On a mild October day in 1991, Czechoslovakia made history when adopting the first lustration law ever. The procedure, which allowed parliament to dismiss decision-makers of the previous communist regime, was hailed as necessary for cleansing the political elite, state bureaucracy, and public administration of the new democratic state. Its name echoed the ancient Roman and Greek purification rituals, but also referred to the lustrace procedures through which the Czechoslovak communist political police (the StB) identified double agents who offered information on the communist regime to Western intelligence services. During the 1990s, lustration was the single most controversial method of reckoning with the past, with the Council of Europe, the European Court of Human Rights, Western governments, and Western commentators bitterly criticizing it on political, moral, and practical grounds. Even so, over the years an increasing number of countries adopted it. In various forms, lustration was embraced by all post-communist Eastern European states and the Baltic republics, and was enacted outside the region, in post-Saddam Iraq through the de-Baathification program. Today, lustration is accepted as an important method of addressing and redressing past human rights violations.

The question of what nations should do about their repressive past is one of the great subjects of our time. Countries across the world have faced this problem: from Argentina, Spain and Germany, to South Africa, Sri Lanka and Togo. Even Canada and Australia have dealt with their ‘stolen generations’ and the Indian residential schools. Once countries decide to do something about their difficult past – not all of them do so – they can choose from a range of available methods, including official apologies for and official condemnations of past crimes; truth, reconciliation and history commissions; trials of former perpetrators conducted in local, national and international courts; reforms of repressive institutions (the army, police and secret police); the opening of secret archives to ordinary citizens and historians; the return of abusively confiscated property to its initial owners; reintegrating former combatants; rewriting history books; compensating and rehabilitating victims; opening museums; renaming localities, squares and streets; or even knocking down statues. Among these methods, lustration alone can renew the political elite in a brief period of time.

Today I’ll raise five different questions. First, I present the lustration models enacted to date – what authors call accusation-based and confession-based lustration. Whereas victims wanted the former, political elites embraced the latter model. Then, I compare lustration with purges to see which one facilitates democratization better. Third, I survey the goals of lustration, to see if it addresses the recent past and prepares countries for a democratic future. Then, I present arguments against lustration, and I contrast lustration with court trials and access to secret files, two other key approaches of coming to terms with the past. My goal is to explain the reasons why lustration has become such a popular transitional justice method in only two decades, and to show its key shortcomings.

1.

So what is lustration? It is a legislative procedure that specifies who should be lustrated, from what kind of positions, and for how long. In former communist countries, the lustrati have been drawn from two main groups: former Communist Party leaders, and former communist-era secret agents. Remember that in that part of the world, until 1989, the Communist Party was the dominant, often the only, political formation. Repression was directly and indirectly attributable to the party, which tightly controlled the state structure. Its “shield and sword” were the secret state services –the Stasi in East Germany, the Sigurimi in Albania or the Soviet KGB – which employed full-time officers and part-time informers. (In Romania, for example, the ratio was 1 officer to 50 informers.) They opened mail, eavesdropped on phone conversations, and collected information on victims by monitoring their every move, recording and photographing them. Until the mid-1960s, the communist secret services were also responsible for illegal arrests, torture, disappearances, and judicial and extra-judicial killings of thousands of East Europeans who resisted the collectivization of agriculture and the antireligious campaigns, who tried to illegally cross the border into Western countries, or criticized the communist regime, its leaders and policies. Given these human rights abuses, after 1989 it was felt that Communist Party leaders and secret agents did not deserve the right to represent citizens in the new democracy.

As such, they were banned from being elected or nominated to public office, including the position of president of the republic, member of parliament, prime minister, minister and deputy minister, mayor, or local and county councillor. In 1991, when the Czechoslovak lustration law was adopted, the state was still heavily involved in mass-media, the universities, and the economy. As a result, the lustrati were denied access to positions that bridged the public and private domains – posts in the national tv and radio stations, the press, universities and research institutes, and private firms in which the state was a partner. The ban has stretched from five years in Hungary to an indefinite period of time in the Czech Republic.

But not all lustration programs are the same. They differ in two important respects. First, according to who gets punished. In the Czech or German accusation-based model, an individual is lustrated if he had occupied a specific position during communist times (mainly positions in the Communist Party leadership and the secret political police). Therefore, in the accusation-based model the past determines the present. By contrast, in the Hungarian or Polish confession-based model, only those who lie about their past get punished. Post-communist public officials and state dignitaries must sign written declarations detailing their involvement with the communist secret police. If they acknowledge their past, regardless how gruesome, they may retain their public posts in post-communist times. If their declaration is proven to be false, they are fired, being unable to retain their public post or being prohibited from occupying one through nomination or election. Thus, in the confession-based model officials are punished for lying, not for collaborating with the repressive communist regime. In the Czech Republic, 10,000 people have lost their jobs as a result of lustration. In Poland and Hungary, less than 500.

