Hastings Law Journal
Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations
Since the early 1980s, newly emerging democracies have been confronting the ethical and political dilemma of how to address a legacy of human rights violations committed by former governments. Unlike the circumstances surrounding the war crimes trials in the wake of World War II, when recently deposed rulers were powerless, in many contemporary political transitions the perpetrators of past abuses continue to wield considerable power. As new governments attempt to repair the damage caused by their predecessors and to prevent the recurrence of human rights violations, they must avoid provoking a backlash.
In his Lecture, Sefior Zalaquett argues that these new governments must adopt, through democratic means, a human rights policy that focuses on discovering the truth regarding past human rights violations. As long as the principles of international law are respected, each nation may tailor its human rights policies in accordance with its inclination towards severity or clemency. Using Chile as his case study, Sefior Zalaquett examines the policies adopted by the democratically elected Aylwin government in the aftermath of the Pinochet military regime. In Chile, political constraints prevented widespread prosecution of past abuses. Instead, the government attempted to reveal the true story of every individual who was reported as dead or "disappeared." To accomplish this task, President Aylwin appointed an impartial commission. The commission, of which Sefior Zalaquett was a member, investigated human rights abuses committed by the previous government, and published a detailed report recommending reparations for the families of the victims and preventive measures to ensure that such abuses are not repeated in the future. Sefior Zalaquett concludes from the experience of Chile that even in the face of challenging political constraints, nations can confront the atrocities of the past responsibly and effectively.
Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations,
43 Hastings L.J. 1425
Available at: https://repository.uchastings.edu/hastings_law_journal/vol43/iss6/1