Justice after transition:
on the choices successor elites make in dealing with the past
Coping with the past during the transition from repressive regime to democracy has taken a wide variety of forms.1 Strategies have ranged from massive criminal prosecution of the supporters of the previous order to unconditionally closing the book. All policy choices involve answers to two key questions: whether to remember or forget the abuses -the issue of acknowledgement- and whether or not to impose sanctions on the individuals who are (co-)responsible for these abuses -the issue of accountability.2 By far the most radical interpretation of acknowledgment and accountability is to be found in the outright criminal prosecution of the perpetrators. This has been the official policy towards collaborators in all West European countries which during World War II were occupied by the Germans. A very recent example is Ethiopia where some 3000 officials of the fallen Mengistu regime are named to be tried. By contrast, as a strategy for dealing with the past criminal prosecution has encountered almost no support in post-1989 Eastern and Central Europe and in the post-authoritarian regimes of Latin America. Lustration or disqualification of the former elites, of the agents of the secret police and their informers, of civil servants is a second way to address the questions of acknowledgment and accountability. Sometimes disqualification, including the loss of political and civil rights, is an accessory to a criminal conviction. That has been the case in postwar Belgium, France and Holland. In other instances, such as in most of the postcommunist countries of East and Central Europe, lustration is a way to side-step criminal prosecution. The granting of unconditional amnesty to those who committed politically based crimes lies at the other extreme of the spectrum.3 In some cases the unrestricted pardon is the result of the self-amnesty which the outgoing elites unilaterally award themselves before the transition gets underway. In other cases, impunity is the outcome of negotiations between the old and the new leaders. In Uruguay, for instance, the government which succeded the military dictatorship enacted, under pressure from the military, an amnesty law (1986). Post-Franco Spain is an example of a third route towards impunity: almost all democratic forces agreed to confer immunity to individuals who committed crimes defending or opposing the Franco-regime. 1. Political science publications on regime change often disregard the problem of transitional justice. That is the case in, among others, such well-known work as J. Linz & A. Stepan, eds., The Breakdown of Democratic Regimes (Baltimore: The Johns Hopkins University Press, 1978). G. O'Donnell & P. Schmitter & L. Whitehead, eds., Transitions from Authoritarian Rule: Prospects for Democracy (Baltimore: The Johns Hopkins University Press, 1986) has a few, but quite insightful, pages on "settling a past account". An exception is S. Huntington, The Third Wave. Democratization in the Late Twentieth Century (University of Oklahoma Press, 1991)("Huntington, Third Wave"). There is a vast socio-legal literature on the interlocking of politics and courts, but it almost never deals with the role of the judicial system in regime transitions. Two exceptions: O. Kirchheimer, Political Justice. The Use of Legal Procedure for Political Ends (Princeton: Princeton University Press, 1961) and H. & E. Hannover, Politische Justiz 2. The distinction between acknowledgement and accountability has been made at the Salzburg meeting (March 7- 10, 1992) of the Charter 77 Foundation's Project on Justice in Times of Transition. 3. Amnesty, granted by the executive or the legislator, means that the punishability of certain acts is removed; amnesty thus abrogates crime and punishment; it can be used to foreclose prosecutions, but also to cancel the sanctions that have already been imposed. Pardon is, according to Black's Law Dictionary, an "executive action that mitigates or sets aside punishment for a crime." The Dictionary adds: "The distinction between amnesty and pardon is one rather of philological interest than of legal importance." Impunity (or immunity) is a de facto situation which is the result of amnesty or pardon. I will use the terms amnesty, pardon, impunity and immunity as synonyms. Amnesty, but not amnesia is the substance of a fourth strategy. Its usual format is the Truth Commission. The first goal of such a commission is to investigate the fates, under the preceding regime, of individuals and of the nation as a whole. Its aim is not to prosecute and punish.4 A truth-telling operation, including full disclosure of all human rights abuses, must ensure that 'the facts' are not forgotten, but remain alive in the memory of the collectivity. Well-known examples are the Chilean National Commission on Truth and Reconciliation (1990) and the UN-sponsored Truth Commission in El Salvador (1991). For some, however, general knowledge of the truth is not enough. An official recognition of the injustices that have been suffered is necessary. According to Thomas Nagel, professor of philosophy and law at New York University, it is the difference between knowledge and acknowledgment that counts; "It's what happens and can only happen to knowledge when it becomes officially sanctioned, when it is made part of the public cognitive scene".5 Further steps on that path may include compensation by the state. Lloyd Vogelman, director of the Johannesburg based Centre for the Study of Violence and Reconciliation, writes: "For the families of victims and survivors, such accounting serves as immediate public recognition of their pain and trauma". And he adds: "The most concrete form of reparation is monetary compensation. Although financial constraints may not permit large-scale payments, it is still important to provide financial compensation in other forms --such as free or subsidised medical and psychological treatment, reduced interests on loans for education, home building and the establishment of new businesses". He also favors the establishment of permanent reminders of the legacy of the past, such as monuments, museums, public holidays and ceremonies. Together with the activities of support groups, these will ".provide a channel for the non-violent expression of pain, frustration and anger." 6 In addition, restitution by the state does not preempt civil compensatory justice. This article will examine the considerable divergence in the strategies democratic successor elites develop in their dealing with the past.7 I will first discuss in extension (in part I) the pros and cons of each of the available policy options. The paper then moves to a comparative description (in part II) of the course justice after transition took in two groups of countries: (a) Belgium, France and Holland at the end of the Second World War and (b) postcommunist Czechoslovakia, Hungary and Poland.8 Part III deals with the question of 4. Post-1983 Argentina is a rare exception. After the report of the National Commission on the Disappeared was released, the chiefs of the three successive juntas were brought to trial. 5. Cited in L. Wechsler, A Miracle, A Universe. Settling Accounts with Torturers (New York: Pantheon Books, 1990) at 6. L. Vogelman, "It's hard to forgive --even harder to forget," Work in Progress 16 (August, 1993). 7. In the literature multiple terms are used synonymously to label the activities through which justice after transition is performed: backward-looking or retrospective justice, retroactive or ex post facto justice, retributive justice, post- authoritarian justice, transitional justice. Some of these terms are equivocal. That is the case with backward-looking or retrospective justice. As one of the anonymous referees indicated, justice is always meted out after a crime. As a consequence these terms are not specific enough. The problem with the labels retroactive or ex post facto justice is that they refer to a very special type of justice: one that does not respect the principle of non-retroactivity. Not all criminal prosecutions that follow the demise of an authoritarian regime violate that rule. Retributive justice is justice with the aim to give (mostly material) retribution to the victims of the old regime. This term has a very circumscribed meaning and should not be pressed into service for a grander purpose. I prefer the labels post- transition justice and justice after transition, because these descriptive phrases are at the same time broad and specific enough. I will use these two terms synonymously, together with the more general term purge. Another appropriate phrase is post-autoritarian or post-totalitarian justice. 8. The choice of the two categories of cases is based on a mixture of theoretical and practical considerations. Both groups of countries differ considerably in their dealing with the crimes of the previous regime and with respect to the legacy of the past, the presence of an supranational legal order and the balance of power between old and new elites. As a consequence, a comparative approach seems appropriate. Belgium, France and Holland have been singled out since information on purges in other occupied countries is scarcer or less accessible, because of language barriers. The selection of the Czech Republic, Hungary, Poland and Slovakia is prompted by the fact that these countries have much in common in the area of post-transition justice (East-Germany being in a class of its what specific factors these new elites take into consideration. I will assess (in part III) three potential causes of policy. The first is the legacy of the past. Authoritarian or totalitarian regimes differ in many aspects, such as their scope, the nature of their crimes and their duration. The second agent is the international context at the time of the transition, e.g. the absence or presence of supranational legal norms on human rights and of institutions to implement such norms. The last is the mode of transition and its ensuing impact on the balance of power between the old and the new order. This list of causes is derived from the literature on regime transitions and from the pool of experiences which have been discussed at various meetings and conferences.9 In my conclusion I support the proposition that there are no miracle solutions to the question of how to deal with a repressive past.