Lustration programs further differ in terms of the punishment they prescribe. In the Czech Republic and Germany the lustrati lost their positions (and they were either fired or demoted). But in Poland, the lustrati had their names published in the Official Gazette so that the electorate could decide to withdraw support from these candidates.

2.

Let me contrast lustration and purges, purges like Pride’s Purge of 1648, Stalin’s Great Purge of the 1930s, the purge of Jews from the German civil service in 1933-1934, the de-Nazification programs enacted in Western Europe after World War II, and the purges that routinely took place in Africa during the second half of the last century after most regime changes. Note that, in principle, lustration and purges are not incompatible, since many countries adopted them concurrently. But they are not quite the same.

The most important difference lies in the fact that all lustration programs enacted to date rested on parliamentary laws: lustration, election or citizenship laws. Albania, Bulgaria, Czechoslovakia, Hungary, and Poland introduced laws specifically dedicated to lustration. In Latvia until 2004, the election laws for the local councils included lustration provisions. In Estonia, stringent citizenship requirements denied Russian-speaking non-Estonians a host of rights, including the right to represent people in the new democracy. By contrast, purges were implemented through executive decrees or decisions imposed by occupying forces. Instead of killing former leaders, purges allowed the new rulers to marginalize, demote or exile their predecessors. For instance, in Belgium, the Netherlands and Italy de-Nazification programs were ordered by Allied forces with or without input from the Resistance or by governments returned from exile that had little understanding of how difficult had been to live under Nazi occupation. Whereas lustration laws were debated by parliaments where the lustrati were well represented, purges were decided with little input from the opposition. Thus, lustration, not purges, allowed representatives of the former regime some input in deciding the scope of the vetting programs that affected them.

The difference between parliament-enacted lustration and executive-decided purges translates into different levels of discretion. It is difficult to amend a law, since parliaments include a wide diversity of parties (some of them even representing the lustrati). By contrast, it is relatively easy to change an executive decree, since governments are formed by far fewer political formations than those represented in parliament. (This is even truer in Eastern Europe, where countries are parliamentary democracies employing variants of proportional representation that allows smaller parties to gain parliamentary representation.) The fewer the political actors involved in deciding the vetting program, the easier it is to adopt and change it. This is why executives changed the scope of purges more quickly than parliaments could amend lustration laws. Since for most purges no laws were spelled out, whether all individuals targeted for vetting 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).

Second, not all lustration programs can be assimilated to purges because not all of them result in job loss and not all of them punish leaders of the ancien regime. As mentioned before, the Polish lustration program of 1997 did not dismiss those who lied about their past collaboration with 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 former secret collaborators). In addition, accusation-based lustration comes closer to a purge program than confession-based lustration, since the former targets collaboration with the repressive regime, while the latter only targets efforts to hide that collaboration. Indeed, no punishment is levied on those who admit to their past involvement with the communist regime, regardless of how extensive that involvement really was. And note that most of the lustrati have ‘confessed’ their past in their declarations.

Third, the lustrati had recourse to courts, and could appeal lustration verdicts denying their right to occupy public office in national courts and in the European Court of Human Rights. Some verdicts were overturned as a result, thus protecting the lustrati from being fired or demoted. Political formations representing the lustrati were also able to petition the Constitutional Court against the lustration laws, sometimes completely blocking them (as in Romania and Poland in 2006-7) and often invalidating their most radical provisions (as in Poland in 1998). In addition, in many countries, lustration verdicts were decided by the courts (not the Ministry of Interior or independent state agencies), although lustration is an administrative, non-judicial transitional justice measure. Court involvement in deciding the lustration verdict has provided consistency across cases, and a guarantee that verdicts accord – procedurally and substantially – with the legislation in force. By contrast, purge victims had far fewer means of legal redress at their disposal. Often they had none. Perhaps that’s because Eastern Europe democratized very late, when judicial review mechanisms and the rules of the democratic game were already well instituted.

Last, all lustration programs were implemented with the declared scope of strengthening democracy, but purges did not have democracy as their most important goal. Direct connections between lustration and democracy are difficult to draw, but note that lustration has not impeded democratization. Countries that adopted lustration (Central Europe and the Baltic states) are more democratic today than countries that did not adopt it (the Balkan states and all former Soviet republics but Latvia, Lithuania and Estonia). By contrast, many purges left the country less democratic and severely weakened the rule of law, perpetuating the cycle of violence.

