European Commission Report: The memory of the crimes committed by totalitarian regimes in Europe Wednesday, Dec 22 2010 

On 22 December 2010, the European Commission released its report on “The Memory of the Crimes Committed by Totalitarian Regimes in Europe” to the European Parliament and Council. A technical piece coordinated by Prof. Carlos Closa, the report is based on country reports, including one on Romania (some 170 pages long) that I authored in 2009. The country reports on Eastern Europe discuss the reckoning with the communist and Nazi pasts, provide updated figures of victims and victimizers, and include complete lists of transitional justice legislation and court cases. The Closa report is available at: http://ec.europa.eu/commission_2010-2014/reding/pdf/com(2010)_873_1_en_act_part1_v61.pdf.

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Lustration vs. Purges – Some Important Differences Thursday, Dec 16 2010 

Two decades after the collapse of the communist regimes in Europe, lustration has become an accepted transitional justice measure, whose importance to redress past injustice, allow for elite replacement, strengthen democracy, and prevent the blackmail of the new political elites is widely recognized (lustration will be adequately discussed in the Encyclopedia of Transitional Justice that I coordinate with Dr. Nadya Nedelsky). Scores of books, articles and reports have been written on this topic. Lately some authors have used lustration to refer to purges and vetting programs that took place before 1989 and outside Eastern Europe. This is why I feel that some clarifications are in order.

Lustration and purges differ significantly in several important respects, which are overlooked by authors who conflate these terms. Not that lustration is incompatible with purges. In many post-communist countries lustration and purges were implemented simultaneously (lustrating the public administration, but purging the intelligence services, for example). First, all lustration programs implemented to date have been confined to post-communist Eastern Europe. The de-Baathification program enacted in Iraq after the removal of the Saddam Hussein regime was inspired by post-communist programs, without being titled ‘lustration’. No purge outside Eastern Europe and the former Soviet Union was titled so. The term was first used in a political sense in Czechoslovakia in 1991, when the Lustration Law borrowed it from the lustrace procedures, through which the communist secret political police, the StB, used to identify and root out double agents who offered information to Western intelligence agencies. Historians are mindful of not applying modern concepts to historical events. We should also refrain from describing purges with a term forged well after these purges occurred.

Second, all lustration programs have been enacted in virtue of parliamentary laws – lustration laws (specifically dedicated to vetting, as in the Czechoslovak, Hungarian, Polish, Bulgarian, Albanian, or Lithuanian cases), election laws (as in Lithuania, where election laws had lustration effects) or citizenship laws (as in Latvia and Estonia, where stringent citizenship requirements denied Russian-speaking non-Baltics a host of rights, including the right to be elected or nominated to public office, and consequently the right to represent people in the new democracy). By contrast, purges were implemented through executive decrees or decisions adopted/imposed by occupying forces. Instead of killing the former leaders, which had usually been the case, purges allowed the new, victorious rulers to sideline, demote or exile their predecessors. De-Nazification procedures enacted after World War II in Western Europe were ordered by the Allied forces with or without input from the Resistance (often animated by vengeance) or by governments returned from exile that had little understanding of how difficult had been to live under Nazi occupation. Whereas post-communist lustration laws were debated, amended, and voted in parliaments where the lustrati were well represented, purges were decided with little input from the opposition. As Timothy Garton Ash wrote, “there is no such thing as a good purge, even if it is politely called lustration,” but lustration goes a long way toward allowing the representatives of the former regime some input in deciding the scope of the vetting program.

The difference between parliament-enacted lustration and executive-decided purges also translates in different levels of discretion. It is much more difficult to amend a law, since parliaments include a wide diversity of political parties (some even representing the professional categories slated for lustration). In most Eastern European countries lustration laws were adopted within small windows of opportunity that quickly closed when the former communists, re-baptized as socialists or social democrats, won parliamentary majorities as a result of elections. By contrast, it is easier to change an executive decree, since governments are formed by far fewer political formations than those represented in parliament. The fewer the political actors involved in deciding the vetting program, the easier to adopt and change it. This is why executives could change the scope of purges more quickly and easy than parliaments could amend lustration laws. Since no laws were spelled out for most purges, whether all individuals slated to be sidelined were indeed purged depended on the discretion of the new rulers (who could add new persons to the purge list or disregard the decree in the case of individuals who quickly changed their political colors and pledged allegiance to them).