I. To punish or to pardon: the arguments

In the ongoing public debate over post-transition justice political leaders, academics and
journalists are divided on numerous points.10 But by far the most divisive question is how to balance the demands of justice against the many, mainly political, constraints which make prosecution a major risk to the new regime. The case for prosecution and/or lustration Those who emphasize the beneficial effects of prosecution bring forward two crucial reasons. Firstly, punishing the perpetrators of the old regime advances the cause of building or reconstructing a morally just order. The second reason has to do with establishing and upholding the young democracy that succeeds the authoritarian system. 1. Putting back in place the moral order that has broken down involves that 'justice be done', the proponents of prosecutions argue. They believe that the successor government owes it, first of all, as a moral obligation to the victims of the repressive system. Post- authoritarian justice serves to heal the wounds and to repair the private and public damage which the antecedent regime provoked.11 It also, as a sort of ritual cleansing process, paves the way for a moral and political renaissance.12 Abolishing the monuments of the past (the statues of the Lenins and the Stalins) is one way to clean a society, evicting those who are held responsible for yesterday's crimes is another. A country in which such cleansing remains unfinished will, it is said, be plagued by continuous brooding and pondering. Asked by Adam Michnik, a leader of the Polish opposition to communist rule and co-editor of the Warsaw daily newspaper Gazeta, what he thought of lustration, the German writer Jürgen Fuchs answered: "If we do not solve this problem in a definite way, own) and because information on these countries is more available than in the case of Albania, Bulgaria or 9. The Project on Justice in Times of Transition (sponsored by the Foundation for a Civil Society -formerly the Charter 77 Foundation) has initiated discussions between political leaders, judges, journalists and academics. Sofar five meetings have been held (an inaugural meeting in Salzburg, March 7-10, 1992; Budapest, October 30- November 1, 1992 on truth and justice: the delicate balance; San Salvador, January 11-12, 1993 on reconciliation in times of transition; Venice, November 14-15, 1993 on disqualification measures in Eastern and Central Europe and the former Soviet Union; and Cape Town, February 25-27, 1994 on truth and reconciliation in South Africa). 10. A. Boraine & J. Levy & R. Scheffer, eds., Dealing with the Past. Truth and Reconciliation in South Africa (Cape Town: IDASA, 1994) ("Boraine, Dealing") is a very useful summary of the political and academic debate. See also 11. According to Huntington this is one of the main arguments of those in favor of prosecution. See Huntington, Third Wave 213. See also A. Neier, former executive director of Human Rights Watch: "As a civilised society we must recognise the worth and dignity of those victimized by abuses of the past." (in Boraine, Dealing at 3). 12. That is exactly what the term lustration, according to The Oxford Concise Dictionary, evokes: "purification by expiatory sacrifice, ceremonial washing." it will haunt us as Nazism did. We did not denazify ourselves, and this weighed on us for years."13 The French historian Henri Rousso labels the case of post-war France, where the 'collaboration d'Etat' was not fully tried, as a never-ending neurosis.14 2. A second argument in favor of a judicial operation against the advocates of the old regime is that it strenghtens fragile democracies. In the first months after the transition the survival of the successor regime depends on swift and firm action against pro-authoritarian officials and their following, it is said. Such action is seen as a necessary protection against sabotage 'from within'.15 Moreover, if the prosecution issue remains untouched other forms of social and political disturbance may be triggered off. There will be a risk of vigilante justice with summary executions. Or 'wild' screening of political personnel, journalists and judges may be instigated as was the case in Czechoslovakia in 1991 and in Poland more recently.16 It may also give birth to conspiracy theories in which the leaders of the successor regime are labeled as the hidden agents of the old order which they treat in a too soft and ambiguous way. What a new or reinstated democracy, however, needs most is legitimacy. Prosecution, Huntington writes, is seen as ".necessary to assert the supremacy of democratic values and norms and to encourage the public to believe in them".17 Failure to prosecute and lustrate, conversely, may generate in the population feelings of cynicism and distrust towards the political system. The case of Belgium in late 1944 provides a good illustration of the importance of action against the members of the outgoing regime. The political elite who returned to power in September 1944 had many reasons to organize the elimination of the germanophile collaborators as efficiently as possible. The legitimacy of the reinstated leadership partly depended on the speed and the thoroughness with which the unpatriotic governors of occupied Belgium and their following were oustered from the political and public fora.18 But the returning elite also knew that its authority and legitimacy were challenged by a new and unquestioned power, the resistance movements. It had to avoid every political move which could push the resistants in the direction of revolutionary action.19 Any suggestion of weakness in the government's handling of the collaborators would certainly have been an affront and a provocation in the eyes of the resistance movements. Impunity, 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 13. Cited by A. Michnik, "Justice or Revenge?," 4 Journal of Democracy 20, 25 (1993). 14. H. Rousso, Le syndrome de Vichy de 1944 à nos jours (Paris: Seuil, 1990). The uneasiness was revived when in June 1993 René Bousquet, the French secretary general of police under the Vichy regime, was murdered by a psychotic. The killing of Bousquet, whose expected trial might at last have brought the wartime state before the courts, was felt by many in the public opinion as 'justice denied'. Rumors of the reluctance at the highest level to effectively put the Vichy regime on trial were amplified. See "Le dossier Bousquet," special issue of the French newspaper Libération, July 13, 1993, 1-52. 15. Vaclav Benda, an active dissident under the communist regime and in 1992 chairman of the Christian Democratic Party, described the main aim behind the Csechoslovak Screening Act as a ".self-protection considered from the viewpoint of Czechoslovak democracy and from the viewpoint of the evolution towards a market economy and a state of law." (interview in 5 East European Reporter 42, 42, 1992). 16. See J. Obrman, "Laying the Ghosts of the Past," Report on Eastern Europe 12 (14 June 1991). 17. Huntington, Third Wave 213. According to Juan Mendez, general counsel of Human Rights Watch, "The ability of institutions to deal with such difficult and touchy subjects will instill confidence in the citizenry about the country's capacity to build reliable and trustworthy democratic institutions." (in Boraine, Dealing at 92). 18. A complicating factor was that a large part of the collaborating population belonged to political movements (VNV in Flanders, REX in Francophone Belgium) that had won between 15% and 20% of the parliamentary seats in the pre-war national elections of 1936 and 1939. These movements had thus been for a long time redoubtable competitors for power. See: W. Brustein, "The Political Geography of Belgian Fascism: The Case of Rexism," 53 American Sociological Review 69 (1988). 19. See G. Warner, La crise politique Belge de novembre 1944: un coup d'état manqué? (Brussels: CRISP, 1978). 20. C. Offe, "Coming to Terms with Past Injustices," 33 Archives Européennes de Sociologie 195 (1992). 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."21 Opponents of impunity argue that amnesty also endangers the inculcation of codes of conduct which are based on the model of the Rechtsstaat. 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 deterrence against future abuses of human rights.22 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? (.) do not begin the old stories again. Otherwise one will never start anything new'."23 The 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".24 R. Alfonsín, Argentina's first elected president after the collapse of the military regime, wrote: "In the final analysis, punishment is one instrument, but not the sole or even the most important one, for forming the collective moral conscience."25. The chief arguments of those who oppose prosecutions are that partisan justice, rule of law infringements or human rights abuses always lurk from behind the corner and, secondly, that prosecutions can have highly destabilizing effects on an immature democracy.26 1. Young democracies affirm that they highly value the rule of law and human rights. But post-transition justice involves a number of decisions which may trespass upon those very legal principles. Dealing with the past by way of prosecutions, some analysts argue, therefore holds a sizable risk. It may force the successor elites to violate the codes of the Rechtsstaat today while judging the undemocratic behavior of yesterday. This can, as a consequence, considerably weaken the legitimacy of the new regime. 21. L. Whitehead, "The Consolidation of Fragile Democracies: A Discussion with Illustrations", in R. Pastor, ed., Democracy in the Americas. Stopping the Pendulum 84 (New York: Holmes & Meier, 1989). 22. D. Orentlicher writes: "The fulcrum of the case for criminal punishment is that it is the most effective insurance against future repression. By laying bare the truth about violations of the past and condemning them, prosecutions can deter potential lawbreakers and inoculate the public against future temptation to be complicit in state- sponsored violence." ("Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime," 100 The Yale Law Review 2537, 2542 (1991). 23. R. Dahrendorf, Reflections on the Revolution in Europe 101 (London: Chatto & Windus, 1990). 24. Cited by A. Michnik, 4 Journal of Democracy at 24 (cited in note 13). 