3.

Why was lustration adopted? In a series of studies, the Czech, Slovak, Polish, Romanian, and Baltic members of parliament were asked to spell out the goals of the lustration laws they brought before parliaments. These goals constitute as many arguments in favor of lustration. According to these deputies, lustration is useful to radically break with the past, by showing the new government’s willingness to sideline individuals tainted by collaboration. It was argued that former communist decision-makers – who condoned human rights abuse – cannot turn into democrats overnight. Events in Poland, Hungary and Romania during 1989 showed this position not to diverge that much from reality. Former Communist Party officials in high political posts kept tabs on the opposition, monitored their every move, and eavesdropped on meetings where the anticommunists discussed strategies to consolidate their electoral support. State agencies were thus used to weaken the anticommunist opposition. In addition, old networks of secret agents and secret informers were reactivated during privatization drives to allow the old elite to gain ownership of former state-owned enterprises and to sideline the workers. For Eastern European deputies, this goal is closely related to the second: lustration can prevent post-communist violence, because pro-democratic political leaders are less inclined than former communists to pit social groups against each other.

Deputies also claimed that lustration cleanses the political elite. Democratization studies tell us that elite renewal, not elite reproduction, is conducive to democracy. Russia, where the communist elites have retained their political influence, lags behind Eastern Europe, where lustration sidelined them. Similarly, in the Czech Republic highly compromised persons were kept out of public life, whereas in Slovakia they were not lustrated and were thus able to delay democratization. The ban on former communist leaders frees up key government positions that can be offered to untainted individuals. True, court trials could do just that, if communist officials were found guilty. But post-communist countries have prosecuted very few of those who ordered and executed crimes. Weak judiciaries, amnesty deals, the old age and frail health of the accused, and security concerns meant that few perpetrators were brought before the courts, and even fewer were found guilty for their crimes. With one stroke of the pen, and the adoption of lustration laws, legislative majorities can effect elite replacement.

When applied to the army, police and secret police personnel, lustration can reform key repressive institutions. Under communism, secret services defended the communist state and leaders from their own populations. One of the first citizens’ demands during the velvet revolutions of 1989 was to have surveillance activities discontinued and secret informers retired. Lustration did just that.

Lustration was also believed to provide retributive justice for victims of communist crimes. For former victims, seeing a former prison guard, party leader or brutish policeman losing his job for his association with the communist regime ‘levels the ground,’ takes political power away from the former torturer, and allows the former victim to not be afraid anymore that the torturer will use his official position to put the victim down, to deny him recognition of his past suffering, or the right to recount communism from his own personal point of view. For what kind of revolution is that, after which torturers continue to enjoy positions of power and privilege and victims continue to be silenced at every step? This is not revenge, deputies pointed out, but the realization that post-communist states must represent former victims as much as they represent former victimizers. This is the reason why, Eastern European deputies contended, lustration denies former party leaders and secret agents only one political right: the right to represent the electorate in the new post-communist democracy. They are free to find success as businessmen, for example – as one dissident put it, communist dictator Nicolae Ceausescu “would be free to open the best boutique in town, if that’s his heart’s desire, but not represent me in the new parliament.”

Critics have dismissed lustration as ‘legally, politically and morally unacceptable,’ ‘unconstitutional and even anti-constitutional,’ a ‘discriminatory imbecility,’ a ‘confused, ambiguous, legally imperfect’ bill amounting to witch-hunt, an ‘uninspired anachronism, a wasps’ nest empoisoning the country.’ Lustration, it was claimed, was an ‘exercise in hypocrisy and intolerance’ similar to Stalinist purges, ‘a non-sense transformed from a purification ritual into a wild chase,’ a ‘political purge’ and a ‘national hysteria,’ a policy that “divides the citizens in arbitrary categories, takes away the right of some citizens to elect and be elected, and leads to a generational gap’ by branding older persons as ‘bad’ for having only lived under the communist regime, and the younger generations as ‘good’ for having the chance to be born after the 1970s. Detractors have viewed lustration as a blunt political device meant to help “self-avowed anticommunists, demagogues, populists, the frustrated,” “the mentally handicapped,” “the Bolshevik off-springs of early communist nomenclatura members,” and anticommunist political formations insensitive to the plight of the people to gain political capital.

