100 Yale L.J. 2619 (1990-1991)
The Duty to Punish Past Abuses of Human Rights Put into Context: The Case of Argentina

handle is hein.journals/ylr100 and id is 2633 raw text is: The Duty to Punish Past Abuses of Human Rights
Put Into Context: The Case of Argentina
Carlos S. Ninot
I. INTRODUCTION
We must be grateful to Diane Orentlicher for a thorough analysis of an
extremely difficult issue.
However, I think that her theoretical discussion does not sufficiently account
for the varied and often quite difficult realities successor governments must
face. Orentlicher concentrates on questions of morals and law, and infers some
conclusions about duty selectively to prosecute past violations of human rights.
But the problem of inferring those conclusions is not so much related to moral
or legal normative premises, but to factual ones which also condition the
conclusions. I believe that Orentlicher leaves aside some relevant circumstances
that successor governments may confront and that are crucial in deciding
whether to prosecute human rights violations.
The aim of this Comment is to put Orentlicher's prescription into a factual
context.t I will share, as a case-study, some of the quite intricate aspects of the
situation confronted by President Radl Alfonsfn's government in Argentina
when conducting trials of human rights violations committed by both the
previous government and leftist guerrillas. I intend to show that, once those
circumstances are taken into account, the conclusions Orentlicher reaches must
be highly qualified, at least in relation to Argentina's case.
I do not want to extend, without qualification, my conclusions to other
cases. But knowing the complexities of situations like those in Uruguay and
Chile, I doubt the beneficial effects of a general duty which does not take into
account those complexities.2
t Advisor on constitutional issues to former President of Argentina Radl Alfonsin; Professor of Law,
University of Buenos Aires: Visiting Professor, Yale Law School.
I. Orentlicher, Settling Accounts: The Duty to Punish Human Rights Violations of a Prior Regime. 100
YALE L.J. 2537 (1991). In this article I will draw upon my first-hand knowledge and observations of the
trials in Argentina. For a more detailed account, see 0. G6MEZ, EL DIARTO DEL JUICIO (1985) (microfilm
on file at Yale Law School Library): Note, Humaz Rights: Conviction of Former Argentine Military
Commanders for Human Rights Abuses Committed by Subordinates, 27 HARV. INT'L L.J. 688 (1986)
(describing Argentine trials and convictions).
2. In the case of Uruguay, the amnesty law for human rights abuses committed under the previous
military regime was ratified by a popular plebiscite. Could the population at large violate Orentlicher's
proposed duty? In the case of Chile, there is an extremely delicate balance between the new and imperfect
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