25. R. Alfonsín, "'Never again' in Argentina," 4 Journal of Democracy 15, 19, 1993. 26. While generally in favor of tolerance in the handling of past abuses, most of these participants in the debate agree that two exceptions must be made. The first is that self-amnesties are illegitimate. Secondly, states have the duty to prosecute violations of international law relating to human rights. Such crimes, it is argued, cannot be unilaterally forgiven. J. Zalaquett, a member of the Chilean Truth Commission, has said: ".society cannot forgive crimes against humanity. The perpetrators must be brought to trial." (as cited in the report on the Venice meeting - -November 14-15, 1993-- of the Charter 77 Foundation's Project on Justice in Times of Transition, 15. The idea that crimes against humanity always have to be prosecuted is also behind the trial of Paul Touvier, a French collaborator who was brought before a criminal court in 1994, fifty years after the end of the war. See the special issue of Le A human rights problem arises when the behavior which the courts have to judge is of a purely political nature, e.g. membership in a pro-authoritarian movement, publicly advertised approval of totalitarian ideas.The problem can be illustrated by looking at the Belgian case. Pre-war treason legislation did not cover the many forms of political action which only in the context of the total warfare of World War II took on a collaborationist dimension. Simple extension of the scope of penal law was not self-evident, since part of the political behavior in question could be seen as falling under the constitutional right of freedom of opinion, speech or association. How could a person who before the war became a member of a party which participated in the Belgian parliamentary game but joined forces with the German occupator, be punished if he stayed a member after May 1940? Was a man whose only political activity had been subscription to a collaborationist journal culpable of a crime? With the country still occupied the Belgian government-in-exile defined membership in pro-German movements and similar forms of political action as ordinary crimes. The result was that tens of thousands of Belgians were punished for what was strictly political behavior. Since then, the choice the Belgian government made has been a source of controversy: is not one of the core values of democracy that no one should be excluded from the benefits of modern citizenship because of his/her political opinion? 27 The principles of the separation of powers and of judicial impartiality are at stake when an answer is to be given to the question of who will be the judges of the supporters of the authoritarian regime. The problem, as it presented itself in July 1944 in France, was clearly formulated by the Commissioner of Justice: to reconcile two preoccupations ".on the one hand, respect for legal forms and the traditional guarantees of republican justice; on the other hand, the desire to judge rapidly and allow the Resistance to play its role in the judicial punishment of collaboration."28 Political pressure, time constraints and the unavailability of sufficient judicial personnel may incite the post-transition elites to create special tribunals in which lay-judges play a prominent role. This, the opponents of prosecutions argue, make lapses from important legal norms almost unavoidable. Such special courts can, indeed, become instruments of partisan vengeance since non-professional judges are easier targets for pressure by the executive, the media and public opinion. Fidelity to legality and the rule of law, if it is imbued in the minds of members of the judiciary, is a strong safeguard against political and partisan use of the judicial process. Abel and Lewis write: "There is some evidence that professional identity strengthens the 'independence' of the judiciary and its willingness to defy or at least obstruct grossly illegal acts by the more political branches."29 It is not clear where and how such fidelity originates. But it looks plausible to hypothesize that lay-judges, particularly in the context of a regime transition, are badly equipped to offer resistance against the intrusion of the executive and of other societal forces in their activities as prosecutors. Justice after transition has to take place within a temporal frame. "This frame, Offe writes, consists of the answers to two questions. First, from when on are acts that occurred in the past liable to corrective action?" In other words, do we accept ex post facto criminal legislation? It is the nullum crimen sine lege, nulla poena sine lege principle which is at 27. The South African case proves that a similar discussion arises when offences of a much more serious nature (assault, robbery, public violence etc) are labeled by some as political. When the question of the release of political prisoners emerged on the agenda of the negotiations between the De Klerk-government and its negotiating partners, one of the key issues was the distinction between offences which are political and those which are not. For a general discussion, see R. Keightley, "Political Offences and Indemnity in South Africa," South African Journal on 28. De Menthon, cited by Novick, The Resistance versus Vichy. The Purge of Collaborators in Liberated France ("Novick, Resistance versus Vichy")150 (New York: Columbia University Press, 1968). 29. R. Abel and P. Lewis, "Putting Law Back into the Sociology of Lawyers", in R. Abel and P. Lewis, eds., Lawyers in Society, Vol. 3, Comparative Theories 478, 482 (Berkeley: University of California Press, 1989). stake here.30 The second question, according to Offe, is ".up to which future point in time is legal action to be taken?"31 This involves the problem of eventually lifting or upholding the existing statute of limitation. Those who disapprove of prosecutions assert that post-transition trials ultimately will result in changing the rules of the game after the fact, either by applying retroactive legislation or by recommencing the statute of limitation once it has One potential source of retroactive justice is the post-transitional conflict between legal systems, between the legal legacy of the past and the laws and regulations of the new or reconstructed democracy. A major discussion in France, during and just after the war, was precisely on the legality of the Vichy regime and of the acts of those who, believing Vichy to be the legal and legitimate government of France, obeyed its laws.32 That is a crucial problem too in postcommunist East and Central Europe. As T. Rosenberg writes: "People can only legally be prosecuted for crimes that were illegal at the time of the commission. The truly hated acts of eastern European regimes --the secret police shadow, the censorship, the political criteria for all decisions-- they were the very basis of the system."33 A defendant might argue, Offe writes ".that he was unaware of the now alleged criminal nature of the acts of which he is accused; given the fact that he has been brought up in a regime that pardons and in fact mandates acts (now deemed criminal) for the sake of higher political purposes, he had no reason to doubt the rightfulness of what he had been doing."34 If the courts follow the substantial criminal law of the former regime, prosecutions will be scarce and most perpetrators will escape punishment. Only those officials who acted under what even the old order would have defined as illegal can be brought before the courts. This problem can, as Offe notes, be overcome ".by applying standards of natural law, international law or 'general principles of law recognized by civilized nations'".35 The German case illustrates how intricate such endeavor is. It was decided that, in order to avoid ex post facto justice, the substantive criminal law of the German Democratic Republic would be applied in the prosecution of the former leaders of the GDR. But at least in one area, e.g. the East German policy towards attempts to cross the borders, the West German courts ruled that basic human rights, which were laid down in the GDR constitution as well as in international treaties, had been violated. Blankenburg, who discusses this development, argues that the courts re-interpreted GDR-law ".like it had never been practised in its history. They actually created their own, ideal 'GDR-law'." He adds: "On the basis of such an ex-post-facto interpretation of GDR law not only East German border guards were charged with manslaughter but also the Head of State for instigating them to do so."36 The clash between two legal systems is not the only possible source of retroactive justice. Novick, after comparing the retroactivity question in postwar Belgium, France, Holland, Denmark and Norway, concludes: "All of the Western European countries found their existing treason legislation inadequate to deal with the unanticipated phenomenon of lengthy occupation and widespread collaboration. All had to repair this lack 30. This principle of legality means that no conduct may be held punishable unless it is precisely described in a penal law and no penal sanction may be imposed except in pursuance of a law which describes it prior to the commission of the offence. See also article 7(1) of the European Convention of Human Rights: "No one shall be held guilty of any criminal offence on account of any act or ommission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed." 31. Offe, 33 Archives Européennes de Sociologie at 197. 32. P. Novick, in his book on the purge of collaborators in liberated France, devotes a whole chapter to the nullum crimen sine lege problem. (Novick, Resistance versus Vichy 140-156) 33. In Boraine, Dealing at 95 (cited in note 10). 34. Offe, 33 Archives Européennes de Sociologie at 199. Political surveillance, for example, is not an illegal act in repressive regimes and to make, in the context of transitional justice, criminal charges against such behavior will 35. Offe, 33 Archives Européennes de Sociologie at 195-196. 