Sunteți pe pagina 1din 29

American Bar Foundation

Justice after Transition: On the Choices Successor Elites Make in Dealing with the Past
Author(s): Luc Huyse
Source: Law & Social Inquiry, Vol. 20, No. 1 (Winter, 1995), pp. 51-78
Published by: Wiley on behalf of the American Bar Foundation
Stable URL: http://www.jstor.org/stable/828857 .
Accessed: 18/11/2014 02:22
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp

.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.

Wiley and American Bar Foundation are collaborating with JSTOR to digitize, preserve and extend access to
Law &Social Inquiry.

http://www.jstor.org

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

Justice after Transition:


On the Choices
Successor Elites Make
in Dealing with the Past
Luc Huyse
The authorlooksat one componentof transitionsto democracy:the
strategiessuccessorelitesdevelopto deal with injusticescommittedby the
justice in
previous, authoritarianregime. He comparespost-transition
afterWorldWarII and in Eastern
Belgium,France,and The Netherlands
He discussesseveralfactorsthatinfluEuropeafterthefall of communism.
ence policychoices.Amongthe mostinfluentialare the legacyof the past
regime,the international
legalcontextat the timeof thepassageto democthe
mode
and its ensuingimpacton the balanceof
and
transition
racy,
of
powerbetweenthe old and thenew order.
Coping with the past duringthe transitionfrom repressiveregime to
democracyhas taken a wide varietyof forms.'Strategieshave rangedfrom
Luc Huyse is professorof sociologyandsociologyof law at the Universityof LeuvenLaw
School (Belgium). He has written widely on postwarpolitics in Western Europeand is
currentlystudyingthe role of the judiciaryin transitionsto democracy.The authoris grateful
to the editorsand two anonymousrefereesfor theirvaluablecommentsand suggestionson an
earlierdraft.
1. Politicalscience publicationson regimechangeoften disregardthe problemof transitional justice.That is true for, amongothers, such well-knownworkas JuanLinz & Alfred
Stepan, eds., The Breakdownof DemocraticRegimes(Baltimore:Johns Hopkins University
Press,1978). GuillermoO'Donnell,PhillipeSchmitter,& LaurenceWhitehead,eds., TransitionsfromAuthoritarian
Rule:Prospects
for Democracy(Baltimore:Johns HopkinsUniversity
Press,1986), has a few, but quite insightful,pageson "settlinga past account."An exception
is Samuel Huntington,The ThirdWave:Democratization
in theLateTwentiethCentury(Norman:Universityof OklahomaPress,1991) ("Huntington,ThirdWave").There is a vast sociolegal literatureon the interlockingof politics and courts,but it almostnever deals with the
role of the judicialsystemin regimetransitions.Two exceptions:Otto Kirchheimer,Political
Justice:The Use of LegalProcedure
for PoliticalEnds (Princeton,N.J.: PrincetonUniversity
FischerVerlag, 1966).
Press,1961), and H. & E. Hannover,Politische
Justiz(Frankfurt:
1995 AmericanBarFoundation.
0897-6546/95/2001-0051$01.00

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

51

52

LAWAND SOCIALINQUIRY

massivecriminalprosecutionof the supportersof the previousorderto unconditionallyclosing the book. All policy choices involve answersto two
key questions:whether to rememberor forget the abuses-the issue of acknowledgment-and whether to impose sanctionson the individualswho
are co-responsiblefor these abuses-the issue of accountability.2
By farthe most radicalinterpretationof acknowledgmentand accountof the perpetrators.
ability is to be found in the outrightcriminalprosecution
This has been the officialpolicy towardcollaboratorsin all West European
countrieswhich duringWorld War II were occupied by the Germans.A
recent example is Ethiopiawhere some 3,000 officialsof the fallen Mengistu regimehave been namedfor trial.By contrast,as a strategyfor dealing
with the past, criminalprosecutionhas encounteredalmost no supportin
regimes
post-1989Easternand CentralEuropeand in the post-authoritarian
of Latin America.
Lustrationor disqualificationof the formerelites, of the agents of the
secret police and their informers,or of civil servantsis a second way to
addressthe questions of acknowledgmentand accountability.Sometimes
disqualification,includingthe loss of political and civil rights,accompanies
a criminal conviction, as occurredin postwarBelgium, France, and The
Netherlands.In other instances,as in most of the postcommunistcountries
of East and Central Europe,lustrationis a way to sidestepcriminal prosecution.
The grantingof unconditionalamnestyto those who committedpolitically based crimesis at the other end of the spectrum.3In some instances
the unrestrictedpardonis the resultof the self-amnestythat the outgoing
elites unilaterallyawardthemselvesbeforethe transitiongets underway.In
other instances,impunityis the outcome of negotiationsbetween old and
new leaders.In Uruguay,for instance, the governmentthat succeededthe
militarydictatorshipenacted,underpressurefrom the military,an amnesty
law (1986). Post-FrancoSpain is an exampleof a thirdroute towardimpunity: almost all democraticforcesagreedto confer immunityto individuals
who committedcrimesdefendingor opposingthe Francoregime.
Amnesty, but not amnesia, is the substanceof a fourth strategy.Its
The firstgoal of such a commissionis
usualformatis the TruthCommission.
2. The distinctionbetween acknowledgmentand accountabilitywas made at the Salzburgmeeting(7-10 March1992) of the Charter77 Foundation'sProjecton Justicein Times
of Transition.For moreon the Projecton Justicesee note 9.
3. Amnesty, grantedby the executive or the legislature,removesthe punishabilityof
certainacts;amnestythus abrogatescrimeand punishment;it can be usedto forecloseprosecutionsbut also to cancel the sanctionsalreadyimposed.Pardonis, accordingto Black'sLaw
Dictionary,an "executiveaction that mitigatesor sets aside punishmentfor a crime."The
dictionaryadds:"The distinctionbetween amnestyand pardonis one ratherof philological
interestthan of legal importance."Impunity(or immunity)is a de facto situationthat is the
resultof amnestyor pardon.I use here the terms"amnesty,""pardon,"
"impunity,"and "immunity"as synonyms.

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

Justice after Transition

to investigatethe fates, under the precedingregime,of individualsand of


the nation as a whole. Its aim is not to prosecuteand punish.4A truthtelling operation,includingfull disclosureof all human rightsabuses,must
ensurethat "thefacts"are not forgottenbut remainalive in the memoryof
the collectivity. Well-knownexamplesare the Chilean National Commission on Truth and Reconciliation (1990) and the UN-sponsoredTruth
Commissionin El Salvador(1991). Forsome, however,generalknowledge
of the truth is not enough. An official recognition of the injusticesthat
have been sufferedis necessary.Accordingto Thomas Nagel, professorof
philosophyand law at New YorkUniversity, it is the differencebetween
knowledgeand acknowledgmentthat counts. "It'swhat happens and can
only happento knowledgewhen it becomesofficiallysanctioned,when it is
made part of the public cognitive scene."5Furthersteps on that path may
include compensationby the state. LloydVogelman,directorof the JohanCentre for the Studyof Violence and Reconciliation,writes:
nesburg-based
"Forthe familiesof victims and survivors,such accountingservesas immeAnd he adds:"Themost
diate publicrecognitionof theirpain and trauma."6
concrete form of reparationis monetarycompensation.Although financial
constraintsmaynot permitlarge-scalepayments,it is still importantto provide financialcompensationin other forms-such as free or subsidisedmedical and psychologicaltreatment,reducedinterestson loans for education,
home buildingand the establishmentof new businesses."He also favorsthe
establishmentof permanentremindersof the legacy of the past, such as
monuments,museums,public holidays,and ceremonies.Togetherwith the
activities of supportgroups,these will "providea channel for the non-violent expressionof pain, frustrationand anger."In addition, restitutionby
the state does not preemptcivil compensatoryjustice.
This article examines the considerabledivergence in the strategies
democraticsuccessorelites develop in dealingwith the past.7I firstdiscuss
4. Post-1983Argentinais a rareexception.Afterthe reportof the National Commission
on the Disappearedwas released,the chiefs of the three successivejuntaswere broughtto
trial.
4
5. Cited in LawrenceWeschler,A Miracle,a Universe:SettlingAccountswithTorturers
(New York:PantheonBooks, 1990) ("Weschler,Miracle").
6. Lloyd Vogelman,"It'sHardto Forgive-Even Harderto Forget,"Workin Progress,
Aug. 1993, at 16.
7. In the literature,multipletermsareusedsynonymouslyto label the activitiesthrough
or
or retrospective
which justiceaftertransitionis performed:
justice,retroactive
backward-looking
ex postfactojustice,retributive
justice.Some of these
justice,post-authoritarian
justice,transitional
or "retrospective"
termsareequivocal,amongthem "backward-looking"
justice.As an anonymousrefereenoted, justiceis alwaysmetedout aftera crime.Thus these termsarenot specific
or "expost facto justice"is that they refer
enough.The problemwith the labels"retroactive"
to a very special type of justice:one that does not respectthe principleof nonretroactivity.
Not all criminalprosecutionsfollowingthe demise of an authoritarianregime violate that
rule. "Retributivejustice"is justice with the aim to give (mostlymaterial)retributionto the
victims of the old regime.This term has a very circumscribedmeaningand should not be
justiceand justice
pressedinto servicefor a granderpurpose.I preferthe labelspost-transition

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

53

54

LAWAND SOCIALINQUIRY

(in part I) the prosand cons of each of the availablepolicy options. I then
move to a comparativedescription(in part II) of the course justice after
transitiontook in two groupsof countries:(a) Belgium,France,and The
Netherlandsat the end of WorldWar II and (b) postcommunistCzechoslovakia, Hungary,and Poland.8Part III deals with the specificfactorsthese
new elites take into consideration.I also assessthere three potential causes
of policy. The first is the legacy of the past. Authoritarianor totalitarian
regimesdifferin many aspects,for example,in their scope and the crimes'
natureand duration.The second is the internationalcontext at the time of
the transition,that is, the absenceor presenceof supranationallegal norms
on human rights and of institutionsto implementsuch norms.The last is
the mode of transitionand its ensuingimpacton the balanceof powerbetween the old and the new order.This list of causes is derived from the
literatureon regimetransitionsand from the pool of experiencesdiscussed
at variousmeetingsand conferences.9In my conclusionI supportthe proposition that there are no miraclesolutions to the question of how to deal
with a repressivepast.
I.

