Radical Evil on Trial.

• Author: Landsman, Stephan

Radical Evil On Trial. BY Carlos Santiago Nino. New Haven: Yale University Press. 1996. Pp. xii, 220. $27.50.

Human beings suffer,

They torture one another,

They get hurt and get hard.

No poem or play or song

Can fully tight a wrong

Inflicted and endured.

The innocent in gaols

Beat on their bars together.

A hunger-striker's father

Stands in the graveyard dumb.

The police widow in veils

Faints at the funeral home.

History says, Don't hope

On this side of the grave.

But then, once in a lifetime

The longed-for tidal wave

Of justice can rise up,

And hope and history rhyme.

So hope for a great sea-change

On the far side of revenge.

Believe that a further shore

Is reachable from here.

Believe in miracles

And cures and healing wells.

Call miracle self-healing:

The utter, self-revealing

Double-take of feeling.

If there's fire on the mountain

Or lightning and storm

And a god speaks from the sky

That means someone is heating

The outcry and the birth-cry

Of new life at its term.(1)

Seamus Heaney's moving words remind us that we live in an extraordinary time when, at sites of grave injustice ranging from the halls of government of Argentina and South Africa to the killing fields of Bosnia and Rwanda, "The longed-for tidal wave/Of justice can rise up,/And hope and history rhyme."

Writers have attempted, in very different ways, to come to terms with the swelling of the tide of justice. For example, the philosopher Alan Rosenbaum, in a recent book about the prosecution of Nazi war criminals, argues that virtually every person implicated in the Nazis' genocidal assault on Europe's Jews should be prosecuted to the full extent of the law.(2) His uncompromising position is "that not bringing suspected Nazi criminals to trial is flagrantly immoral and a serious assault on the basic values of civilization and on the conception of a democratic, rights-based society."(3) For Rosenbaum, moral factors always trump "rebuttable considerations like time and resource expenditures.(4)

Rosenbaum's dismissal of the practical stands in striking contrast to the approach taken by Carlos Santiago Nino's(5) Radical Evil on Trial. The late Professor Nino's work is, in essence, a painstaking assessment of the practicality of retroactive justice.(6) Nino traces the pragmatic pursuit of justice in Argentina and a number of other nations as each struggled to replace an oppressive regime, with a popularly chosen successor. In doing so, he provides insight into the nature and likely prospects of contemporary efforts to secure justice around the world.

1. THE STORY OF ARGENTINA

   Carlos Nino was deeply involved in Argentina's transformation, in the middle 1980s, from a military dictatorship to a democracy. He was a personal adviser to President Raul Alfonsin, who oversaw the country's transition. Because of Nino's personal involvement with events and personal relations with some of the actors, passages of his book read more like a memoir than a scholarly assessment. But Nino succeeds in making his retelling of Argentina's story more than the reminiscences of a witness to history. In his hands, Argentina's recent struggles become a didactic experience from which powerful lessons may be derived about the practical prospects for retroactive justice.

   In March 1976, the military launched a coup to oust Isabel Per6n from the Argentine presidency. Once in power the military junta curtailed civil liberties, dissolved Congress, and replaced independent judges, government officials, and university personnel with ideologically vetted substitutes. Harsh antisubversive legislation was adopted, and a reign, of terror was initiated. Alleged subversives and other opponents of the regime were abducted, tortured, and killed -- all without the slightest justification or explanation. Many of those who disappeared were never heard from again, and those who were released eventually told of the most brutal mistreatment. Jewish detainees were frequently the target of anti-Semitic atrocities. Eventually, the military claimed that these grievous human rights abuses were justified by the exigencies of Argentina's "dirty war" against terrorism (p. 56). Even the military, however, conceded that the targets of its torture and murder campaign were seldom terrorists but rather "individuals considered threatening to the consolidation of the military's political, social, and economic power" (p. 58).

   As time passed, Argentine resistance to the military's abuses grew. A number of human rights groups spearheaded this resistance, including Servicio de Paz y Justicia, whose leader, Adolfo Perez Esquivel, received the Nobel Peace Prize after two years of detention (p. 59). Weekly demonstrations by the Madres de Plaza de Mayo underscored, for the world, the fact that thousands had disappeared. From about 1979 on, outside pressure, most particularly from the United States, began to focus substantial attention on military abuses and generate calls for redress and reform (p. 60).