36. Blankenburg in this issue of Law and Social Inquiry xxxxxxxxxx. by one form or another of retroactive legislation."37 In each of these five countries legislative, administrative and judicial tricks were used to camouflage the reality of A second way to change the rules of the game after the fact is the modification of the statute of limitations. This question is particularly acute in the postcommunist countries. Atrocities against the life and property of men and women occurred predominantly in the late 1940's and during the 1950's. In most cases, such as in Hungary where a 30-year statute of limitations exists, criminal proceedings regarding the most reprehensible human rights abuses are thus precluded by reason of lapse of time. Judging the past here means de facto the extension or reopening of the statute. Those opposed to such operation formulate both legal and practical objections. One was that it is extremely difficult to establish the precise facts in the case of crimes committed some thirty years ago.38 One of the countering arguments of those who disapprove of prosecutions is that post-transition justice tends to be emergency justice --particularly if it comes in the early phases of the transition. The climate is then seldomly well-suited for a scrupulous sorting out of all the gradations in the responsibility for the abuses of the past. Even there where emergency justice is avoided, problems with regard to the definition of responsibility inevitably arise. Borderline cases abound. The question has been clearly evoked by Vaclav Havel when speaking of the Czechoslovakian situation: "We have all become used to the totalitarian system and accepted it as an immutable fact, thus helping to perpetuate it.(.) None of us is just its victim; we are all responsible for it."39 In addition one Polish participant in a recent debate, held in Warsaw by the Stefan Vatory Foundation said: ".I believe that we all like to think of ourselves as having been born in 1989 and that we regard it as a way of closing the past.(.) but.we too are co-responsible in that we did not take all the counter-actions that we could have."40 Some opponents of punishment not only reject criminal prosecutions, they also object to lustration as a policy of settling accounts with the past. Their argument is that with lustration the right to defense becomes extremely fragile. That is precisely what the experience of liberated Belgium and Holland demonstrates. In both cases people were disqualified, not considering them one by one, but for their membership in a collaborationist group. In Holland, all members of pro-German military movements (and their spouses) automatically lost their Dutch citizenship. Their number amounted to several tens of thousands. The Belgian government decided to strip the rank-and-file of pro-German organizations collectively 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 forced to collect evidence to prove their innocence, so that the burden of proof is reversed.41 Another problem is that such lustration operations tend to become highly politicized. Sometimes, the eagerness to purge society results from the political calculation of parties and factions. 2. A new or re-instated democracy is a frail construct. For that reason some analysts argue that impunity or, at least, tolerance in the handling of past abuses is a prerequisite for the 37. Novick, Resistance versus Vichy 209. 38. See A. Dornbach (Speaker of the House in the Hungarian Parliament) as cited in 1 East European Constitutional 39. Cited by Huntington, Third Wave 214 (cited in note 1). 40. Aleksander Kwasniewski (chairman of the Parliamentary Club of the Alliance of the Democratic Left) in 5 East European Reporter 48 (1992). The expression 'having been born in 1989' is close to the name the Dutch 'resistants of the eleventh hour' (those who very belatedly, mostly in May 1945, became patriots) have received. They were, in the months following the end of the war, mockingly called 'maybeetles'. 41. Offe, 33 Archives Européennes de Sociologie at 199. survival of the democratic process. Criminal prosecutions can, they say, jeopardize the democratic transition.42 There is, first, the risk of a destabilizing backlash. Military leaders who feel threatened by a planned prosecution operation may try to reverse the course of events by way of a coup, a rebellion ".or other confrontations that could weaken the authority of the civilian government. (.) In these circumstances, prosecutions could reinforce the military's propensity to challenge democratic institutions."43 This problem is particularly haunting the young democracies of Latin America.44 Most governments, T. Rosenberg writes, ".have made the call that to leave the past alone is the best way to avoid upsetting a delicate process of transition or to avoid a return to past dictatorship. The attitude is that there is a dragon living on the patio and we had better not provoke it.45 A prolonged physical and social expulsion, based on criminal court decisions, of certain sections of the population may obstruct democratic consolidation in yet another way. It could drive the supporters of the previous regime into social and political isolation. This in turn could result in the creation of subcultures and networks, which in the long run will become hostile to democracy. Criminal prosecutions may also preclude the reconciliation needed for a democracy to function. The need for closing the ranks is one of the main arguments of advocates of amnesty laws.46 The viability of a young democracy also depends on its efficacy. A far-reaching purge of administrative and managerial manpower can be counterproductive as it endangers the badly needed political and economic development of the country. Prudent considerations of the problematic consequences of dismissals from civil service jobs are heard in East and Central Europe today.47 When a bill on lustration was discussed in the Bulgarian Parliament, Virginia Veltcheva, one of those working on the draft, said: "It is unthinkable that the law should directly affect more than one hundred people. We cannot deprive ourselves of specialists, though they may have worked for the previous regime."48 Poland's president Walesa has repeatedly opposed lustration with the argument that ".it would deny skilled professionals a chance to contribute to the nation's reconstruction."49 42. See Huntington, Third Wave 214. This author also quotes president Sanguinetti of Uruguay who said: "What is more just --to consolidate the peace of a country where human rights are guaranteed today or to seek retroactive justice that could compromise that peace?." See also Benomar, "Justice after Transitions" 4 Journal of Democracy 3, 14 (1993). Talking of the lustration project in his country, Vaclav Havel warns that it ".is a time bomb that could go off at any moment and ruin the social climate." ("Justice or Revenge?," 4 Journal of Democracy 20, 22, 1993). 43. D. Orentlicher, "Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime," 100 The Yale Law Review 2537, 2545 (1991). 44. For a discussion of the dilemma as it presented itself in Latin America and Southern Europe, see G. O'Donnell & P. Schmitter, Tentative Conclusions about Uncertain Democracies 28-32 (Baltimore: The Johns Hopkins University Press, 1986) ("O'Donnell & Schmitter, Tentative Conclusions"). The next continent where the problem will manifest itself is Africa. South Africa and Ethiopia, among others, will have to decide how to settle a past account without upsetting a present transition. A general introduction to this issue can be found in A. Mazrui, "Conflict Resolution and Social Justice in the Africa of Tomorrow: In Search of New Institutions," 127-128 Présence Africaine 308-328 (1983) and Towards Containing Conflict in Africa: Methods, Mechanisms and Values, paper presented at the Organization of African Unity workshop on conflict management in Africa, Addis Ababa, May 1993. 45. T. Rosenberg in Boraine, Dealing at 66 (cited in note 10). 46. See Uruguayan President Sanguinetti's justification of an amnesty law pardoning abuses of a previous military regime: "The Uruguayan government has decided to take measures of magnanimity or clemency using a mechanism provided for in the Constitution of the Republic. The 12 years of dictatorship have left scars which will need a long time to heal and it is good to begin to do so. The country needs reconciliation to face a difficult but promising future." (cited by D. Orentlicher, "Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime," 100 The Yale Law Review 2545. The same argument has been used by South African President Mandela in defense of his amnesty proposals. 47. Offe, 33 Archives Européennes de Sociology at 198. This author also noted that East Germany is special in this regard ".as it can afford the replacement of large numbers of former officials and professionals given the supply of such personnel of at least equal skills than can be imported from the West.". 48. Cited in V. Yankova, "Democracy's First Steps," 5 East European Reporter 44, 44 (1992). Yankova, a Bulgarian journalist, adds: ".those demanding purification of public life have no idea of the social cataclysm they might be 49. L. Vinton, "Walesa and the Collaboration Issue,", 2 RFE/RL Research Report 10, 16 (5 February 1993). Furthermore Pavel Dostal, a member of the Czechoslovak Federal Assembly, in a comment on the October, 1991 Czechoslovak Screening Act saw the fate of the communist administrative and managerial elites as follows: "Providing we are not blind with hatred, we must incorporate these people, since among them are specialists and experts whom we will need if we really want to join Europe."50 Meeting ethical requirements and political constraints Dealing with the past is an inescapable task for new democratic regimes. Successor elites may be put off by the many delicate and explosive aspects of such assignment. But there is no way out. Choices must be made, even if each alternative presents grave problems. O'Donnell and Schmitter suggest that, in the case of Latin-America, this issue remains an insoluble problem. But the worst solution here, they write, would be to try to ignore the problem; the costs of such cover-up are simply too big.51 And as J. Zalaquett warns: ".leaders should never forget that the lack of political pressure to put these issues on the agenda does not mean that they are not boiling underground, waiting to erupt. They will always come back to haunt you. It would be political blindness to ignore the fact that examples of this abound world-wide."52 The time factor is important too: ".if issues about the past are not dealt with soon after a transition, they can go into a hiatus for six months, a year, even two years before returning in perverse forms. In Poland certain issues were not dealt with at the outset and there was subsequently a situation in which the Minister of the Interior started dumping the political equivalent of toxic waste into the system. The message is: Be careful. Just because things look all right does not necessarily mean that they are."53 A major problem for decision-makers is that some of the arguments in the debate on pardon vs. punish are very contradictory. As was said earlier in this paper, reconciliation is seen as a crucial prerequisite for the consolidation of a young democracy. For some analysts reconciliation can only be produced if the successor elites refrain from prosecuting the officials of the previous regime. Others, however, argue that impunity precludes the coming of reconciliation.54 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 counter-revolution 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 re-established democracy depends on prosecutions as the ultimate insurance against future state-sponsored abuses. Most political leaders, journalists and academics who discuss the pardon vs. 