Transitional Justice in Eastern Europe and the former Soviet Union

Reckoning with the communist past

Lavinia Stan

• Publisher: Routledge
• Year: 2009
• ISBN:
  9781135970987
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

During the last two decades, the countries of Eastern Europe and the former Soviet Union have attempted to address the numerous human rights abuses that characterized the decades of communist rule. This book examines the main processes of transitional justice that permitted societies in those countries to come to terms with their recent past. It explores lustration, the banning of communist officials and secret political police officers and informers from post-communist politic, ordinary citizens' access to the remaining archives compiled on them by the communist secret police, as well as trials and court proceedings launched against former communist officials and secret agents for their human rights trespasses. Individual chapters explore the progress of transitional justice in Germany, the Czech Republic, Slovakia, Poland, Hungary, Romania, Bulgaria, Albania, Slovenia and the successor states of the former Soviet Union. The chapters explain why different countries have employed different models to come to terms with their communist past; assess each country's relative successes and failures; and probe the efficacy of country-specific legislation to attain the transitional justice goals for which it was developed. The book draws together the country cases into a comprehensive comparative analysis of the determinants of post-communist transitional justice, that will be relevant not only to scholars of post-communist transition, but also to anyone interested in transitional justice in other contexts.

1 Introduction

Post-communist transition, justice, and transitional justice

Lavinia Stan

Since the end of the Cold War, “de-communization,” “transitional justice,” the “politics of memory,” and “political justice” have been among the terms and concepts commonly used to describe the wide range of inter-related processes of coming to terms with the recent dictatorial past in post-communist Eastern Europe and the former Soviet Union. As in other parts of the world, most notably South Africa, Southern Europe, and Latin America, in post-communist countries democratization has turned into an effort to envision a better future and to navigate an uncertain present as much as to investigate, reevaluate, and redress the mistakes of the ancien regime. Bit by bit, the touching personal testimonials of former political prisoners, the reserved memoirs of communist officials and secret agents, the testimonials of silent by-standers, and the independent research carried out in the newly-opened archives have lifted the veil of secrecy surrounding the activity of the communist parties hegemonic in the region, their privileged relationship with the ruthless secret political police forces, their alternate use of repression and cooptation to maintain monopoly of political power, and their victimization of countless individuals arrested, imprisoned, tortured, exiled, murdered or reduced to silence. Although much more work needs to be done in order to unravel the entire mechanism of communist repression and terror, and sort myth from truth regarding the identity and role of victims and victimizers, today we have incontestable proof for many human rights trespasses and violations we knew about only from unsubstantiated rumors prior to 1989. The challenge is to come to terms with these atrocities, while continuing to establish the truth and strengthen the rule of law.

This volume is the first to map the progress of three main transitional justice processes in post-communist Eastern European and former Soviet Union countries, explain why individual countries employed different models of coming to terms with their recent past at different times with different degrees of success, and probe the relative efficacy of country-specific transitional justice outcomes through the evaluation of the activity of state bodies in charge of moving the process forward. Finally, this study draws together this rich case-specific research into a comprehensive comparative analysis of the determinants of transitional justice in post-communist times.