   By 1980, the military's grip on Argentina was beginning to slip, due in part to internal and international pressure, but also reflecting the impact of a substantial economic downturn (p. 60). In December 1981, the military replaced its junta leader,. General Eduardo Viola, with General Leopoldo Galtieri. The military's position continued to deteriorate, and massive antigovernment demonstrations took place in the early days of 1982. In what seemed a desperate bid for public support, the military launched an invasion of the Falkland Islands, a small chain of British-controlled islands off the Argentine Coast. The British responded to this military adventure by sending an armada to retake the Islands. The Argentine army was overwhelmed and surrendered on June 14, 1982. This military disgrace led to Galtieri's fall and further eroded the military government's standing (p. 61).

   By 1983, it had become clear that civilian replacement of the military regime was only a matter of time. The military attempted to insulate its members from liability by declaring that all acts undertaken during the dirty war were committed pursuant to "superior commands" (p. 62) and were, therefore, perfectly lawful as "due obedience" (p. 64). Civilian leaders unanimously rejected this claim, and the Radical Party's candidate, Alfonsin, promised that, if elected, his government would put on trial those who were responsible for gross abuses of human rights. Faced with an enormous pool of potential defendants, Alfonsin labored to identify those who should be targeted for prosecution. He chose to focus on the planners of repression and those who acted beyond the scope of orders, rather than those who had simply abducted and tortured in the regime's name. Hie made this distinction because he was convinced that otherwise there would be far too many defendants. In Alfonsin's view, this likely would provoke the military into armed resistance. In September 1983, the military promulgated a "self amnesty" law (p. 64). Alfonsin rejected this gambit out of hand, while the other leading candidate, Peronist Italo Luder, seemed to equivocate about its legitimacy. Many in Argentina -- including, perhaps, the military -- believed that the Peronists, who had never lost an open election, would take control of the government, thereby foreclosing the prospect of prosecution. Alfonsin, however, surprised the pundits by garnering fifty-two percent of the vote -- aided, it would appear, by his strong stand regarding prosecutions.

   Once in office, Alfonsin set his government about the task of discovering the fate of all those who had disappeared. He also sought to determine who ought to be tried for human rights abuses. His three fundamental principles were:

   1. Both state and subversive terrorism should be punished.

   2. There must be limits on those held responsible, for it would be impossible effectively to pursue all those who had committed crimes.

   3. The trials should be limited to a finite period during which public enthusiasm for such a program remained high. [p. 67]

   Alfonsin seemed to be searching for a realistic prosecutorial agenda that would appear evenhanded -- hence the focus on subversives as well as the state -- and would balance the demands of justice with the realities of limited judicial resources, the military's violent opposition to widespread punishment, and a predictable decline in public enthusiasm if trials dragged on for too long. While struggling to fix this agenda, Alfonsin also set about reforming the judiciary by removing those judges compromised by adherence to the dubious legal initiatives of the military regime (p. 72).

   Political and judicial realities led Alfonsin to curtail the reach and focus of his campaign for retroactive prosecution even further. As a means of garnering military cooperation and re-establishing the armed forces' credibility, Alfonsin arranged to give military tribunals the first opportunity to consider charges against military defendants. These courts had the power to narrow the reach of prosecution substantially. According to Nino, Alfonsin was more concerned with the future than the past -- with establishing the rule of law and deterring future violations of human rights. He conceived this as a necessary orientation in a still-divided Argentina facing an ongoing threat of military insurrection. Alfonsin did not want to bury the past, but he was not wedded to seeking criminal convictions of all those involved in past wrongdoing. As Nino summarizes, "While the pursuit of truth would be unrestricted, the punishment would be limited, based on deterrent rather than retributive considerations and on the need to incorporate every sector in the democratic process" (p. 68). This formula reflects the Argentine effort to forge a compromise that would punish grave misdeeds but leave society intact. This approach outraged human rights organizations, which bitterly attacked the government. Their protests had the ironic effect...