Beyond this, the arguments are political. What is supposed to strengthen the new democracy might actually undermine it. To examine the difficult past too closely will reopen old wounds and tear the society apart. You need to integrate the functionaries, collaborators, and merely supporters of the dictatorship into the new democracy. Thus, Hermann Lübbe has suggested that it was precisely the fact that Adenauer’s West Germany in the 1950s suppressed the memory of the Nazi past, with both amnesty and amnesia, that permitted the social consolidation of democracy in West Germany. It helped Nazis to become democrats.
Against this it can be argued, I think powerfully, as follows. First, the purely historiographical loss is as large as any gain in evidence or detachment. The witnesses die; others forget or, at least, rearrange their memories; and it is the worst horrors that are often the least well documented in the archives. Second, the victims and their relatives have a moral right to know at whose hands they or their loved ones suffered. Third, delay and suppression have their own psychological and political price. The fact that the torturers or the commanders go unpunished, even remain in high office, compromises the new regime in the eyes of those who should be its strongest supporters. Dirty fragments of the past constantly resurface and are used, often dirtily, in current political disputes.
For France, Henri Rousso has described this vividly as the Vichy Syndrome. He compares it to a chronic fever, an old malaria in the bones of the French body politic. As we have seen in recent years with the revelations about François Mitterrand’s Vichy past, it still has not gone away. So also with Germany. In her new book Politics and Guilt, the Berlin political scientist Gesine Schwan sensitively explores the political and psychological price paid by the Federal Republic for what she calls the “Beschweigen”—that is, the “deliberately keeping silent about” the crimes and horrors of Nazism—in West German public life, schools, and, above all, families, in the 1950s. The systematic academic, journalistic, and pedagogic treatment of the Nazi past developed as part of an often angry reaction against the suppression of the 1950s. In fact, the portmanteau terms I mentioned at the outset, Geschichtsaufarbeitung and Vergangenheitsbewältigung, seem to date, in regular usage, only from the 1960s.
Many among the hugely influential West German “class of ’68” also thought the suppression of the Nazi past and the anticommunism of the older generation were two sides of the same coin. In reaction, they produced sympathetic, even rose-tinted, accounts of communist East Germany, with, for example, no mention of the Stasi. There is an interesting if perverse connection here. Their revolt against their fathers’ failure to treat fully the past of the previous German dictatorship contributed to their own failure to see clearly the evils of the current one.
In any event, a sense of the high price of that delay in addressing the Nazi past is one reason why the demand for an immediate, comprehensive “treatment” of the communist past was so swiftly accepted in Germany after 1989.
3
The German case also raises my third question: Who? Before the long silence of the 1950s, there had, of course, been the attempt at denazification, carried out by the occupying powers, and the Nuremberg trials, conducted by the victorious Allies. Both Nuremberg and denazification have ever since been basic reference points for all such discussions. To have the business done by outsiders, after a total defeat, does have obvious advantages. There are no domestic political constraints to compare with putsch-happy militaries in Latin America or the still functioning security services in today’s Russia. Something gets done. But it also shows the disadvantages. Indeed, one could argue that the suppression of the Adenauer years was itself, in part, a reaction to what had been seen as “victors’ justice”—and victors’ history.
In most of postcommunist Europe we have the opposite position to that of post-1945 Germany. Far from being newly occupied, most postcommunist countries see themselves as newly emerged from occupation. Moreover, only in five countries—Poland, Hungary, Romania, Bulgaria, and Albania—is the communist past being faced (or not faced) within the same state boundaries as those in which it occurred. Everywhere else—in the former Soviet Union, the former Yugoslavia, and the former Czechoslovakia—you have a number of new, smaller successor states. Or rather, they might and do say, not successors—not heirs to that past. In a country such as Lithuania, genuinely emerging from an oppressive occupation and struggling to build up a new national and state identity, the temptation to say, “That was them, not us,” is almost irresistible. Yet even for the Russians there is a large temptation to say, “That was the Soviet Union, not Russia.”
The German position is, once again, unique. Whereas Poles and Hungarians are, so to speak, alone with their own past, East and West Germans have to work it through together. Disgruntled East Germans, mixing their historical metaphors, talk of an Anschluss followed by “victors’ justice.” But this was a voluntary Anschluss, voted for by a majority of East Germans in a free election, and the boldest steps of confronting the past were actually pressed for by East Germans. Still, the resentment is understandable. In many cases, West Germans do sit in judgment, whether in courts of law or simply by executive decision, over East Germans.
This extraordinary German self-occupation, or half occupation, poses in a singular form the issues always raised by outside participation in the process. There is the practical issue of popular acceptance. But there is also the moral issue. What right have we, who never faced the dilemmas of living in a dictatorship, to sit in judgment on those who did? Do we know how we would have behaved? Perhaps we, too, would have become party functionaries or secretpolice informers? So what right have we to condemn? But, equally, what right have we to forgive? “Do not forgive,” writes Zbigniew Herbert, the great poet of Polish resistance:
Do not forgive, for truly it is not in your power to forgive
In the name of those who were betrayed at dawn.