TO PUNISH OR TO PARDON: THE ARGUMENTS

In the ongoingpublicdebateover post-transitionjustice,politicalleaders, academics,and journalistsare dividedon numerouspoints.10But by far


the most divisive questionis how to balancethe demandsof justice against
areat thesametimebroadandspecific.I use
becausethesedescriptive
aftertransition,
phrases
thesetwotermssynonymously,
togetherwiththe moregeneraltermpurge.Otherappropriate
justice.
justiceorpost-totalitarian
phrasesarepost-authoritarian
conandpractical
8. The choiceof the twogroupsis basedon a mixtureof theoretical
in theirdealingwiththecrimesof the
differconsiderably
Bothgroupsof countries
siderations.
previousregimeandwithrespectto the legacyof the past,the presenceof an supranational
a comlegalorder,andthe balanceof powerbetweenoldandnewelites.As a consequence,
havebeensinseemsappropriate.
Belgium,France,andTheNetherlands
parativeapproach
on purgesin otheroccupiedcountriesis scarceror lessaccessible
gledout sinceinformation
The selectionof Czechoslovakia,
becauseof languagebarriers.
Hungary,and Polandis
havemuchin commonin theareaof post-transition
bythefactthatthesecountries
prompted
on thesecountriesis
beingin a classbyitself)andbecauseinformation
justice(EastGermany
references
Hereandthroughout,
orRomania.
moreavailablethanit is forAlbania,Bulgaria,
areintendedto coverthe periodfromlate 1989untilthe formalseparato "Czechoslovakia"
tion of thatcountryintotwonationson 31 December1993.
for a
9. The Projecton Justicein Timesof Transition(sponsored
by the Foundation
the Charter77 Foundation)
hasinitiateddiscussions
betweenpolitCivilSociety-formerly
icalleaders,judges,journalists,
andacademics.
So farfivemeetingshavebeenheld:an inau30 Oct.-1 Nov. 1992,on truthand
7-10 March1992;Budapest,
guralmeetingin Salzburg,
in timesof
11-12 Jan. 1993,on reconciliation
justice:the delicatebalance;SanSalvador,
in Easternand Central
measures
transition;
Venice,14-15 Nov. 1993,on disqualification
Europeandthe formerSovietUnion;andCapeTown,25-27 Feb.1994,on truthandreconciliationin SouthAfrica).
10. A. Boraine,J. Levy,& R. Scheffer,eds., DealingwiththePast:TruthandReconciliation

in SouthAfrica(CapeTown:IDASA,1994)("Boraine,
of
is a veryusefulsummary
Dealing"),
thepoliticalandacademic
ThirdWave211-32(citedin note 1).
debate.SeealsoHuntington,

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

Justice after Transition

the many, mainlypolitical, constraintsthat make prosecutiona majorrisk


to the new regime.
The Case for Prosecution and/or Lustration

Those who emphasizethe beneficialeffects of prosecutionbring forwardtwo crucialreasons.First,punishingthe perpetratorsof the old regime
advancesthe cause of buildingor reconstructinga morallyjust order.The
second reasonhas to do with establishingand upholdingthe youngdemocracy that succeedsthe authoritariansystem.
1. Puttingbackin place the moralorderthat has brokendown requires
that "justicebe done,"the proponentsof prosecutionsargue.They believe
that the successorgovernmentowes it, firstof all, as a moralobligationto
the victimsof the repressivesystem.Post-authoritarian
justiceservesto heal
the wounds and to repairthe private and public damagethe antecedent
regimeprovoked."It also, as a sortof ritualcleansingprocess,pavesthe way
for a moral and political renaissance.'2Abolishing the monumentsof the
past (the statues of the Lenins and the Stalins) is one way to cleanse a
society;evicting those who are held responsiblefor yesterday'scrimesis another. A countryin which such cleansingremainsunfinishedwill, it is said,
be plagued by continuous brooding and pondering. Asked by Adam
Michnik,a leaderof the Polishoppositionto communistrule and co-editor
of the Warsawdaily newspaperGazeta,what he thought of lustration,the
GermanwriterJirgen Fuchsanswered:"Ifwe do not solve this problemin a
definiteway, it will haunt us as Nazismdid. We did not denazifyourselves,
and this weighed on us for years."'3The French historian Henri Rousso
labels the case of postwarFrance,where the "collaborationd'Etat"was not
fully tried, as a never ending neurosis.14
2. A secondargumentin favorof a judicialoperationagainstthe advocates of the old regimeis that it strenghtensfragiledemocracies.
11. Accordingto Huntington,ThirdWave213, this is one of the main argumentsof
those in favor of prosecution.See also Aryeh Neier, formerexecutive directorof Human
RightsWatch: "As a civilisedsociety we must recognisethe worthand dignityof those victimizedby abusesof the past."Cited in Boraine,Dealing3 ("Neier,in Dealing").
12. That is exactlywhat the termlustration,
accordingto TheOxfordConciseDictionary,
evokes:"purificationby expiatorysacrifice,ceremonialwashing."
13. Fuchs,cited by Adam Michnik, "Justiceor Revenge?"4 J. Democracy20, 25 (Jan.
1993).
de Vichyde 1944 a nosjours(Paris:Seuil, 1990) ("Rousso,
14. HenriRousso,Le syndrome
The uneasinesswasrevivedwhen in June 1993 Rent Bousquet,the FrenchsecreSyndrome").
tarygeneralof police underthe Vichy regime,was murderedby a psychotic.Manyfelt that
the killing of Bousquet,whose expected trial might at last have broughtthe wartimestate
beforethe courts,was"justicedenied."Rumorsof the reluctanceat the highestlevel to effectively put the Vichy regime on trial were amplified.See "LedossierBousquet,"Liberation
(Special Issue), 13 July 1993, at 1-52.

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

55

56

LAWAND SOCIALINQUIRY

In the first months after the transition,it is said, the survivalof the
successorregimedependson swift and firmaction againstpro-authoritarian
officialsand their following.Such action is seen as a necessaryprotection
Moreover,if the prosecutionissueremains
againstsabotage"fromwithin.""5
and
other
forms
of
social
untouched,
politicaldisturbancemaybe triggered,
with perhapsa risk of vigilantejustice with summaryexecutions,or unbridled screeningof political personnel,journalists,and judges may be instigated as happened in Czechoslovakia in 1991 and in Poland more
recently.16It mayalso give birth to conspiracytheoriesin which the leaders
of the successorregimearelabeledas the hiddenagentsof the old orderthat
they are treatingin a too soft and ambiguousway.
What a new or reinstateddemocracyneeds most, however, is legitimacy. Prosecution,Huntington writes, is seen as "necessaryto assert the
supremacyof democraticvalues and normsand to encouragethe public to
believe in them."17Failureto prosecuteand lustrate,conversely,may generate in the populace cynicism and distrust toward the political system.
Belgiumin late 1944 providesa good illustrationof the importanceof action against the membersof the outgoingregime.The political elite who
returnedto power in September1944 had many reasonsto organizethe
elimination of the Germanophilecollaboratorsas efficiently as possible.
The legitimacyof the reinstatedleadershippartlydependedon the speed
and the thoroughnesswith which the unpatrioticgoverors of occupied
Belgiumand their followingwere ousted from the political and public forums.18But the returningelite also knew that its authorityand legitimacy
were challengedby a new and unquestionedpower, the resistancemovements. It had to avoid everypoliticalmove that could push the resistantsin
the directionof revolutionaryaction.19Any suggestionof weaknessin the
government'shandling of the collaboratorswould certainlyhave been an
affrontand a provocationin the eyes of the resistancemovements.Impu15. VaclavBenda,an activedissidentunderthe communist
regimeandin 1992chairthe mainaimbehindthe Csechoslovak
manof the ChristianDemocratic
Party,described
considered
fromthe viewpointof Czechoslovak
democracy
ScreeningAct as "self-protection
andfromthe viewpointof the evolutiontowardsa marketeconomyand a stateof law."
5 EastEur.Rep.42, 42 (March-April
1992).
Interview,
theGhostsof the Past,"Rep.E. Eur.,14June1991,at
16. SeeJanusz
Obrman,
"Laying
12.
ThirdWave213.According
17. Huntington,
to JuanMendez,generalcounselof Human
to dealwithsuchdifficultandtouchysubjectswill
RightsWatch,"Theabilityof institutions
in the citizenryaboutthe country's
instillconfidence
capacityto buildreliableandtrustworinstitutions."
Citedin Boraine,Dealing
92.
thydemocratic
18. A complicating
factorwasthatmanycollaborators
belongedto politicalmovements
REXin Francophone
(VNVin Flanders,
Belgium)thathadwonbetween15%and20%of
theparliamentary
seatsin the prewar
nationalelectionsof 1936and1939.Thesemovements
hadthuslongbeenredoubtable
forpower.See WilliamBrustein,
"ThePolitical
competitors
of BelgianFascism:
The Caseof Rexism,"
53 Am.Soc.Rev.69 (1988).
Geography
19. SeeGeoffryWarer,Lacrisepolitique
1944:Uncoupd'6tat
belgedenovembre
manqud?
(Brussels:
CRISP,1978).

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

Justice after Transition 57


nity, moreover, allows "people to move into leadership positions whose involvement in the former regime makes them liable to blackmail through the
threat of exposure."20
Some analysts believe that prosecutions also advance long-term democratic consolidation. Unless the crimes of the defeated are "investigated and
punished, there can be no real growth of trust, no 'implanting' of democratic norms in the society at large, and therefore no genuine 'consolidation'
of democracy."21Opponents of impunity argue that amnesty also endangers
the inculcation of codes of conduct based on the model of the Rechtsstaat.22
They claim that a discriminatory application of the criminal law, privileging
certain defendants (such as military leaders), will breed cynicism toward the
rule of law. Prosecutions, finally, are seen as the most potent deterrent
against future abuses of human rights.23
The Case against Punishment
Other participants in the debate have argued that prosecuting those
alleged to bear responsibility for the crimes of the past is not without considerable ambivalence. There is no guarantee, they say, that its effects will
be merely beneficial for democracy and for the Rechtsstaat. Some, like Ralf
Dahrendorf, feel that the ghosts of the past cannot be chased away if feelings of revenge prevail. Dahrendorf cites the Italian communist Sergio
Segre, who "was quite right when he attacked East Germans for arresting
their former leader Erich Honecker: 'Will you never learn from history? Is
the era of the trials of the 1930s and 1950s going to start all over again? ...
[D]o not begin the old stories again. Otherwise one will never start anything
new.' "24The Spanish writer Jorge Semprun told Adam Michnik: "If you
want to live a normal life, you must forget. Otherwise those wild snakes
freed from their box will poison public life for years to come."25Raoul Alfonsin, Argentina's first elected president after the collapse of the military
regime, wrote: "In the final analysis, punishment is one instrument, but not
20. ClausOffe, "Comingto Termswith PastInjustices,"33 Arch.Eur. Soc. 195 (1992).
21. LaurenceWhitehead, "The Consolidationof FragileDemocracies:A Discussion
with Illustrations,"
in theAmericas:Stopping
thePendulum84
in RobertPastor,ed., Democracy
(New York:Holmes & Meier, 1989).
22. The termRechtstaat
is used to referto a constitutionalstate or one basedon rule of
law principles.
23. DianeOrentlicherwrites:"Thefulcrumof the case forcriminalpunishmentis that it
is the mosteffectiveinsuranceagainstfuturerepression.By layingbarethe truthaboutviolations of the past and condemningthem, prosecutionscan deter potential lawbreakersand
inoculate the public againstfuturetemptationto be complicit in state-sponsoredviolence."
See her "SettlingAccounts:The Duty to ProsecuteHumanRightsViolationsof a PriorRegime,"100 YaleL.J. 2537, 2542 (1991).
24. Ralf Dahrendorf,Reflectionson the Revolutionin Europe101 (London:Chatto &
Windus, 1990).
25. JorgeSemprun,citedby Michnik,4 J. Democracyat 24 (cited in note 13).

