WASHINGTON, Jan. 8 (UPI) -- Saddam Hussein is officially a prisoner of war, a formal status that could have ramifications for the methods used by the CIA to interrogate him and the legal forum in which he will be tried, a Pentagon spokesman said Thursday,
"Saddam Hussein is an (enemy prisoner of war). But we do not declare someone to be an EPW unless there is reason to think that he might not be one," said Pentagon spokesman Maj. Michael Shavers, quoting information from the Pentagon general counsel's office. "Saddam Hussein is a general and head of the old regime's armed forces. He is, therefore, military. He was captured. He is a POW. There was no need to make a declaration, and we have not made any declaration of the fact."
When Saddam was captured in Iraq Dec. 13, his status was a major question. Shavers told United Press International the delay in determining Saddam's status hinged on his dual role as both commander in chief of Iraq's armed forces -- which clearly merited POW status -- and his role as president.
"The only item for consideration was whether his status as the former president of Iraq had any bearing on this," Shavers said.
Defense Secretary Donald Rumsfeld told reporters Dec. 16 Saddam's status was being decided by lawyers from across the U.S. government.
"He is being accorded the protection of a POW, but he's not being legally described as one at this stage. He, clearly, is being treated ... with the protections of the Geneva Convention, and is being treated humanely," Rumsfeld said. "The lawyers are carefully looking at the question ... and it is conceivable that to the extent he was involved in the post-major combat operation terrorist activity that's taken place in the country, that that could, in one way or another, affect charges that could be brought against him."
The convention prohibits the public humiliation or degradation of prisoners of war, something many critics of the Pentagon have said it violated when it showed videotape of a disheveled Saddam Hussein being medically examined.
"The showing of the medical exam clearly violated the Geneva Convention," said Francis Boyle, a law professor at the University of Illinois who is an expert in international law and one of the key creators of the U.N. administered court set up to try former Yugoslav dictator Slobodan Milosevic.
Rumsfeld rejected this criticism Dec. 16.
"He has been handled in a professional way, and he has not been held up as a public curiosity in any demeaning way, by reasonable definitions of the Geneva Convention. On the other hand, he is an individual who is representative of a regime that has been replaced, and it's terribly important that he be seen by the public for what he is -- a captive, without question," Rumsfeld said. "And if lives can be saved by physical proof that that man is off the street, out of commission, never to return, then we opt for saving lives; and in no way can that be considered even up on the edge of the Geneva Convention protections."
Saddam Hussein was also angrily confronted in custody by members of the U.S.-appointed Iraqi Governing Council.
"The identification process involved some people in his Cabinet and some people in the Governing Council. It is not a matter of parading various people before him for the sake of curiosity. It was a matter of during that early period, prior to the time we had DNA proof, knowing that his doubles had used plastic surgery and could very well have done duplicate tattoos and bullet holes and various things that would -- moles that would make it appear they were Saddam Hussein, the decision was made to have him publicly identified," Rumsfeld said.
The Pentagon came under attack last summer when it released photos of the badly damaged bodies of Saddam's sons, Uday and Qusay, after a deadly firefight.
The CIA is now in charge of interrogating Saddam. The Third Geneva Convention has very clear direction for the limits on that process.
The convention prohibits "any form of coercion ... to secure from them information of any kind whatever."
Prisoners of war are bound only to give their name, rank, birth date and serial number.
"Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind," Article 17 of the convention states.
According to Human Rights Watch, that would preclude threats of adverse treatment for failing to cooperate with interrogators, but it would not obviate plea bargaining -- the offer of leniency in return for cooperation -- or other incentives.
The Pentagon has maintained that all detainees are being treated in accordance with the Geneva Convention, no matter what their declared status.
Saddam has not yet been visited by the International Committee of the Red Cross, which ascertains the treatment of prisoners is in keeping with the convention. The ICRC would also carry messages back to Saddam Hussein's family.
Saddam's status as an official POW may have the strongest effect on his eventual trial. President Bush has said Saddam will face an Iraqi court of some kind. The Governing Council unveiled plans for a special tribunal to prosecute Saddam's associates just days before his capture.
However, the Geneva Convention requires that prisoners of war that are tried for war crimes and crimes against humanity be charged under the laws of the occupying or detaining power, or under international law.
This could obviate the use of the special Iraqi court.
"POWs have the right to be tried before the same courts and facing the same procedures that the detaining power's military personnel would face, offering 'the essential guarantees of independence and impartiality,'" the convention states.
Boyle believes the Iraqi court would be a "show trial" only and would be unable to give Saddam Hussein a fair hearing because of the strong emotions there.
"Basically it's a foregone conclusion they will execute him. Law will have nothing to do with this," Boyle told UPI.
He and many others who opposed the war in Iraq believe the United States government doesn't want Saddam Hussein to be tried in the United Nations' International Criminal Court in the Hague because it would give Saddam Hussein a forum to discuss his close relationship with the United States prior to the 1991 Persian Gulf war.
"Going to the ICC would allow Saddam a forum to implicate the United States for aiding and abetting Iraq in the 1980s when we were helping him fight Iran," Boyle said.
Among the war crimes Saddam Hussein could expect to face is the use of chemical weapons against the Kurds and against Iran in that decade.
Human Rights Watch, however, says the new ICC is not an option for Saddam's trial because it applies only to crimes committed after July 1, 2002. However, the charter for the special prosecutors for Yugoslavia or Rwanda could have its mandate enlarged to include Iraq by a vote of the United Nations Security Council.
HRW opposes the Iraqi run court because its legal system does not have the experience or history of fair jurisprudence to guarantee a fair trial.
"Iraqi jurists (judges, prosecutors, lawyers, and others in the judicial system) do not have the experience needed to conduct a trial that is as complicated as the trial of Saddam Hussein, and others accused of serious human rights crimes, is likely to be. For this reason, the new 'Iraqi Special Tribunal for Crimes Against Humanity' gives a lot of cause for concern," HRW stated in a December briefing paper.