Legal Pageantry & Derogation of Due Process Norms in the Trial of Saddam Hussein
Douglas J. Sylvester
Arizona State University - College of Law
EVIL, LAW, AND THE STATE, Istar Gozaydin & Jody Lyneé Madeira, eds., 2006
Law's engagement with evil is nowhere as evident as in the trials of unquestionably evil men. The imaginative range of law's response to evil may be ably captured by reviewing the major international atrocity trials of the last half-century. From Nuremberg to Eichmann, Milosovic to Akeyasu, Tojo to Barbie, these trials represent the many problems of mastering judgment, memory, justice, and vengeance inherent in conflicts where the guilt of the defendant seems far less important than the desire to expose atrocities, heal a people, and transition from old to new regimes.
The recent capture and inevitable trial of Saddam Hussein raises these same questions - and an important new one. While acknowledging the wealth of thought and response arising out of the major atrocity trials of the last fifty years, this paper asks whether Hussein and other defendants like him, may be morally, legally, or wisely denied "basic" human rights such as the right to a fair trial or due process. The paper explores this question and wonders whether, despite theorists' concerns for slippery-slopes, a "legal pageant" that emphasizes symbolic and discursive ends may be morally and legally justified and may be substantively constructed to avoid the political excesses, and concomitant domestic legal instability, that many fear will occur.
This book chapter is an adapted version of a talk delivered at the Evil, Law & the State Conference at Oxford University (July 2004). The transcribed nature of the talk explains, in part, the at times strident and at other times overly glib analysis within. Despite these reservations, the underlying issue, whether some individuals are less deserving of due process than others, continues to be important.
Number of Pages in PDF File: 20
Keywords: Saddam Hussein, Genocide, Fair Trials, Due Process, Slobodan Milosevic, Nuremberg, Adolf Eichmann, International Law
Date posted: November 6, 2006