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An Introduction to the Theoretical Problem of Post-Communist Justice with Comparative Observations Focusing on Poland
Institute on East Central Europe
March, 1997
While the dissolution of the communist empire in Central and Eastern Europe can be considered among the greatest historical events of the 20th century, it is hardly an exaggeration to claim that the events of 1989 created a set of problems equally historic in their magnitude. These problems have forced social scientists to re-examine not only the specific histories and conditions in Central and Eastern Europe, but the very foundations of industrial democratic society as well; in other words, it has compelled us to challenge our own paradigms about ourselves. What exactly is democracy? How do you 'build' a democracy? How do you 'create' a free market economy? Not the least important of these and other like questions involves our notions of law. What exactly does 'rule of law' mean? Or 'constitutionalism?' Or 'justice?' And how does one create them?
This essay is concerned with an issue directly related to these legal questions: post-communist justice. In other words, how can (or should) the nascent democracies in Central and Eastern Europe deal with the crimes and actions of their communist predecessors? Put another way, how can these countries balance their thirst for 'rule of law' and 'constitutionalism' with their quest for 'justice?'
In my effort to answer these questions, I will focus on the Polish case, but take relevant examples from the Nazi, Czech, East German, and Latin American cases where appropriate. I will begin by framing the debate with a discussion counter-posing the opinions of some Central European writers. Next I will examine the arguments for punishment, and address the most common objections to enacting post-transitional justice. Lastly, I apply the preceding discussion to three possibilities for pursuing post-communist justice -- traditional criminal and/or civil procedures, lustration, and truth commissions.
Framing the Debate: Rule of Law vs. Justice
Needless to say the debate over this question is fractious. Angry emotional arguments are rooted in simple moral precepts, while philosophic and legalistic arguments about the rule of law are cloaked in terms of tactical problems. Yet at the root of the different opinions is the simple question: Should these regimes punish their predecessors?
When Tadeusz Mazowiecki became Poland's first post-communist prime minister in 1989, he advocated that a "thick line should be drawn between the present and the past, and that competence and loyalty toward the new government should be the only criteria for evaluating public officials," as paraphrased approvingly by Adam Michnik. 1 Vaclav Havel followed suit, stating in his 1990 New Year's address, "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." 2 While their statements appeal to Christian forgiveness, upon closer examination both Michnik's and Havel's positions strike a much more utilitarian chord. When pushed, both of them fall back on the tactical problems of meting out punishment rather than on an innate aversion to punishment itself. Their position revolves around their concept of the "rule of law." Havel writes, "One should not leave the door open to unlawful revenge and hunt people down, because that would only be another version of what we had gotten rid of." 3 "Poland must become a normal country. And by normal, I mean a nation of laws," 4 Michnik recently stated. When asked about lustration, Michnik explains how unreliable the SB (secret police) files are, the propensity of the process to be used for political blackmail, and the problem of collective guilt, rather than any all-encompassing aversion to punishment.
On the other side of the debate are those who advocate an aggressive policy of decommunization. Their comments are infused with a tangible sense of anger, a desire for revenge for the wrongs committed under 40 years of communist rule. One of the first post-communist Czechoslovak ministers of the interior, Petruska Sustrová, writes, "The network of StB (secret police) collaborators is a cancer within Czechoslovak society. Is it so hard to understand that people want to know who these informers and agents are?" 5 Polish political analyst Jakub Karpi_ski concurs, writing, "There are certain social conditions, organizations and institutions that foster evil so strongly that they may themselves be described as morally evil." 6
Where Michnik and Havel rely heavily on "rule of law" qualifications in their effort to emphasize the immorality of communism, Karpi_ski almost refuses to acknowledge that a legal problem exists; "Revealing the names of collaborators is an infringement on the right to privacy. But if one wants to be a politician, one must reconcile oneself to the loss of privacy in matters of public importance." 7 In essence, both sides argue past each other. Michnik seems to be saying not that decommunization should not be embarked upon, but that it cannot be achieved fairly. Karpi_ski and Sustrova, on the other hand, argue not about whether or not it can be done fairly, but simply that it should be done. 8
The Case for Doing Something
The debate which engages Michnik, Havel, Karpi_ski, and Sustrová can be viewed as one between law and morals. On the one hand, Michnik and Havel argue that what is most important is the maintenance of coherence within the legal system as a whole. They make legal arguments to support this claim. In their opinion, aggressive punishment for communist crimes does not fit a conception of a nation based on law. However, in their attachment to the logistics of decommunization, they fail to address the moral basis of Karpi_ski and Sustrová's argument: crime deserves punishment.
Justice
The notion that crime deserves punishment is perhaps the most fundamental part of our conception of justice. According to Ruti Teitel, "Retribution theory justifies punishment on grounds that persons guilty of offenses deserve to be punished as a matter of justice. An absence of punishment implies a lack of justice." 9 The human rights literature indeed upholds this standard. Human Rights Watch's Policy Statement on Accountability for Past Abuses begins: "Human Rights Watch holds that those who commit gross abuses of human rights should be held accountable for their crimes." 10 Some commentators push this argument even further, positing that not only is prosecution moral and just, but that non-prosecution is equal to complicity. As Teitel summarizes, "[For some] the failure of the government to punish the crimes of a prior regime can be viewed as an extension of the prior regime's attempt to avoid responsibility for crimes. Under this argument, suppression of prosecution is itself a continuation of the earlier crime." 11
International Law
The protection from human rights abuses guaranteed under international law provides another argument for the prosecution of communist-era crimes by post-communist regimes. In fact, by the letter of the treaty obligations to which all of the nations of Central and Eastern Europe are a part, international law compels successor governments to prosecute individuals for the crimes of preceding regimes. According to Diane F. Orentlicher, "The Convention Against Torture imposes an unambiguous duty to prosecute the acts it defines as criminal." 12 Furthermore, while not compelling prosecution, Section VII of the Helsinki Final Act states:
The participating States will respect human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief. . . They will promote and encourage the effective exercise of civil, political, economic, social, cultural and other rights and freedoms.
Thus, according to their treaty obligations, European nations have a means to prosecute those not respecting the rights enumerated above.
The body of international law is also clear in that it governs not only the actions of states, but the actions of individuals as well. According to the Nuremberg Judgment, "International law imposes duties and liabilities upon individuals as well as upon states. Individuals can be punished for violations of international law." 13 Furthermore, as international law is theoretically superior to domestic law, it is "non-derogable; it cannot be legislated away under national laws." 14 Lastly, despite the use of international tribunals for the Nazi prosecutions and Bosnian and Rwandan trials, according to Orentlicher, "Modern law favors enforcement by courts of the state in which violations occur." 15
Realistically speaking, however, despite its advantages, it is unlikely that communist-era crimes will be prosecuted under the auspices of international law. A norm for punishment under international law is hardly explicit. 16 It does, however, provide emerging democracies with a statute which has been broken, a precedent for punishing individuals under that statute and a precedent for a trial in a domestic court, if not an obligation to prosecute them.