Transitional justice: the broader context

The origins of the urge to reassess the past authoritarian regimes, to confront and to prosecute the victimizers, to rehabilitate the victims, and publicly to uncover the mechanisms of repression are identified with the post-World War II setting in Europe by some authors, the aftermath of the French Revolution by others, and 251 AD or even ancient Greece by still others. Bickford points to the International Military Tribunal at Nuremberg and the de-Nazification programs in Germany as representing the first efforts dedicated to assessing and redressing past injustice. Fitzpatrick places those first attempts much earlier and claims that they materialized as the purges and the revenge campaigns that followed in the wake of the French Revolution of 1789. For theology scholars, reconciliation first became important for the primary Church after the persecution sanctioned by Roman Emperor Decius in 250 AD, when Novatian and his followers refused readmission to communion to the lapsi, the baptized Christians who had denied their faith and had sacrificed to pagan gods. Elster discusses the politics of accountability carried out with the return of democrats to Athens in 403 BC after the rule of the Thirty Tyrants.¹ While different authors vacillate between different time periods when trying to pinpoint the first attempts at pursuing justice during times of regime change, they unanimously agree that the transitional justice framework gained in coherence, diversity, and importance only in the second half of the twentieth century. These developments emerged because “democratic activists and their allies in government sought to find new and creative ways to address the past,”² and further expanded the possibility of comprehensive justice during transition, relying on the idea of truth as an “absolute, unrenounceable value.”³ These efforts addressed the unprecedented genocide and regimes of tortures marking the twentieth century, and culminated in what Soyinka labeled “the end of millennium fever of atonement.”⁴ Each of the consecutive waves of democratization Huntington identified were accompanied by calls for holding the officials of the former authoritarian regime accountable for their many wrongdoings. The calls were heeded predominantly in those countries where the democratization process was not reversed, and the fragile new regimes did not succumb to a new wave of ruthless authoritarianism.⁵

The experience of new democracies suggests that the process of assuming the dictatorial past represents the key to building a stable, legitimate democracy. A number of political scientists and journalists have argued that democratization cannot be successfully effected without an honest reevaluation of the past that would bring justice to victims and closure to victimizers. According to O’Donnell and Schmitter, “it is difficult to imagine how a society can return to some degree of functioning which would provide social and ideological support for political democracy without somehow coming to terms with the most painful elements of its own past.”⁶ Tismaneanu reinforces the same point when writing that “to ask for a serious coming to grips with the past is not simply a moral imperative: none of these societies can become truly liberal if the old mythologies of self-pity and self-idealization continue to monopolize the public discourse.”⁷ Borneman similarly believes that “the relevance of retributive justice in the contemporary context goes far beyond the fate of individual crimes and victims; its increasing importance is part of a global ritual purification of the center of political regimes that seek democratic legitimacy.”⁸ For de Brito et al. reckoning with the past through truth telling can “address the social need for knowledge to become acknowledgement” and “bring victims back into the fold of society, by recognizing their suffering, providing a form of distributive or social justice, and giving out non-conventional resources such as social awareness, collective memory, solidarity, and the over-coming of low self esteem.”⁹ Transitional justice, Calhoun contends, provides a solid foundation for budding democracies because it constitutes the middle-ground solution between forgetting the past altogether and engaging in violent retribution, two unacceptable options that prevent new democratic regimes from gaining much-needed political legitimacy.¹⁰ The experience of post-authoritarian countries reinforces Calhoun’s position vis-á-vis the necessity of reexamining the past. During the last century only Spain opted to “forgive and forget” its former torturers working for Generalissimo Francisco Franco’s dictatorial regime and to grant them the carte blanche of blanket amnesty that allowed them to prove their allegiance to the new democratic order. By contrast, all other democratizing nations chose to face the past more or less promptly, more or less vigorously, more or less effectively.