The main charge against lustration raised by former communist decision-makers and secret agents laments the infringement of a basic human right guaranteed by all post-communist constitutions. If they wish to be true democracies, the argument goes, these countries should uphold their constitutions, and break with the communist tradition of recognizing more rights to their supporters and fewer to their critics. Western European liberal democracies that Eastern Europe seeks to emulate recognize the right to run in elections to all citizens, irrespective of their ideological persuasion. Post-communist countries should do the same, critics of lustration insist. The problem with this argument is the uneven comparison it rests on. Does it make sense to compare Western European practices fifty years after the fall of the Nazi dictatorship with an Eastern Europe that just escaped from the grip of communism? What did Western Europe do at the end of World War II to rid itself of Nazi sympathizers and collaborators? The comparison is unflattering for Western Europe. For it engaged in widespread and often wild purges either decided by executives that had just returned from exile, or dominated by Resistance forces seeking to exact revenge, or imposed by external forces (like the Allies). Whichever the method, these purges were conducted with very little debate and participation from the population at large, let alone the very people slated for the purge.

A more serious critique charges that lustration is a blanket policy (except for Germany, where employers could decide their own lustration standard). No matter how serious the crime, the punishment is the same: job loss. Let’s take an example. Suppose two individuals acted as secret informers before 1989. One was named Malgorzata Niezabitowska, the other Constantin Balaceanu-Stolnici. Niezabitowska spied on her friends under duress, offered trivial information already known to the secret police, and was a long-time supporter of the anticommunist Solidarity movement (having demonstrated her commitment to democracy both during and after the imposition of the martial law in Poland). By contrast, Balaceanu-Stolnici was a classy Romanian boyard who volunteered to spy. From 1973 to 1989, under the code name Laurentiu, he provided hundreds of information notes on his coworkers, neighbours, students, and relatives for very concrete rewards: permission to travel abroad, money, and acceptance into the Academy of Sciences. He took pleasure in deciding the fate of his victims, and even suggested to the secret police how to monitor the victims closer, and how to break their will. If the past matters, critics say, then Niezabitowska and Balaceanu-Stolnici should be measured by different yardsticks. This is exactly the reason why in 1993 the Czech lustration law was amended to make room for individual circumstances.

This example brings me to another shortcoming of lustration: its heavy reliance on the secret files produced by the communist regime. The names of the nomenclatura members were widely known, but the names of the secret officers and informers were just that: secret. At the time of their recruitment, secret informers pledged to maintain the secrecy of their collaboration. Indeed, there was no such thing as a publicly known secret informer. Once his identity became known, the informer no longer found out useful information because his relatives, friends and co-workers offered none. The informer was forcibly retired. Since informers concealed their former collaboration, the secret files were used to decide who was a former secret collaborator who had to be lustrated.

But secret files pose several challenges. In some countries, files were destroyed, altered or even created anew during the early 1990s. The secret archive today is not quite the same as it was when the communist secret police signed the last secret document just before going out of business in 1989. For example, some 70% of the secret files were destroyed in Hungary during the roundtable talks that facilitated the transfer of power in 1989 from the communists to their opponents. In the Soviet Union, most of the KGB secret archives were transferred from the republics to Moscow during the summer of 1991 by the withdrawing KGB troops. Ironically, the KGB left behind in Estonia only the card system, which mentioned the names of those with a KGB file, without specifying whether the file was an informer or a victim file. This partial information has pitted Estonian against Estonian, in a war of words where everybody suspects everybody else.

Even when the archive is complete, as in the case of the German Stasi, files are not a completely reliable source of information. Remember that a lot of what they contain was obtained under duress. Secret officers did not note in the file “today I beat X up and smashed his head to the wall several times until he agreed to speak up.” They will simply write “today, X confirmed this piece of information for us.” Or consider the case of Herta Muller, the 2009 Nobel Prize literature winner, who in the 1980s was invited to become a Securitate informer to be allowed to continue to work as a translator at a shabby factory in Timisoara. “After my second refusal,” she wrote, the recruiting officer’s “farewell words were: ‘You’ll be sorry, we’ll drown you in the river.” In the end, they did not drown her into the river, but they spread rumours, in the factory and beyond, that Muller was a spy, when in fact she wasn’t one. None of these details are included in Muller’s secret file.

Thus, the secret files provide a picture of reality as seen through the eyes of the communist secret police, which sometimes significantly differed from reality as perceived by its victims. Small acts of dissidence were blown out of proportion and declared acts of treason, ordinary people non-active politically were placed under surveillance, and real dissidents were presented as common thieves and petty criminals because communist authorities refused to admit that some citizens were dissatisfied with the regime and had the guts to scream loudly. One must also factor in the individual agency of secret spies, who sometimes fabricated information and even recorded fictitious persons as informers in an effort to boost their chances for promotion.

