The Dilemma of Impunity as a Consequence of a Model of Socio-Economic Thought.

By Gregorio D. Dionis, Director Equipo Nizkor

En español

To take part in an International Seminar in Chile with the theme of "Impunity and its effects on the democratic process" offers the intellectual challenge of having to confront a state model prepared on the theoretical basis of one of the greatest conservative intellectuals of the United States since the Second World War.

We all know that general Augusto Pinochet was responsible in fact for the development of national security theories in Chile, we know of his Prussian instincts and we can agree, if we are to believe his peers, that he was ultimately responsible for the aberrant crimes that were committed in this country including the fundamental crime of betraying his duty as the defender of the rule of law then existing in Chile |1|.

Today we know from the testimonies recorded in the minutes of the US Security Council that Henry Kissinger was truly frightened by the social development in Chile |2|.

He must have been feeling, I believe, that same terror that Metternich presumably felt faced with the democratic movements that originated with the North American and French Revolutions.

It is worth remembering that Metternich was the restorer of absolutism in the world and had a great deal to do with the development of the conservative movements in the Latin American revolutions at the beginning of the 19th. century, to the point where he believed that a constitution should not be recognised unless it existed by virtue of royal prerogative.

Having said this, we should also remember that the similarity between these two individuals was a matter of some interest to Kissinger, for his doctoral thesis |3| is based on the work of Metternich and a study of his writings shows that for Kissinger there could be no better epitaph than to be attributed with Metternich's own views.

As we are here to reflect on the subject of impunity and more specifically on its consequences on economic, social and cultural rights, you may legitimately be asking yourselves what is the relationship between these people and impunity.

I will try to answer that by considering another little-known historic personality but one of great relevance to the history of the rights of man and to the history of human dignity: Thomas Paine, who was the revolutionary who united, materially and intellectually, the first two democratic revolutions, the North American |4| and the French, and who was nominated by the French parliament |5| to respond to Mr. Edmund Burke, father of modern conservative doctrines, and his pitiless attack on parliamentarianism, equality and the consequences which, for the British aristocracy, arose from those uprisings |6|.

Paine chose as the title for his reply "The Rights of Man" |7|. This would become one of the most published works of its time and it would earn him a death sentence from the courts of His Gracious Majesty, from which he would be saved, according to legend, by the intervention of the poet Blake |8| who helped him to cross the English Channel in secret.

These are the principles which were born in that time. For Paine they were the rationalization of freedom and the recognition of the rights of the individual as against political irrationalism derived from fundamentalism and absolutism. This work to which I refer was written between 1791 and 1792, more than 200 years ago. Nevertheless, the debate is still not over.

The fiercest criticism to models of foreign policy, (which Mr. Kissinger makes at his private conferences sold for $50,000 each), is that of allowing oneself to be carried away by the "validity of human rights" instead of recognising that only power really counts |9|. This is a mistake that he never made.

But this is also the thinking publicly expressed by the current Argentinian chancellor, Guido di Tella, in a conference "off the record" given in Madrid |10| and to which I was witness. He justified the impunity in Argentina by using those same arguments which Burke used in 1790. He defended the thinking of Edmund Burke as if he were representing a government adviser. And I assure you that it had nothing to do with the defence of the so-called "rotten boroughs" which they organize so well in Argentina.

To this school of thought was added that of the German theory, derived from Spanish legal doctrines, best represented by Mr Carl Schmitt and reflected in two further doctrines which have been the basis for establishing the policies that created the dilemma over impunity.

These were:

    a) the so-called friend-enemy dialectic and

    b) the justification for the leader-commander of state as the legitimate source of law |11|

To which it is only necessary to add the theories concerning racial laws which are currently reflected in some constitutions like that of Croatia.

Social and Cultural Liberties

In order not to tire you I will not continue here my exposition of the political motives behind the systematic violation of economic and social rights and I will only add that with respect to this model, formed from these reactionary and even pre-modern ideas, human rights were an objective that had to be resisted.

They were the worrying consequences of weak policies of thoughtless governments, if I may use the rhetoric consistent with that sort of discourse. And if they were the problems then the solutions had to be the elimination of such rights and necessarily the systematic repression of those who defended them.