Democracy
The argument that prosecution and punishment under a policy of decommunization actually further legitimizes nascent democracies is the third major argument for embarking on such a policy. As Huyse summarizes, "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." 17 According to the advocates of this position, punishment would help democratic consolidation for two reasons. First, it would "establish faith in the new government. . . based on a respect for rights and the rule of law." 18 Second, it would eliminate people from the old regime who maintain positions of influence.
But justifying punishment strictly on these utilitarian grounds is tenuous. First of all, it is unclear whether an agressive policy of punishment would actually help or hinder democratic consolidation. Those who oppose such a policy deny that prosecutions will help new governments, due to the fragility of the regimes. Rather, they maintain, political motivations and difficulty in getting convictions will actually erode faith in democratic law, and in some countries actually threaten a return to full scale authoritarianism. However, except in those countries in which a return to authoritarianism is a real possibility, at some point it becomes difficult to separate the retributionist and utilitarian rationales. If a large portion of the population wants retribution, advancing the strictly retributionist argument that "crime deserves punishment" becomes strangely utilitarian. Therefore, in the end, arguments about democratic consolidation either are indeterminate, or blend with traditional retribution and lean toward punishment.
To conclude, if we abrogate Michnik and Havel's reservations to the tactical, or logistical, question of how to embark on decommunization; if we agree that we are willing to risk the "intrusion" of morality into law; and if we decide that utilitarian arguments about democratic consolidation are indeterminate at worst, provided we can argue convincingly that decommunization will not threaten a return to authoritarianism, we come back to the simple moral precept Karpi_ski and Sustrová gave to us -- crime deserves punishment.
By no means do I intend to imply that Michnik and Havel are all wrong. They are not. Their criticisms are well taken. Indeed, by committing ourselves to the concept of punishment, we cannot turn our back completely on the idea of a rule of law. Certainly, the overall coherence of a legal system is important. At most, however, it must be balanced with a sense of morality; at least, it must be weighed against a recognition of the morality of the majority.
Poland
While it is certainly not the case across the spectrum of post-authoritarian regimes, it seems clear that in Poland, a more aggressive decommunization policy would not threaten the existence of the democratic state. 19
Perhaps the most disturbing facet of post-communist Poland is the low esteem that Poles seem to hold for Polish democracy. In the 1993 Polish General Social Survey, 71.2 percent of Poles felt either "rather dissatisfied," "unsatisfied," or "very unsatisfied" with democracy in Poland. 20 Analysis of this is beyond the scope of this essay, but recent evi-dence indicates that part of the dissatisfaction with democracy is due to the failure of the post-communist governments to mete out justice for communist-era crimes. A recent poll found that 67 percent of Poles feel that anyone who collaborated with the SB should be expelled from positions of power. Furthermore, 44 percent denoted "lustration," the most extensive of potential decommunization policies, as "one of the biggest problems which has to be resolved," up from only 27 percent giving the same answer three years ago. 21 Like-wise, Aleksander Smolar recently came to a similar conclusion, lamenting:
The central problems of Kwa_niewski's presidency are ones of legitimacy, truth, and morality. . . [Kwa_niewski] should clearly, firmly, without lies and bargaining the truth, evaluate the period of the Polish People's Republic. He must say what he has, so far, not brought himself to say: that the period of communist rule in Poland was a time of national submission and dictatorship. 22
As it seems clear that Poles have a desire for at least some kind of reckoning with the past, it appears that we have satisfied our minimal burden for some kind of decommunization: we have crimes which give us the moral obligation to punish, and we are confident that such a policy will not irreparably destabilize Polish democracy.
General Problems with Post-authoritarian Justice
Let us turn to the questions that Michnik and Havel dwell on so heavily: how can decommunization be undertaken properly? In other words, how can we punish while maintaining proper respect for the issues Michnik and Havel raise? The objections most commonly raised to the process of decommunization fall into three interrelated categories: finding a procedurally fair way to determine who is punished; the danger of politicized justice; and the problem of defining what behavior deserves retribution.
This list, of course, represents the crux of the problem. The way in which post-authoritarian societies navigate these issues will set precedents for the collective system of laws which Michnik and Havel rightly hold in such high esteem. The trick is clearly how to balance our desire for a coherent legal order with our duty to find justice. In the following section, I will discuss these kinds of problems which strike to the center of our notion of legal order and how they interact with the problem of post-communist justice.
Procedural Fairness
I would argue that the presumption of innocence, the right of the accused to defend himself, an aversion towards ascribing collective guilt, and the right to appeal initial decisions are so central to the "rule of law" to which Michnik refers to that to discard any of them would set a catastrophic precedent. Under no circumstances should a court or administrative body create a scenario based on evidence it collected which the defendant must then prove to be false. The inherent difficulties in proving that something did not happen make this an untenable breach in a legal system. Likewise, for guilt or even complicity to be decided without affording the accused an opportunity to rebut the specific allegations is an abhorrent concept. Thirdly, collective prosecutions of people affiliated with certain groups not only effectively shift the burden of proof to the accused, but also smack of prosecution for political beliefs, which is inconsistent with the most fundamental democratic principles. Lastly, the argument that all decisions must be appealable is simply a recognition of the fallibility of human judgment. Any policy contemplating punishment for communist-era crimes must include all four of these safeguards to civil liberties.
Another problem which falls under the category of procedural fairness is that of retroactive justice. Certainly as a general rule, ex post facto justice should be avoided, however, precedent does exist for the punishment of actions that were legal when they were committed. The obvious case in which defendants were found guilty and punished for actions deemed perfectly legal when committed is the International Military Tribunal at Nuremberg. The Nuremberg precedent, however, is not as clear cut on this issue as one might think. According to Hannah Arendt, the Nuremberg Charter holds that retroactivity in law can "only be applied to crimes previously unknown." 23 The logic at Nuremberg was that genocide, or "crimes against humanity" did not exist before the Second World War. Since they did not exist, they could not have been covered by a previous statute; hence the need for a retroactive one. Thus for post-communist polities to cite Nuremberg as a precedent for retroactivity, they must be prepared to argue that the crime committed did not exist before communism, which may very well be possible.
Nonetheless, I maintain that despite the precedent for retroactive law, it would be better not to employ such tactics. Many communist crimes were illegal under the old system, though never prosecuted. This would include murder, torture and even possibly some financial irregularities. Furthermore, although the Helsinki Final Act does not proscribe a duty to prosecute infractions, people guilty of not "respecting... the fundamental freedoms, including the freedom of thought and conscience" can be prosecuted without the problem of retroactivity. Wherever possible, retroactive justice should be avoided; however, I concede that for some crimes, it may be the only means available to find justice.
