis were ill-prepared to hold a war crimes trial on the scale now being proposed.
Some Muslim lawyers questioned the legality of Saddam's detention. Hussein Majali, president of the Jordanian Bar Association, issued a statement yesterday making it clear that he considers the former Iraqi president to have been unlawfully deposed in April, and unlawfully captured by US forces over the weekend.
"The Iraqi President Saddam Hussein is the legitimate president of Iraq because the [US-led] occupation does not have any legality," argued Mr Majali. "The Jordanian Bar Association considers President Saddam Hussein as the head of the resistance to liberate a dear part of our occupied Arab land."
He urged the world, and Arab leaders in particular, to provide Saddam with "the legitimate protection he deserves as a leader of a liberation movement against occupation".Reuse content