Radical Evil on Trial

232 Pages·1996·4.777 MB·English

by  Carlos Santiago Nino

Radical Evil on Trial

CARLOS SANTIAGO NINO
Radical Evil on Trial
Yale University Press
New Haven and London
Copyright © 1996 by Yale University.
All rights reserved.
This book may not be reproduced, in whole or in part, including illustrations, in
any form (beyond that copying permitted by Sections 107 and 108 of the U.S.
Copyright Law and except by reviewers for the public press), without written
permission from the publishers.
Set in Sabon type by Keystone Typesetting, Inc., Orwigsburg, Pennsylvania.
Printed in the United States of America.
Library of Congress Cataloging-in-Publication Data
Nino, Carlos Santiago.
Radical evil on trial / Carlos Santiago Nino.
p. cm.
Includes bibliographical references and index.
ISBN 0-300-06749-6 (c : alk. paper)
i. Civil rights—Argentina, a. Human rights.
KHA3003.N56 1996 95-53689
323.4'9'0982—dc2o
A catalogue record for this book is available from the British Library.
The paper in this book meets the guidelines for permanence and durability of the
Committee on Production Guidelines for Book Longevity of the Council on
Library Resources.
10 987654321
Contents
Introduction vii
Part i: The Historical Context
i. Punishment as a Response to Human Rights Violations:
A Global Perspective 3
2. Retroactive Justice in Argentina 41
Part 2: The Normative Dimensions
3. Political Problems of Trials for Human Rights Violations 107
4. The Morality of Punishing and Investigating Human Rights
Violations 135
5. Legal Problems of Trials for Human Rights Violations 149
Conclusion: The Role of International Law 186
Notes 191
Editor’s Note 207
Index 209