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

58

LAWAND SOCIALINQUIRY

the sole or even the most importantone, for formingthe collective moral
conscience."26

Those who opposeprosecutionsarguechieflythat partisanjustice, rule


of law infringements,or humanrightsabusesalwayslurkin the background
and that prosecutionscan have highly destabilizingeffectson an immature
democracy.27

1. Youngdemocraciesaffirmthat they highly value the rule of law and


human rights. But post-transitionjustice involves a numberof decisions
that may trespasson those very legal principles.Dealing with the past by
prosecutions,some analystsargue,thereforeholds a sizablerisk.It mayforce
the successorelites to violate the codes of the Rechtsstaattodaywhile judging the undemocraticbehaviorof yesterday.This can, as a consequence,
considerablyweaken the legitimacyof the new regime.
A human rights problemarises when the behavior the courts must
judge is of a purelypoliticalnature,such as membershipin a pro-authoritarian movement or publicly advertisedapprovalof totalitarianideas. The
problemcan be illustratedby looking at the Belgian case. Prewartreason
legislationdid not cover the manyformsof politicalaction that only in the
context of the total warfareof World War II took on a collaborationist
dimension.Simpleextensionof the scope of penal law was not self-evident,
since partof the politicalbehaviorin questioncouldbe seen as fallingunder
the constitutionalright of freedomof opinion, speech, or association.How
could a personwho beforethe warbecamea memberof a partythat particigamebut joined forceswith the German
pated in the Belgianparliamentary
occupationbe punishedif he stayeda memberafterMay 1940?Was a man
whose only politicalactivityhad been subscribingto a collaborationistjournal culpableof a crime?With the countrystill occupied,the Belgiangovernment in exile defined membershipin pro-Germanmovements and
similarformsof political action as ordinarycrimes.The resultwas that tens
of thousandsof Belgianswerepunishedforwhat was strictlypoliticalbehavior. Since then, the choice the Belgiangovernmentmadehas been a source
of controversy:Is not one of the core values of democracythat no one

26. Raoul Alfonsfn,"'Never Again' in Argentina,"4 J. Democracy15, 19 (Jan. 1993).


27. While generallyin favorof tolerancein the handlingof past abuses,most participants in the debate agreethat two exceptionsmust be made.The firstis that self-amnesties
are illegitimate.Second, states have the duty to prosecuteviolations of internationallaw
relatingto humanrights.Such crimes,it is argued,cannot be unilaterallyforgiven.JoseZalaquett, a memberof the Chilean Truth Commission,has said:"societycannot forgivecrimes
againsthumanity.The perpetratorsmustbe broughtto trial."Veniceconferencereport,at 15
(cited in note 9). The idea that crimesagainsthumanitymust alwaysbe prosecutedis also
behind the trial of Paul Touvier, a Frenchcollaboratorwho in 1994 was broughtbefore a
criminalcourt, 50 yearsafterthe end of the war. See Le Monde(Special Issue), 17 March
1994, and, in this issue,LeilaSadatWexler,"Reflectionson the Trial of Vichy Collaborator
Paul Touvierfor CrimesagainstHumanityin France,"20 Law & Soc. Inquiry191 (1995).

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

Justice after Transition

should be excludedfrom the benefitsof modem citizenshipbecauseof his/


her political opinion?28
The principlesof the separationof powersand of judicial impartiality
are at stake when answeringthe questionof who will be the judgesof the
supportersof the authoritarianregime.The problem,as it presenteditself in
July 1944 in France,was clearlyformulatedby the Commissionerof Justice:
to reconcile two preoccupations"on the one hand, respectfor legal forms
and the traditionalguaranteesof republicanjustice;on the other hand, the
desireto judgerapidlyand allow the Resistanceto play its role in the judicial punishmentof collaboration."29
Politicalpressure,time constraints,and
the unavailabilityof sufficientjudicialpersonnelmay incite the post-transition elites to create special tribunalsin which lay judgesplay a prominent
role. This, the opponentsof prosecutionsargue,makes lapsesfrom important legal norms almost unavoidable.Such special courts can, indeed, become instrumentsof partisanvengeance since nonprofessionaljudges are
easiertargetsfor pressureby the executive, the media,and public opinion.
Fidelityto legalityand the rule of law, if it is imbuedin the mindsof members of the judiciary,is a strongsafeguardagainstpolitical and partisanuse
of the judicialprocess.Abel and Lewiswrite:"Thereis some evidence that
professionalidentitystrengthensthe 'independence'of the judiciaryand its
willingnessto defy or at least obstructgrosslyillegal acts by the more politIt is not clearwhereand how such fidelityoriginates.But it
ical branches."30
appearsplausibleto hypothesizethat lay judges,particularlyin the context
of a regimetransition,are poorlyequippedin their activities as prosecutors
to resistthe intrusionof the executive and of other societal forces.
Justiceafter transitionmust take place within a temporalframe.This
frame, Offe writes, consists of the answersto two questions. "First,from
In
when on are acts that occurredin the past liable to correctiveaction?"31
other words,do we acceptex post facto criminallegislation?It is the nullum
crimensine lege,nullapoenasine legeprinciplewhich is at stake here.32The
28. The South Africancase proves that a similardiscussionariseswhen offensesof a
muchmoreseriousnature(assault,robbery,publicviolence, etc.) arelabeledby some as political. When the questionof the releaseof political prisonersemergedon the agendaof the
negotiationsbetween the De Klerkgovernmentand its negotiatingpartners,a key issuewas
the distinctionbetweenoffensesthat arepoliticaland those that arenot. Fora generaldiscussion, see RayleneKeightley,"PoliticalOffencesand Indemnityin South Africa,"9 S. Aft. J.
Hum. Rts. 334 (1993).
29. De Menthon,cited in PeterNovick, TheResistance
versusVichy:ThePurgeof Collaboratorsin Liberated
France150 (New York:ColumbiaUniversityPress,1968) ("Novick,Resistance versusVichy").
30. RichardL. Abel & Philip S. C. Lewis, "PuttingLaw Back into the Sociology of
Theories478, 482
Lawyers,"in Abel & Lewis,eds., Lawyersin Society,vol. 3: Comparative
(Berkeley:Universityof CaliforniaPress,1989).
31. Offe, 33 Arch. Eur. Soc. at 197 (cited in note 20).
32. This principleof legalitymeansthat no conductmaybe held punishableunlessit is
preciselydescribedin a penal law, and no penalsanctionmaybe imposedexcept in pursuance
of a law that describesit priorto the commissionof the offense.See also EuropeanConven-

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

59

60

LAWAND SOCIALINQUIRY

second question,accordingto Offe, is "upto which futurepoint in time is


This involves the problemof eventuallylifting
legal action to be taken?"33
or upholdingthe existing statute of limitation. Those who disapproveof
prosecutionsassertthat post-transitiontrialsultimatelywill resultin changing the rulesof the game afterthe fact, either by applyingretroactivelegislation or by recommencingthe statute of limitation once it has run out.
One potentialsourceof retroactivejusticeis the post-transitionalconflict between legal systems,between the legal legacy of the past and the
laws and regulationsof the new or reconstructeddemocracy.A majordiscussionin France,duringand just afterthe war,waspreciselyon the legality
of the Vichy regimeand of the acts of those who, believingVichy to be the
legal and legitimategovernmentof France,obeyedits laws.34That is a crucial problem,too, in postcommunistEastand CentralEurope.As Tina Rosenberghas written:"Peoplecan only legallybe prosecutedfor crimesthat
were illegal at the time of the commission.The trulyhated acts of eastern
Europeanregimes-the secret police shadow,the censorship,the political
A decriteriafor all decisions-they were the very basis of the system."35
fendant might argue,Offe writes,"thathe was unawareof the now alleged
criminalnatureof the acts of which he is accused;given the fact that he has
been broughtup in a regimethat pardonsand in fact mandatesacts (now
deemedcriminal)for the sakeof higherpoliticalpurposes,he had no reason
to doubt the rightfulnessof what he had been doing."36If the courtsfollow
the substantivecriminal law of the formerregime, prosecutionswill be
scarce and most perpetratorswill escape punishment.Only those officials
who acted underwhat even the old orderwouldhave definedas illegal can
be broughtbeforethe courts.This problemcan, as Offe notes, be overcome
"byapplyingstandardsof naturallaw, internationallaw or 'generalprinciples of law recognizedby civilizednations.'"37The Germancase illustrates
how intricatesuch endeavoris. It was decided that, to avoid ex post facto
justice, the substantivecriminallaw of the GermanDemocraticRepublic
would be appliedin the prosecutionof the formerleadersof the GDR. But
at least in one area (the East Germanpolicy towardattemptsto cross the
borders),the West German courts ruled that basic human rights, which
tion of Human Rights art. 7(1): "No one shall be held guilty of any criminaloffence on
accountof any act or ommissionwhich did not constitutea criminaloffence undernational
or internationallaw at the time when it was committed.Nor shall a heavierpenaltybe imposed than the one that was applicableat the time the criminaloffence was committed."
33. Offe, 33 Arch. Eur. Soc. at 197.
versusVichy140-56 (on the purgeof collaboratorsin liberated
34. Novick, in Resistance
crimensinelegeproblem.
France),devotes an entire chapterto the nuUllum
35. Tina Rosenberg,citedin Boraine,Dealing95 (cited in note 10) ("Rosenberg,in
Dealing").
36. Offe, 33 Arch.Eur. Soc. at 199. Politicalsurveillance,for example,is not an illegal
act in repressiveregimesand to, in the context of transitionaljustice,makecriminalcharges
againstsuch behaviorwill prove to be difficult.
37. Id. at 195-96.

