University of Miami Law School Institutional Repository University of Miami Inter-American Law Review 7-1-1998 Dignity, Vengeance, and Fostering Democracy Jaime Malamud Goti Follow this and additional works at: http://repository.law.miami.edu/umialr Part of the Comparative and Foreign Law Commons, and the International Law Commons Recommended Citation Jaime Malamud Goti, Dignity, Vengeance, and Fostering Democracy, 29 U. Miami Inter-Am. L. Rev. 417 (1998) Available at: http://repository.law.miami.edu/umialr/vol29/iss3/2 This Article is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami Inter- American Law Review by an authorized administrator of Institutional Repository. For more information, please contact [email protected]. 417 ARTICLES DIGNITY, VENGEANCE, AND FOSTERING DEMOCRACY JAIME MALAMUD GOTI* I. INTRODU CTION ....................................................................................................... 418 II. WHY PUNISH STATE CRIMINALS? DIGNITY, SELF-RESPECT, AND THE ABANDONMENT OF OLD PARADIGMS ....................................................................... 419 A. Deterrenceand the Trials ............................................................................. 422 B. Retributivists and the Trials ........................................................................ 424 C. Revenge, Punishment, and Victim-Centered Retribution ............................ 427 D. Did the Trials Furtherthe Democratic Cause? ...................... .. ..... ... .... .... .... 430 E. Post-TrialA rgentina..................................................................................... 433 F. The Failureof the Trials............................................................................... 438 G. Blaming and State Terror ............................................................................ 439 III. FORWARD INTO THE PAST OR BACKWARDS TO THE FUTURE .................................... 445 IV . CON CLU SION ........................................................................................................... 449 J.D., Ph.D., Visiting Professor of Law, University of Miami School of Law. Jaime Malamud Goti is the Former Solicitor to the Argentine Supreme Court and Hu- man Rights Advisor to President Raul Alfonsin and author of GAME WITHOUT END: STATE TERROR AND THE POLITICS OF JUSTICE (1996). 418 INTER-AMERICAN LAW REVIEW [Vol. 29:3 I. INTRODUCTION Many people regard as essential to the transition from dicta- torship to democracy the trial of those who have committed hu- man rights abuses. The argument that punishment is a funda- mental political tool that can raise the consciousness that is essential to effect radical political change is justifiable on many grounds. It is generally accepted that the judiciary (using the power that originates from, and is administered under, the pro- tection of the new government) can impartially allocate criminal responsibility to those who have tortured and killed and can thereby restore belief in individual liberties and can recreate democratic authority. Most critics of this thesis either justify or condone the vio- lent dictatorial practices and argue either from practicality, from moral skepticism, or from fear of deepening social conflict. Those who fear deepening social conflict are concerned, among other reasons, that this retributive justice may detract from the political consensus required to create respect for rights and equality. Recent experience in Argentina, however, suggests that trials of human rights abusers may have reinforced the very same authoritarian trends they were designed to overcome. Thus, rather than destroying the political consensus, a new con- sensus has been created, but unfortunately the new consensus has adopted the methods of the old regime. This essay explores how, beyond the rhetoric of "just pun- ishment," structural features of post-dictatorial communities remain, turning human rights trials into revenge-driven retalia- tory ventures. Thus, instead of "de-authoritarianizing" and paci- fying the polity, these retributive measures become an independ- ent source of disunity and persecution. In fact, as the recent history of Argentina indicates, the trials served to perpetuate and encourage state-sponsored violence rather than to consoli- date democratic institutions and customs. Argentines find authoritarianism too familiar to successfully extricate them- selves in the course of a few years from the social beliefs and practices that are inherent to authoritarian regimes. This essay sets out to expose the basic misconception that, envisaged as they were in Argentina, trials and criminal pun- ishment will improve respect for rights in post-dictatorial politi- cal systems. In fact, the civic accountability for punishment in 19981 FOSTERING DEMOCRACY this context is fraught with insurmountable obstacles. This es- say examines this idea and the ways in which the 1985 human rights trials in Argentina do not seem to have consolidated democratic institutions such as an independent judiciary, but rather have done the opposite: they have eroded the public's confidence in, and thus the power of, the already feeble authority of the judiciary. I also look at the empirical evidence that authoritarian practices still run rampant within that segment of the Argentine community that still favors-or at least justifies- state violence. I tackle what appears to be a contradiction be- tween the popular support for the trials of human rights viola- tors, on the one hand, and support of brutality on the other. It is possible to view this contradiction as a result of a lack of political authority that originated primarily under a terrorist state. I claim that the very subjective nature of blame and punishment is caused by an authoritarian practice of governance. Further, I demonstrate how this distorted practice of blame can become a lens through which we observe the Argentine human rights tri- als. Ultimately, this practice of placing blame, as formalized by the trials, turned into a form of revenge rather than "just pun- ishment." II. WHY PUNISH STATE CRIMINALS? DIGNITY, SELF- RESPECT AND THE ABANDONMENT OF OLD PARADIGMS Crime, punishment, and the criminal trials themselves are among the central topics of discussion in most societies.1 This same issue of crime and punishment becomes a collective obses- sion when the culprits are members of brutal dictatorial regimes. For example, human rights activists hounded Haitian president Jean Bertrand Aristide to agree to prosecute military officers and attaches as early as January 1994, months before Aristide had even managed to return to Haitian soil. Top human rights groups, including Amnesty International, found it imperative to get Haiti's president to commit to the process of prosecuting and punishing torturers and assassins. The reasons for such urgency are not self-evident, considering that Haiti faces the worst pre- dicament of malnutrition and lack of education in the Americas. 1. One has only to think of the effect of the O.J. Simpson trial on television scheduling to understand this. INTER-AMERICAN LAW REVIEW [Vol. 29:3 Beyond deep-seated retributive emotions, the drive toward punishment is tied to the entrenched belief that criminal justice plays a central role in teaching us the truth2 about past deeds.3 In addition to Haiti, this belief was the catalyst behind popular and international pressure to punish "state criminals" in Uru- guay, Chile, Argentina, and now Rwanda. This belief is also re- sponsible for retributive purges such as the Czechoslovakian Lustration law, which bans Communist Party members from holding public office. There are indeed strong reasons to think that retributive justice can contribute to establishing a rights-based, democratic society. Perhaps most importantly, scholars and politicians link punishment to the consolidation of democratic institutions, chiefly the judiciary. This consolidation is in fact both the cause and the consequence of minimally egalitarian law enforcement. It seems only too obvious that trying state criminals in unstable political systems affirms the principle that nobody is beyond the reach of the law and that citizens have rights, the exercise of which are essential to a working democracy. Moreover, it also seems evident that punishment has a larger role than just building and unifying democratic institutions through egalitar- ian blame adjudicating mechanisms. Some scholars and most human rights activists imply that the act of convicting human rights violators serves a therapeutic function by instilling among members of the community a lost sense of self-respect which is the stepping stone for building respect for rights. It is true that once dictatorships are over, individuals who had suffered or feared state persecution are less likely to regain respect for themselves or develop respect for others in the ab- sence of prosecution and punishment of the transgressors. 4 Fur- 2. This teaching of history is, of course, contingent upon the fact that moral blame for the gross infringements of rights under a dictatorship may be assigned to a clearly identifiable group. 3. I later suggest that this point holds insofar as the retributive emotions in which punishment is grounded stem from the drive to recover the citizens' lost dignity and self- respect. 4. Amartya Sen points out that subjugated people will abandon their belief in their own and other persons' rights in order