The duty to punish past abuses of human rights put into context: The case of argentina
Yale Law Journal, vol. 100, no. 8, 1991, pp. 2619–2640
Abstract
International legal duties to prosecute past human rights violations must account for the specific factual realities and political constraints faced by successor governments. Although moral and legal principles often suggest a requirement for prosecution, the justification for punishment is primarily consequentialist—aimed at preventing future abuses—rather than based on mandatory retribution. In transitional contexts, such as post-dictatorship Argentina, the preservation of the democratic system serves as a necessary prerequisite for the rule of law, requiring that the scope and duration of trials be counterbalanced against the risk of military destabilization. Factual obstacles, including military cohesion and the lack of external enforcement mechanisms, create scenarios where absolute prosecution can provoke further human rights violations or systemic collapse. Consequently, a rigid international mandate to punish often proves counterproductive; it may delegitimize fragile governments and empower resistant factions without providing the material support necessary for enforcement. A more effective international legal framework would prioritize the creation of international forums for prosecution or emphasize a flexible duty to safeguard human rights that is sensitive to the unique causal chains and structural limitations of each transition. – AI-generated abstract.
Notes citing this work
Quotes from this work
We tell someone that such and such a thing is what morality requires, and he replies that he agrees with us but does not see why he should do what morality requires. What could we say in reply? The individual could have reasons of prudence to do the same thing that morality requires, but, if he asks that question, it is probable that he does not have those reasons or that they are not enough for him. But, if they are not reasons of prudence, what other kinds of reasons is he looking for? What is the meaning of ‘should’ in the question ‘why should I be moral?’ The only possible answer is that the reasons in question must be moral ones and that the duty alluded to by the expression ‘should’ must be amoral duty, since our practical reasoning does not admit reasons and duties of a higher order. But the person who asks these questions will not, of course, be satisfied with an answer which presupposes what he is doubting. What is he in fact asking? The very question seems to involve a contradiction, since once adequately articulated it reads: What moral reason do I have to do what morality prescribes, which is not a reason which is derived from morality itself? This is like asking who is the lucky woman who is the wife of the richest bachelor on earth, and being distressed that we do not get an answer.