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

Justice after Transition

were laid down in the GDR constitutionas well as in internationaltreaties,


had been violated. Blankenburg,who discussesthis development, argues
that the courtsreinterpretedGDR law "likeit had never been practicedin
its history. They actually created their own, ideal 'GDR law.'" He adds:
"On the basisof such an ex post facto interpretationof GDR law, not only
East German borderguardswere chargedwith manslaughterbut also the
head of state for instigatingthem to do so."38The clash between two legal
systemsis not the only possiblesourceof retroactivejustice. Novick, after
comparing the retroactivityquestion in postwar Belgium, France, The
Netherlands,Denmark,and Norway,concludes:"All of the WesternEuropean countriesfound their existing treason legislation inadequateto deal
with the unanticipatedphenomenonof lengthyoccupationand widespread
collaboration.All had to repairthis lack by one formor anotherof retroacIn each of these five countries,legislative,administrative,
tive legislation."39
and judicialtrickswereused to camouflagethe realityof retroactivejustice.
A second way to change the rules of the game after the fact is the
modificationof the statuteof limitations.This questionis particularlyacute
in the postcommunistcountries.Atrocities againstthe life and propertyof
men and women took place mostlyin the late 1940s and duringthe 1950s.
In most cases, as in Hungarywhere a 30-year statute of limitationsexists,
criminal proceedingsfor the most reprehensiblehuman rights abuses are
thus precludedby reasonof lapse of time. Judgingthe past here means de
facto the extensionor reopeningof the statute.Those opposedto such operation formulateboth legal and practicalobjections.One was that it is extremelydifficultto establishthe precisefacts for crimescommittedsome 30
yearsearlier.40
A counteringargumentof those who disapproveof prosecutionsis that
post-transitionjustice tends to be emergency justice-particularly if it
comes in the earlyphasesof the transition.The climate is then seldomwell
suitedfor a scrupuloussortingout of all the gradationsin responsibilityfor
the abusesof the past. Even when emergencyjustice is avoided, problems
with regardto the definition of responsibilityinevitably arise. Borderline
casesabound.The questionhas been clearlyevokedby Vaclav Havel when
speakingof the Czechoslovakiansituation:"Wehave all becomeusedto the
totalitariansystem and accepted it as an immutablefact, thus helping to
perpetuateit.... None of us is just its victim;we areall responsiblefor it."41
In addition,one Polish participantin a recent debate, held in Warsawby
the Stefan VatoryFoundation,said:"I believe that we all like to think of
38. ErhardBlankenburg,
"ThePurgeof Lawyersafterthe Breakdownof the EastGerman
CommunistRegime,"20 Law & Soc. Inquiry223 (1995).
39. Novick, Resistance
versusVichy209.
40. See A. Dombach (Speakerof the House in the HungarianParliament)as cited in
"RetroactivityLawOverturnedin Hungary,"1 EastEur. Const. Rev. 8 (Spring1992).
41. Havel, cited in Huntington,ThirdWave214 (cited in note 1).

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

61

62

LAWAND SOCIALINQUIRY

ourselvesas having been born in 1989 and that we regardit as a way of


closing the past....

but ...

we too are co-responsible in that we did not

take all the counter-actionsthat we could have."42


Some opponentsof punishmentnot only reject criminalprosecutions,
they also object to lustrationas a policy of settling accountswith the past.
They arguethat with lustrationthe rightto defensebecomesextremelyfragile. That is preciselywhat the experience of liberatedBelgium and The
Netherlandsdemonstrates.In both cases people were disqualified,considerednot one by one but for their membershipin a collaborationistgroup.In
The Netherlands, all membersof pro-Germanmilitary movements (and
their spouses) automaticallylost their Dutch citizenship.Their numbers
amountedto severaltens of thousands.The Belgiangovernmentdecidedto
strip the rank and file of pro-Germanorganizationscollectively of their
political and civil rights.Offe notes that in such case the defendants"are
not-or only marginally-given a legal chance to invoke excuses that
might exonerate them individually."Even if they are given this chance,
they will be forcedto collect evidence to provetheir innocence, so that the
Another problemis that such lustrationoperaburdenof proofis reversed.43
tions tend to become highly politicized.Sometimes,the eagernessto purge
society resultsfrom the political calculationof partiesand factions.
2. A new or reinstateddemocracyis a frail construct.For that reason
some analystsarguethat impunityor, at least, tolerancein the handlingof
past abusesis a prerequisitefor the survivalof the democraticprocess.Criminal prosecutionscan, they say, jeopardizethe democratictransition.44
There is, first,the riskof a destabilizingbacklash.Militaryleaderswho
feel threatenedby projectedprosecutionmay try to reversethe course of
events by a coup, a rebellion,"orother confrontationsthat could weaken
the authority of the civilian government .... In these circumstances, prose-

cutions could reinforcethe military'spropensityto challenge democratic


This problemespeciallyhaunts the young democraciesof
institutions."45
Latin America.46 Most governments, Rosenberg writes, "have made the call
Club of the Alliance of the
42. AleksanderKwasniewski(chairmanof the Parliamentary
DemocraticLeft),5 EastEur.Rep.48 (March-April1992). The expression"havingbeen bor
in 1989"is close to the name given the Dutch "resistantsof the eleventh hour"(those who
verybelatedly,mostlyin May 1945,becamepatriots).They were,in the monthsfollowingthe
war'send, mockinglycalled "maybeetles."
43. Offe, 33 Arch. Eur. Soc. at 199.
44. See Huntington,ThirdWave214. Huntingtonalso quotes PresidentSanguinettiof
Uruguay:"Whatis morejust-to consolidatethe peace of a countrywherehumanrightsare
guaranteedtodayor to seek retroactivejustice that could compromisethat peace?"See also
JamalBenomar,"JusticeafterTransitions,"4 J. Democracy3, 14 (Jan. 1993). Talkingof the
lustrationprojectin his country,VaclavHavel warnsthat it "isa time bombthat could go off
at any momentand ruin the social climate."Havel, "Justiceor Revenge?"4 J. Democracy20,
22 (Jan. 1993).
45. Orentlicher,100 YaleL.J. at 2545 (cited in note 23).
46. Fora discussionof the dilemmaas it presenteditselfin LatinAmericaand Southern
aboutUncertain
Europe,see GuillermoO'Donnell& PhillipeSchmitter,TentativeConclusions

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

Justice after Transition

that to leave the past alone is the best way to avoid upsettinga delicate
processof transitionor to avoid a returnto pastdictatorship.The attitudeis
that there is a dragonliving on the patio and we had better not provoke
it."47

A prolongedphysicaland social expulsion,basedon criminalcourtdecisions, of certainsections of the populationmay obstructdemocraticconsolidationin yet anotherway. It could drive the supportersof the previous
regime into social and political isolation.This in turn could result in the
creation of subculturesand networks,which in the long run will become
hostile to democracy.Criminalprosecutionsmayalso precludethe reconciliation neededfor a democracyto function.The need for closing the ranksis
one of the main arguments of advocates of amnesty laws.48

The viabilityof a youngdemocracyalso dependson its efficacy.A farreachingpurgeof administrativeand managerialmanpowercan be counterproductiveas it endangersthe badlyneeded political and economic development of the country. Prudent considerations of the problematic
consequencesof dismissalsfromcivil servicejobsare heardin Eastand CentralEuropetoday.49When a bill on lustrationwasdiscussedin the Bulgarian
Parliament,VirginiaVeltcheva, one of those workingon the draft,said:"It
is unthinkablethat the law should directlyaffect more than one hundred
people. We cannot depriveourselvesof specialists,though they may have
workedfor the previousregime."50
Poland'sPresidentWalesahas repeatedly
with
the
lustration
opposed
argumentthat "itwoulddeny skilledprofessionDemocracies28-32 (Baltimore:Johns Hopkins University Press, 1986) ("O'Donnell &
The next continent wherethe problemwill manifestitself
Schmitter,TentativeConclusions").
is Africa.South Africaand Ethiopia,amongothers,mustdecidehow to settle a past account
withoutupsettinga presenttransition.(On South Africa,see in this issueLynnBerat& Yossi
Shain, "Retributionor TruthTelling in South Africa?Legaciesof the TransitionalPhase,"20
Law & Soc. Inquiry163 (1995).) A generalintroductionto this issue can be found in Ali
Mazrui,"ConflictResolutionand SocialJusticein the Africaof Tomorrow:In Searchof New
Institutions,"127-128 PresenceAfricaine308-28 (1983), and id., "TowardsContainingConflict in Africa: Methods, Mechanismsand Values"(presentedat Organizationof African
Unity workshopon conflict managementin Africa,Addis Ababa,May 1993) ("Mazrui,'TowardsContainingConflict'").
47. Rosenberg,in Dealing66 (cited in note 35).
48. See UruguayanPresidentSanguinetti'sjustificationof an amnesty law pardoning
abusesof a previousmilitaryregime:"TheUruguayangovernmenthas decidedto take measuresof magnanimityor clemencyusinga mechanismprovidedfor in the Constitutionof the
Republic.The 12 yearsof dictatorshiphave left scarswhich will need a long time to heal and
it is good to begin to do so. The countryneedsreconciliationto face a difficultbut promising
future"(cited by Orentlicher,100 YaleL.J. 2545). The sameargumenthas been usedby South
AfricanPresidentMandelain defenseof his amnestyproposals.
49. Offe, 33 Arch.Eur.Soc. at 198. Offe also noted that EastGermanyis special in this
regard"asit can affordthe replacementof largenumbersof formerofficialsand professionals
given the supplyof such personnelof at least equal skills that can be importedfrom the
West."
50. Cited in VenetaYankova,"Democracy's
FirstSteps,"5 EastEur.Rep.44, 44 (1992).
Yankova,a Bulgarianjournalist,adds,"thosedemandingpurificationof public life have no
idea of the social cataclysmthey might be provoking."