Only the victims have the right to forgive.
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This is a problem for those inside a country, too. Even inside, the question remains: Who has the right to judge? Parliament? Judges? Special commissions or tribunals? The media? Or perhaps historians? At this point, the question of who shades into the question of how. In my title, I have indicated three main paths: trials, purges, or history lessons. (I leave aside here the very important but also very complex issues of rehabilitation, compensation, and restitution for the victims or their relatives.)
The choice of path, and the extent to which each can be followed, depends on the character of the preceding dictatorship, the manner of the transition, and the particular situation of the succeeding democracy—if that is what it eventually becomes. Thus, for example, the political constraints in Central Europe are far less acute than in Latin America. But the preceding repression was also very different.
The American writer Tina Rosenberg has put it simply but well: In Latin America, repression was deep; in Central Europe, it was broad. In Latin America, there was a group of people who were clearly victims. They were tortured, murdered, or, in that awkward but strangely powerful locution, “disappeared” by a group of people—army and police officers, members of death squads—who were clearly perpetrators. In Central Europe, since the high-Stalinist period and with a few major exceptions, the regime was generally kept in power by a much larger number of people exerting less violent or explicit pressure on a much larger number. Many people were on both sides. Society was kept down by millions of tiny Lilliputian threads of everyday mendacity, conformity, and compromise. This is a point Václav Havel has stressed constantly. In these late or posttotalitarian regimes, he says, the line did not run clearly between “them” and “us” but through each individual. No one was simply a victim; everyone was in some measure coresponsible.
If that is true, it is much less clear who, if anyone, should be put on trial. Havel’s implicit answer is: everyone, and therefore no one. Adam Michnik has made this answer explicit. Exceptions to prove the rule are in
dividual cases of abnormal brutality, such as the Polish secret-police officers directly responsible for the murder of the Solidarity priest Father Jerzy Popiełuszko.
The record of trials in postcommunist Central Europe is, in fact, a very checkered one. In what was then still Czechoslovakia, two senior functionaries were convicted after 1990 for their part in the repression of antiregime demonstrations in 1988 and early 1989. In 1993, the Czech Republic’s Law on the Illegal Character of the Communist Regime lifted the statute of limitations for crimes that “for political reasons” had not been prosecuted in the communist period. An Office for the Documentation and Investigation of the Crimes of Communism was established, and it brought charges against three former Communist Party leaders for their role in assisting the Warsaw Pact invasion of Czechoslovakia in 1968. In Poland, General Jaruzelski was investigated for ordering the destruction of politburo records and then, more substantially, indicted on charges relating to the shooting of protesting workers on the Baltic coast in 1970–1971. A number of senior figures were charged with causing the deaths of striking workers during martial law in 1981—1982. But, altogether, the judicial proceedings have been fitful, fragmentary, and usually inconclusive.
Germany has, unsurprisingly, been the most systematic. Border guards have been tried and convicted for shooting people who were trying to escape from East Germany. More recently, the country’s last communist leader, Egon Krenz, was sentenced to six-and-a-half years’ imprisonment for his coresponsibility for the “shoot to kill” policy at the frontier. Several other senior figures were found guilty with him. Yet even in Germany, the results are very mixed, to say the least.
The arguments generally made for trials are that they go at least some way to providing justice for the victims; that they help to deter future transgressions by the military or security forces; that they exemplify and strengthen the rule of law; and, finally, that they contribute to public knowledge and some sense of a wider catharsis. The first consideration—justice for the victims—certainly applies in some of these cases; the second applies to a much smaller degree, since, broadly speaking, where such deterrence might still be important (as in Russia) there have been no such trials, and where there have been trials (as in Germany) the deterrence is hardly needed.
Have these trials exemplified and strengthened the rule of law? It is very hard to say that they have. Equality before the law is a fundamental principle; but even in Germany, still more elsewhere, there has been a radical, arbitrary, and political selection of the accused. Then there is the familiar problem of trying people for crimes that were not crimes on the statute books of their countries at the time. How to avoid violating the time-honored principle of nulla poena sine lege?
Determined to avoid such a “Nuremberg” procedure, German prosecutors have therefore tried to identify crimes that were offenses in East German law at the time. However, this has involved a highly selective application of East German law, thus violating another basic principle. (Yet otherwise, the prosecutors should themselves be prosecuted for defaming the East German state, which was an offense under East German law!) And, when the case could still not quite be made to stick, they bridged the gap with an awkward invocation of “natural law.” Meanwhile, the former minister for state security, Erich Mielke, was convicted not for his heavy responsibility in the regime but for his part in the murder of a policeman as a young street-fighting communist in 1931. The trial of Erich Honecker, the party leader from 1971 to 1989, was finally abandoned on the grounds of his ill health. He then flew off to spend his last months quietly in Chile.
None of this contributed much to any sense of popular catharsis. As for public knowledge: The thousands of pages of legal argument did little to illuminate the true history of the regime, certainly not for the general reader. Nor will future students of communism, I think, use the records of these trials as we do still use those of the Nuremberg trials to understand Nazism.