One of the most important practical problems in the procedural realm is determining the weight that the archival evidence from the secret services should be given in a proceeding. On the one hand, the files contain a wealth of information concerning communist-era crimes. On the other hand, it has been widely reported that this information is not necessarily reliable, and in many instances, outright false.
It seems logical that as a source of information in criminal proceedings, there is no reason why the files should not be used as a piece of evidence, as a part of a case. However, by no means should a person's inclusion or exclusion in the archives be the single ultimate grounds for a determination of either guilt or innocence. Certainly, there are innocent people in each country who are implicated to some degree in the archives, as there are those who, through luck or ingenuity, are not in the archives but should definitely be punished for wrongdoing.
According to Andrzej Rzeplinski, archives concerning entire units of the Polish SB were destroyed in 1954-55 and 1989-90. Furthermore, during four different periods (1946-47, 1949-53, 1980, and 1984), "massive recruitments were ordered which resulted in the creation of a multitude of agents existing on paper only... Thus some unspecifiable number of 'dead souls' made it into the records." 24
In addition, I would argue that the files should not be opened to the public, or if they are made available to individuals, it should only be after a relatively arduous process. To allow public access to the files opens the door to endless "private lustration," where employment or admission to something becomes dependent on an individual being able to produce a record clear of alleged collaboration. This would put not only those officially accused of collaboration, but potentially any citizen applying for a job or perhaps even to a university, in the position of having to prove their innocence.
Politicized Justice
Michnik's warning that "by no means should a legal trial be used as an instrument for political power," 25 is by all means one that should be heeded. Even the appearance of politicized justice is something that must be avoided at all costs, for as many of the other issues included in this section are abstract and legalistic, they very likely may not be understood by many who live in the region. A process free of petty partisan politics, on the other hand, is likely to make a difference in the emerging legitimacy of the legal system as a whole. Conversely, a highly politicized decommunization process is very likely to cast doubt on the efficacy of the law as a binding system of rules.
Yet how can we ensure that a process which appears to be so overtly about politics, may be kept from becoming politicized? The first measure to be taken I describe above -- only prosecute for specific, tangible actions. Once the nature of what constitutes a crime is determined, only people who specifically transgressed that boundary should be tried.
The second measure is to divest the judgment process as completely as possible from the realities of day-to-day partisan politics. This would include the following provisions: first, that investigatory committees consist of people generally perceived as being above politics. If this appears impossible, I would go so far as to advocate that the commission be chaired by a foreigner of high international standing, perhaps an individual suggested by the United Nations. 26 The fiasco of lustration according to Jan Olszewski and Antoni Macierewicz in Poland in 1992 (discussed below) attest to the importance of this precept. Secondly, the investigation and judgment phases should be segregated from each other. In other words, the people who investigate and document alleged wrongdoing cannot be the same people who decide guilt and determine punishment, a fundamental tenet of due process. 27 Ideally, a commission could prepare a case or collect information later to be used in a regular court proceeding. To continue otherwise threatens the viability of the separation of powers and inevitably subjugates the presumption of innocence and the right to defense. It would be difficult if not impossible to insure that judgments are not made before the accused were adequately notified and given a chance to defend himself. Put simply, by the time he was notified, a judgment would most likely be made, if not formally, at least informally, or he would not have been called.
Lastly, I turn to the problem of blackmail. Certainly Michnik and Havel are correct in noting that the possibility of blackmail seriously undermines the process of carrying out aggressive decommunization measures. Lists are prone to be leaked, and deals are apt to be made, both keeping people off and putting people on the list of those under investigation. However, in the end, the blackmail issue is a wash. I can see no reason to suppose that in the event all is officially forgiven and forgotten that blackmail will be any less a problem. Certainly the files can still leak, albeit in a much more haphazard fashion. And even if one argues that the files be destroyed, 28 individuals can still leak information, whether it be first person or hearsay. In any case, however, it goes almost without saying that every effort should be made to secure the files physically and simply accept the inevitability of leakage.
What Constitutes a Crime
Determining what kinds of crimes are punishable thus becomes the central problem in my argument. At this point there are two issues to be resolved. First, what actions (state or individual) necessitate legal action? And second, what level of individual involvement constitutes culpability?
Regarding the first issue, there are some actions which almost all would agree are criminal. Murder and torture top this list. Obviously anyone alleged to have killed or tortured another person must be brought to justice. This can most likely be achieved without resorting to retroactive statutes, as in both cases, existing law at the time or international law will most likely suffice. In order to spread our net a little further, another avenue of recourse is the Helsinki Final Act. As quoted above, this document specifies that member states "respect. . . fundamental freedoms, including the freedom of thought and conscience. . . [as well as] the effective exercise of civil, political, economic, social, cultural and other rights and freedoms. . ." Certainly we can infer that, at a minimum, these rights include the right not to be arbitrarily imprisoned. It also would appear to cover any kind of mistreatment due to a person's political views and beliefs. Thus without even approaching the problem of retroactivity, states in Central and Eastern Europe have statutes that designate murder and torture as criminal, as well as arbitrary imprisonment and political oppression after 1975, the year the Helsinki Act came into force. 29
The issue of collaboration is a much more vexing problem. As Bogdan Borusewicz, a former underground Solidarity leader, writes, "Whether someone sold out others is a morally significant issue." 30 Unfortunately the issue is not nearly so clear cut. First of all, any effort to prosecute collaborators who did not kill, torture, or imprison anyone, would seem to include some measure of retroactivity, which as I stated above, does not completely eliminate it as an option, despite how uncomfortable many commentators feel. 31 Secondly, the individual circumstances of each instance of collaboration varied so widely that the act of declaring all collaboration criminal seems unjust. Certainly some collaborated for the wrong reasons -- out of sadism, malice, or careerism. But on the other hand many collaborated not for the purposes of advancing their own interests in some way, but under the threat that if they did not, some harm would befall them or their families. Jon Elster summarizes our problem aptly in stating, "To abstain, as some did, is morally admirable - but can we really say that it is morally required?" 32
Thus we move to the second problem -- the degree of involvement that makes one criminally liable. With the first set of crimes, those covered by national and international law, "the problem of the big fish versus the small fish... arises." 33 As the Nuremberg precedent clearly dispenses with the "just following orders" excuse, prosecution of those who pulled the trigger or made the arrest is well within the range of possibility. However, to stop with the "small fish" seems to rail against our conception of justice. On this issue the Nuremberg Judgment reads in part:
These crimes were committed en masse, not only in regard to the number of victims, but also in regard to the numbers of those who perpetrated the crime, and the extent to which any one of the many criminals was close to or remote from the actual killer of the victim means nothing, as far as the measure of his responsibility is concerned. On the contrary, in general the degree of responsibility increases as we draw further away from the man who uses the fatal instrument with his own hands. 34
Arendt concurs, adding, "insofar as it remains a crime... all the cogs in the machinery, no matter how insignificant, are in court forthwith transformed back into perpetrators, that is to say, human beings." 35 Thus legal action against both immediate and remote perpetrators is precedented, as it seems it should be.
