Saddam Hussein must either be released from custody by June 30 or charged if the US and the new Iraqi government are to conform to international law, the International Committee of the Red Cross said last night.
Nada Doumani, a spokeswoman for the ICRC, told the Guardian: "The United States defines Saddam Hussein as a prisoner of war. At the end of an occupation PoWs have to be released provided they have no penal charges against them."
Her comments came as the international body, the only independent group with access to detainees in US custody, becomes increasingly concerned over the legal limbo in which thousands of people are being held in the run-up to the transfer of power at the end of the month.
The occupation officially ends on June 30 and US forces will be in Iraq at the invitation of its sovereign government.
"There are all these people kept in a legal vacuum. No one should be left not knowing their legal status. Their judicial rights must be assured," Ms Doumani said.
Saddam and other senior officials of the old regime are the only Iraqi detainees to have been given PoW status. Hundreds of other Iraqis have been seized since the war often, according to critics, on flimsy suspicion and held for long periods without charge, usually without their families knowing for weeks where they are.
The ICRC visited the notorious Abu Ghraib prison in early June and found 3,291 detainees, including three women and 22 boys under 18. This was less than half the 6,527 it found in March.
President George Bush has promised to close the prison where US guards indulged in pornographic abuse of prisoners and several groups of releases have taken place since. But many prisoners have been transferred to other prisons.
The ICRC is angry that it has not been given exact figures for releases or the whereabouts of those who are moved from Abu Ghraib and it is hoping the end of the occupation will put pressure on the authorities to clean up their act. "If we consider the occupation ends on June 30, that would mean it's the end of the international armed conflict. This is the legal situation.
"When the conflict ends the prisoners of war should be released according to the Geneva conventions," Ms Doumani said.
She accepted that US and other foreign forces would remain in Iraq.
Whether that meant an occupation continued would be "determined by the situation on the ground". The presence of foreign forces ought to be governed by a legal agreement with the host government.
The ICRC has made at least two visits to the former Iraqi president who is believed to be in a special prison at Baghdad airport.
Around 40 other members of the so-called "pack of cards", Washington's list of high-level members of the former regime, are also there, most in solitary confinement.
Interrogation has been sporadic and none has been charged or allowed visits by their lawyers. A few have had family visits.
They include scientists who were never members of the Ba'ath party, like Dr Amer al Saadi, who was the Iraqi government's liaison with the United Nations' weapons inspectors.
Family members claim they are being deliberately held without trial so as to be punished even in the absence of evidence of wrongdoing.
US lawyers have been helping Iraqis prepare charges against Saddam but officials say they do not expect a trial until next year at the earliest. The US and the Iraqi authorities hope other defendants will first testify against him.
But none has been willing to do so. Whether it is out of loyalty or fear of retribution by Saddam's sympathizers is not clear.
Once charged the former president will be entitled to judicial guarantees including access to a lawyer and the right to prepare a defense.
The US has made clear it will continue to detain some Iraqis after the transfer of sovereignty as part of its security operations.
© Guardian Newspapers Limited 2004