Third, all lustration programs were implemented with the declared scope of strengthening democracy, whereas purges did not have democracy as their most important declared goal. A direct connection between lustration and democracy is difficult to draw (although some studies tried to connect lustration and trust). However, we can safely say that lustration did not impede democratization (despite the strong objections raised against it by the European Court of Human Rights and some Eastern European Constitutional Courts). Countries that adopted lustration (Central Europe and the Baltic states) are more democratic than countries that did not adopt it (the Balkan countries and all former Soviet republics but Latvia, Lithuania and Estonia). By contrast, many purges left their country less democratic and have weakened the rule of law. For example, a series of purges were conducted by communist regimes immediately after they took control of Eastern Europe in the late 1940s in the hope of cutting short the careers of pre-communist public servants who remembered democratic politics. These purges were successful in this regard. The fact that lustration programs were enacted during transitions to democracies also meant that those laws were made public. That was not the case with many purges enacted by non-democratic regimes that did not make their purging decree known to the public.

Fourth, not all lustration programs have resulted in job losses. In the Czech and German model, lustration led to the removal of the lustrati from a host of public posts. They either lost their job or were demoted to less important positions that were not included in the list of lustratable posts. But the Polish model (1997) did not automatically dismiss the very few who had lied about their past collaboration with the communist secret political police, the SB. Instead, their names were published in the state gazette, for voters to decide whether they wanted to use this piece of sensitive information in elections (and not vote for the former secret collaborators). In short, not all lustration programs can be assimilated to purge-like programs, a point that is important to note, but is completely missed when lustration and purges are seen as equivalent.

Fifth, in her Transitional Justice Ruti Teitel made the point that purges traditionally affected only the very top political leaders of the ancien regime. It was only after World War II that “postwar measures expelled individuals from a broader segment of society, including sectors not previously considered part of the administration, such as education and the media.” By contrast, most lustration programs enacted to date have targeted not the top echelons of the Communist Party – whose members relinquished their political power in exchange for the chance to live the remainder of their lives in sheltered obscurity or were brought to court in order to assume responsibility for their crimes (like Nicolae Ceausescu in Romania, Todor Zhivkov in Bulgaria, or Wojciech Jaruzelsky in Poland) – but the thousands of Eastern Europeans who had acted as secret informers. The nature of communist repression, the secrecy of the identity of those secret informers, the possibility that they could continue their spying activity even after the collapse of the communist regime, and the Eastern Europeans’ obsession with the details of secret operations explain why lustration targeted secret informers more than Communist Party leaders, although ultimately it was the Communist Party that controlled the secret political police, not the other way around. Equally important is the fact that post-communist lustration programs have affected a lot of sectors that were not really affected traditionally by purges (the academia, the banking sector as in Bulgaria, the lower-ranking public servants, the teachers, the mass-media, joint public-private enterprises and economic units, etc).

Sixth, most lustration programs have affected both current and future office holders, whereas purges targeted only the current office holders. Those who held public positions when the law came into effect were subject to lustration conditions, and they were lustrated either because they belonged to certain categories (associated with the ancien regime) or because they lied about their involvement with the communist regime. At the same time, the past of electoral candidates and nominees for specific positions was investigated and these individuals were prohibited from occupying those posts if their relationship with the ancien regime was proven. Purges do not include similar provisions for future bans.

Seventh, in Eastern Europe the lustrati had recourse to courts, both national and international. In many countries, lustration procedures are decided by courts, in spite of the fact that lustration is an administrative, non-judicial measure of addressing the recent past. The lustrati were able to appeal the lustration verdicts in the national courts, and the political formations representing them (usually the socialists or the social-democrats) have petitioned the Constitutional Courts against lustration. In addition, a number of Eastern Europeans affected by lustration have approached the European Court of Human Rights with complaints about both the substance and procedure of the vetting programs. Victims of purges did not have these advantages – they could not really address the courts and they had no Constitutional Court or European Court to complain to. This is the case, perhaps, because Eastern Europe democratized very late, when judicial review mechanisms and the rules of the democratic game were already instituted and clearly known.

