Abstract
In this article I pursue two aims. First I advance an internal critique of hard-core retribution as it is usually advanced by victims of human rights violations. The focus of this penal approach on submitting all the military personnel guilty of human rights violations to harsh punishments risks jeopardizing the (clearly retributive) demand of punishing all those involved in the abuses. Particularly when extensive time has elapsed after the misdeeds, the most rational policy seems to be a negotiation model that offers gross human rights abusers punishment reductions in exchange for valuable information about the facts. Defending such a penal negotiation model constitutes the second aim of this article. I conclude that in order to satisfy the (hard-core) retributive demand of punishing all those (both military and civilian) guilty of human rights abuses, it is required not to submit all military personal indicted to retributive punishments.
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Notes
According to Kant, “[j]uridical punishment can never be administered merely as a means for promoting another good either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime.” Kant, Immanuel, Rechtslehre, E. Hastie translation, 32 (quotation gathered from Pincoffs, Edmund L., The Rationale of Legal Punishment, pp. 2–3).
Again, according to Kant, “[i]f you slander another, you slander yourself; if you steal from another, you steal from yourself; if you strike another, you strike yourself; if you kill another, you kill yourself.” (ibid. 196. In Pincoffs, Edmund L., ibid., 3).
Ibid, 198. In Pincoffs, Edmund L., ibid., p. 4.
The claim that victims of human rights abuses embrace demands (1) through (4) is not easy to substantiate. In that regard, the best we can do is trusting in impressionistic data about the political stance usually defended by these organisations and their individual members. To perform a survey of the programmatic goals of different victims’ organisations on a world-wide scale is even more difficult to fulfil, mainly due to the elevated number of these organisations. In spite of these difficulties, in my opinion there should be little doubt about the fact that most victims of human rights abuses see any departure from requirements (1) through (4) above as a violation of justice and therefore oppose it categorically.
In this context, the notion of ‘responsible’ should be understood as being criminally liable for the abuses according to previous legal standards. This excludes agents responsible of morally reprehensible actions that were not unlawful when they took place.
In Argentina, for instance, Christian von Wernich—a Roman Catholic priest who served as capellan of the police force of the province of Buenos Aires in various concentration camps during the military rule in the late seventies, was given a life-time prison sentence on Oct. 9 2007.
See, for instance, the home page of ‘Madres do Plaza de Mayo’ (http://www.madres.org/index.asp). Similar demands are advanced by the original organization (“Madres de Plaza de Mayo—Línea fundadora”), from which the former group seceded. (http://www.madresfundadoras.org.ar/index.shtml). “Abuelas de Plaza de Mayo” (Plaza de Mayo’s grandmothers) demands ‘punishment for all responsible of the kidnapping of children’ by the military. (http://www.abuelas.org.ar/historia.htm). The different organizations that respond to the generic name ‘Hijos’ (constituted by children of abducted and murdered Argentinean political activists during the military regime) also are very uncompromising regarding this issue (see http://www.agrupacionhijos.tk/). In the home page of the Dutch association (“Hijos” has ramificatons all over Europe, included Stockholm and Uppsala), the organization demands ‘trial and punishment for all murderers and their accomplices’ (my emphasis). Thus, they seem to recognise the need to indict both the military and civilians but fail to realize the situational incompatibility of both demands when they are presented in absolute terms (see http://www.hijos.ul/).
Many times, this support is rendered not actively but instead passively, as when for instance journalists or diplomats simply omit to inform internal and international public opinion of what is going on in the country. For a retributivist (no matter of what kind) the question of whether these crimes of omission should be punished or not will depend on the kind of legislation previously passed. Thus, here again, hard-core retribution seems to go further than simple and plain retribution in their punitive demands.
Although it should be clear by now that this is not seen as an end in itself. Unlike hard-core retributivists, supporters of the penal negotiation model give priority to knowing the truth over inflicting harsh penal sanctions.
Op.cit., in Acton (1969), p. 155 (Armstrong's emphasis).
I write ‘also’ in italics because, in my view, families who unknowingly adopted children abducted by the military might have legitimate legal and moral claims over their adoptive children. Similarly, there are arguments that support giving some weight to the adoptive children’s unwillingness to know about their biological family, even when the adoptive parents knew about the illegal character of the adoption. This notwithstanding, I do not intend to discuss those issues here, as they go beyond the scope of the present article.
References
Acton, H.B. 1969. The philosophy of punishment. New York: MacMillan, St. Martin’s Press.
Armstrong, K.G. The retributivist hits back. (in Acton, H.B., op. cit.).
Kant, I. 1887. Rechstlehre, trans. E. Hastie. Edinburgh: Clark.
Pincoffs, Edmund L. 1966. The rationale of legal punishment. New York: Humanities Press.
Acknowledgments
I want to thank the anonymous referee who gave me valuable comments on a first draft of this article.
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Tamburrini, C. Trading Truth for Justice?. Res Publica 16, 153–167 (2010). https://doi.org/10.1007/s11158-010-9114-2
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DOI: https://doi.org/10.1007/s11158-010-9114-2