Once again, however, the problem of collaboration remains. One potential distinguishing circumstance would be to separate those who signed documents with the secret police and those who did not. This, on the other hand, would not take into account mitigating factors such as threats of blackmail for those who signed documents. Another would be to separate collaborators according to the sensitivity of the information they gave to the government. However, this could force prosecutors to rely too heavily on the security archives, which, as described above, are of questionable veracity.
A comment by Borusewicz gives us a possible way out of this problem. He writes that a "part of the KOR [a dissident group formed in 1976 to which Borusewicz belonged] tradition was that if someone broke down and agreed to collaborate, he told his friends and colleagues about it. That was a principle that everyone working in the opposition and the underground knew." 36 If we assume for a moment that this was true in all cases, it is easy to imagine a case in which an alleged collaborator can produce definite witnesses regarding the nature of his collaboration. His friends and family would be able to testify that they were aware at the time that he collaborated but that due to his openness then, etc., they are able to assure a court that his collaboration was without malice. Perhaps they can even testify as to the specific reasons he collaborated in the first place. Or on the other hand, if his family and close associates from the time knew nothing about his collaboration or knew, for example, that he was blindly ambitious, willing to do anything for financial gain or advancement, or that he absolutely hated the man living next door (who can also then testify that after a certain date he suffered at the hands of the authorities -- or keeps turning up in the files), the alleged collaborator would be found guilty. Within such a scenario, a law specifying that voluntary collaboration with malice and forethought certainly could spread widely enough to include most of those whose actions we want to sanction.
Although we cannot assume that Borusewicz's comment will always be true, the scenario does highlight some very important issues. First of all, even in Borusewicz's absolute world, testimonial evidence takes a position of importance above that of the security files. In fact, the archival evidence is used only to corroborate other evidence, as the case of the neighbor suggests. But most importantly, motive is introduced into the trial. In the scenario above, if an alleged collaborator did not have criminal motives, his friends would have known about his collaboration. Without a criminal motive, a conviction would be impossible.
Now returning to reality, our task is to infuse the related concepts of malice and motive into our discussion. Even if what I will call "innocent" collaborators did not tell their family and colleagues immediately upon being approached by the secret services, which is certainly possible despite what Borusewicz implies, it seems that friends and family would be able to testify as to the character of the accused, as well as to the specifics of his life at the time that made him more or less prone to blackmail. Furthermore, the onus would be on the prosecution to determine that the alleged collaborator acted out of ill will or opportunism as opposed to being a victim of circumstance. In such a construction, the crime could be defined as "collaboration with motivated malice," or something to that effect. If there was no malice or self-motivation, there would be no crime. While this would certainly have the effect of making conviction more difficult, consider how difficult it is in the United States to convict someone of a crime without establishing motive. Furthermore, with a statute criminalizing the aiding and abetting of these crimes, most full time, paid agents of the security organs would then become prosecutable.
Prosecution for Specific Crimes
I hope to have demonstrated that taking action against most of the odious facets of communist dictatorship is possible without too great a threat to Michnik and Havel's conception of "the rule of law," albeit much more difficult than one might hope. Beginning with this section, I will briefly outline three possibilities for meting out punishment for the crimes discussed above: first, actions against specific crimes, both in terms of criminal trials and tort suits; second, lustration; and third, truth commissions. Each will be discussed in reference to how completely they meet the demands of justice and how well they navigate the theoretical concerns described earlier.
Criminal Trials
The criminal trial is the most obvious method of ascribing guilt for the misdeeds of the communist era. A normal trial in a standing court would most likely not infringe on any of the "rule of law" concerns described above. For crimes covered by national and inter-national statutes, this seems to be the easiest way to proceed. The problem with relying exclusively on traditional criminal law is its cumbersomeness, especially so concerning the collaboration crimes, as thus far the debate over the nature of the crime is not settled. Pro-ponents of other methods fault it for the following reasons. It is impossible to try everybody who committed a crime. 37 Relying only on criminal trials focuses only on individuals and specific events; it would never categorically pass judgment on the entire system. 38 And lastly, relying on criminal action simply perpetuates the people's propensity to sit back and rely on government action. 39 Nonetheless, no commentator I could find, with the exception of Elster, argued that no criminal prosecutions should take place, only that they should not be relied on exclusively.
In Poland, this approach has begun. In fact, just recently Colonel Adam Humer, who served as director of the Investigations Department for the Ministry of Public Security in the 1940s and 1950s, was convicted and sentenced along with 11 co-defendants to prison for two to eight years specifically for torturing two prisoners in the 1940s. 40 Furthermore, legal proceedings are underway regarding the events of December 1970, when 44 Gda_sk-area workers were killed and over 1,000 injured in clashes with the police during demon-strations for wage increases. Nine retired generals and high officers are in the docket. 41 Ini-tially, General Wojciech Jaruzelski (then defense minister), Stanislaw Kocio_ek (vice premier in 1970) and Kazimierz _wita_a (interior minister in 1970) were also indicted. The Gda_sk court ruled, however, that the cases against Jaruzelski and Kocio_ek were actually questions of constitutional law out of its jurisdiction and that the cases against these men should be argued before the Constitutional Tribunal in Warsaw. 42 Despite the unliklihood that a post-communist-led Sejm will vote to bring these cases to the Constitutional Tri-bunal, much to the disappointment of those seeking accountability for the 1970 events, this decision demonstrates that reasoned arguments can be made and that "rule of law" can be protected even in cases of post-transitional justice. Furthermore, it underscores that the courts are, in fact, a proper venue for meting out justice for the crimes of prior regimes.
Civil Action
Except for the restitution of property, to my knowledge, civil actions in tort have not been used as a method to right the wrongs of predecessor regimes. Still, they present an interesting option. As George Fletcher testifies, "If tort recovery were a serious option, a dissatisfied class of victims could channel its frustrations." 43 There are problems, however, with the prospect of mass tort suits. First, what constitutes damage? Claes Offe writes, "Compensation for losses presupposes proof of loss. Such proof is much easier to provide in some categories of loss (expropriation of immovables, confiscation, imprisonment) than in others (moveable property, health, lost opportunities)." 44 Equally vexing is the problem of compensation. In most instances, the accused would have been acting under the authority of the state, thus the state becomes ultimately liable for damages. Clearly in the traditional sense of damages, this would put incredible monetary demands on the state, which at this point could most probably be better spent elsewhere. However, why could not the state institute a scale of symbolic compensation through a set of benefits for those found to deserve damages? Such a system would highlight the state's fault and give a token benefit to those deserving of it.