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, torturing cost-benefit analysis. All costs and gains, political ánd moral, of pardoning and punishing must be balanced against each other.55 The need to meet ethical requirements 50. P. Dostal, "Are they colour-blind?," 5 East European Reporter 43, 43 (1992). 51. O'Donnell & Schmitter, Tentative Conclusions 30 (as cited in note 44). 52. J. Zalaquett in Boraine, Dealing at 14-15. 53. L. Wechsler in Boraine, Dealing at 58. 54. See T. Rosenberg: "If the victims in a society do not feel that their suffering has been acknowledged, then they (.) are not ready to put the past behind them. If they know that the horrible crimes carried out in secret will always remain buried, (.) then they are not ready for reconciliation." This author adds: "The kind of reconciliation that lets bygones be bygones is not true reconciliation. It is reconciliation at gunpoint and should not be confused with the real thing." 'in Boraine, Dealing at 66-67). 55. Successor elites have demonstrated the tendency to emphasize the political costs of criminal prosecutions. J. Mendez, general counsel of Human Rights Watch, has criticized this inclination for its defeatism: "While we have to recognise the political limitations to prosecutions, we must also not take them for granted. We should not provide a and political constraints also rises inside each of the two options. 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 inward conflict which took place in the hearts 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 Pétain and the agents of Germany." But at the same time ".side by side with this passionate longing was the attachment of résistants to those principles of justice and equity which distinguished them from the rulers of Nazi Germany and Vichy France."56 Tipping the balance in favor of politics and the thirst for retribution, as was the case in postwar Belgium, can lead to political vengeance and partisan trials.57 Undiluted respect for the rule of law may, on the other hand, considerably weaken the political and moral effects of the purge. A government's choice is a function of a number of circumstances. Before I discuss these contextual factors (in part III), I first compare the strategies the successor regimes developed in Belgium, France and Holland on the one hand, and Czechoslovakia, Hungary and Poland on the other.58
II. Different policies

Dealing with the past in Czechoslovakia, Hungary and Poland today contrasts sharply with
what happened fifty years ago in Belgium, France and Holland.59 The differences relate to
the size and scope of the operation, the range of the sanctions which accompany it and the
degree of respect for the rule of law. 1. A striking similarity in the policies of Belgium, France and Holland was the outspoken desire, especially evident in the months before and after the Liberation, to expel the way out for successor democratic governments and should not simply assume that they are inherently powerless." (in Boraine, Dealing at 91). T. Rosenberg warns us that the ".desire for maintaining short-term equilibrium can have great long-term costs. It can damage the legal system, the rule of law and future civilian control of security forces." (in Boraine, Dealing at 68). 56. P. Novick, Resistance versus Vichy 140 (cited in note 28). 57. "Partisan trials ". proceed according to a fully political agenda with only a façade of legality (although the legalism might be turgid." (R. Christenson, Political Trials: Gordian Knots in the Law 10-11, New Brunswick: Transaction Books, 1986). For a description of the partisan aspects of post-transition justice in Belgium, see L. Huyse & S. Dhondt, La répression des collaborations 1942-1952. Un passé toujours présent (Brussels: Crisp, 1993) ("Huyse, La répression"). 58. Data on post-war purges in Belgium are based on L. Huyse & S. Dhondt, La répression. Important publications on France are: Novick, Resistance versus Vichy and H. Rousso, Le syndrome de Vichy de 1944 à nos jours (Paris: Le Seuil, 1990). For Holland see G. Hirschfeld, Nazi Rule and Dutch Collaboration: The Netherlands and German Occupation, 1940-1945 (Oxford: Berg, 1988), A. Belinfante, In plaats van (cited in note 41) and P. Romijn, Snel, streng en rechtvaardig. Politiek beleid inzake de bestraffing en reclassering van 'foute' Nederlanders. 1945-1955 (Swift, Severe and Fair Justice. The Problem of Collaboration and Collaborators in Dutch Politics. 1945-1955) (Amsterdam: De Haan, 1989). A more general overview of lustration after World War II is K.D. Henke & H. Woller, eds., Politische Säuberung in Europa. Die Abrechnung mit Faschismus und Kollaboration nach dem Zweiten Weltkrieg (München: Deutscher Taschenbuch Verlag, 1991). Literature on backward-looking justice in postcommunist Eastern and Central Europe is scarce. Articles have been found in the Eastern European Constitutional Review, in the Journal of Democracy, in the East European Reporter, in East European Politics and Societies, in the Eastern Europe Newsletter, in Carolina, Students' E-mail News from the Czech Republic and in Report on Eastern Europe (since January 1992 RFE/RL Research Report; both are publications of Radio Free Europe 59. The picture of post-totalitarian Europe would, with regard to the purge of former communists, considerably change if East Germany was included. There, large numbers of supporters of the old regime have been removed from the civil service, the judiciary, the Bar and the universities. But, as noted in our introductory remarks, East- Germany is a case apart which needs a specific approach. There are, on the other hand, good reasons to distinguish between Belgium, France and Holland. Their policies in handling collaborators diverged in more than one aspect. But the many similarities allow us to treat them as belonging to one single category. collaborators from their societies. A much heard expression in political speeches was that "there was no place left for those who had betrayed their country." The political risks which such en masse expulsion could in the long run provoke were not seriously taken into account. A second resemblance lies in the tendency -especially in the early stages of the operation- to judge the population under absolute standards of good and bad. Sensitivity to the many shades of grey between 'black' and 'white' was very low indeed. The result of those policy choices was that the purge affected extremely large numbers of citizens and that severe sanctions hit them. The number of unpatriotic citizens who suffered punishment in one or another form was approximately 100,000 in Belgium, 110,000 in Holland and 130,000 in France. The figure is particularly high in the case of the first two countries, as they are relatively small (Belgium had, in 1945, a population of 8.3 million, Holland of 8.8 million).60 The number of death penalties was 6763 in France, 2940 in Belgium and 152 in Holland. Those who received prison sentences numbered approximately 53,000 in Belgium, 49,000 in Holland and 40,000 in France. However light the sentence, imprisonment was almost always accompanied by other sanctions: a fine, confiscation of personal goods, police supervision after the end of the prison term, the obligation to reside in a specific town. In Belgium, damages had to be paid to the state, out of the marital goods or from the heirs if necessary. Tens of thousands of Dutchmen suffered the loss of nationality. These countries also introduced some form of 'national indignity' which implied a series of civic disqualifications and a prohibition on some kinds of professional activity.61 By contrast, post-1989 events in (ex-)Czechoslovakia, Hungary and Poland have run a very diferent course. The velvet revolutions have not been followed by a massive physical and/or social removal of the exponents of the old order. Calls for a permanent expulsion of compromised members of the society are almost absent. To be noted also is the explicit prise de conscience with regard to the many nuances which must be taken into consideration when judging the pre-1989 behavior of the population. As a consequence much fewer numbers of men and women have been affected by criminal charges or other sanctions than was the case in Belgium, France and Holland after World War II. Prison sentences are very rare. Disqualifications, if applied, are limited in scope and in time. Poland is still in the process of preparing a lustration law. A draft law has been on the Sejm's agenda for four years without leading to a final version. The Hungarian Parliament voted a screening legislation just before the elections of May 1994, four years after a first draft bill was submitted. The 'Act on Controlling Certain Persons in Important Positions' will cover, according to certain estimates, ten to twelve thousand individuals. The screening will be conducted by committees, each composed by three judges appointed by Parliament. In the case a committee finds corroborative evidence, the person in question will be asked to resign within 30 days.62 The Hungarian government also drafted two laws which make prosecution of communist officials possible. A Justice Ministry official involved in preparing this legislation estimated that fewer than 100 people might be held responsible for crimes related to the crushing of the 1956-uprising.63 Czechoslovakia could have become an exception. This country had a relatively severe lustration law between October 1991 and November 1992. High functionaries of the communist party, state security agents, informers, together with members of the People's Militia and students of some schools of higher learning were to be automatically banned from assuming certain specified posts for a period of five years. Figures on the size of the population it could have covered vary. One observer wrote: "The law (.) could affect hundreds of thousands of 60. France, on the other hand, witnessed a much higher number of extrajudicial killings: some 9000 men and women were executed outside the legal process. The parallel figures for Belgium and Holland are approximately 35 61. Novick, Resistance versus Vichy 211 (cited in note 28). 