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Saddam's legal status won't prevent trial -- whenever it comes

From Kevin Bohn

Saddam Hussein is shown following his weekend capture.
Saddam Hussein is shown following his weekend capture.

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WASHINGTON (CNN) -- When the United States says Saddam Hussein will be accorded rights under the Geneva Conventions, government officials mean the disposed Iraqi dictator will be treated well, not be tortured, given access to the International Red Cross and allowed to write to his family.

Bush administration officials are being careful, however, to not specifically say what his legal status is.

"He is being accorded all of the rights of a prisoner of war, and we're going to treat him humanely," said Lt. Gen. Ricardo Sanchez, the commander of U.S. forces in Iraq, in an interview with CNN. "We're going to treat him in accordance with the Geneva Convention, but his actual end-state status is yet to be determined,"

According to international law expert Barry Carter at Georgetown University, the Third Geneva Convention applies to prisoners of war, those people wearing uniforms. That convention defined those eligible for POW status as members of an armed force, members of a militia or volunteer corps and members of a regular armed force that professes allegiance not recognized by a detaining power.

The Fourth Geneva Convention applies to civilians captured during a war or under an occupation, including members of an armed force who have laid down their weapons.

One difference between the conventions is that those detained under the Third Convention can be moved from one country to another, while those being held under the Fourth Convention cannot.

Another difference is whether or not those arrested can be forced to answer questions. The Third Convention says, "Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. ..." Prisoners may volunteer further information.

The Fourth Convention -- the one for civilians -- contains no such provision.

U.S. officials say the legal status of Saddam will not determine how he will eventually be tried.

"The international law basically says you treat somebody, under the Geneva Convention, with the privileges of a prisoner of war unless some competent tribunal decides otherwise," State Department spokesman Richard Boucher said.

For instance, Saddam can be accorded the rights under the Geneva Conventions but still be tried on war crimes charges under whatever tribunal tries the former dictator, international law experts say.

In the past, the international tribunals set up to hear charges relating to World War II or the conflicts in Yugoslavia, Rwanda and Sierra Leone have each had their own charters setting up the applicable charges, such as war against humanity, genocide and mass murder.

Additionally, those tribunals were set up differently. The Nuremberg trials that handled World War II defendants had judges from the victors' side only and included the death penalty.

Yugoslav and Rwandan courts were composed of international judges and did not include any from the countries from where the specific atrocities occurred.

By comparison, a tribunal set up examining deaths in Sierra Leone is comprised of eight judges, with five being appointed by the United Nations and three by authorities from the country. None of the more recent tribunals can sentence a person to death.

Some international law experts are urging the Bush administration to adopt a model similar to the Sierra Leone panel to hear the case against Saddam so that the court would include Iraqis and also have international participation.

Still other international leaders and organizations are calling for a tribunal of international judges rather than an Iraqi-only tribunal. Organizations such as Human Rights Watch say international participation in a tribunal would ensure justice, rather than vengeance, being served.

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