While trials, both civil and criminal, certainly appear to be a positive development in the pursuit of justice, even if more trials were to take place across the region, in consideration of Fuller's comments about authoritarian dictatorship, one can only feel that this is not quite enough.
Lustrationg
Advocates of a more expansive decommunization policy look to lustration. Under the proposed and enacted lustration laws, high government officials and those running for election to high government office must be screened before being allowed to begin government service. Proponents argue that lustration would enact some measure of justice and, more importantly, purify the government of a potential fifth column of communist holdouts. This is necessary, they posit, as these very same people are the ones to blame for the sluggish nature of the region's transformation of societal and economic structures. 45 Despite the possible truth in this claim, however, lustration remains "an unsatisfactory way of policing the past." 46
Lustration Implemented
Thus far, only in Germany and the Czechoslovak Republic have lustration laws actually come into effect. In Germany, the Bundestag decided that "all those who collaborated with the security services of the former East Germany are to be removed from public functions in the name of restoring public trust," and appointed Joachim Gauck as director of the commission charged with this task. 47 This has been translated into the following procedural policies. First, the archives of the Stasi are open to the public upon request. The Gauck Commission grants those requests made by individuals about their own files or those coming from "an official source and pertain to official business, usually employment." 48 Anyone applying for employment in the public sector is liable to be checked with or without their approval, including prospective teachers and church officials. Gauck maintains that the commission distinguishes from "informal collaborators" and those who were simply interrogated by the Stasi. The former group is made up of those who periodically met with the Stasi over long periods of time. Gauck claims he is not interested in the "petty swine" who make up the latter group. According to Gauck, within the archive it is very easy to distinguish between the two groups. 49
Secondly, the commission can make recommendations regarding possible criminal prosecution. The actual trial is then carried out by prosecutors and criminal courts either in the region in which the offense took place or the region where the accused lives. Former Minister of Justice Klaus Kinkel stated that convictions will only take place on "evidence of individual culpability." 50 Needless to say, this has put an incredible strain on the eastern German judicial system. 51
In Czechoslovakia, the lustration process began in early 1991 when a commission charged with the task of looking into the 1989 beatings of students in Prague was asked to expand its agenda and "find out which of the members of Parliament had been registered as secret police collaborators." 52 In the ensuing melee, the names of ten accused collaborators who had refused to resign their parliamentary seats quietly were publicly announced. Among those named was Jan Kavan, an exiled dissident who had spent over 20 years in England publishing the work of Czech dissidents. Furthermore, committee spokesman, Petr Toman, requested that anyone improperly named should just quietly resign without challenging the findings in public so as not to "create doubts about the whole screening process... [and] help the real agents." 53
Later, in October 1991, the Czechoslovak parliament passed a lustration bill, according to which, all persons holding high appointed office were to sign a document swearing that they did not collaborate with the StB or other security services. The documents were then checked against the archival evidence in the StB files. In addition, any individual who wished to could apply to the commission for a certificate stating that they had not collaborate with the StB. Collaboration was defined as pertaining to those who were either full time employees of the StB or other security organ, knowing unpaid or part-time collaborators, volunteers in the People's Militia, high Communist Party officials, or ex-students of one of the Communist Secret Security Schools in the former Soviet Union. In the original law, anyone found to have collaborated could not hold high government positions until after 1996. 54 In 1995, however, the statute of limitations was extended. 55 Contrary to the hopes of many observers, the process has been marred by a series of selective leaks and has been subjected to condemnation by the United States 56 and various human rights organizations.
Finally, Polish attempts at lustration have been a disaster. In 1991, the government of Jan Olszewski came to power on the promise of adopting strong decommunization policies. 57 As if this were not difficult enough, Olszewski maintained an openly combative relationship with President Lech Wa__sa regarding the extent of the decommunization policy as well as the breadth of presidential power in Poland. In April 1992, after Defense Minister Jan Parys declared that a potential coup was being planned with the consent of Wa__sa, he began wholesale dismissals of thousands of military officers, in effect challenging Wa__sa for control over the Defense Ministry. Within this political morass, Interior Minister Antoni Macierewicz compiled a secret list from the security archives of 64 elected officials alleged to have collaborated with the SB. When the list was turned over to the President, it was immediately leaked to the public and published. After it became apparent that many on the list had never actually collaborated, but instead had fended off the SB's recruitment attempts, Olszewski was forced to resign. Since then it has been alleged that one of Wa__sa's top advisors, Mieczys_aw Wachowski had been an SB agent and that Wa__sa himself had collaborated with the SB in the early 1970s. While there may or may not be reason to believe either of these accusations, they underscore the intensely politicized nature of the entire lustration debate in Poland. According to one analyst, "The highly politicized and incompetent manner in which it was handled. . . served to discredit the idea of lustration in Poland." 58
The election of ex-communist Alexander Kwa_niewski to the office of the President, however, cast new light on the lustration debate in Poland. This newly found attention culminated in Spring 1997 with the passage of a lustration bill by the Sejm. The proposal was supported by the parties in opposition as well as the junior partner in the coalition, the PSL. (The SLD also proposed its own plan, which was rejected.) Under the bill, candidates for high elected and appointed offices must submit a statement as to their contact with the Secret Services between 1944 and 1990 which is immediately published. A commission of three appointed persons is to verify the statement in the archives. The verification is published for those candidates who actually win seats. The results are appealable to a five- member lustration court, and then to the Supreme Court. Those found to have lied in their initial statements are excluded from holding office for ten years. 59
As the lustration proposal was approved recently by the Senat without amendment, it currently awaits President Kwa_niewski's signature. At this point it is unclear whether or not he will actually sign it.
Problems with Lustration
While all of the possible variations described above in Germany, the Czech and Slovak Republics, and Poland differ in regard to which posts are deemed important enough to warrant screening, the details as to how exactly the screening is to take place, and who should undertake the screening process, they all share a host of common problems. First, in linking decommunization so explicitly to the political process, lustration inevitably becomes a weapon of politics. 60 The Olszewski fiasco and the troubles in the Czech and Slovak Republics are proof of this phenomenon. Secondly, the right to defense is questionable, as most decisions are made by appointed committees without the accused being present. Third, sanctions are based on membership in the security services rather than on any specific action. 61 Fourth, all findings come entirely from the evidence of the secret services. And fifth, in the case of an alleged crime, the burden of proof is on the defendant. Furthermore, the ability of organizations to request that potential employees be lustrated and the Czech and Slovak commission's policy of issuing certificates of non-collaboration force not only to those accused, but potentially the entire population to prove their innocence. As this list testifies, I would argue that all of the proposed and enacted lustration policies simply go too far. They do not sufficiently balance the demands of punishment and those of the "rule of law."