For me, this explains the fact that the victims of repression are usually from the whole ideological spectrum at least in qualitative terms. Structurally, in terms of systems analysis, the most representative sector is made up of social and political leaders who believed that human rights were the manifestation of the use of reason in modern political and social systems |12|.

Human Rights and the economic model

It is tragic to see how apparently university-educated economists are capable of defending economic models based on the systematic violation of civil and political rights. Many of them even believe that they are using the ideas of Adam Smith and his "invisible hand", without knowing that, in his time, the man defended precisely the contrary view and attempted to rationalize modernity.

Nevertheless what they do is to utilize the economy as an ideological instrument to challenge existing freedoms. They no longer belong to the scientific collective based on the utilitarianism of the common good and have become instruments of the more reactionary trends that appeared after the French Revolution.

These models which replace liberties for the efficiency of the supply-demand curve are complementary to the use of irrational doctrines derived from conservative analysis. And once put into effect they can go no other route than by way of the systematic violation of civil and political rights |13|.

For these models impunity is not a consequence of the violation of human rights, it is simply a market necessity.

As an example, the dismantling of the instruments and organisms which are the basis for free determination of citizens becomes a necessary condition of the model.

It is essential to break down the family structure so that the native family forgets its cultural identity. It is essential to break down the union structure which defends the dignity of its members. It is essential to break down the structure of the human rights organs (let us remember Colombia or Peru) which have believed in the discourse of modernity. It is essential to break down the social structure which permits the least fortunate to express themselves publicly, coherently and rationally, for which it is necessary that the educational systems not be based on the premises of liberty, solidarity and brotherhood. It is essential that rationality be replaced with the law of supply and demand, the law of the strongest, the law of the jungle.

Humanitarian law as a weapon

However none of Henry Kissinger, Pinochet or Guido di Tella , nor those who play at racial destabilisation in Europe can escape from a dilemma generated by history itself. The legitimacy of political systems derived from the American and French Revolutions (and in these I include the so-called real socialist |14| systems) demands, as a necessary precondition, a legal rationale established by representatives of the people.

And we all know that even in the Declaration of Human Rights of 1793 it was established that there would be no statute of limitations for crimes committed by public officials. We all know that the courts of Nuremberg set down a doctrinal basis in international law which men like Paine would not have rejected, although possibly they would have liked it to have a global reach |15|. Similarly, we know that the appeal to the Supreme Court of the USA by Tomoyuki Yamashita set a precedent which is of much concern to the legal advisers of many state criminals.

But we are faced with true theoreticians of the restoration of conservatism. Metternich would have been proud of them. And faced with the dilemma which it presents they came up with some alleged solutions which we have to analyse and confront with all the strength which we have as free men.

The first answer was the system of aberrant legislation determined by the use of force and not by reason of law. This system was as perverse as the Holy Alliance: liberty only existed as a privilege graciously granted by the same persons who violated it. In this school of thought violent coercion replaces absolutism.

The second answer was the dismantling of the legal social state which balances supply and demand not one which redistributes income or defends the weakest. And for this it is necessary to eliminate or to fail to apply all the rights which today we would call social and cultural rights.

Man alone in an empty world

This means that if we allow the definitive establishment of models of impunity in Latin America, Africa or Europe |16|, we run the certain risk (in statistical terms) of losing those freedoms which the International Covenant on Social, Economic and Cultural Rights attempted to make universal.

The models of impunity try to resolve the dilemma posed by democracy, freedoms and the expression of their rational use, that is to say, human rights, and they take on the "vanity and presumption of governing beyond the grave" as being "the most ridiculous and insolent of all tyrannies" as Paine so eloquently replied to Mr. Burke.

And that is because, as Jeremy Bentham said "From pardon power unrestricted, comes impunity to delinquency in all shapes: from impunity to delinquency in all shapes, impunity to maleficence in all shapes: from impunity to maleficence in all shapes, dissolution of government: from dissolution of government, dissolution of political society".

Possibly you are asking yourselves where are the actual consequences of these models to which I would reply that we still have time to confront the model and to address the aberration. We still do not have the final model. There are still millions of free men and women who want to stop these models from becoming universal. The memory of humanity is still not humiliated in a definitive way and today we are here in this country which is the origin of the theory of limited sovereignty to expound our views and to say clearly that it is a grave mistake to allow the limitation of the right to know and of the right to justice.

