Wednesday, February 01, 2006

Justice and the Trial of Saddam Hussein

As I wrote about a while back over at Opinio Juris, the on-going trial of Saddam Hussein contains a tension between differing conceptions of justice. On the one hand is procedural justice: the desire to show the world that the rule of law and procedure is what creates a free society; on the other hand is retibutive justice: the need to punish Saddam for his heinous (and obvious) crimes. Personally, I believe that the latter is the more critical imperative here. In cases like this one, or the trial of Slobodan Milosevic in the Hague, the procedural rules and burden of proof make it exceedingly difficult to punish dictators for their crimes.

Now we find that Hussein is boycotting his trial. According to Hussein's lead lawyer, Hussein and the other co-defendants will refuse to appear in court until the lead judge, an ethnic Kurd, is removed from the bench. This is nothing new. Saddam has repeatedly interrupted the trial with ridiculous claims of abuse, political and religious tirades and rants, and refusals to cooperate with the court.

I fail to see how this is advancing justice in any way. The lead judge is apparently "considering" a request from the prosecutors to compel the defendants to appear. "Considering?" Hussein should be bound and gagged and forced to sit in court as his crimes are laid before the bench. He should not be allowed to interrupt the procedings (note that Milosevic has adopted a similiar strategy, which has caused his trial to drag on for several years). Witnesses should present the evidence, and Hussein should only be allowed to speak in direct rebuttal of any charges. Any thing else, even in the name of legal procedure, is a gross violation of the need for retributive justice. Domestic law, with its emphasis on procedural justice, is not well suited to dealing with such crimes. Allowing Saddam to walk free because the chain of command linking him to torture or genocide cannot be demonstrated is not an acceptable option.

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