Yet, considering that traditional civil and criminal proceedings alone are not enough, is a fair lustration policy possible? The Helsinki Foundation in Warsaw has proposed the following set of conditions for a "fair" lustration policy. 62 First "any notion of collective responsibility must be carefully rejected [as well as the] legalized mass deprivation of the political rights of the former nomenklatura." Accusations should be made only on the basis of "concrete actions." Second, the concept of "collaboration with the secret services" must be specifically defined, taking into account the details of an individual's alleged collaboration. Third, all "decisions must be made in the courts." Fourth, all persons accused of collaboration must be presumed innocent. Fifth, archival evidence can only be used if "corroborated by other evidence." Sixth, "the accused must be guaranteed the right to defense." Seventh, if found not guilty, "the accused must be entitled to adequate financial compensation." And lastly, the practice of employers or organizations demanding "evidence of non-collaboration" must be prohibited. While I concur completely with the Helsinki Foundation's recommendations, I would argue that under such restrictions, a different course of action would be preferable.
Truth Commissions
While post-authoritarian leaders in East Central Europe have focused on lustration policies to supplement immediately obvious criminal prosecutions, most countries in Latin America have chosen a different route -- the truth commission. According to Priscilla Hayner's definition, there are three major differences between a truth commission and a lustration committee. First, "a truth commission is not focused on a specific event [or crime], but attempts to paint the overall picture of certain human rights abuses... over a period of time." Second, truth commissions "exist temporarily and for a pre-defined period of time, ceasing to exist with the submission of a report of its findings." And third, truth commissions have no power to judge or mete out punishment, only to collect facts. 63 Margaret Popkin and Naomi Roht-Arriaza's discussion expands their role to include making recommendations for "legislative, structural, or other changes." 64 The major purpose of a truth commission, however, is to establish and officially acknowledge the truth about a nation's unsavory past, not punish individuals for specific actions or cleanse them from public life. The emphasis here is not on simply telling what happened, as much of what happened is common knowledge. Rather the point is to acknowledge officially what happened. Truth telling, as Alice Henkin argues:
responds to the demand of justice for the victims, facilitates national reconciliation and prevents those who perpetrated and supported the violations from nourishing and perpetuating exculpatory versions of the events that occurred. 65
For Latin American countries, truth commissions were seen as a mode of uncovering gross human rights abuses on a level generally not experienced in recent Central and Eastern European history. Most of the commissions thus dealt exclusively with murder and "disappearances." 66 However, by no means does this preclude their applicability for Central and Eastern Europe. As Hayner posits, "There need be no fixed model: in the unique circumstances of each country, other new and innovative models for a truth commission may be developed." 67
I would argue that specifically due to the difficulty of establishing any kind of truth where the secret services are concerned, Latin American-style truth commissions would greatly enhance the pursuit of justice in Central and Eastern Europe. In Poland, a truth com-mission's mandate could be twofold. First, it could charged with establishing an official record of dramatic moments in Polish history (perhaps the events of 1956, 1968, 1970, 1972, 1976, and 1981-84). 68 And second, it could describe and officially acknowledge the role that the secret services played in Polish history, including its tactics and its victims.
In order to carry out this mandate, a Polish truth commission would have to have complete, unhindered access to all relevant files. This way, rather than the hurried poking around under the heat of an election or confirmation battle that a lustration law would mandate, a truth commission would have the opportunity to take a long, measured assessment of the security archives as a whole. Certainly, under these circumstances, truth would become more readily apparent. Secondly, it would need the capacity to call relatively large numbers of witnesses, for, just as in the case of lustration, relying on the SB files alone is not sufficient for determining what actually happened.
For Poland, I would argue that due to two factors, a prospective truth commission should be formed with a single or collective executive from the international community at large. 69 Such a move would make great bounds in depoliticizing the process. First of all, as has been widely noted, Polish society at this juncture is deeply split between post-communists and uncompromising anti-communists. Second, it would be nearly impossible for the ruling coalition or President Kwa_niewski to suggest anyone widely acceptable due to their ties to the communist regime. In fact, anyone they suggest, irrespective of his or her past, would likely be illegitimate simply because Kwa_niewski or the SLD proposed them. This person or persons of high international prestige would need to have total control over the commission, its makeup, and its findings. While this runs the risk of vesting a large amount of moral authority in the hands of someone who may not understand the subtleties of the Polish situation as a Pole would, it seems that only then could the commission's impartiality and subsequent legitimacy be guaranteed.
Upon the completion of the commission's work, the findings should be made public. However, what exactly should be included in the public record is a more difficult question. Specifically, should the commission name names? This question raises again the problem we faced with lustration -- to name names would be an impediment to the accused's right to a defense; it could cancel presumption of innocence in any future criminal trials; and it would force an appointed commission to pronounce judgment without a proper trial. The Latin American countries differed in this respect. The Argentine and Chilean commissions did not name names, but in Chile, institutional responsibility was assigned. The Salvadoran findings did include named individuals, but only when "multiple sources or witnesses had confirmed their role." 70 In Poland, perhaps a middle ground could be found. While it would not be fair to divulge the names of alleged collaborators and SB agents for the reasons described above, assigning responsibility for the specific roles that high political and military figures played in dramatic moments of Polish history would not be too great an infringement, simply due to the fact that exactly who declared martial law, for example, and the group of cadres who made that decision, is public knowledge. It is their exact role that bears investigation.
Another outstanding issue is whether the commission should take any prosecutorial role. According to Hayner, truth commissions generally do not take part in the prosecution of individuals for the misdeeds they uncover. Only in Argentina did trials take place directly as a result of the findings of the truth commission. 71 Nonetheless, there is no reason that truth commission findings could not be used to obtain criminal convictions in Poland, provided the commission itself takes no direct role in the legal proceedings, and in an effort to ensure this, that legal proceedings do not begin until after the truth commission's man-ate has expired. 72 Perhaps, concerning the collaboration crimes, the commission could pass the names of individuals and their alleged crimes on to the proper legal authorities, who could then decide whom to prosecute. While creating a list like this is certainly prone to leakage, it would be further from the political machinery in Warsaw and would remain in the hands of local prosecutors rather than be circulated among national politicians.