To restore these rights means to return freedom to our children and grandchildren. To do otherwise is to accept the Machiavellian principles supported by Henry Kissinger where the political and social world loses all connection with any form of ethical or cultural life. Where man finds himself alone, in an empty space |17|.

Speech presented at the International Seminar: "Impunity and its Effects on Democratic Processes" Santiago de Chile, 14th. December 1996.

Final notes:

1. Possibly this is the true reason for the assassination of Orlando Letelier. Cf. Joan E. Garces and Saul Landau presenters of "Orlando Letelier: Testimony and Vindication", Siglo XX1 de Espana, July 1995. [Back]

2. Cf. S.M.Hersch, " The Price of Power: Kissinger in the Nixon White House", New York, Summit 1983. In this work Roger Morris is mentioned, a member of the National Security Council responsible to Kissinger. [Back]

3. Henry A. Kissinger, "A World Restored: The Politics of Conservatism in a Revolutionary Age", The Universal Library, Grosset and Dunlap, New York 1964. [Back]

4. He wrote "Common Sense" which is considered the work that resulted in the breaking with the model of British monarchy and the theory of popular representation. [Back]

5. He was a friend of Condorcet and founded La Societe Republicaine with him. He was a member of the Convention as representative for Pas-de-Calais. He took part in the writing of the French Constitution. An updated biography of Paine can be found in "Thomas Paine or the religion of liberty" by Bernard Vincent, Aubier, Paris, 1987. [Back]

6. The work in question here is " Reflections on the French Revolution" which appeared in November 1790. The analysis which Paine makes of the French Revolution is simply scientific in response to the irrational criticism of Burke, the most intelligent of the critics of democracy. [Back]

7. The first part of Thomas Paine's "Rights of Man" was published in March 1791 and the second in 1792. [Back]

8. He was brought to trial but avoided being held in custody. He was convicted in his absence and sentenced to death. [Back]

9. In the introduction to his thesis he states that legitimacy should not be confused with justice and that it means no more than an international agreement concerning the nature of functional arrangements and concerning the objectives and acceptable means of foreign policy. (Henry A. Kissinger, A World Restored: The Politics of Conservatism in a Revolutionary Age. The Universal Library, Grosset and Dunlap, New York, 1964.) [Back]

10. At the headquarters of the Fundacion Ortega y Gasset, in Calle Fortuny, Madrid. [Back]

11. Carl Schmitt, "Der Begriff des Politischen", Munchen-Leipzig, 1933 and "Theorie des partisanen, Zwischenbemerkung zum Begriff des Politischen", Berlin, Duncker & Humbolt, 1963. This second part was first presented in Zaragoza, Spain. [Back]

12. In general the models of repression are not random. They are subject to the analysis of systems and game theories. In military use, a list of victims is worked out by using the ABC technique, well known in logistics. Cf. among others: Morton D. Davis, "Game Theory: A Nontechnical Introduction", Basic Book, New York, 1970. Michael A. Arbib "Brains, Machines and Mathematics", McGraw-Hill, New York, 1964 and J.W. Schmidt and R.E. Taylor "Simulation and Analysis of Industrial Systems", Richard D. Irwin Inc, Homewood, Illinois, USA 1970. [Back]

13. Cf. Albert O. Hirschman "Deux siecles de rhetorique reactionnaire", trad. Pierre Andler, Fayard, Paris, 1991. [Back]

14. Jurgen Habermas, "Zur Rekonstruktion des Historischen Materialismus", Suhrkamp, 1976. French Translation "Apres Marx" Fayard, Paris, 1985. [Back]

15. "Nazi Conspiracy and Aggression. Opinion and Judgment". Vol. 9, Office of United States Chief of Counsel for Prosecution of Axis Criminality. United States Government Printing Office, Washington, 1947. [Back]

16. In this case advancing racial doctrines where the philosophy of Carl Schmitt also has great importance, but more still that of the German-Argentinian Walter Darre. Cf. Edouard Conte et Cornelia Essner, "La Quete de la Race. Une Anthropologie du Nazisme", Hachette, Paris, 1995. [Back]

17. Ernst Cassirer, "The Myth of the State", Yale University Press, 1946. [Back]

Economic and social rights

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This document has been published on 07Jul03 by the Equipo Nizkor and Derechos Human Rights