Introduction
How shall we live with evil? How shall we respond to massive human
rights violations committed either by state actors or by others with the consent
and tolerance of their governments? In the wake of such atrocities, successor
governments or occupying forces must decide whether to try or otherwise
punish members of the defeated government or army accused of having com­
mitted atrocities. The most famous example, of course, is the Nuremberg war
crimes trials after World War IL Sometimes new democratic governments
must decide whether to use the newly enacted criminal law to prosecute mem­
bers of the previous authoritarian regime for massive human rights violations.
Such an undertaking is especially difficult during democratic transitions, such
as those that occurred in southern Europe in the 1970s, in Latin America
during the 1980s, and in Eastern Europe during the 1990s. Regardless of how
successor governments deal with past human rights violations, and regardless
of the difficulties, I believe and argue in what follows that some measure of
retroactive justice for massive human rights violations helps protect demo­
cratic values.
Massive human rights violations involve what Kant deemed “radical evil” —
offenses against human dignity so widespread, persistent, and organized that
normal moral assessment seems inappropriate. If someone had confronted
Adolf Hitler and told him that his acts were wrong, it would have sounded
vii
viii Introduction
almost laughable. “Wrong” is too weak an adjective to describe actions that
knowingly caused the deaths of more than twenty million people and the
unimaginable suffering of millions more. Other words of moral condemna­
tion, like “atrocious” or “abhorrent,” express our emotional revulsion more
strongly, but do not clarify the descriptive content. Thus, our moral discourse
appears to reach its limit when dealing with deeds of this type.
Hannah Arendt wrote that we know very little about the nature of radical
evil. She noted that we “are unable to forgive what [we] cannot punish and
that [we] are unable to punish what has turned out to be unforgivable.”1 In her
view, radical evil can be neither punished nor forgiven, and thus transcends the
realm of human affairs and destroys the potentialities of human power. This
image of powerlessness in the face of radical evil may at first appear as nothing
more than a literary device, as a way of expressing the inadequacy of social
evaluation, human justice, and our capacity to punish. But, more substan­
tively, it points to the difficulty of responding to radical evil with the ordinary
measures that are usually applied to common criminals.
Even the straightforward application of the criminal law seems too much to
expect. In surveying the history of the criminal law when applied to massive
human rights violations, we find blanket amnesties or pardons, widespread
silence, and failure to prosecute anyone. At most, we see trials and punishment
of the wrong people or punishment of the right people for the wrong acts.
Low-ranking officials who committed some atrocities are used as scapegoats
to quell public discomfort, while the political or military officials who gave the
triggering orders remain untouched. In some instances, the leaders are pros­
ecuted, but only for deeds that are much less important than those for which
there is a demand of justice, as occurred when the former East German leader
Erich Honecker was charged in 199 z with killings that had taken place more
than forty years earlier.
One aim of this book is to examine the dynamics responsible for these
failures of the law, focusing primarily on the case of Argentina. During Argen­
tina’s transition into democracy in the 1980s, the government tried and inves­
tigated some of those most responsible for the human rights violations com­
mitted by the military dictatorship from 1976 until its collapse in 1983. This
was an extraordinarily difficult process, with different actors pressing for dif­
ferent courses of action; it ended when all the accused, even those convicted or
sentenced, were granted presidential pardons. At several points, the demo­
cratic system as a whole seemed to be in imminent danger of collapsing as a
result of the effort to deliver retroactive justice. Whether the experience as a
whole has been worthwhile is a controversial issue that will be addressed in
this book. Yet, no matter what the outcome of that discussion, Argentina’s
Introduction ix
experience stands as a valuable source of information about the obstacles
confronted when governments subject radical evil to moral evaluation and
legal proceedings.
I will try to show that the problems of carrying out retroactive justice
emerge on at least three different levels. The first is a moral one. As I have
suggested, radical evil seems to surpass the boundaries of moral discourse; it
embodies a form of life and a conceptual scheme that is alien to us. We seem
unable to evaluate such acts from a moral vantage point because they are as
incomprehensible to us as would be the behavior of people who did not share
our concepts of time and space. The question then arises whether we can
legitimately judge agents of such acts in terms of our own morality. Any
possibility of grounding public moral evaluation in a consensus, however
idealized, seems to be precluded in cases in which even moral agreement is
foreclosed by extreme conceptual divergence.
Even if the problem of conceptual relativism is overcome, other moral prob­
lems emerge. For one thing, the kind of collective behavior that leads to radical
evil would not have materialized unless carried out with a high degree of
conviction on the part of those who participated in it. Sincere conviction, even
when wrong, poses problems for moral evaluation, as evidenced by our toler­
ance of conscientious objection, regardless of whether we share its substantive
content. Besides, the mistaken character of the conviction must be demon­
strated. This raises problems concerning the foundations of human rights and
their scope, as well as the priority among these rights when several of them
conflict, and raises questions of self-defense, necessity, existence of a state of
war, and the superior-orders defense.
Another moral problem arises from the diffusion of responsibility. Massive
human rights violations could not be committed without the acquiescence of
many people. There are those who planed the deeds and those who committed
them. There are those who informed on neighbors or friends or who lent
material resources to those who actually commit the atrocities. Some victims
even helped to victimize others. There are also a host of people who may have
cooperated by omission. Judges, for example, may have refrained from con­
ducting proceedings that could have stopped the violations. Journalists may
have failed to publicize the atrocities and helped contain reactions from within
and without. Diplomats may have helped conceal what was occurring or even
actively justified the actions of their governments. Even common people—like
those who lived near concentration camps—often turned a blind eye to what
was happening close to them. Some may have refrained from passing along
knowledge to others and may even have mildly justified the deeds to them­
selves and each other. “It must be for something” was the common saying
x Introduction
among Argentines when they learned that a neighbor or acquaintance had
been kidnapped by security forces and made to “disappear.” And if almost
everybody is guilty, there is a feeling that nobody really is.
From a retributivist point of view, the diffusion of responsibility clearly
presents acute problems. Retribution requires some measure of evenhanded­
ness, which means either punishing everybody—which aggravates the strate­
gic problems enormously—or letting everybody go free. Preventionist theories
do not require such blanket judgments but nonetheless have their own prob­
lems. Using punishment as a means of preventing future violations as part of
its moral justification allows the administration to make strategic judgments
whether a greater evil, such as that of imperiling the stability of the democratic
system, will likely result from punishing these deeds. On the other hand, it is
questionable whether punishment of radical evil can effectively prevent such
evil from recurring. Those deeds that collectively can be described as radical
evil can only be performed under favorable political conditions, most com­
monly a totalitarian or authoritarian regime which constrains criticism and
prevents the diffusion of knowledge. It is not clear whether punishing radical
evil will prevent similar evil acts from taking place when these favorable con­
ditions are present, nor is it clear whether punishment forestalls the emergence
of these conditions. On the contrary, the risk of being punished for human
rights violations tends to make the leaders of authoritarian regimes reluctant
to surrender power in the first place.
These matters are not just of concern to the moralist but also are of special
interest to political scientists. On this second level of intellectual concern—the
political—the legacy of former human rights violations may be one of the
greatest obstacles to the process of democratization. As some political scien­
tists warn, excessive concern with the past may alienate entire social groups
from the democratic system and cause dissension, hatred, and resentment,
which in turn may interfere with the transition to democracy. To them, the
energy of the transition process would be better employed in future-oriented
endeavors, such as designing a constitutional structure capable of protecting
democratic values. In contrast, another group of scholars, of which I am one,
believe that some measure of retroactive justice for massive human rights
violations helps protect democratic values. An aggressive use of the criminal
laws will counteract a tendency toward unlawfulness, negate the impression
that some groups are above the law, and consolidate the rule of law. In my
view, some degree of investigation and prosecution of massive human rights
violations is necessary for consolidating democratic regimes.
On a third level, the question of how to deal with massive human rights
violations raises questions of legal theory. When deeds committed during one