Despite all of its positive sides, a truth commission is by no means a panacea. First of all, it does not touch upon the issue of ex-communist collaborators in positions of power. However, it would serve to remind and underscore the ugliness of the past with which these people are generally affiliated. Secondly, in turning to the legal system for recourse, a truth commission risks overwhelming it with a large list of people for possible prosecution. However, in directing all decisions to the courts, the Helsinki Foundation's plan for lustration would run the same risk. Despite these reservations, it appears to me that a truth commission, followed by increased traditional criminal prosecutions, is the best possible means for Poland to reckon with the past as fully as possible while maintaining proper respect for the "rule of law" issues Havel and Michnik raise. Of course, the hardest part of establishing a truth commission is creating the political will to do so.
On the other hand, I would argue that, in terms of political expediency, a truth commission may very well be the most implementable option for Poland at this juncture. If President Kwa_niewski is serious about his desire to bring Poland together and reveal the past in all its ugliness, handing the process over to an international "arbiter" would be a masterstroke of pragmatism under the guise of statesmanship. Furthermore, in turning the past over to a truth commission, the President would divest himself from being personally accountable for any embarrassments which might befall his political camp as a result. He would never have to actually have to admit to the ugliness of communism himself. He would need only to refrain from disagreement with the commission's findings. However, if the stalwarts within the SLD, who continue to fear their own exposure, convince Kwa_niewski not to proceed in this manner, the lustration debate will only intensify. With the exemption in Kwasniewki's lustration proposal for those who worked with the SB "due to their occupational position," it is unlikely that the SLD and the opposition will be unable to come an agreement. The half of Poland that screams "whitewash" will only encourage the other half to further obfuscate the truth in an effort to hold even more tightly to the reins of power. Under this scenario, one thing is certain: Poland will remain fractured and fractious for yet a spell longer.
Conclusion
In this study, I have tried to deconstruct the debate in Central and Eastern Europe on the issue of post-communist justice into its component parts and theoretical bases. I began with each side's rhetoric, choosing Václav Havel and Adam Michnik vs. Jakub Karpi_ski and Petruska Sustrová as representatives of each side. After examining the theoretical basis of their arguments, I came to the conclusion that the moral precept that crime deserves punishment is more compelling than a fear of upsetting the "collective legal system." However, mindful that Havel and Michnik's fears are justified, I next explored what I considered to be included in the phrase "rule of law" in an attempt to find a way to allow punishment while respecting these legal concepts. And finally, I tried to analyze prospective decommunization policies in terms of the contradictory needs of pursuing justice and of maintaining "good legal order." I found that traditional criminal prosecutions pass the test on the rule of law side, but I concede that they most likely do not pursue justice far enough. For lustration, the opposite is true. Lustration is so widely cast that it completely tramples on "rule of law" concerns. Lastly, I turned to the idea of a truth commission and concluded that a truth commission is probably the best way to bridge the impasse. As I constructed it, a truth commission would cast judgment on the entire system in general; focus attention on the accountability of national leaders; establish a basis of truth regarding the secret services which could later be used as a basis for individual prosecution -- all with the imprimatur of government recognition, far removed from the meddling of national politicians. In short, it would provide the opportunity for the collective concept of Poland to admit its guilt to the vast collection of Polish victims.
Footnotes
Note 1: Adam Michnik and Václav Havel, "Confronting the Past: Justice or Revenge," Journal of Democracy 4, no. 21 (January 1993), 21. Back.
Note 2: See Luc Huyse, "Justice After Transition," Law and Social Inquiry 20, no. 1 (Winter 1995), 61. Back.
Note 3: Michnik and Havel, 22. Emphasis added. Havel's position is less clear than Michnik's. In "Confronting the Past: Justice or Revenge," Havel states that while personally he tends to agree with Michnik, as President, he does not feel he has the authority to decide for all Czechs whether to forgive or to follow a more aggressive policy; 25. Back.
Note 4: Michnik, interview with author, New York, NY, March 24-26, 1996. Back.
Note 5: Petruska Sustrová, "The Lustration Controversy," Uncaptive Minds (Summer 1992), 134. Back.
Note 6: Jakub Karpi_ski, "Politicians and the Past," Uncaptive Minds (Fall 1992), 101. Back.
Note 8: Another way to understand this division of opinion is as an example of the traditional distinction between Positivist Law and Natural Law. The Positivists argue that law as it is must be distinguished from law as it ought to be, and that, in order to maintain a just legal system, we are forced at times to forego the prosecution of morally reprehensible, but legal, behavior. The Natural lawyers, on the other hand, maintain that moral laws are the only laws worth following, and that morally reprehensible behavior must be treated as such, whether technically legal or not. For an introduction, see H.L.A. Hart, "Positivism and the Separation of Law and Morals," Harvard Law Review 71 (1958), 594; and Lon L. Fuller, "Positivism and Fidelity to Law -- A Reply to Professor Hart," Harvard Law Review 71 (1958), 636. Back.
Note 9: Ruti Teitel, "How Are the New Democracies in the Southern Cone Dealing with the Legacy of Past Human Rights Abuses?" in Neil Kritz, ed., Transitional Justice, Vol. I (Washington, DC: United States Institute of Peace Press, 1995), 146. Back.
Note 10: Human Rights Watch, "Policy Statement on Accountability for Past Abuses," in Kritz, ed., 217. Back.
Note 12: Diane Orentlicher, "Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime," in Kritz, ed., 390. Back.
Note 13: As quoted by Orentlicher, 384. Back.
Note 15: Orentlicher, 388. Back.
Note 18: Jamal Benomar, "Confronting the Past: Justice After Transitions," Journal of Demoracy 4, no. 1 (January 1993), 4. Back.
Note 19: By stating that aggressive decommunization would not threaten the existence of democracy in Poland, I do not mean to imply that it will not test the Polish legal system so intensely that, if done improperly, it could cause irreparable damage. Instead, I am arguing that aggressive decommunization will most likely not bring about a return to authoritarianism in Poland. The same cannot be said for Chile, for example, where General Pinochet remains the minister of defense. There an aggressive drive to punish authoritarian crimes could lead to a renewed bid for power by the Pinochet forces and conclude with tanks on the streets of Santiago. Back.
Note 20: Institute of Social Science at Warsaw University, 1993 Polish General Social Survey, Variable: SATDEMO. Back.
Note 21: _ycie Warszawy, "CBOS: Polacy o lustracji," February 28, 1996. Back.
Note 22: Aleksander Smolar, "Kwa_niewski's Legitimacy Deficit," Transition, March 22, 1996, 17. Back.
Note 23: Hannah Arendt, Eichmann in Jerusalem (New York: Penguin Books, 1964), 254. Back.
Note 24: Andrzej Rzeplinski, "A Lesser Evil?" East European Constitutional Review 1, no. 3 (Fall 1993). Back.