Last, purges were mainly transitional in nature, being enacted for relatively short periods of time (of only several years), whereas lustration programs have been more lengthy, instituting the ban for periods of over five years, and even extending it indefinitely, as was the case in the Czech Republic.

Taken together, all these differences suggest that there are good reasons for continuing to make a distinction between purges and lustration.

(I wrote this text in December 2010, and revised it in January 2011. These ideas were discussed with Dr. Nadya Nedelsky. All errors are mine.)

Communist nostalgia in Romania Sunday, Dec 12 2010 

The Institute for the Investigation of Communist Crimes and the Memory of Romanian Exile in Bucharest has recently released the results of another opinion poll on communism and de-communization, conducted on a representative sample of the population between 22 October and 1 November 2010. The poll shows strong nostalgia among Romanians, an attitude not completely explained by the economic difficulty and political instability the country has faced during the recent months.

According to the survey, 59% of Romanians consider communism a good idea; 44% think this good idea was wrongly applied, while 15% think it was well applied. Only 29% of respondents view communism as a bad idea. There are no significant differences between men and women in regard to this question. Positive views on communism are related to age and residence. A majority of those older than 40 consider communism a good idea (74% of those older than 60 and 64% of those aged 40-59), but only a minority of the younger generations, who had little direct experience with the regime (49% of those aged 20-39, and 31% of those younger than 20). Rural respondents have a more positive view (only 21% of them consider communism a bad idea, compared to 34% of urban respondents). Residents of Bucharest and central Transylvania are least likely to praise communism, while Moldovan and Southern Romanian residents have more positive views.

These positive views have several explanations. First, Romanians still support a strong state (72% of them consider that the state should guarantee jobs, and 51% believe that the state should engage in economic planning). Second, the abuses of the communist regime are long forgotten. Two questions tap into the memory of the communist regime. First, 38% of respondents believe that the imposition of the communist regime at the end of World War II was a bad thing, and as many believe it was a good thing. Ironically, older generations, who directly faced the wrath of the communist authorities, are least inclined to view the regime’s imposition in negative terms. Some 56% of respondents over 60 believe the imposition was good, compared to 39% of those between 40 and 59, 29% of those between 20 and 39, and only 15% of those younger than 20. While 30% of rural dwellers view the imposition in negative terms, 44% of urban dwellers hold that view. Transylvania and Bucharest are least likely to hold a positive view of the imposition. The second question asked whether respondents or their immediate family directly suffered under communism. 83% of them said no, only 7% said yes. Only 6-8% of respondents older than 20 had a memory of suffering. Ironically, among the very young (younger than 20) were the most who claimed direct suffering (12%) and the most with no knowledge of communist repression (20%). Nostalgia for communism ignores the fact that 71% of respondents remember that Communist Party leaders enjoyed extensive privileges.

The positive memory of communism explains why Romanians are generally disinterested in de-communization. Some 52% of respondents believe that neither lustration nor access to secret files remain important today. Women are slightly less interested in these two transitional justice methods, as are all age groups, both rural and urban residents, and respondents living in all regions of Romania, except Transylvania and Bucharest. Only 37% believe that file access is important, and 31% believe in the importance of lustration. Some 58% of those who believe that lustration is still important are of the opinion that it should apply to national and local leaders of the Communist Party; 54% believe it should apply to the Securitate agents. These responses are paradoxical, given the fact that many more respondents believed that the Securitate more than the Communist Party was responsible for communist crimes (63% compared to only 35%). That is not the only contradiction. While 31% of respondents consider lustration important, and 52% view it as unimportant, 5% reject any lustration law. Only 6% believe that a lustration law would have negative effects. by contrast, 26% consider it will have positive effects, while 24% consider that its effects will be negative.

