Radical Evil on Trial
By Carlos Santiago Nino
Summary written by Conflict Research Consortium Staff
Citation: Nino, Carlos Santiago. 1996. Radical Evil on Trial. New Haven, Connecticut: Yale University Press.
This is a first-hand account of Argentina's experience with transitional justice in the 1980s. Carlos Santiago Nino served as advisor on human rights and constitutional reform to President Raul Alfonsin, who was elected in 1983 after the military junta surrendered power. Looking at efforts since World War II, Nino examines the role of punishment as a means of helping construct democracy. He provides an in depth description of Argentina's experience, in particular tracing Argentina's history, the junta from 1976-1983 and the transitional process, of which he was an integral part. We learn of the Alfonsin government's calculations, the course of Argentina's truth commission (CONADEP), and efforts to put the military leadership on trial. The military grew restive as the prospect of prosecution seemed to improve. Under threat of a coup, the government backed off passing the 'full stop' law, which would bring prosecutions to a close. However, the courts were flooded with cases before the deadline and tensions rose. Eventually, under President Carlos Menem an amnesty was passed.
The opportunity in Argentina to realize some form of transitional justice came about because of the debacle of the Falklands/Malvinas War. Although this experience temporarily sowed divisions amongst the branches of the armed forces, Alfonsin's effort to prosecute past human rights violations was a unifying force. Political parties favored some sort action or they feared democracy would not be consolidated. However, they parties were afraid that being too successful would make Alfonsin's Radical Party too popular. Finally, human rights organizations used the prestige they had achieved to press for retribution. Neither the military nor human rights groups were satisfied with the government's position and this helped to weaken it.
Nino outlines a number of factors both supportive and obstacles of retroactive justice.
- One group controlling the transition.
- Legal discontinuities.
- Heinous abuses.
- Absolute and relative quantity of abuses.
- Social identification with victims.
- Sharpness of the trials.
- Transition consensual.
- Time span between crimes and trials.
- Social identification with perpetrators.
- Diffusion of responsibility.
- Cohesion of the perpetrators.
As part of a transitional process, however, political arguments must be based on moral valuation.
Although Nino outlines a moral defense of retribution, he ultimately concludes it suffers from major philosophical problems. Such a position assumes that punishment can adequately rectify the situation. It also presupposes that one evil can in some way rectify another. At the core, the problem is that "[t]he dependence of retributivism on blame, and thus on intention, leads us to the abyss of pure subjectivism." (137) Thus, Nino turns to consider a preventionist theory of punishment. Based in a theory of consent, he argues that agents are susceptible to punishment if they have acted freely and with an understanding of the law and its consequences. Nonetheless, punishment of radical evil is unlikely to deter massive human rights abuses in the future as they would not arise within a just legal and political framework. Thus, Nino concludes "that trials for massive human rights violations can be justified on preventionist grounds provided the trials will counter those cultural patterns and the social trends that provide fertile ground for radical evil." (146) In sum, following Shklar, he concludes that trials may reveal details of the crimes, advance the rule of law, minimize vigilantism, restore dignity to victims, and promote public deliberation. However, to reach these moral ends, actions must be legal.
In examining the legal complications of trying human rights violators, Nino concentrates on the presence or absence of legal norms and the defenses of the accused. In some transitional situations, the problem is not the absence of law, but rather law may permit abhorrent behavior. This should be rejected from a natural law perspective. At the same time, unless law is created through genuine democratic participation to truly create the rule of law, it is not to be accepted. Focusing largely on Argentine examples, Nino proceeds to evaluate the defenses of lack of agency, necessity, self-defense, state of war, due obedience, statute of limitations, and the selectivity of punishment. Nino concludes that punishment need not be equally meted out in order to meet legitimate goals.
Nino concludes his examination by rejecting a blanket legal obligation to prosecuting any and all human rights violators. In some circumstances, such an approach could do more harm than good. What is more necessary is constructing an international forum that may legitimately be called upon.