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

63

64

LAWAND SOCIALINQUIRY

als a chance to contributeto the nation's reconstruction."51


Furthermore
Pavel Dostal, a memberof the CzechoslovakFederalAssembly,in a comment on the October 1991 CzechoslovakScreeningAct, saw the fate of the
communistadministrativeand managerialelites as follows:"Providingwe
are not blind with hatred,we must incorporatethese people, since among
them arespecialistsand expertswhom we will need if we reallywant to join
Europe."52
Meeting Ethical Requirements and Political Constraints
Dealing with the past is an inescapabletask for new democraticregimes. Successorelites may be put off by the many delicate and explosive
aspectsof such assignment.But there is no way out. Choices mustbe made,
even if each alternativepresentsgraveproblems.O'Donnell and Schmitter
suggest that for Latin America, this problemremains insoluble. But the
worstsolution here, they write, wouldbe to try to ignore the problem;the
costs of such coverup are simply too big.53And as Jose Zalaquettwarns,
"leadersshould never forget that the lack of political pressureto put these
issueson the agendadoes not mean that they are not boiling underground,
waiting to erupt. They will alwayscome back to haunt you. It would be
political blindnessto ignore the fact that examplesof this aboundworldwide."54The time factor is important,too:
[I]fissuesaboutthe past are not dealt with soon aftera transition,they
can go into a hiatus for six months, a year,even two yearsbeforereturningin perverseforms.In Polandcertainissueswere not dealt with
at the outset and therewas subsequentlya situationin which the Minister of the Interiorstarteddumpingthe political equivalentof toxic
waste into the system.The messageis: Be careful.Justbecausethings
look all right does not necessarilymean that they are.55
A majorproblemfor decision makersis that some of the argumentsin
the debate on pardonversuspunish are quite contradictory.As said earlier
here, reconciliationis seen as a crucialprerequisitefor the consolidationof
a youngdemocracy.To some analystsreconciliationcan only be producedif
the successorelites refrainfrom prosecutingthe officialsof the previous
regime.Others,however,arguethat impunityprecludesthe coming of rec51. LouisaVinton, "Walesaand the CollaborationIssue,"2 RFE/RLRes. Rep., 5 Feb.
1993, at 10, 16.
52. PavelDostal,"AreThey Colour-blind?"
5 EastEur.Rep.43, 43 (March-April1992).
53. O'Donnell& Schmitter,TentativeConclusions
30.
54. Zalaquettin Boraine,Dealing14-15 (cited in note 10).
55. Weschlerin id. at 58.

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

Justice after Transition

onciliation.56 The same ambiguity surrounds the argument that criminal


prosecutions can seriously threaten the viability of a new democracy because of their undesired political consequences, such as a military counterrevolution or rebellion. The thesis that the dragon on the patio should not
be awakened is widespread among participants in the debate. But some opponents of impunity have argued that, on the contrary, the survival of a new
or reestablished democracy depends on prosecutions as the ultimate insurance against future state-sponsored abuses.
Most political leaders, journalists, and academics who discuss the pardon versus punish issue seem to agree that the crucial challenge is to strike a
balance between the demands of justice and political prudence or, in other
words, to reconcile ethical imperatives and political constraints. This is no
easy enterprise. It entails a difficult and, on occasion, torturous cost-benefit
analysis. All costs and gains, political and moral, of pardoning and punishing must be balanced against each other.57 The need to meet ethical requirements and political constraints also rises for each option. If priority is
conferred to prosecutions, for example, the challenge is to give justice as
much political and moral impetus as possible while still conforming to the
rule of law. Novick, in his essay on the purge of French collaborators, recounts the inner conflict of many resistants. There was, on the one hand,
"the thirst for retribution on the part of men who for years had been hunted
down, imprisoned, and tortured by the followers of Petain and the agents of
Germany." But at the same time, "side by side with this passionate longing
was the attachment of r6sistants to those principles of justice and equity
which distinguished them from the rulers of Nazi Germany and Vichy
France."58Tipping the balance in favor of politics and the thirst for retribution, as happened in postwar Belgium, can lead to political vengeance and
partisan trials.59Undiluted respect for the rule of law may, on the other
hand, considerably weaken the political and moral effects of the purge.
in id. at 66-67: "Ifthe victimsin a societydo not feel that their
56. See Rosenberg
hasbeenacknowledged,
thenthey. .. arenot readyto putthe pastbehindthem.If
suffering
theyknowthatthe horriblecrimescarriedout in secretwillalwaysremainburied,... then
thatletsbygones
Sheadds:"Thekindof reconciliation
theyarenot readyforreconciliation."
be bygonesis not truereconciliation.
It is reconciliation
at gunpointandshouldnot be confusedwiththe realthing."
eliteshavedemonstrated
the tendencyto emphasize
the politicalcostsof
57. Successor
criminalprosecutions.
JuanMendez(inid. at 91), generalcounselof HumanRightsWatch,
has criticizedthis inclinationfor its defeatism:
"Whilewe haveto recognisethe political
limitations
to prosecutions,
we mustalsonot takethemforgranted.
We shouldnot providea
democratic
andshouldnot simplyassumethat theyare
wayout forsuccessor
governments
formaintaining
short(id.at 68) warnsus thatthe "desire
inherently
powerless."
Rosenberg
termequilibrium
canhavegreatlong-term
costs.It candamagethe legalsystem,the ruleof
lawandfutureciviliancontrolof securityforces."
58. Novick,Resistance
versusVichy140 (citedin note 29).
59. "Partisan
trials... proceedaccording
to a fullypoliticalagendawithonlya facadeof
Ron Christenson,
Political
Trials:Gordian
legality(althoughthe legalismmightbe turgid."
Knotsin theLaw10-11 (NewBrunswick,
of
Books,1986).Fora description
N.J.:Transaction

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

65

66

LAWAND SOCIALINQUIRY

A government'schoice is a function of a numberof circumstances.


Before I discussthese contextual factors (in part III), I first comparethe
strategiesthe successorregimes developed in Belgium, France, and The
Netherlandsand in Czechoslovakia,Hungaryand Poland.60
II.

DIFFERING POLICIES

Dealing with the past in Czechoslovakia,Hungary,and Poland today


contrastssharplywith what happened50 yearsago in Belgium,France,and
The differencesrelateto the size and scope of the operThe Netherlands.61
ation, the rangeof the sanctionsaccompanyingit, and the degreeof respect
for the rule of law.
1. A strikingsimilarityin the policies of Belgium,France,and The
Netherlands was the outspokendesire, especially evident in the months
before and after the Liberation,to expel the collaborators.A much heard
expressionin political speecheswas that "therewas no place left for those
who had betrayedtheir country."The political riskswhich such en masse
expulsioncould in the long run provokewere not taken seriously.A second
resemblancelies in the tendency-especially in the earlystages-to judge
the populationunderabsolutestandardsof good and bad. Sensitivityto the
many shades of gray between black and white was very low indeed. The
the partisanaspectsof post-transitionjusticein Belgium,see LucHuyse& Steven Dhondt,La
1942-1952: Un passe toujourspresent(Brussels:CRISP, 1993)
repressiondes collaborations
("Huyse& Dhondt, La repression").
60. Data on postwarpurgesin Belgiumare basedon Huyse & Dhondt, La repression.
versusVichy(cited in note 29), and
Importantpublicationson FranceareNovick, Resistance
(cited in note 14). ForHollandsee GerhardHirschfeld,Nazi RuleandDutch
Rousso,Syndrome
and GermanOccupation,1940-1945 (Oxford:Berg, 1988); A.
The Netherlands
Collaboration:
na de Tweede
van de Bijzondere
De geschiedenis
Rechtspleging
Belinfante,In plaatsvan bijltjesdag:
(The Historyof the Purgein PostwarHolland) (Assen: Van Gorcum, 1978)
Wereldoorlog
Politiek
and PeterRomijn,Snel, strengen rechtvaardig.
("Belinfante,In plaatsvan bijltjesdag");
van 'foute'Nederlanders,1945-1955 (Swift, Severe
en reclassering
beleidinzakede bestraffing
and Fair Justice: The Problem of Collaborationand Collaboratorsin Dutch Politics,
1945-1955) (Amsterdam:De Haan, 1989). For a more generaloverviewof lustrationafter
in Europa:
Henke & HansWoller,eds., Politische
WorldWar II, see Klaus-Dietmar
Sauberung
undKoUaboration
nachdemZweitenWeltkrieg
mit Faschismus
Die Abrechnung
(Miinchen:Deutscher TaschenbuchVerlag, 1991). Literatureon backward-looking
justice in postcommunist
Easternand CentralEuropeis scarce.Articles have appearedin EasternEuropeanConstitutionalReview,in Journalof Democracy,in EastEuropeanReporter,in EastEuropeanPolitics&
Societies,in EasternEuropeNewsletter,in Carolina,Students'E-mailNews fromtheCzechRepublic,and in Reporton EasternEurope(since Jan. 1992 RFEIRLResearchReport;both are
publicationsof Radio FreeEuropeand Radio Liberty).
61. For the purgeof formercommunists,the pictureof post-totalitarianEuropewould
look considerablydifferentif EastGermanywereincluded.There,largenumbersof supporters
of the old regimehave been removedfrom the civil service, the judiciary,the bar and the
universities.But, as noted in our introductoryremarks,East Germanyrequiresa special approach.There are, on the other hand, good reasonsto distinguishbetween Belgium,France,
and The Netherlands.Although their policies in handling collaboratorsdivergedin more
than one aspect,the manysimilaritiesallowus to treatthem as belongingto a single category.

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

Justice after Transition 67

result of those policy choices was that the purgeaffectedextremely large


numbersof citizens and that severe sanctionshit them.
The numberof unpatrioticcitizenswho sufferedpunishmentin one or
anotherform was about 100,000 in Belgium,110,000 in The Netherlands,
and 130,000 in France.The figureis particularlyhigh for the firsttwo countries,as they are relativelysmall (Belgiumhad, in 1945, a populationof 8.3
million, The Netherlandsof 8.8 million). The numberof death penalties
was 6,763 in France,2,940 in Belgium,and 152 in The Netherlands.62Receiving prison sentences were about 53,000 in Belgium, 49,000 in The
Netherlands,and 40,000 in France.Howeverlight the sentence, imprisonment was almost alwaysaccompaniedby other sanctions:a fine, confiscation of personalgoods, police supervisionafterthe end of the prison term,
the obligationto residein a specifictown. In Belgium,damageshad to be
paid to the state, out of the maritalgoods or from the heirs if necessary.
Tens of thousandsof Dutchmen sufferedthe loss of nationality. These
countriesalso introducedsome formof "nationalindignity,"which implied
a seriesof civic disqualificationsand a prohibitionon some kinds of professional activity.63
By contrast,post-1989events in Czechoslovakia,Hungary,and Poland
have run a very differentcourse.The velvet revolutionshave not been followed by a massivephysicaland/orsocial removalof the exponents of the
old order.Calls for a permanentexpulsionof compromisedmembersof the
society are almostabsent.To be noted also is the explicit prisede conscience
with regardto the many nuances that must be taken into account when
judgingthe pre-1989behaviorof the population.As a consequence,many
fewer men and women have been affected by criminal charges or other
sanctions than was true in Belgium, France, and The Netherlands after
World War II. Prisonsentences are very rare.Disqualifications,if applied,
are limited in scope and in time.
Poland is still preparinga lustrationlaw. A draftlaw has been on the
Sejm's agendafor four yearswithout leading to a final version. The HungarianParliamentenacted screeninglegislationjust beforethe elections of
May 1994, fouryearsaftera firstdraftbill was submitted.The Act on Controlling Certain Persons in ImportantPositions will, by some estimates,
cover 10,000-12,000 individuals.The screeningwill be conductedby committees, each composedof three judgesappointedby Parliament.If a committee findscorroborativeevidence, the personin questionwill be askedto
resign within 30 days.64The Hungariangovernmentalso draftedtwo laws
that make prosecutionof communistofficialspossible.A Justice Ministry
62. Francehad a much higher numberof extrajudicialkillings:some 9,000 men and
women were executed outside the legal process.The parallelfiguresfor Belgiumand The
Netherlandsare about35 and 30.
63. Novick, ResistanceversusVichy211 (cited in note 29).
64. See 3 EastEur. Const. Rev. 10-11 (Spring 1994).