Many more Romanians support compensation packages (48%, compared to 27% who reject them). Of those who favor compensations, 47% consider that they should be decided by the courts, on a case by case basis, while 42% believe they should be decided by the government, through a blanket ordinance. The vast majority of respondents are of the opinion that pensions of former Communist Party leaders and Securitate agents (around 66% of respondents are in favor of diminishing these pensions). Symbolic transitional justice, in the form of a ban on communist symbol, is embraced by only 28% of respondents, and rejected by 44%. Some 25% of women and 30% of men support the ban on these symbols. The least likely to oppose the ban are the respondents older than 60, those living in rural areas, and in Moldova and Southern Romania.

Defenders of communism might rush to condemn democracy and capitalism and to extol the virtues of communism, but the survey does not quite support that view. As any other survey, this one is as good as the questions it includes. For example, asking respondents whether they suffered under communism is a vague question that could be interpreted differently by different respondents. I challenge the IICCMER to ask Romanians whether they would like their country to have only one state-owned tv station broadcasting two hours a day (offering strictly programs with Ceausescu); to receive break, sugar and oil on food tickets; to see food stores empty, and well-stocked stores reserved for the nomenclatura; to have no permission to travel abroad; to have the Securitate opening their correspondence, listening to their phone conversations, and bugging their apartments; to give the government the meager food staples obtained on their meager land plot; to have all salaries capped at the lowest possible level; to have permission to fill up their gas tank once a month; to stay in line for days and nights to buy an egg or a carton of milk; to wait for seven years to have a phone line installed in their homes; to buy cars only with permission from the party and to have only Romanian cars available; to have no possibility to get abortion legally; to have permission to build no house and to be obliged to continue to live in drab and grey state-owned apartments.

Imagining Post-Ceausescuism with Ceausescu Monday, Dec 6 2010 

Two weeks ago, the non-governmental Association 21 December 1989, which represents victims of the Romanian Revolution, announced they were in possession of an extraordinary document. This is it:

****************************************************************************************

The President of the National Salvation Front,
acting as interim President of Romania,
examining File 1-SP/1989 and the verdict of the Special Military Tribunal handed down today, 25 December 1989,
taking into consideration that, to stop the bloodshed, Ceausescu Nicolae has actively contributed to the cease of fire on the part of the Securitate troops by giving a firm order to that effect,

DECREES

Art. 1 – Changes the death penalty to life in prison for CEAUSESCU NICOLAE.
Art. 2 – Changes the death penalty to life in prison for CEAUSESCU ELENA.
Art. 3 – Articles 1 and 2 do not modify in any other way the [court] Decision 1 of 12 December 1989 regarding the two above-mentioned condemned [individuals].

Bucharest, 25 December 1989

President of the National Salvation Front
Ion Iliescu

Iliescu, post-communist Romania’s eminence grise – the man who almost single-handedly blocked attempts to break with the communist past, to unveil the truth about communist crimes, to sideline communist-era decision-makers from post-communist politics, and to bring communist perpetrators to justice – quickly claimed that the decree was a ‘crass fabrication’. According to him, evil hands who wished to tarnish his image had copied his writing and had signed the ill-fated decree. Wholesale rejection of the document is probably his only way to avoid answering some hard questions. Who gave Iliescu the right to appoint himself as interim President? When was the decree issued – how long after the death penalty sentence was handed down? Was Iliescu’s decree communicated to the military unit where the Ceausescus were held? How could an interim President overturn the decision of a military tribunal? Was this move constitutional? When did Ceausescu order the Securitate troops to stop fighting? How could he communicate that order to the troops, while held captive in Targoviste? Was Iliescu in any way connected to Ceausescu’s order? How come most of the casualties were registered after Ceausescu’s capture? Why was Iliescu’s decree ignored by the military tribunal that executed the Ceausescus shortly after the sentence was pronounced? And what does the decree tell us about Iliescu’s relations with the demonic couple, and the way he envisioned post-Ceausescu Romania, his political role as the country’s new leader, and Ceausescu’s place in the new Third Way regime Iliescu advocated during the Revolution?

