Prosecuting Human Rights Violations from a Previous Regime: The East European Experience

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I. INTRODUCTION: POLITICAL TRIALS AND HUMAN RIGHTS PROCEEDINGS IN OTHER CONTEXTS

In the past two decades, a remarkable number of countries have apparently transformed themselves from either authoritarian or totalitarian hells into modern democracies where serious human rights abuses have been eliminated or at least significantly reduced. Where previously political terror and gross human rights abuses were an unfortunate hallmark of government policy in many Latin and Central American countries and in the Soviet bloc as well, many of these same countries are now experiencing at least nascent forms of democratic rule.

Despite these achievements, however, these transformations face two interrelated problems. One is how much information about the old regime should the new regime disclose? What complicates this, of course, is that there is seldom a complete break with the past. In fact, if history teaches us anything here -- the American example with the "Old Guard" of the Confederacy, denazification (hardly) in Germany, the failure to remove vestiges of the war regime in Japan(1) -- it is the intractability of the old order. Thus, attempts to disclose the past quite often run into the very basic problem that the past continues to be the present. Already in Eastern Europe, the focus of this article, former communists are returning to office through electoral victories in Hungary, Poland and Bulgaria, and there is the very real question whether they ever really left power in Romania or the Slovak Republic.

Related to this issue of whether to disclose or not is whether there should be some attempt at prosecuting those who ordered and/or carried out political crimes during the rule of the previous regime.(2) Here there are additional obstacles to overcome. One is the simple fact that the old order has oftentimes provided itself with a complete amnesty before leaving, or being removed from, office. This phenomenon has occurred, in one manner or another, in a number of countries attempting to transform themselves into democracies: Brazil,(3) Uruguay,(4) South Africa,s El Salvador,(6) Argentina,(7) and Chile,(8) to provide a partial list. The question becomes whether a new regime, purportedly operating under the rule of law, should ignore or overturn these legal pronouncements of the old order.

Another obstacle to prosecution, more acute in Eastern Europe because of the long period of communist rule, involves the statute of limitations problem. How far into the past should the new order be able to go? There also is a problem of whether there is sufficient and proper personnel to judge the atrocities of the old order. One of the limiting factors in prosecuting collaborationist activities in France following World War II, for example, was the fact that the judiciary had so completely identified with Vichy rule.(9) With the exception of Germany (and possibly Poland), the same problem exists in Eastern Europe as well, where most judges were themselves members of the "old order."

Nevertheless, trials against members of the former regime following a change of the socio-political system have occurred, and in several instances these trials have been quite successful (see Section III), not only in terms of prosecuting certain members of the old order or those who collaborated with it, but also in terms of assisting in the transformation to democratic rule.(10) The best known trials, of course, are those that occurred following World War II. However, although the Nuremberg trials and the so-called "subsequent proceedings" in Germany, as well as the International Military Tribunal proceedings in Tokyo, served to establish important principles of international law, they did little to confront these nations and these people with their wartime activities. Instead, such trials were far too easily written off by Germans and Japanese alike as a form of "victors' justice," but at the same time, these trials also gave license to rationalize that if wartime crimes had in fact occurred, they had been answered for in these trials. …