Note 25: Michnik interview. Back.
Note 26: The Truth Commission in El Salvador was created in April 1991, under UN sponsorship. The commission and staff consisted of 19 individuals, of whom none were Salvadoran. See Priscilla B. Hayner, "Fifteen Truth Commissions -- 1974-1994: A Comparative Study," Human Rights Quarterly 16 (1994), 628-29. Back.
Note 27: Stanley Cohen, "State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past," Law and Social Inquiry 20, no. 1 (Winter 1995), 27. Back.
Note 28: Michnik comes close to this position. Back.
Note 29: This argument could be used to prosecute government crackdowns on striking workers who were merely "exercising their economic rights." Back.
Note 30: Bogdan Borusewicz, "An Interview with Bogdan Borusewicz," Uncaptive Minds (Summer 1992), 116. Back.
Note 31: One could make the argument that the application of retroactive law in the case of communist collaboration even fits into the Nuremberg precedent, as it is plausible that collaboration of this sort is a crime specific to communist authoritarianism due to the magnitude of the numbers involved, the ideological nature, etc. In this light, Nuremberg fits perfectly, and a new crime is worthy of retroactive statute. Back.
Note 32: Jon Elster, "On Doing What We Can: An Argument against Post-Communist Restitution and Retribution," Eastern European Constitutional Review 1, no. 2 (Summer 1992). Back.
Note 34: As quoted by Arendt, 247. Back.
Note 36: Borusewicz, 118. Back.
Note 37: Elster. However, he uses this as an argument for doing nothing, claiming that "because it is impossible to reach everybody, nobody should be punished and nobody compensated." I find this line of reasoning a bit extreme; the same could be said about any crime in any legal system. Back.
Note 38: Jose Zalaquett, "Confronting Human Rights Violations Committed by Former Governments," in State Crimes: Punishment or Pardon, (Queenstown, MD: Aspen Institute, 1989). Most of the human rights literature also follows this logic in their opposition to relying exclusively on criminal trials. Back.
Note 39: George Fletcher, "Truth and Justice: The Question of Accountability for Stalinist Crimes in Eastern Europe and the Soviet Union -- A Symposium," New York Law School Journal of Human Rights 9, no. 3 (1992), 639. Back.
Note 40: Daniel Walczak, "9 lat wi_zienia dla Humera," _ycie Warszawy, March 9, 1996. Back.
Note 41: See, "S_d nad Grudniem," _ycie Warszawy, March 29, 1996, and "Gda_sk: Jaruzelski i Kocio_ek s_dzeni za Grudzie_," _ycie Warszawy, March 28, 1996. Back.
Note 42: Roman Daszczy_ski, "Jaruzelski umorzony," _ycie Warszawy, April 26, 1996. Back.
Note 44: Claus Offe, "Coming to Terms with Past Injustices," Archives Europeenes de Sociologie 33, no. 195 (1992), 200. Back.
Note 45: See Vojtech Cepl, in New York Law School Journal of Human Rights, 615. Back.
Note 47: Joachim Gauck, "The Clean-Up Bureau," Uncaptive Minds (Summer 1992), 125. Back.
Note 48: C. Charles Bertschi, "Lustration and the Transition to Democracy: The Cases of Poland and Bulgaria," East European Quarterly 28, no. 4 (January 1995), 437. Back.
Note 50: Fritz Weinschenk, "East German State Crimes: A 'Nazi' Sequel," Journal of Human Rights 9, no. 3 (1992), 655. Back.
Note 52: Cited by Helsinki Watch, "Czechoslovakia: Decommunization Measures Violate Freedom of Expression and Due Process Standards," News From Helsinki Watch 4, no. 8 (April 30, 1992), 2. Back.
Note 54: "Text of the Czechoslovak Lustration Law," as quoted by Helsinki Watch, Appendix I. Back.
Note 55: CTK National News Wire, "Parliament Confirms Extension of Screening Law," October 18, 1995. Back.
Note 56: CTK National News Wire, "Havel Does Not Rejoice about U.S. Reservations about Screening Law," March 7, 1996. Back.
Note 57: This discussion is taken from Louisa Vinton, "Olszewski's Ouster Leaves Poland Polarized," RFE/RL Research Report, June 19, 1992, 1-9; Urszula Doroszewska, "Why Olszewski's Government Was Doomed," Uncaptive Minds (Summer 1992), 93-102; and Bertschi, 444-48. Back.
Note 59: Sejm Rzeczpospolitej Polskiej, Ustawa o ujawnieniu pracy lub s_u_by w organach bezpiecze_stwa pa_stwa lub wspó_pracy z nimi w latach 1944-1990 osób pe_ni_cych funkcje publiczne (II Kadencja, druk nr 1582) Back.
Note 60: This is arguably with the exception of the ex-DDR, where lustration is effectively being carried out by a disinterested party, the FRG. Back.
Note 61: The curious exception to this is the current Polish SLD proposal which defines culpability by behavior rather than membership. However, ascribing a non-political drive for procedural purity to the SLD is difficult considering that their plan excludes those who worked in "intelligence and counter-intelligence" from any culpability under all circumstances. Back.
Note 64: Margaret Popkin and Naomi Roht-Arriaza, "Truth as Justice: Investigatory Commissions in Latin America," Law and Social Inquiry 20, no.1 (Winter 1995), 113. Back.
Note 65: Alice Henkin, "Conference Report," in State Crimes: Punishment or Pardon, 4. Back.
Note 66: Uruguay focused only on disappearances, not addressing torture or imprisonment; Chile's mandate covered only "death and disappearances;" Argentina documented the almost 9,000 who "disappeared" and investigated accusations of torture; El Salvador's mandate included "serious acts of violence." For a detailed discussion, see Hayner. Back.
Note 68: It could be argued that the recent proceedings in the Sejm attempting to find accountability for martial law was a "truth commission" of sorts. While obstensibly its goal was to find the truth, the entire episode serves as a prudent reminder of what can happen when a political body publicly wrestles with complicated moral questions. Whatever Jaruzelski's culpability, the process proved more than anything else that the politically charged Sejm is not the place to make such decisions, especially under the glare of the national press. Back.
Note 69: This was the form of the Salvadoran Truth Commission, which due to the violent political schism in that country, did not allow a single Salvadoran to serve on the commission or staff in any capacity. See Popkin and Roht-Arriaza. Back.
Note 70: Popkin and Roht-Arriaza, 106. Back.
Note 72: Furthermore, I would argue, it makes more sense to wait until the findings are released before beginning prosecution for collaboration related crimes. The political organs could then take the commission's findings into account before attempting to decide what kind of collaboration should be made illegal. Back.
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