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

68

LAWAND SOCIALINQUIRY

officialinvolved in preparingthis legislationestimatedthat fewer than 100


people might be held responsiblefor crimesrelatedto the crushingof the
1956 uprising.65Czechoslovakiacould have become an exception. This
countryhad a relativelysevere lustrationlaw between October 1991 and
November 1992. High functionariesof the CommunistParty,state security
agents, informers,togetherwith membersof the People'sMilitia and students of some schools of higher learning,were to be automaticallybanned
fromassumingcertainspecifiedpostsfor five years.Figureson the size of the
populationit could have coveredvary.One observerwrote:"The law ...
could affecthundredsof thousandsof people."66
Vaclav Benda,chairmanof
the ChristianDemocraticPartyand a supporterof the law, was more specific: there are between 60,000 and 80,000 formeragents of state security;
about as many are formermembersof the militia;and about 50,000 sat on
purge committees after the 1968 revolt. He added that not fewer than
300,000 people might come underthe jurisdictionof the legislation.67Such
figures-Czechoslovakia having had a population comparablein size to
those of the Low Countries-predicted a purge operation the scope of
which could have gone even beyond what happened in postwarBelgium
and The Netherlands.It is, however, extremelydifficultto judge the real
impactof the CzechoslovakianScreeningAct. In its originalform it lasted
only for one year.
2. In their confrontationwith the problemof how to choose between
full respect for the rule of law and the requirementsof a firm and swift
purge, the politicaland judicialelites of Belgium,France,and The Netherlands gave priorityto firmnessand efficacy.Forcemajeureand intense time
pressureshave been invoked to justifydubiousproceduraltechniques.Retroactive criminallegislationwas introducedthroughinterpretivemodifications of prewarlaws.Shortlyafterthe liberationof the country,the Belgian
high court (Hof van Cassatie)ruledthat all the legislativemeasurestaken
by the governmentin exile had full legality,includingthe law that in December 1942 had changed the scope of criminallegislationon collaboration. The argumentwas that the governmenthad not creatednew rulesbut
had only interpretedan existing body of penal arrangements.In France,
Novick writes,despite "the breadthof the existing statutes,and the desire
to avoid retroactivity,there was generalagreementconcerningthe need to
'interpret'some of the provisionsof the prewarCode. Accordingly,legislation was enacted by the Comit'e Frangaisde la LiberationNationale 'to
facilitate the Court's interpretationof [the prewar] texts.'"68 In The
65. Cited in EdithOltay,"Hungary
Attemptsto Deal with Its Past,"2 RFE/RLRes. Rep.,
30 April 1993, at 6, 7.
66. JiriPehe, "ParliamentPassesLawon Vetting Officials,"Rep.E. Eur., 25 Oct. 1991,
at 4.
67. Benda,interview,EastEur. Rep. (cited in note 15).
68. Novick, ResistanceversusVichy143.

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

Justice after Transition

Netherlands,retroactivitywas clearlypresentin the reintroductionof capital punishment.The three countriesalso espousedthe principleof collective guilt through the disqualification of people because of their
membershipin collaborationistmovements.In addition,curtailingthe right
of defense took place throughrestrictionsof access to appealcourtsand of
contacts between lawyersand their clients and in the form of arbitraryarrests and of prolongedinterments.69Layjudgesparticipatedin the activities of the tribunalsthat triedthe collaborators.Franceincludedmembersof
the resistancemovementsin two of the newly createdkey institutionsof the
purge,the Coursde Justiceand the ChambresCiviques.The Dutch set up
some 35 Special Courts,with two of the five judgesbeing armyofficers;for
lesser cases of collaboration,tribunalswere createdwhich were staffedby
two patrioticcitizens and one professionaljudge.The Belgiangovernment
in exile and its immediatesuccessorsturnedto the alreadyexisting military
courtsand madethem competentfor the trialof collaborators.Three of five
membersin each court were armyofficers.70
Rule of law considerationshave receiveda much more markedattention in Czechoslovakia,Hungary,and Poland.This has been clearlyvisible
in the public debatesthat accompaniedthe draftingof screeningacts and
the eventual lifting of the statute of limitations.The latter problemhas
been vigorouslydebatedin Hungarywherea law, passed4 November 1991,
lifted the 30-year statute of limitation for offenses of treason, voluntary
manslaughter,and fatal injurycommittedbetween21 December1944 and 2
May 1990, if the communistauthoritieshad not prosecutedfor political
reasons. The law was particularlyaimed at making prosecutionpossible
againstthe men who were involved in the bloody suppressionof the 1956
uprising.Oppositionto the law was heavy, both in political and academic
circles. Legal scholars,who fought the law, based their reasoningon such
concepts as legal certainty,nonretroactivityof criminallaw, and the new
Hungarianconstitutionand found no reasonto lift the time-basedlimitation on the state'srightto punish.71After the bill waspassedin Parliament,
the Hungarianpresidentaskedthe constitutionalcourt to rule on the law's
constitutionalitybefore it was promulgated.The court rescindedthe law,
But in February1993,
citing eight specificcounts of unconstitutionality.72
numerousin the case of The Netherlands.See
69. These infringementswereparticularly
105-8 (cited in note 60).
Belinfante,In plaatsvan bijltjesdag
70. In May 1944, three monthsbeforethe Liberation,the Belgiangovernmentin exile
decidedto revoke its decision to includemembersof the resistancein the militarycourts.It
did so aftervigorousprotestsby the auditeur-g6n6ral
(the magistratein chargeof the military
court system).
71. See the ProfessionalOpinion, preparedfor the PrimeMinisterby six professorsof
LorandEotvosUniversity'sLawFaculty(documentsent to the office of the PrimeMinister
on 12 Aug. 1991 and presentedat a PragueConferenceon Restitutionand Retribution,Dec.
1991).
72. See interviewwith LaszloSolyom,presidentof the constitutionalcourt,in EastEur.
Rep., March-April1992. Confrontedwith the objectionthat the court'sdecisiondid not take

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

69

70

LAWAND SOCIALINQUIRY

the parliamentvoted two new laws, one dealing with crimes committed
immediatelyafter the 1956 uprisingand another with crimes against humanity,committedby communistleadersbetween 1944 and 1989. In both
cases the legislationstipulatedthat the courtsmustdecidewhetherthe statute of limitationsappliesin a specific,individualcase. The Hungarianpresident then againcalled on the constitutionalcourtto reviewthe new laws.It
ruledthat only the articlereferringto warcrimesand crimesagainsthumanity as definedby the Geneva Conventionwas not unconstitutionaland that
only in that case did retroactivityhave to be accepted.73In Czechoslovakia
the so-calledlustrationlaw of October 1991 introduceddisqualificationon
a groupbasis.The law was criticizedbecauseit ascribedcollective guilt and
becauseit did not include a clause allowingdisqualifiedpeople to seek redressbeforean independentappealscommission.74
Opponentsof the lustration proceduresalso blamed the fact that the files of the State Security
Agency (StB) were used as the principalevidence in determiningwho had
collaborated. These files, they said, were totally unreliable. Tens of
thousandsof namesof "candidatesfor collaboration"were circulated,causing greatdamageto individualsand organizations,without deliveringhard
proof.75After the dissolutionof the country,however,the Czechparliament
voted a new, much more restrictivelaw. In Slovakia, too, lustrationhas
slowed down considerably.Respect for the rule of law also shows in the
prominentrole the constitutionalcourtshave had in reviewingthe constitutionalityof recent legislationon communistcrimes.The Czechoslovakian
ConstitutionalCourt has askedto jettison some partsof the screeningact.
In Hungary,the Courtdeclaredthe legislationon lifting the statuteof limitations unconstitutional.In Poland,the ConstitutionalTribunalsuspended
the implementationof the Sejm'sresolutionof 19 June 1992 that the lists of
secret service collaboratorsshould be revealed.
PostwarBelgium,France,and The Netherlandsreacted to the chaljusticebringswith it in a verystraightforward
lenges that post-authoritarian
was
full
to
way:
priority
given what madea severeand swift purgepossible,
even if this involved neglectingrule of law principlesand political risks.By
contrast,postcommunistcountrieslike Czechoslovakia,Hungary,and Poland have tended much more to a balancing act. Such differencesneed
explaining,which is the subjectof the next section.
accountof justicefor the masses,Solyomresponded:"Takinginto accountthe publicmood is
a political task, not one for the ConstitutionalCourt."
73. See 3 EastEur. Const. Rev. 10 (Spring1994).
74. PaulineBren,"Lustrationin the Czech and SlovakRepublics,"2 RFE/RLRes. Rep.
1 RFE/RLRes. Rep.,
16, at 17. See alsoJiriPehe, "Towardthe Rule of Law:Czechoslovakia,"
3 July 1992, at 10.
75. For a generaldiscussionof the reliabilityof state securityfiles in judgingpriorregimes, see the reportof the 30 Oct.-1 Nov. 1992 Budapestmeeting (cited in note 9). The
Kafka-likedimensionsof lustrationbasedon state securityfiles arewell describedin Lawrence
Weschler,"TheVelvet Purge:The Trialsof Jan Kavan,"New Yorker,19 Oct. 1992, at 66-96.

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

Justice after Transition 71

III.

HOW ACCOUNT FOR POLICY DIFFERENCES?