For some other authors, the stakes are more urgent, and they address specific goals that are key to a successful democratization process. “Forgetting the extermination is part of the extermination itself,” Baudrillard said after World War II,¹¹ whereas Kundera voiced the Eastern European viewpoint when concluding that “the struggle against power is the struggle of memory against forgetting.”¹² Rosenberg echoed that same position, explaining that “nations, like individuals, need to face up to and understand traumatic past events before they can put them aside and move on to normal life.”¹³ Beyond permitting a return to normalcy, transitional justice signals the break with the authoritarian past and the willingness of the political class and of the larger society to work together, rather than against each other, for the common good and in the national interest. Confronting the past honestly, vigorously, and constructively helps democratizing societies to bridge the great chasm dividing victims, victimizers and by-standers, and to reconstruct the national political community on firmer bases.¹⁴ Transitional justice rebuilds trust among citizens and between citizens and the state, and in doing so allows the community and the state to come together and solve the problems of the nation. Trust, in its turn, leads to the accumulation of rich social capital reserves, the formation of vibrant voluntary associations, and the rebirth of a strong civil society able to hold the state accountable for its actions.¹⁵ The South African experience proved that “no healing is possible without reconciliation, no reconciliation is possible without justice, and no justice is possible without some form of genuine restitution,” as Beyers Naud argued.¹⁶ Restitution is not limited to the return of abusively confiscated property, but can materialize as acknowledgement of past sufferings, the restoration of honor and dignity to long-silenced victims, or public knowledge of the repression mechanisms kept secret by the old regime. In the same vein, respect for human rights cannot be instilled as a quintessential value of new democracies if past injustices are left unpunished and unrecorded. When introducing the Truth and Reconciliation Committee, the South African Minister of Justice Dullah Omar reminded that “human rights is not a gift handed down as a favor by government or the state to loyal citizens [but] it is the right of each and every citizen.”¹⁷ Most of the killings, brutality, surveillance, and control were done in the name of political regimes keeping the state apparatus prisoner to their ideology of terror, not in the name of specific individuals or of distinguishable social groups. However, if perpetrators can hide behind the excuse that they acted at the command of their superiors rather than as a result of their own volition, then the repressive state is allowed to triumph over the captive society, even after the regime change is effected.

Confronting the past responds to genuine needs for justice, truth, and atonement, but it can also easily lend itself to political manipulation, and it can lead to new injustices if the rule of law is disregarded in favor of political expediency. In this respect, George Orwell’s remark that “who controls the past controls the future” remains relevant in post-communist Eastern Europe and the former Soviet Union, where the memory of the past constitutes one of the most coveted prizes. There, “the battle for history is really a battle for the political culture of these new post-communist states,” one which constitutes an important way for Eastern Europeans to compete for control of the present.¹⁸ Albania engaged in extensive purges following each of its governmental changes of the early 1990s, and brought the family of dictator Enver Hoxha to trial not for his gruesome political crimes, but for living well in a country where most of the population barely made ends meet. In Romania few objected to the mock-trial and execution, commando style, on Christmas Day in 1989 of Nicolae Ceausescu and his wife Elena, who were singled out as solely responsible for communist abuses ironically by their one-time right-hand collaborator Ion Iliescu. The Baltic states of Estonia and Latvia marginalized former Soviet party officials and KGB agents by denying citizenship in the new state, thus depriving them of the important political rights of electing and being elected. Following her travels to Czechoslovakia, Poland, and Germany, lands still haunted by the ghost of their communist past, Rosenberg talks at length about the readiness with which post-communist political parties have embraced widely different myths about communism that are “constantly rewritten to fit the current political debate,” to bring additional legitimacy to their initiators and to sully the track record of their political enemies.¹⁹ Adopting a similar viewpoint, Tismaneanu includes the myth of de-communization among his “fantasies of salvation,” describes it as a process of manifold mental, political, economic and legal dimensions with Jacobin propensities, and warns against the perils of reconciling legitimacy and legality through authoritarian methods in countries where the demarcation line between right and wrong remains utterly blurred. But to reduce the complexity of the politics of memory to the level of recognizing it only as a manipulating tool used in the cut-throat battles waged by power-thirsty political parties or to relegate it to the grey zone of illusory and unattainable myths ignores the Eastern Europeans’ need to know the truth about the communist regime, to confront their own personal history, and to obtain justice and absolution.

