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Copyright 1991 Yale Law Journal Company.

Yale Law Journal

SYMPOSIUM: INTERNATIONAL LAW: ARTICLE: Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime.

June, 1991

Yale Law Journal

100 Yale L.J. 2537


Diane F. Orentlicher +



From Latin America to Asia, from Eastern Europe to Africa, long-entrenched dictatorships have given way to elected civilian governments. 2 The trend has been sweeping and, at times, astonishing. The outcome of recent transitions cannot yet be known, but it is now clear that nations emerging from dictatorship face formidable challenges as they seek to establish or restore the rule of law.

Many of the new governments replaced regimes responsible for brutal crimes -- forced "disappearances," political killings and torture -- inflicted on a staggering scale and with wholesale impunity. Whether these crimes should be prosecuted has loomed as one of the most urgent, and agonizing, issues confronting the nascent democracies. In some instances, security forces responsible for the worst abuses retain substantial power, and make clear that they will not brook any legal accounting. 3 In several countries, governments have responded by granting de facto impunity; in others, the military has insisted upon amnesties which are designed, as one writer has observed, "to enforce a total amnesia regarding [its] crimes." 4 With a tenuous grip on power, some of the fledgling democracies have been presented with a Hobson's choice between their very survival and the principles upon which their existence was founded. How to balance the demands of justice against the continued dangers of military or other force presents issues to which no one has yet proposed generally satisfactory resolutions.

While sharply divided over what policy would best promote a democratic transition, commentators agree ...
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