The Hungarian case is an interesting contrast. Here parliament initially passed a law that, like the Czech one, lifted the statute of limitations for acts of treason, murder, and manslaughter during the communist period, but the Constitutional Court struck that down on the grounds that it was retroactive justice. A new law was then passed specifically on Crimes Committed During the 1956 Revolution. This took a different tack and applied the Geneva and New York conventions on “war crimes” and “crimes against humanity” to what happened in 1956. Unlike the German prosecutors, and uniquely in Central Europe, they therefore claimed that some things done in the communist period did qualify for those Nuremberg trial categories—“crimes against humanity,” “war crimes”—and that these provisions had at least notionally been in force in international law at the time.
THE SECOND PATH is that of purges. Or, to put it more neutrally, administrative disqualification. In this field alone it was not Germany that set the pace. Partly in reaction against Havel’s policy of preemptive forgiveness, the Czechoslovak parliament passed a draconian law in the autumn of 1991. It laid down that whole categories of people—including high party functionaries, members of the People’s Militia, agents, and what it termed “conscious collaborators” of the state security service—should be banned from whole, widely drawn categories of work in the public service. In Czech, the process was called not “purge” (a somewhat compromised term) but “lustrace,” a word derived from the Latin and implying both “illumination” and “ritual purification.” Thanks to the Czechs, we can therefore revive an old English word: lustration. Among the meanings given by the Oxford English Dictionary, with supporting quotations from the seventeenth to the nineteenth centuries, are “purification esp. spiritual or moral” and “the performance of an expiatory sacrifice or a purificatory rite.”
The Czechoslovak lustration was fully effective in its original form for little more than a year, since Czechoslovakia then broke into two. While the Czech Republic continued with a slightly modified version, Slovakia virtually dropped it. Yet there is no doubt that the law did keep a number of highly compromised persons out of public life in the Czech lands, while such persons remained to do much damage in Slovakia. However, the original legislation was also so crude and procedurally unjust that President Havel publicly expressed deep reluctance to sign the law, and the Council of Europe protested against it. Disqualification by category meant that any particular individual circumstances could not be taken into account. A commission determined, on the basis of a sometimes cursory examination of secret-police and other official records, whether someone had belonged to one of the specified categories. The people thus publicly branded often did not see all the evidence and had only limited rights of appeal. In effect, they were assumed guilty until found innocent.
The German law on the Stasi files is more scrupulous. Employers receive a summary of the evidence on the individual’s file from the so-called Gauck Authority—the extraordinary ministry set up to administer the 111 miles of Stasi files and colloquially named after its head, Joachim Gauck, an East German priest. The employer then makes an individual decision, case by case. Even in the public service, some two thirds of those negatively vetted have remained in their jobs. The employee can also appeal to the labor courts. Yet here, too, there clearly have been cases of injustice—even when denunciatory media coverage has not ruined the person’s life. And the sheer numbers are extraordinary: As of the end of June 1996, more than 1.7 million vetting inquiries had been answered by the Gauck Authority. In other words, about one in every ten East Germans has been, to use the colloquial term, “gaucked.” Here, the strict, procedural equality may, in fact, conceal a deeper structural inequality. East German employees are being subjected to tests that West German employees would never have to face.
Yet one also has to consider the cost of not purging. In Poland, that was the original “Spanish” intent. Within a year, however, the continuance of former communists in high places became a hotly disputed subject in Polish politics. In the summer of 1992, the i
nterior minister of a strongly anticommunist government supplied to parliament summaries of files identifying prominent politicians as secret-police collaborators. Of course the names leaked to the press. This so-called noc teczek—or night of the long files—shook the new democracy and actually resulted in the fall of the government. In December 1995, the outgoing interior minister, with the consent of the outgoing president, accused his own postcommunist prime minister of being an agent for Russian intelligence. The prime minister subsequently resigned, and the affair still rumbles on. In the latest parliamentary election campaign, this autumn, it was suggested that the current postcommunist president of Poland, Aleksander Kwasniewski, himself had close contacts with the Russian agent who allegedly “ran” the former prime minister.
So, in the absence of an agreed, public, legal procedure, Poland has enjoyed not Spanish-style consensus but bitter, recurrent mudslinging and crude political exploitation of the files. As a long-overdue antidote to all this, the Polish parliament has this year finally passed a carefully drafted lustration law. It obliges people in senior positions in public life, including in the state-owned media, to sign, at the time they stand for elected office or are appointed to the job, a declaration as to whether they did or did not “consciously collaborate” with the security services in the period June 1944 to May 1990. At the recent parliamentary elections, I saw polling stations plastered with long lists of the candidates and under each name the appropriate declaration. The admitted fact of collaboration does not in itself disqualify you from standing for public office. Indeed, several candidates on the postcommunist list stood admitting their past collaboration. Only if you lie, saying you did not collaborate when in fact you did, are you disqualified for ten years. The declarations of innocence are to be checked, in secret, by a so-called Lustration Court.
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