62. See 3 East European Constitutional Review 2, 10-11 (1994). 63. Cited in E. Oltay, "Hungary Attempts to Deal With Its Past," RFE/RL Research Report 6, 7 (30 April 1993). people."64 Vaclav Benda, chairman of the Christian Democratic Party and a supporter of the law, was more specific: there are, he said, between 60,000 and 80,000 former agents of state security; former members of the Militia total about the same and those who sat on purge committees after the 1968-revolt amount to approximately 50,000. He added that not fewer than 300,000 people might come under the jurisdiction of the legislation.65 Such figures - ex-Czechoslovakia having a population which is comparable in numbers to that of the Low Countries- predicted a purge operation the scope of which could have gone even beyond what happened in post-war Belgium and Holland. It is, however, extremely difficult to judge the real impact of the Czechoslovakian Screening Act. In its original form it lasted only for one year. 2. In their confrontation with the problem of how to choose between full respect for the rule of law and the requirements of a firm and swift purge, the political and judicial elites of Belgium, France and Holland gave priority to firmness and efficacy. Force majeure and the intense time pressures have been invoked to justify dubious procedural techniques. Retroactive criminal legislation was introduced through interpretive modifications of prewar laws. Shortly after the liberation of the country the Belgian version of the Supreme Court (Hof van Cassatie) ruled that all the legislative measures taken by the government-in-exile had full legality, including the law which in December 1942 had changed the scope of the criminal legislation on collaboration. The argument was that the government had not created new rules, but had only interpreted an existing body of penal arrangements. In France, Novick writes, despite ".the breadth of the existing statutes, and the desire to avoid retroactivity, there was general agreement concerning the need to 'interpret' some of the provisions of the prewar Code. Accordingly, legislation was enacted by the Comité Français de la Libération Nationale 'to facilitate the Court's interpretation of <the prewar> texts'."66 In Holland retroactivity was clearly present in the reintroduction of capital punishment. The three countries also espoused the principle of collective guilt through the disqualification of people for their membership in collaborationist movements. In addition, curtailing of the right of defence took place through restrictions of access to appeal courts and of contacts between lawyers and their clients and in the form of arbitrary arrests and of prolonged internments.67 Lay-judges participated in the activities of the tribunals which tried the collaborators. France included members of the resistance movements in two of the newly created key-institutions of the purge, the Cours de Justice and the Chambres Civiques. The Dutch set up some thirty-five Special Courts, with two of the five judges being army officers; for the lesser cases of collaboration, Tribunals were created which were manned by two patriotic citizens and one professional judge. The Belgian government-in-exile and its immediate successors turned to the already existing military courts and made them competent for the trial of collaborators. Three of the five members Rule-of-law considerations have received a much more marked attention in former Czechoslovakia, Hungary and Poland. This has been clearly visible in the public debates which accompanied the drafting of screening acts and the eventual lifting of the statute of limitations. The latter problem has been vigorously debated in Hungary where a law, passed on November 4 1991, lifted the 30-year statute of limitation for offences of treason, 64. J. Pehe, "Parliament Passes Law on Vetting Officials," Report on Eastern Europe 4, 4 (25 October 1991). 65. V. Benda in an interview in East European Reporter 42 (March-April 1992). 66. Novick, Resistance versus Vichy 143. 67. These infringements were particularly numerous in the case of The Netherlands. See A. Belinfante, In plaats van bijltjesdag. De geschiedenis van de Bijzondere Rechtspleging na de Tweede Wereldoorlog 105-108 (The History of the Purge in Post-war Holland) (Assen: Van Gorcum, 1978) ("Belinfante, In plaats van"). 68. In May 1944, three months before the Liberation, the Belgian government-in-exile decided to revoke its decision to include members of the resistance in the military courts. It did so after vigorous protests by the auditeur-général (the magistrate in charge of the military court system). voluntary manslaughter and fatal injury committed between December 21, 1944 and May 2, 1990, provided that omission of prosecution by the communist authorities was based on political reasons. The law was particularly aimed at making prosecution possible against the men who were involved in the bloody suppression of the 1956 uprising. Opposition against the law was heavy, both in political and academic cercles. Legal scholars, who fought the law, based their reasoning on such concepts as legal certainty, non-retroactivity of criminal law and on the new Hungarian constitution and found no reason to lift the time-based limitation on the state's right to punish.69 After the bill was passed in Parliament the Hungarian President asked the constitutional court to rule on the law's constitutionality before it was promulgated. The court rescinded the law, citing eight specific counts of unconstitutionality.70 But in February 1993, the parliament voted two new laws, one dealing with crimes committed immediately after the 1956-uprising and another with crimes against humanity, committed by communist leaders between 1944 and 1989. In both cases the legislation stipulated that the courts must decide whether the statute of limitations applies in a specific, individual case. The Hungarian President then again called upon the constitutional court to review the new laws. It ruled that only the article, which refers to war crimes and crimes against humanity as defined by the Geneva Convention, was not unconstitutional and that only in that case retroactivity had to be accepted.71 In Czechoslovakia the so-called lustration law of October 1991 introduced disqualification on a group basis. The law was criticized because it ascribed collective guilt and because it did not include a clause allowing the disqualified people to seek redress before an independent appeals commission.72 Opponents of the lustration procedures also blamed the fact that the files of the State Security Agency (StB) were used as the principal evidence in determining who had collaborated. These files, they said, were totally unreliable. Tens of thousands of names of "candidates for collaboration" were circulated, causing great damage to individuals and organizations, without delivering hard proof.73 After the dissolution of the country, however, the Czech parliament voted a new, and much more restrictive law. In Slovakia too lustration has been slowed down considerably. Respect for the rule of law also shows in the prominent role the constitutional courts have had in reviewing the constitutionality of recent legislation on communist crimes. The Czechoslovakian Constitutional Court has asked to jettison some parts of the Screening Act. In Hungary, the Court declared the legislation on lifting the statute of limitations unconstitutional. In Poland, the Constitutional Tribunal suspended the implementation of the Sejm's resolution of 19 June 1992 that the lists of secret services' collaborators should be revealed. Post-war Belgium, France and Holland reacted to the challenges which post- authoritarian justice brings with it, in a very straightforward way: full priority was given to what made a severe and swift purge possible, even if this involved neglecting rule of law principles and political risks. By contrast, post-communist countries like (ex- )Czechoslovakia, Hungary and Poland tend much more to a balancing act. This differences call for a explanatory search. That is the subject of the next section. 69. See the Professional Opinion, prepared for the Prime Minister by six professors of the Lorand Eötvös University's Law Faculty (document sent to the office of the Prime Minister on August 12, 1991 and presented at a Prague Conference on Restitution and Retribution - December 1991). 70. See the interview with Laszlo Solyom, president of the constitutional court, in the East European Reporter (March-April 1992). Presented with the objection that the court's decision was irrespective of justice for the masses, Solyom answered: "Taking into account the public mood is a political task, not one for the Constitutional Court." 71. See 3 East European Constitutional Review 10 (1994). 72. P. Bren, 2 RFE/RL Research Report at 17 cited in note 22). See also J. Pehe, "Toward the Rule of Law: Czechoslovakia," 1 RFE/RL Research Report 10 (3 July 1992). 73. For a general discussion of the reliability of state security files in judging prior regimes see the report of the Budapest meeting (October 30-November 1, 1992) of the Charter 77 Foundation's Project on Justice in Times of Transition. The Kafka-like dimensions of lustration based on state security files are well described in L. Wechsler, "The Velvet Purge: The Trials of Jan Kavan," The New Yorker 66-96 (October 19, 1992).
