Iraq is in charge

Iraq Will Charge Hussein in Court Along With Aides

By JOHN F. BURNS / June 30, 2004

BAGHDAD, Iraq, June 29 — Iraq's interim government announced Tuesday that it would take legal, but not physical, custody of Saddam Hussein and 11 of his top associates from the United States on Wednesday.

[The Associated Press reported that the U.S. transferred legal custody of Mr. Hussein and the 11 others to Iraq's new government Wednesday afternoon, quoting a U.S. official. Mr. Hussein remained in the physical custody of U.S. forces, the A.P. reported.]

The government will file charges against all 12 on Thursday in a special Iraqi court set up to try members of the ousted government on charges of crimes against humanity.

Under terms approved by President Bush, the men, including several of the most notorious figures in Mr. Hussein's inner circle, will remain indefinitely under American military guard at an undisclosed location in or near Baghdad.

But they will cease to be prisoners of war from the moment they are arraigned, becoming criminal detainees with legal protections under Iraqi criminal procedures, including access to legal counsel, that were previously denied.

Also on Tuesday, three marines were killed by a roadside bomb in southeastern Baghdad, but there was no evidence of an overall surge in attacks since Iraq formally resumed sovereignty on Monday. [Page A10.]

In claiming jurisdiction over Mr. Hussein and the others as the interim Iraqi government's first major act, Prime Minister Iyad Allawi acknowledged that American forces "will continue to maintain physical custody" until Iraq has a prison system capable of ensuring that they remain unharmed and do not escape.

Sensitive to suggestions that his government's authority is constrained by its reliance on American military power, however, he underlined that the arrangement was "at our request," not under American duress.

" We believe that to truly be in control of our affairs and our own future, we must be in control of the people we believe most responsible for so much of the suffering the Iraqi people endured over the past 35 years," Dr. Allawi said at a news conference in the American-run international press center.

" More than a million Iraqis are missing as a result of events that occurred during the former regime," he said in fluent English. "Hundreds of thousands of Iraqis of all religions and ethnic groups are believed to be buried in mass graves. I know I speak for my fellow countrymen when I say I look forward to the day when former regime leaders face justice, God willing."

How soon the trials of the 12 will begin remained uncertain; Dr. Allawi said Mr. Hussein's would not begin "for a number of months."

American and Iraqi lawyers involved in the process have said the prosecution of Mr. Hussein would be better timed after other former leaders are tried, so that emerging information can be used to build a case against the man ultimately responsible for much of the killing.

Among Iraqis who lived through the repression under Mr. Hussein and who were interviewed in Baghdad on Tuesday, there appeared to be broad support for the dictator to be brought to trial, even in areas like Adhamiya that were Sunni Muslim strongholds favored by the dictator.

But there were those who felt that trying him while the country was at war was not wise. "I hope the new government will postpone the trial until things settle down," said Wamidh Hathiq, 25, a mobile phone salesman. "They shouldn't rush it."

Some international legal rights groups have expressed doubts that a legal process created by the Americans and controlled by Iraqis and Americans can yield justice in a political climate as charged as Iraq's.

" Questions are being raised about the whole process," Hanny Megally, director of the Middle East program at the International Center for Transitional Justice, a New York-based group that assists war crimes prosecutions. "The United States is funding the court, conducting the investigations, sifting through the evidence and developing prosecution strategy. While all this could be done with good intentions, it all seems to be controlled by one entity."

The list of the men to be placed under what Dr. Allawi called "Iraqi legal custody" was issued by the Iraqi Special Tribunal, which was established in December by the American occupation authority to try cases rising out of the worst excesses of Mr. Hussein's rule.

In addition to the 66-year-old Mr. Hussein, they included a man synonymous among Iraqis with some of his government's worst atrocities: Ali Hassan al-Majid, known as "Chemical Ali" for his role in directing a poison gas attack on the Kurdish town of Halabja in March 1988.

Others were Taha Yassin Ramadan, one of Mr. Hussein's two vice presidents, long cited by international human rights groups for his role in the torture and killing of tens of thousands of Iraqis; Tariq Aziz, a deputy prime minister who conducted many of Iraq's international negotiations, especially in the prelude to the Persian Gulf war in 1991; and Abid Hamid Mahmud al-Tikriti, a relative of Mr. Hussein who oversaw his personal security.

Most of the 12 appear in the "deck of cards" the United States issued after the invasion that pictured the 55 most-wanted Iraqi officials. Iraqi and American officials declined to say why the 12 were chosen for transfer to Iraqi jurisdiction.

One theory was that the most compelling evidence has been accumulated against them. They may also be those viewed by most Iraqis as responsible for the most heinous offenses, especially Mr. Hussein, Mr. Majid and Mr. Ramadan.

Another theory was that some of the men not being transferred have cooperated with investigators and are thus viewed by the Americans as best kept beyond the reach of legal counsel while the trials of the 12 are prepared. American military commanders have said Mr. Hussein resorted early in his captivity to a posture of defiance, and was offering little under interrogation but resolute denials of any wrongdoing.

American officials hinted that on Thursday, at least some reporters and cameramen might be allowed to attend his arraignment in a media pool, in what may be his first semipublic appearance since his capture in December.

Dr. Allawi, keenly aware of the risks of being viewed as a pawn, had hinted in recent days that he would act to distance himself from the Americans. Their power will henceforth be exercised through the new American Embassy, which will operate, for now, out of the same Republican Palace that was the headquarters for the occupation.

Dr. Allawi, 58, a British-trained neurosurgeon who led an Iraqi exile group in London after fleeing in 1971, has also signaled that he intends tough action on the insurgency and other matters. At the news conference, he said: "We would like to show the world that the new Iraqi government means business, and wants to stabilize Iraq. We want to put this bad history behind us."

Iraqi polls have shown that most Iraqis favor reinstating the death penalty — suspended last year by L. Paul Bremer III, then the American administrator here — especially for Mr. Hussein and the most brutal of his aides. Dr. Allawi said his government was reviewing the issue.

But he also dwelled on the importance of fair trials. "The accused who will appear in front of an Iraqi court will be accorded rights that were denied by the former regime," he said, referring to the right to appoint their own legal counsel, free of charge if the defendants cannot afford them; the right "not to testify against themselves," and the right to remain silent.

One cause of unease among international legal experts has been the pervasive role played by a team of several dozen American lawyers and investigators. They were recently reformed into a new unit known as the Regime Crimes Liaison Office and operate from the American Embassy.

But American legal experts in Baghdad said Tuesday that the work of those investigators had been essential. "The investigative infrastructure in Iraq has been virtually nonexistent for decades," one said.

The new power alignment between the Iraqis and the Americans took formal shape on Tuesday with a ceremony in the palace complex, at which John D. Negroponte, formerly the American ambassador to the United Nations, presented his credentials to the new Iraqi president, Ghazi al-Yawar.

Mr. Negroponte, who will lead a staff of some 1,700, arrived in Baghdad just as Mr. Bremer prepared to depart Monday. Mr. Negroponte issued a statement saying: "The way ahead presents many challenges, but the government and people of Iraq have the courage and ability to succeed. The future is in their hands."Somini Sengupta contributed reporting from Baghdad for this article.