All these questions are important for scholars of the Romanian Revolution. Coming from a transitional justice perspective, however, I am more intrigued by the possibility of imagining post-Ceausescuism with Ceausescu alive and around – a kind of Dracula, dead and loving it. This is because some democratization scholars readily dismiss the threat that former dictators pose for their countries and the new democracy after their overthrown. One argument raised in regard to Iraq, for example, was that the imperatives of democracy and rule of law called for allowing Saddam Hussein the chance to live in the new democracy. Saddam’s willingness to follow the rules of the democratic game was taken for granted, but I very much doubt that Saddam ever saw himself as a backbencher, the manager of a small firm, or a mediocre professor of politics at one of Iraq’s bankrupt colleges.

Let’s not forget that the Ceausescu Trial was substantially and procedurally flawed. The ad-hoc tribunal – created by Ion Iliescu at a time when the only position he occupied was that of a state-owned press – had little legal basis, given the legislation at the time. The verdict was predetermined, as judges knew in the morning that the Ceausescus had to be executed by early afternoon. No evidence was presented to back up the outrageous accusations levied against the two (probably because all of us believed, at the time, that the accusations were just and evident). Basic legal principles were ignored. The Ceausescus were never presumed innocent until proven guilty. Even the defense councilor turned against them, voicing accusations even more damning that those put forward by the prosecution. They were not allowed to defend themselves. Elena Ceausescu’s sentence did not match her crimes – intellectual fraud is never punishable with death. More importantly, no right to appeal was granted, as the execution was carried out barely half an hour after the sentence was pronounced.

A fair trial was needed not only to allow us, ordinary citizens, to find out the intricate ties between Ceausescu’s yes-men and the post-communist political elites but also to mark a radical break with the communist-era show-trials and demonstrate that post-Ceausescu Romania was, and wanted to be, something else, a rule of law state. The two Ceausescus cannot be absolved of responsibility for their crimes, which were many and serious (I won’t list them here, as the Report of the Tismaneanu Commission Report presented them systematically and in detail). Given his Stalinist stance until the very end, I am convinced that Ceausescu and democracy were not compatible, that one precluded the other. The former dictator would have never accepted to be anything but the country’s genius, while democracy would have been impossible to build (even crooked, corrupt, and inefficient as it is today) unless Ceausescu, his immediate collaborators, and his loyal Securitate shock troops were sidelined.

On Christmas day 1989 Iliescu held a different view – he saw Ceausescu and democracy as perfectly compatible. For Iliescu, a post-Ceausescu Romania, with Iliescu at its helm as a benevolent leader, could have well accommodated the two Ceausescus. After a respectable period of time – say two months? – Iliescu would have pardoned the Ceausescus and liberated them, for good behavior in jail or for serious health problems. After regaining his political rights and reclaiming his properties abusively confiscated by the new democracy, Ceausescu would have done like every decent Romanian looking to make ends meet by syphoning off some public resources into his private pockets – enter politics. Given the remarkable political trajectories assumed by many former party leaders and the pronounced nostalgia for communism exhibited by large segments of the Romanian electorate, it is safe to say that Ceausescu could have transformed himself from an intransigent and much-despised dictator into a successful, democratically elected, much-loved post-communist politician. His hidden Swiss accounts – diverted by the numerous moguls and oligarchs who’ve kept Romania prisoner to their whim – would have helped Ceausescu win each and every post-1989 election by distributing free tuica and sarmale, goody bags for orphaned children, seeds and GPSed tractors to needy farmers, and cheap Dell computers to urban families. In his spare time, Ceausescu could have taught politics (and narrate his picaresque life as unchallenged Conducator) at one of the hundreds of public and private universities that have mushroomed throughout Romania during the last two decades. Maybe the very university where Elena, by then a respected professor of chemistry with a vitae longer than most of her colleagues’, would act as provost, president or dean. Paradoxically, when thinking of these possibilities my attitude toward Romania’s current luminaries is gently softened. I’ll take Victor Ponta and Elena Udrea, only not to have to put up with Nicolae and Elena!