Polish anticommunist dissident Adam Michnik claimed that secret informers were also victims, since they were all forced into collaboration. That might be true in the case of former political prisoners asked to sign pledges of collaboration upon their release from prison and during the early decades of communist rule, when the penalties for refusing recruitment were severe. But even under Ceausescu, during the 1980s, when Romania was considered one of the last Stalinist enclaves behind the Iron Curtain, there were tangible alternatives to collaboration that turned former spies into beneficiaries, not victims, of communist authorities. Considering secret informers as victims blurs the distinction between victims and victimizers, and assumes that repression was so severe that nobody dared to refuse recruitment. That was not really the case.

4.

Timothy Garton Ash warned that “there is no such thing as a good purge, even if it is politely called lustration.” Despite the criticisms I outlined here, lustration has been widely embraced as one of the key methods of reckoning with the past. Some provisions of the lustration laws were admittedly excessive, but research has argued that lustration had a valuable contribution to consolidating democracy and making the return to communism impossible. It created democratic bureaucracies, improved conditions for free and fair political competition, the rule of law and constitutionalism, ‘refreshed’ the legal profession, stabilized democratic constitutional and legal culture, brought transparency to the financial, banking and industrial sectors, and removed the former corrupted nomenklatura from its positions.

The reasons why become evident when lustration is compared to court trials. Lustration is quicker than court trials. It takes years to prepare a case and to convince courts to hear it, but it takes only weeks to adopt and enact a lustration law. While true, this is not the greatest advantage of lustration over trials. The truth is that most crimes perpetrated by late communist regimes cannot be brought to court, the punishment they command is too meagre, the huge number of potential ‘victims’ could overwhelm the courts, and the business of sorting out victims from victimizers is daunting. Because Stalinist crimes were committed decades before the collapse of the communist regime, most of the evidence was lost, and most of the tortured and torturers (as Huntington called them) are gone, old or too frail. The occasional murder committed after 1953 was amnestied, prescribed, or covered up by laws that condoned state abuse. Opening the correspondence and eavesdropping on phone conversations were illegal even by communist standards. But they were not punishable by jail time or high fees. To bring to court such a case would punish victims more than victimizers, since the former would have to pay lawyer’s fees and take the time to build the case (mostly based on secret documents available to the public through file access).

Since I’m talking about these files, let me give an example from a secret archive I visited. The Romanian archives include 1.5 million files, mostly victims’ files. None of the victims took to court the spies who gave information on them to the Securitate. It is unlikely that courts would even accept such a case, since a precedent could overwhelm the judiciary. And if a court rules in favour of the victim, who’s to pay for the moral and psychological damage inflicted by the defunct communist political police? Secret agents have argued that they were mere cogs in the repressive system, victims of a regime that obliged them to spy, harass, and kill. Corneliu Coposu, who once spent 17 years in solitary confinement, noted the irony of this situation when he said that victims would be forced to cover themselves the damages they win in court, if such damages were imputed to the government.

An even more powerful argument that explains the very limited number of post-communist court trials refers to the unclear boundaries between victims and victimizers. As Tina Rosenberg put it, in Latin America, repression was deep; in Eastern Europe, it was wide. In Latin America, some people were clearly victims. They were tortured, murdered or disappeared by another group of people – army and police officers, members of death squads – who were clearly perpetrators. In Eastern Europe during the 1980s, the communist regimes were kept in power by a much larger number of people exerting less violent or explicit pressure on many more victims. Many people were on both sides. As Garton Ash noted, “society was kept down by millions of tiny Lilliputian threads of everyday mendacity, conformity and compromise.” Or, as Václav Havel stressed, “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 co-responsible.” Thus, it is unclear who should be put on trial. Michnik suggested that nobody except individual cases of brutality, such as the Polish SB officers responsible for the murder of Father Popieluszko.

Given this context, in Eastern Europe lustration has become an alternative to trials – not that the two do not go well together. In that region, lustration has also served as an alternative to truth commissions. The opening of the secret archives implied by lustration has taken the truth from the hands of the government and placed it not in the hands of trained historians – for we know that transitional justice is too important to be left to historians – or of a truth commission – which would exchange truth for amnesty or would conceal the names of the perpetrators in an effort to gain their cooperation – but in the hands of ordinary citizens. It is for each and every regular Joe in that part of the world to reconcile his memory of communism with the narrative included in the secret files. This is democratization of history at its best. Its aim is not judicial punishment, but rather a national catharsis showing what Havel called “the power of the powerless.”

Delivered as part of the Faculty of Arts Lecture Series, 10 March 2011.

Advertisements