III. How to account for policy differences?
In their confrontation with the many questions and dilemmas which dealing with the past poses, political and judicial elites have a limited freedom of action. Several factors restrict the number of politico-legal strategies which are available to them. I will discuss three of these contextual circumstances by comparing their impact on Belgium, France and Holland on the one hand, Czechoslovakia, Hungary and Poland on the other. The legacy of the past is the first variable. There is, secondly, the international context at the time of the transition. The balance of power between the forces of the old order and the new elites is the third factor.74 The legacy of the past Authoritarian or totalitarian regimes differ in their genesis, the nature of their crimes and in their course of life. The repressive order in ex-Czechoslovakia, Hungary and Poland was imported by domestic leaders under strong foreign pressure.75 It remained in place for some forty years. In Belgium, France and Holland the totalitarian model was imposed by way of a military occupation. It only lasted for four years. Each of these elements partially explains the tactics and strategies the new elites take in dealing with the past. 1. Communist Czechoslovakia, Hungary and Poland are examples of what the French call une collaboration d'Etat: a state apparatus of a domestic origin accepting an imported or imposed order. Judging such a regime is an intricate assignment for the successor elites. It permeates large segments of the political and civil society, both in terms of the institutions and of the population. A full purge of the country would cause, in the words of C. Offe, ".a veritable witch-hunt, thus creating permanent and bitter cleavages rather than healing the wounds the past has left behind".76 The judiciary too has been, wholly or in part, closely associated with the outgoing regime. Thoroughly cleansing this corps would most likely cripple the criminal justice system. In addition, the nature of the totalitarian system in the countries of Eastern and Central Europe tended to diffuse responsibility for abuses. "Hundreds of thousands of people, A. Neier writes, were implicated in the administration of repression and similar numbers were victims of repression. It was often the case that people simultaneously implemented and were victims of repression."77 All these circumstances may be called upon to explain why dealing with the past in Eastern and 74. There are, outside this list of three, other factors which can be of considerable importance. The way a community deals with a repressive past is intimately linked with some of its more general mores and customs. One of these relates to the structure and content of the collective memory. A society can demonstrate a sort of natural inclination to forgive and forget the injustice that was inflicted to it in the past by domestic or foreign forces. In other instances societies have displayed a strong aversion to let bygones be bygones. African countries are said to belong to the first category. Mazrui in his analysis of the transitions in Kenya, Zimbabwe and South Africa writes that the memory of hate of Africans is remarkably short. (A. Mazrui, Towards Containing Conflict in Africa: Methods, Mechanisms and Values, paper presented ad the Organization of African Unity workshop on Conflict Management in Africa, Addis Ababa, May 1993) Europeans are different. The case of ex-Yougoslavia is only one, be it powerful demonstration. Policy choices also depend on the origin of politically based crimes under the previous regime. Sometimes, gross violations of human rights have been committed not only by the leaders of the repressive order but by its opponents too. If that is the case the successor elites may be ready to accept some form of (negotiated) amnesty for both sides or they may restrict their looking at the past to the establishment of a truth commission. These two factors, the length of the memory of hate and the origin of human rights abuses, have a very limited value for our study of postwar Belgium, France, Holland and the three postcommunist countries. But as soon as one extends the comparative analysis of transitional justice to Latin America en Africa, these elements become very relevant. 75. Hungary and Czechoslovakia could be called, in some ways and during some periods, occupied countries. That was the case after the 1956-invasion of Soviet troops in Hungary and of the Warsaw-pact armies in 1968- 76. C. Offe, 33 Archives Européennes de Sociologie at 197 (cited in note 20). 77. A. Neier in Boraine, Dealing at 4 (cited in note 10). Central Europe is slow in its operation and ambiguous in its content. A totally different situation was created in postwar Belgium and Holland.78 The authoritarian regime was imposed after a military defeat. Collaboration with the foreign invader was the work of movements and individuals. The parliament, the judiciary and many other institutions did not join forces with the Germans. Exile governments contested the constitutionality of the occupation regime. Facing the collaborators -however numerous they might have been- thus stood a state apparatus which was more or less intact. In particular, a judiciary loyal to the pre-war regime was available at the time of the Liberation. The effect of all this was that post-transition justice developed on the basis of a clear-cut division between good and bad, between friend and foe. 2. Many collaborators in Belgium, France and Holland were responsible or co-responsible for a wide array of serious crimes: tracking down Jews and resistants, killing hostages, serving in the German army, producing arms for the occupier. The severe reaction of the population, the political class and the judiciary towards them is therefore understandable, especially because the memory of these abuses was very vivid at the time of the Liberation. The crimes of the communists, on the other hand, are of a distinct kind. These regimes were extremely repressive, especially before 1970. The passage of time may have blurred the memories of what happened. In addition, during the last two decades the violence was more psychological then physical in nature. "The main instruments of control over society, W. Osiatynski (a constitutional lawyer associated with the university of Warsaw) says, switched from terror and repression to primarily economic control, control of the media, control of association and of rights."79 This may have led to a more moderate attitude towards those held responsible. Moreover, the communist regimes were not in all aspects viewed and perceived as completely negative. Their policy with respect to education and health care, for example, was appreciated by many. Antecedent regimes thus differ in their actual performances, but so also do the perceptions and interpretations of them. 3. A most important feature of an authoritarian regime is its duration.80 The time factor counts in a variety of ways. If the life of a criminal regime is short questions with regard to the statute of limitations (and the hesitation they stir up) are unlikely to arise. A second consequence relates to the survival of pre-totalitarian, viz. democratic structures. This is clearly visible in the case of Belgium, France and Holland. Pre-war institutions and their personnel were shattered, but not eliminated. They were, once the war was over, revived in a very fast way. Moreover, four years of occupation and collaboration were insufficient for the legal culture and codes of the authoritarian regime to take roots. All these circumstances may, together with other factors, explain the fast execution of prosecutions. The communist regimes in Central and Eastern Europe lasted for forty years. As we have seen, judging their abuses makes the lifting of the statute of limitations almost inevitable and the production of firm proof troublesome. This leads to discussion and debate and slows down decision-making on crime and punishment. In addition, almost none of the institutions of the pre-communist past survived. The legal culture, created by communism, was firmly established and has proven to be hard to eradicate. Another aspect of the long length of the communist regimes is that complicity or, at least, accommodation pervaded most of the population and did so for several generations. Communist society was gradually accepted because of the workings of socialization, isolation and a system of 78. Wartime France is a case apart. Its Vichy regime belongs to the category of state collaborations. This may partially explain why post-transitional justice in France has been relatively less extensive than in Belgium and 79. W. Osiatynski in Boraine, Dealing at 60. 80. See H. Rousso, "Säuberungen gestern und heute," (Yesterday and Today Lustration) Transit. Europäische Revue rewards and punishments.81 The result is that drawing the line between good and bad citizens became extremely difficult. 4. The legacy of the past not only resides in the attributes of the pre-democratic order. It is also embedded in the experiences a society has had with the various strategies of dealing with a previous regime. In the case of Belgium, the perception of World War II collaboration was affected by the memories of what happened in the aftermath of World War I. Many of the Belgians who between 1914 and 1918 collaborated with the German occupier and were granted amnesty afterwards repeated the offence in 1940. In the eyes of many of their co-citizens leniency had led to recidivism. This circumstance made understanding and clemency for the collaborators of 1940-1944 less probable. Such a negative legacy of the pre-authoritarian past is absent in the post-communist countries. They have, on the contrary, had the frightening experience of the political trials of the 1950's. It looks plausible to hypothesize that this episode in the history of their countries has made the post-1989 elites somewhat allergic to post-transition prosecutions. International context at the time of the transition Retrospective justice in Belgium, France and Holland came at an age when supranational codes with respect to human rights and the rule of law were either weak or absent. This has changed considerably since then. The Council of Europe published its Convention for the protection of human rights and fundamental freedoms in 1950. Later came the International Convention on Civil and Political Rights and the Helsinki Accords. Surveillance and monitoring bodies, ranging from supranational courts to the International Helsinki Committee, have become operational.82 This new legal framework has been and still is of great importance in decisions dealing with the past in ex-Czechoslovakia, Hungary and Poland. Czechoslovakia's Screening Act has been critized by three international agencies: the Council of Europe, the International Helsinki Committee and, finally, the International Labor Organization (because the law violated article 111 of the ILO convention on discrimination in the workplace).83 It is not clear if and how these criticisms have affected the further course of lustration in this country, but they certainly have been used in the domestic debate by the opponents of the law. More significant is that, apart from any reference to international censure, governments, parties, judges and legal scholars in Czechoslovakia, Hungary and Poland have regularly invoked international conventions on human rights when preparing or reviewing criminal or lustration laws. In Poland, for example, a local Helsinki Committee has been set up and its proposals for procedural guidelines have received great attention in the debate on screening.84 The Hungarian president has asked the constitutional court to review two articles of the February 1993 law (on the lifting of the statute of limitations) for their conformity with article 7.1 of the European Convention of Human Rights and with article 15.1 of the International Convention on Civil and Political Rights. A strong motive for not neglecting the signals coming from abroad is the possibility that violations of rule of law codes might compromise the country's membership of the Council of Europe.85 81. I am indebted to one of the anonymous referees for this argument. 82. For a general introduction to the role of international organizations in transitions to democracy, see the Journal of Democracy's special issue on the subject (vol. 4, 3, 1993). 83. P. Bren, RFE/RL Research Report at 21 (cited in note 22). 84. See A. Rzeplinski, East European Constitutional Review at 33 (as cited in note 33). 