The methods through which post-authoritarian countries have approached the cathartic quest for political justice differed widely, but they were generally divided into state-driven and society-driven solutions that can acquire either judiciary or non-judiciary characteristics. Post-authoritarian governments have supported truth and reconciliation commissions, court trials and amnesties, purges and screenings, public official apologies, as well as financial compensation, restitution and reparation programs. Initiatives proposed by human rights organizations, former political prisoners, religious denominations, political parties and other civil society groups, often pursued in parallel with government-sponsored solutions, have spanned acknowledging the past, rehabilitation, access to the governmental records detailing repression and persecution, the rewriting of official historical canons, and symbolic reparations in the form of commemorative monuments, new museums, name change for streets and localities, and official holidays celebrating important moments when the society stood up to the authorities. To these locally grown ways to confront the past and to seek justice during times of post-authoritarian transformation, one should add the solutions advocated by the international community, which have primarily included the international courts of justice hearing cases that involve genocide and crimes against humanity. As Elster explained, some of these political decisions were made “in the immediate aftermath of the transition and [were] directed towards individuals on the basis of what they did or what was done to them under the earlier regime.”²⁰ The prime example here is the Nuremberg trial, which in the aftermath of World War II held accountable 24 top Nazi officials as war criminals. Other transitional justice methods were adopted a number of years after the authoritarian regime collapsed, when its officials had already lost much of their political clout. Taking post-Nazi Germany again as an example, the restitution of property abusively confiscated from Jewish victims of concentration camps is yet to be fully completed, although major accomplishments have been achieved during the last six decades. Transitional justice methods further divide in distinct categories in terms of their efficacy and effectiveness in providing justice, voice, atonement, and redress. Whether specific methods are more apt to provide efficiency depends less on the specific moment in time when they are adopted and more on the political will and resolve with which they are implemented.

The list of cases that could serve as models for post-communist Eastern Europe is impressive, testifying to the wealth of innovative solutions different countries have employed in order to conduct the politics of memory, prevent future abuse, and establish state-society relationships based on functioning and fair institutions. As comprehensive accounts of successive transitional justice cases were provided by Elster, Hayner, Barahona de Brito, and others, we will not embark on such an enterprise here, but instead we will highlight only the most important trends.²¹ The end of World War II witnessed the launch of an array of different transitional justice methods in Germany, Japan, and countries that had been overrun by the Nazis like Austria, Belgium, and France. Top war criminals were tried in international tribunals, official historical accounts were reexamined in intense public debates, the Holocaust was acknowledged, documented, and condemned, and its victims were called to provide moving testimonials, amnesties were granted to former collaborators in an effort to “normalize” the situation, confiscated property and assets were returned to their initial owners, and the concentration camps were turned into museums commemorating the plight of millions of innocent victims. The court trials Greece and Argentina organized in 1974 and 1983, respectively, led to the successful prosecution of former members of the bloody colonels’ regime and the military junta responsible for human rights abuses. The final report of the Argentinean National Commission on the Disappeared, the best-seller Nunca Mas (1983), the Chilean efforts to provide reparation to victims of the Pinochet regime, and the truth commissions established in post-Apartheid South Africa and twenty other countries in Africa (Zimbabwe, Uganda, Chad, Nigeria, Sierra Leone), Asia (Sri Lanka and Nepal), Caribbean islands (Haiti), and Latin America (El Salvador, Guatemala, Bolivia, Uruguay, Ecuador) have made significant contributions to establishing justice for victims of human rights abuses. By the time the communist regime collapsed in 1989, the new Eastern European democracies and former Soviet republics could draw inspiration from a large array of transitional justice methods adopted throughout the world.

Transitional justice in the post-communist world

In Eastern Europe and the former Soviet Union, calls for de-communization have revolved around the Communist Parties and their feared instruments of repression, the secret intelligence services. The communist secret political police was organized as an extensive repression apparatus of full-time officers and part-time informers responsible for keeping dissent in check, discouraging anti-governmental opposition, censoring journalists and artists, and protecting the communist party leaders, to which it was directly accountable. Its employment numbers were vast. In the case of the Romanian Securitate, for example, they are estimated at around 15,000 officers and between 400,000 and 700,000 informers in a total population of about 23 million. In 1989 the East German Stasi employed some 90,000 officers and around 150,000 active informers in a total population of 17 million. It is believed t...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Notes on contributors
• Foreword
• Acknowledgments
• 1 Introduction: post-communist transition, justice, and transitional justice
• 2 East Germany
• 3 Czechoslovakia, and the Czech and Slovak Republics
• 4 Poland
• 5 Hungary
• 6 Romania
• 7 Bulgaria
• 8 Albania
• 9 Slovenia
• 10 The former Soviet Union
• 11 Conclusion: explaining country differences
• Bibliography