In their confrontationwith the many questions and dilemmas that


dealing with the past poses, political and judicial elites have limited freedom of action. Severalfactorsrestrictthe numberof availablepoliticolegal
strategies.I discussthree of these contextual circumstancesby comparing
their impact first on Belgium,France,and The Netherlandsand then on
Czechoslovakia,Hungary,and Poland. The legacy of the past is the first
variable.The second is the internationalcontext at the time of the transition. The balanceof powerbetweenthe forcesof the old orderand the new
elites is the third factor.76
The Legacy of the Past
Authoritarianor totalitarianregimesdifferin their genesis,the nature
of their crimes,and theircourseof life. The repressiveorderin Czechoslovakia, Hungary,and Poland was importedby domestic leadersunder strong
foreign pressure.77It remained in place for some 40 years. In Belgium,
France,and The Netherlands,the totalitarianmodel was imposedby military occupationand lasted only 4 years.Each of these elements partlyexplains the tactics and strategiesthe new elites take in dealingwith the past.
1. CommunistCzechoslovakia,Hungary,and Poland are examplesof
d'Etat:a state apparatusof a domestic
what the Frenchcall une collaboration
origin acceptingan importedor imposedorder.Judgingsuch a regime is a
troublesomechore for the successorelites. It permeateslarge segmentsof
the political and civil society, both in termsof the institutionsand of the
76. There are,outsidethis list of three,other factorsthat can be of considerableimportance. The waya communitydealswith a repressivepast is intimatelylinkedwith some of its
more generalmoresand customs.One of these relates to the structureand content of the
collective memory.A society can demonstratea sort of naturalinclination to forgive and
forgetthe injusticeinflictedon it in the pastby domesticor foreignforces.In other instances
societieshave displayeda strongaversionto letting bygonesbe bygones.Africancountriesare
said to belong to the firstcategory.In his analysisof the transitionsin Kenya,Zimbabwe,and
short (Mazrui,
South Africa,Mazruiwritesthat the memoryof hate of Africansis remarkably
"TowardsContaining Conflict"(cited in note 46)). Europeangroupsseem to have longer
memoriesof bad times. The formerYugoslaviais only one, be it powerful,demonstration.
Policy choices also depend on the origin of politicallybased crimes under earlierregimes.
Sometimes,grossviolationsof humanrightshave been committednot only by the leadersof
the repressiveorderbut by its opponentstoo. If that is true,the successorelites maybe ready
to acceptsome formof (negotiated)amnestyfor both sidesor they mayrestricttheir explorations of the pastto the establishmentof a truthcommission.These two factors-the length of
the memoryof hate and the originof humanrightsabuses-have a very limitedvaluefor our
studyof postwarBelgium,France,The Netherlands,and the three postcommunistcountries.
But as soon as one extendsthe comparativeanalysisof transitionaljusticeto LatinAmericaor
Africa, these elementsbecome very relevant.
77. Hungaryand Czechoslovakiacouldbe called,in somewaysand duringsomeperiods,
occupiedcountries,as was trueafterthe 1956 Soviet invasionof Hungaryand the 1968 invasion of Czechoslovakiaby the WarsawPact armies.

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

72

LAWAND SOCIALINQUIRY

population.A full purgeof the countrywouldcause, in the wordsof Claus


Offe, "a veritablewitch-hunt,thus creatingpermanentand bitter cleavages
ratherthan healing the woundsthe past has left behind."78The judiciary,
too, has been wholly or in partclosely associatedwith the outgoingregime.
Thoroughlycleansingof this body wouldprobablycripplethe criminaljustice system.In addition,the natureof the totalitariansystemin the countries of Easternand Central Europe tended to diffuse responsibilityfor
abuses."Hundredsof thousandsof people,"Neier stated,"wereimplicatedin
the administrationof repressionand similarnumberswerevictims of repression. It was often the case that people simultaneouslyimplementedand
All these circumstancesmay explain in part
were victims of repression."79
in
with
the
Eastern
and Central Europeis slow in operawhy dealing
past
tion and ambiguousin content. A totally differentsituationwas createdin
The authoritarianregimewas impostwarBelgiumand The Netherlands.80
posedaftera militarydefeat.Collaborationwith the foreigninvaderwas the
work of movements and individuals.The parliament,the judiciary,and
manyother institutionsdid not join forceswith the Germans.Exile governments contestedthe constitutionalityof the occupationregime.Facingthe
collaborators-however numerousthey might have been-was thus a state
apparatusthat was more or less intact. In particular,a judiciaryloyal to the
prewarregimewas availableat the time of Liberation.The effect of all this
was that post-transitionjusticedevelopedon the basisof a clear-cutdivision
between good and bad, between friendand foe.
2. Many collaboratorsin Belgium,France,and The Netherlandswere
responsibleor co-responsiblefor a wide arrayof serious crimes:tracking
downJewsand resistants,killinghostages,servingin the Germanarmy,producingarmsfor the occupier.The severereactionof the population,politicians, and the judiciarytowardthem is thereforeunderstandable,especially
becausethe memoryof these abuseswasveryvivid at the time of Liberation.
The crimes of the communists,on the other hand, are of a distinct kind.
These regimeswere extremelyrepressive,especiallybefore 1970. The passage of time mayhave blurredthe memoriesof what happened.In addition,
duringthe past two decadesthe violence wasmorepsychologicalthan physical. "The main instrumentsof control over society,"W. Osiatynski(a constitutional lawyer associated with the university of Warsaw) has said,
"switchedfromterrorand repressionto primarilyeconomic control, control
of the media,control of associationand of rights."81
This mayhave led to a
more moderateattitudetowardthose held responsible.Moreover,the com78. Offe, 33 Arch. Eur. Soc. at 197 (cited in note 20).
79. Neier in Dealing4 (cited in note 11).
80. WartimeFranceis a case apart.Its Vichy regimebelongs to the categoryof state
collaborations.This may partiallyexplain why post-transitionaljustice in Francehas been
relativelyless extensive than in Belgiumand Holland.
81. WiktorOsiatynskiin Boraine,Dealing60.

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

Justice after Transition

munist regimeswere not seen as completelynegative. Their policies with


respectto educationand health care,for example,wereviewedpositivelyby
many. Antecedent regimesthus differin their actual performances,but so
also do the perceptionsand interpretationsof them.
3. A most importantfeature of an authoritarianregime is its duration.82If the life of a criminalregime is short, questionsabout statutes of
limitations(and the hesitation they stir up) are unlikelyto arise.A second
consequence relates to the survival of pre-totalitarian,democraticstructures.This is clearly visiblefor Belgium,France,and The Netherlands.Prewar institutions and their personnel were shatteredbut not eliminated.
They were, once the war was over, revived very quickly. Moreover,four
yearsof occupationand collaborationwere insufficienttime for the authoritarianregime'slegal cultureand codes to take root. All these circumstances
may, together with other factors, explain the speed of initiating
prosecutions.
The communistregimesin Centraland EasternEuropelasted40 years.
As we have seen, judgingtheir abusesmakes the lifting of the statute of
limitationsalmostinevitableand the productionof firmprooftroublesome.
This leads to discussionand debate and slows down decision making on
crime and punishment.In addition,almost none of the institutionsof the
precommunistpast survived.The legal culturecreatedby communismwas
firmlyestablishedand has provenhard to eradicate.Furthermore,complicity or, at least, accommodationpervadedmost of the populationand did so
for severalgenerations.Communistsociety was graduallyacceptedbecause
of the workingsof socialization,isolation,and a systemof rewardsand punishments.83The result is that drawingthe line between good and bad citizens became extremelydifficult.
4. The legacyof the past not only residesin the attributesof the predemocraticorder.It is also embeddedin the experiencesa society has had
with the variousstrategiesof dealingwith a previousregime.For Belgium,
the perceptionof WorldWar II collaborationwas affectedby the memories
of what had happenedin the aftermathof WorldWar I. ManyBelgianswho
between 1914 and 1918 collaboratedwith the Germanoccupierand were
grantedamnestyafterwardrepeatedthe offense in 1940. To many of their
co-citizens,leniency had led to recidivism.This circumstancemade understandingand clemencyfor the collaboratorsof 1940-44 less probable.Such
a negative legacy of the pre-authoritarian
past is absent in the postcommunist countries.They have, on the contrary,had the frighteningexperience of the political trials of the 1950s. It seems plausibleto hypothesize
82. See Henri Rousso,"Sauberungen
gestem und heute"(LustrationYesterdayand Today) Transit.Eur. Rev. 187, 188 (1991).
83. I am indebtedto an anonymousrefereefor this argument.

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

73

74

LAWAND SOCIALINQUIRY

that this episode in the historyof their countrieshas made the post-1989
elites somewhatallergicto post-transitionprosecutions.
International Context at the Time of the Transition
Retrospectivejusticein Belgium,France,and The Netherlandscame at
a time when supranationalcodes with respectto humanrightsand the rule
of law were either weak or absent. This has changed considerablysince
then. The Council of Europepublishedits Conventionfor the Protectionof
HumanRightsand FundamentalFreedomsin 1950. Latercame the International Convention on Civil and PoliticalRightsand the HelsinkiAccords.
Surveillanceand monitoringbodies, rangingfrom supranationalcourts to
the InternationalHelsinki Committee, have become operational.84This
new legal frameworkhas been and still is of great importancein decisions
dealing with the past in Czechoslovakia,Hungary,and Poland.Czechoslovakia'sScreeningAct has been critizedby three internationalagencies:the
Council of Europe,the InternationalHelsinkiCommittee,and the International LaborOrganization(becausethe law violated article 111 of the ILO
convention on discriminationin the workplace).85
It is not clear if and how
these criticismshave affectedthe furthercourseof lustrationin that country, but they certainlyhave been used in the domesticdebate by the law's
opponents. More significantis that, apartfrom any referenceto international censure,governments,parties,judges,and legal scholarsin Czechoslovakia, Hungary, and Poland have regularly invoked international
conventions on human rightswhen preparingor reviewingcriminalor lustration laws. In Poland,for example,a local Helsinki Committeehas been
set up and its proposalsfor proceduralguidelineshave receivedgreatattention in the debate on screening.86The Hungarianpresidenthas asked the
constitutionalcourtto reviewtwo articlesof the February1993 law (on the
lifting of the statute of limitations)for their conformitywith article 7.1 of
the EuropeanConvention of Human Rights and with article 15.1 of the
InternationalConvention on Civil and Political Rights. A strong motive
for not neglecting the signals coming from abroadis the possibilitythat
violationsof rule of law codes might compromisethe country'smembership
of the Council of Europe.87
84. Fora generalintroductionto the role of internationalorganizationsin transitionsto
democracy,see the Journalof Democracy's
special issueon the subject(vol. 4, no. 3, 1993).
85. Bren,RFE/RLRes. Rep. at 21 (cited in note 74).
86. See AndrzyRzeplinski,"A LesserEvil?"1 EastEur. Const. Rev. 33, 33 (Fall 1992).
87. In the postcommunistcountries, internationalsupervisionof transitionaljustice
leads to proceduralguaranteesfor those who are subjectedto prosecutionand lustration.In
other circumstances,such as in transitionsto democracyin LatinAmericaand in Africa,the
internationallegal environmentcan also ensurethat graveviolationsof humanrightsdo not
remain unchallenged.Variousways are open here. One is illustratedby the U.S. Torture