85. In the post-communist countries international supervision of transitional justice leads to procedural guarantees for those who are subjected to prosecution and lustration. In other circumstances, such as in transitions to democracy in Latin America and in Africa, the international legal environment can also secure that grave violations of human rights do not remain unchallenged. Various ways lay open here. One is illustrated by the United States Torture Victim Protection Act, in casu national legislation which offers victims of oppressive regimes the legal right to sue their torturers for civil damages before US courts. (For a discussion of this development see R.F. Drinan & Mode of transition and the resulting balance of power Many analysts argue that, among the factors affecting the direction of post-authoritarian justice, the determining one is the balance of power between the forces of the past and the successor elites at the time of the transition. It lies behind many of the differences between Belgium, France and Holland on the one hand and ex-Czechoslovakia, Hungary and Poland on the other. Huntington has introduced a typology of power relations at the time the transition towards democracy starts.86 A first case involves 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, secondly, 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."87 Ex-Czechoslovakia and some of the other post-communist 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 D. Rustow's review of Huntington's book, we prefer the plain words overthrow, reform and compromise as alternatives to Huntington's terminology.88 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 the case of Belgium, France and Holland the overthrow of the collaborating movements and individuals was mainly planned by governments-in-exile. They also devised the legal instruments with which the collaborators of the Germans would be judged and punished. Those governments were, because of their being outside their country, considerably handicapped by a lack of information and of a realistic assessment of the situation in their homeland. One source of misjudgment was the idéé fixe that absolute standards of good and bad could be used in sorting out the population. The result was that legislation was manufactured which made severe prosecutions and punishment almost inevitable. Events in ex-Czechoslovakia, Hungary and Poland ran a different course. Purge legislation was and is being put together after the transition and in a continuous dialogue between government, parliament, constitutional court and other societal groups. This process leaves ample room for compromise and bargaining on the form and content of dealing with the past. When a regime ends violently because of a war against an occupying army or a civil war, anomia is inescapable. That is what happened just before, during and shortly after the final stage of World War II. It resulted in a mass of summary executions, such as in France, and/or abuses in the camps where suspected collaborators were interned (as was especially the case in Holland) and/or wild screening. In ex-Czechoslovakia, Hungary and T.T. Kuo, "Putting the World's Oppressors on Trial: The Torture Victim Protection Act," 15 Human Rights Quarterly 605, 1993.) A second opportunity lies in international law requiring punishment of human rights crimes. Both the Genocide Convention and the Torture Convention are examples of such transnational legislation. D. Orentlicher writes that mobilization of international law in dealing with the past has two advantages: it can provide a counterweight to pressure from the elites of the previous order seeking impunity and, further, ".when prosecutions are undertaken pursuant to international law, they are less likely to be perceived --and opposed-- as political revanchism." (D. Orentlicher, "Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime," 100 The Yale Law Journal 2537, 2549, 1991.) Such supranational legal obligations can be implemented by domestic or international tribunals. In some cases only the latter procedure can guarantee that 'justice be done'. That is precisely the reason why the UN Security Council has created the International Criminal Tribunal for the former Yugoslavia and intends to amend the statute of this tribunal so that it can consider crimes under international law committed during the armed conflict in Rwanda. 86. Huntington, Third Wave 114 (cited in note 1). 88. D. Rustow, "The Surging Tide of Democracy," 3 Journal of Democracy 119, 119. Poland, where the communist regime and the opposition compromised in tracing the routes the country had to take, the twilight zone between old and new was of a very different character. Nightmare scenarios involving brutal witchhunts did not have a chance. But probably the most important consequence of the mode of transition is the density of the political constraints it generates. The widest scope for prosecutions and punishment arises in the case of an overthrow. Almost no political limits exist. Full priority can be given to the thirst for justice and retribution. A totally different situation comes up if the transition is based on reform or compromise. In that case the forces of the previous order have not lost all power and control. They are to a certain degree able to dictate the terms of the transition. The new elites have only limited options. They may be forced to grant the outgoing authorities a safe passage in return for their total or partial abdication. The rationale for exchanging criminal prosecution and severe lustration for a policy of forgiveness is the need to avoid confrontation. The successor governments and their democracy are too vulnerable to discard clemency. K. Asmal, chairman of the ANC-commission on reconciliation in South Africa, has summarized the differences between the various types of transition by saying that the postwar policies with regard to the repressive past rested on a material condition which is absent in most of the transitions of the 1980's and 1990's: "The war criminals who were brought to trial did not lose power through political means but through a complete military defeat. The victors did not have to worry about the balance of forces where the military, economic and state power of the losers was largely left untouched." The new democracies of recent times, in contrast to the victorious regimes in Belgium, France and Holland, have to grapple with this crucial issue: how to settle a past account without upsetting the present transition.89
Many of the policy suggestions, mentioned in part I, depart from the premise that post-authoritarian elites can actually make choices. However, the first lesson our comparative analysis of Belgium, France and Holland and the three postcommunist countries has given us is that the actions of such elites is a function of the circumstances of the passage to democracy. The second conclusion is that there are no miracle solutions to the question of how to deal with a repressive past. Postwar Belgium, France and Holland had the widest opportunities to prosecute and punish. Now, half a century has gone since these countries tried to free their societies from the legacy of the German occupation. Surprisingly, the passage of time has not fully exorcised the ghosts of this past. Collaboration and the purge that followed still haunt the nation's collective memory. In Holland, the emotion appears like malaria does: years of silence alternate with periods of high tension. Belgium is a case of chronic fever. Discussions on what happened during and shortly after the war are never far away. In France this element of the past is, according to historian H. Rousso, the source of an almost incurable neurosis.90 These three cases demonstrate how consequential transitional justice as a political assignment is. They also teach us that the swift and rather severe purge option the Belgian, French and Dutch post-war elites choose does not guarantee an unproblematic relationship with the past. They deliver firm proof that, in the words of J. Zalaquett, ".complete victors generally hand out a tremendous amount of punishment, but not necessarily justice."91 Serious procedural irregularities occurred. Today many men and women view the trials of the late 1940's as a contravention of the most 89. K. Asmal, "Coping with the Past," Mayibuye 27 (February, 1994). 90. H. Rousso, Le syndrome de Vichy de 1944 à nos jours (Paris: Le Seuil, 1990). 91. J. Zalaquett in Boraine, Dealing at 103. fundamental principles of the Rechtsstaat. They want to keep the memory alive as a warning against new legal transgressions. Political constraints considerably reduce the freedom of action of the post- communist elites. Their dealing with the past is slow in its operation and ambiguous in its content. The positive side of such policy is that, when it comes to prosecutions and lustration, respect for the rule of law is more or less guaranteed. But, on the other hand, too much forgiveness undermines the respect for the law, induces the anger of those who suffered, is an impediment to an authentic reconciliation and an invitation to recidivism. That is the reason why most analysts argue that if the balance of forces at the time of the transition makes a negotiated mildness inevitable, a truth-telling operation with full exposure of the crimes of the former regime is the least unsatisfactory solution. As one Prague professor of law wrote: "We may eventually decide to offer amnesty to some or all of our former oppressors, but before we forgive, we should know what evil we are forgiving, and who caused it."92 "Memory, says R. Errera (member of the French Conseil d'Etat), is the ultimate form of justice."93 The truth is both retribution and deterrence. "Retrospectively, L. Wechsler in his book on settling accounts with torturers writes, the broadcasting of the truth to a certain extent redeems the suffering of the former victims. At least to a degree, it answers and honours the scream after all, it upends the torturer's boastful claim that no one will ever know. Prospectively, the broadcasting of truth has an effect that is at once more subtle and perhaps more momentous. For, (.) it is essential to the structure of torture that it take place in secret, in the dark, beyond considerations of shame and account. <The torturer> needs to be certain that no one will ever know; otherwise the entire premise of his own participation would quickly come into question." Telling the truth about the past undermines the mental foundation of future human rights abuses.94
Personal background

The major part of my research activities has been directed at the course the political
system in Belgium has taken since the 1960's. No observer of politics in this country can ignore the profound passions which the events of World War II have provoked and continue to provoke. One warbound phenomenon in particular, the trials of those who collaborated with the Germans, is still a very divisive topic on the political agenda. I have learned from the development in my own country how crucial, after a regime transition, the issue of dealing with the past is. It inspired me to broaden the scope of my research. I have studied first, from a comparative perspective, the postwar purges in Belgium, France and Holland. The next step was to include some of the post-1989 countries in Eastern and Central Europe. Presentation of my findings at academic workshops led to invitations to discuss the many delicate aspects of post-authoritarian justice in meetings with journalists, scholars and politicians in transitional societies such as South Africa and Ethiopia. The elites of young democracies have to face numerous and sometimes excruciating problems. They have to obtain legitimacy, produce political stability, give their countries economic impetus. But they must, at the same time, find an answer to the question of what to do with the crimes of the past and with those who committed them. My research has convinced me that there are no miracle solutions for this problem. Any policy choice has its advantages and disadvantages. The latter category of effects will inevitably haunt 92. V. Cepl (professor of law at Charles University in Prague), "Ritual Sacrifices,' 1 East European Constitutional 93. R. Errera, "Dilemmas of Justice," 1 East European Constitutional Review 22 (1992). 94. L. Wechsler, A Miracle, A Universe. Settling Accounts With Torturers 245-246 (New York: Pantheon Books, 1990). the future, as it did in Belgium. But I also believe that by far the worst solution is to try to ignore the problem.


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