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

Justice after Transition 75

Mode of Transition and the Resulting Balance of Power


Many analystsarguethat of the factorsaffectingthe directionof postauthoritarianjustice, the determiningone is the balanceof powerbetween
the forcesof the past and the successorelites at the time of the transition.It
lies behind many of the differencesbetween Belgium, France, and The
Netherlandsand Czechoslovakia,Hungary,and Poland.
Huntingtonhas set forth a typologyof powerrelationsat the time the
transition toward democracy starts.88First is the violent overthrow or the
collapsing of the repressive regime. There is then a clear victory of the new
forces over the old order. This is the way redemocratization occurred in
Belgium and its neighboring countries. Democracy can arrive, second, at the
initiative of reformers inside the forces of the past: "those in power in the
authoritarian regime take the lead and play the decisive role in ending that
regime and changing it into a democratic system."89Czechoslovakia and
some of the other postcommunist countries belong to a third category: democratization resulted from joint action by and the negotiated settlement
between governing and opposition groups. Huntington labels the three
cases replacement, transformation,and transplacement.His distinctions are
useful, but his nomenclature is too formal; following Rustow's review of
Huntington's book,90I prefer the plain words overthrow,reform, and compromise as alternatives to Huntington's terminology.
How do differences in the type of transition affect efforts to deal with
the past? One contrast lies in the way criminal and lustration laws are prepared. In Belgium, France, and The Netherlands, the overthrow of the collaborating movements and individuals was mainly planned by governments
in exile. They also devised the legal instruments under which the collaborators with the Germans would be judged and punished. Those governments
offersvictimsof oppressive
VictimProtection
Act, in whichnationallegislation
regimesthe
of this
beforeU.S. courts.Fora discussion
forcivildamages
legalrightto suetheirtorturers
on
see RobertF. Drinan& TeresaT. Kuo,"Puttingthe World'sOppressors
development
Trial:TheTortureVictimProtection
Act,"15 Hum.Rts.Q. 605 (1993).A secondopportuof humanrightscrimes.Boththe Genolawrequiring
punishment
nitylies in international
of suchtransnational
cideConventionandtheTortureConventionareexamples
legislation.
of international
100YaleL.J.at 2549(citedin note22),writesthatmobilization
Orentlicher,
it canprovidea counterweight
to pressure
lawin dealingwiththe pasthastwoadvantages:
are
fromthe elitesof the previousorderseekingimpunityand,further,"whenprosecutions
to international
undertaken
law,theyarelesslikelyto beperceived-andopposedpursuant
Suchsupranational
canbe implemented
aspoliticalrevanchism."
legalobligations
bydomesIn somecasesonly the latterprocedure
can guaranteethat
tic or international
tribunals.
thereasonwhytheU.N. Security
be done."Thatis precisely
Councilhascreatedthe
"justice
forthe formerYugoslavia
andintendsto amendthe statute
International
CriminalTribunal
lawcommitted
of thistribunalso thatit canconsidercrimesunderinternational
duringthe
armedconflictin Rwanda.
ThirdWave114 (citedin note 1).
88. Huntington,
89. Id. at 124.
90. DavidRustow,"TheSurgingTideof Democracy,"
3 J. Democracy
119, 119 (Jan.
1993).

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

76

LAWAND SOCIALINQUIRY

were, becausethey were outsidetheir country,considerablyhandicappedby


lack of informationand of a realisticassessmentof the situation in their
homeland.One sourceof misjudgmentwas the notion that absolutestandardsof good and bad could be used in sorting out the population.The
result was that the legislation constructedmade severe prosecutionsand
punishmentalmostinevitable.Eventsin Czechoslovakia,Hungary,and Poland ran a differentcourse.Purgelegislationwas and is being put together
afterthe transitionand in a continuingdialoguebetween government,parliament, constitutionalcourt,and other societal groups.This processleaves
ample room for compromiseand bargainingon the form and content of
dealing with the past.
When a regimeends violently becauseof a war againstan occupying
army or a civil war, anomia is inescapable.That is what happened just
before,during,and shortlyafterthe final stage of WorldWar II. It resulted
in a massof summaryexecutions (as in France),some abusesin the camps
where suspected collaboratorswere interned (especially in The Netherlands), or unbridledscreening.In Czechoslovakia,Hungary,and Poland,
where the communistregimesand the oppositioncompromisedin tracing
the routesthe countryhad to take, the twilight zone between old and new
was of a very different character.Nightmare scenarios involving brutal
witch-huntsdid not have a chance.
But probablythe most importantconsequenceof the mode of transition is the densityof the politicalconstraintsit generates.The widestscope
for prosecutionsand punishmentarisesin the case of an overthrow.Almost
no political limits exist. Full prioritycan be given to the thirst for justice
and retribution.But a totallydifferentsituationcomes up if the transitionis
basedon reformor compromise.In that situationthe forcesof the previous
orderhave not lost all powerand control.They are to a certaindegreeable
to dictate the terms of the transition.The new elites have only limited
options.They maybe forcedto grantthe outgoingauthoritiesa safepassage
in returnfor their total or partialabdication.The need to avoid confrontation becomesthe rationalefor exchangingcriminalprosecutionand severe
lustrationfor a policy of forgiveness.The successorgovernmentand its democracyis too vulnerableto discardclemency.
KadarAsmal, chairmanof the ANC commissionon reconciliationin
South Africa, has summarizedthe differencesbetween the varioustypes of
transitionby sayingthat the postwarpolicies with regardto the repressive
past restedon a materialcondition that is absentin most of the transitions
of the 1980s and 1990s:"The war criminalswho were broughtto trial did
not lose power through political means but through a complete military
defeat.The victorsdid not have to worryaboutthe balanceof forceswhere
the military,economic and state power of the losers was largelyleft un-

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

Justice after Transition

The new democraciesof recent times, in contrastto the victoritouched."91


ous regimesin Belgium,France,and The Netherlands,have to grapplewith
this crucialissue:how to settle a past accountwithoutupsettingthe present
transition.
CONCLUSION
Many of the policy suggestions,mentioned in part I, departfrom the
elites can actuallymake choices. However,
premisethat post-authoritarian
the first lesson of our comparativeanalysisof Belgium, France,and The
Netherlandsand the three postcommunistcountriesis that the actions of
such elites is a function of the circumstancesof the passageto democracy.
The second conclusionis that there are no miraclesolutionsfor dealwith
a repressivepast. PostwarBelgium,France,and The Netherlands
ing
had the widest opportunitiesto prosecuteand punish.Now, a half-century
has gone since these countriestriedto free their societiesfromthe legacyof
the Germanoccupation.Surprisingly,the passageof time has not fullyexorcised the ghostsof this past.Collaborationand the purgethat followedstill
haunt the nation's collective memory.In The Netherlands,the emotion
reappearslike malaria:yearsof silence alternatewith periodsof high tension. Belgiumis a case of chronicfever. Discussionson what happenedduring and shortlyafterthe war are never far away.In Francethis element of
the past is, accordingto historianHenri Rousso, the source of an almost
incurableneurosis.9These threecasesdemonstratehow consequentialtransitionaljusticeas a politicalassignmentis. They also teach us that the swift
and rather severe purge option the Belgian, French, and Dutch postwar
elites chose does not guaranteean unproblematicrelationshipwith the past.
They deliverfirmproofthat, in the wordsof Jose Zalaquett,"completevictorsgenerallyhand out a tremendousamountof punishment,but not necesSeriousproceduralirregularities
occurred.Todaymanymen
sarilyjustice."93
and women view the trialsof the late 1940s as a contraventionof the most
fundamentalprinciplesof the Rechtsstaat.They want to keep the memory
alive as a warningagainstnew legal transgressions.
Political constraintsconsiderablyreducethe freedomof action of the
postcommunistelites. Their dealing with the past is slow in its operation
and ambiguousin its content. The positiveside of such policy is that, when
it comes to prosecutionsand lustration,respectfor the ruleof law is moreor
less guaranteed.But, on the other hand, too much forgivenessundermines
the respectfor the law, inducesthe angerof those who suffered,and is an
91. KadarAsmal, "Copingwith the Past,"Mayibuye,Feb. 1994, at 27.
92. Rousso,Syndrome(cited in note 14).
93. Zalaquettin Boraine,Dealing103 (cited in note 10).

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

77

78

LAWAND SOCIALINQUIRY

to an authenticreconciliation
andan invitationto recidivism.
impediment
Thatis whymostanalystsarguethatif the balanceof forcesat the timeof
the transitionmakesa negotiatedmildnessinevitable,a truth-telling
operation withfullexposureof the crimesof the formerregimeis the leastunsatisfactorysolution. As one Pragueprofessorof law wrote: "We may
eventuallydecideto offeramnestyto someor all of ourformeroppressors,
butbeforewe forgive,we shouldknowwhatevil we areforgiving,andwho
caused it."94"Memory,"says RogerErrera(memberof the FrenchConseil

The truthis bothretribution


and
d'Etat),"isthe ultimateformof justice."95
In
his
on
accounts
with
Lawrence
Wesbook
deterrence.
torturers,
settling
chlerwrites:
the broadcasting
of the truthto a certainextent reRetrospectively
of the formervictims.At leastto a degree,it andeemsthe suffering
boastful
swersandhonoursthe screamafterall, it upendsthe torturer's
of
the broadcasting
claimthat no one will everknow.Prospectively,
truthhas an effectthat is at once moresubtleandperhapsmoremoof torturethat it take
mentous.For... it is essentialto the structure
of shameand acplacein secret,in the dark,beyondconsiderations
needsto be certainthat no one will ever
count.. . . [The torturer]
would
know;otherwisethe entirepremiseof his own participation
come
into
question.96
quickly
of future
the mentalfoundation
Tellingthe truthaboutthe pastundermines
abuses.
humanrights

94. Vojtech Cepl (professorof law at CharlesUniversityin Prague),"RitualSacrifices,"


1 East Eur. Const. Rev. 24, 25 (Spring1992).
95. RogerErrera,"Dilemmasof Justice,"1 EastEur.Const.Rev. 21, 22 (Summer1992).
96. Weschler,Miracle245-46 (cited in note 5). For a generaldiscussionof truth commissions,see PriscillaHayner,"FifteenTruth Commissions-1974 to 1994: A Comparative
Study,"16 Hum. Rgts.Q. 597 (1994).

This content downloaded from 137.154.19.27 on Tue, 18 Nov 2014 02:22:57 AM


All use subject to JSTOR Terms and Conditions

S-ar putea să vă placă și