Judging Transitional Justice: A New Criterion for Evaluating Truth Revelation
Procedures
Author(s): Marek M. Kaminski and Monika Nalepa
Source: The Journal of Conflict Resolution , Jun., 2006, Vol. 50, No. 3, Transitional
Justice (Jun., 2006), pp. 383-408
Published by: Sage Publications, Inc.
Stable URL: https://www.jstor.org/stable/27638496
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Judging Transitional Justice
A NEW CRITERION FOR EVALUATING
TRUTH REVELATION PROCEDURES
MAREK M. KAMINSKI
Department of Political Science
and Institute for Mathematical Behavioral Sciences
University of California, Irvine
MONIKA NALEPA
Department of Political Science
Rice University
Truth revelation procedures are evaluated according to various normative criteria. The authors find the
concepts of false conviction and false acquittal more adequate for such evaluation than the conformity
with the rule of law and apply a useful classification of truth revelation procedures into incentive-based
(ITRs) and evidence-based ones (ETRs). ITRs induce perpetrators and secret agents of the authoritarian
regime to reveal the truth about their past, while ETRs rely exclusively on preserved evidence and
victims' testimonies. Using a simple decision-making model, the authors show that while both procedures
are sensitive to the problem of falsified evidence, ITRs perform better with respect to revealing the iden
tity of collaborators whose files were destroyed. Finally, they discuss the connection between ITRs and
two modes of coming to terms with the past, endogenous and exogenous.
Keywords: transitional justice; lustration; truth commission; Eastern Europe; truth revelation
LUSTRATION AS A LEGAL BUT NOT JUDICIARY INSTITUTION
Since 1997, candidates for political office in Poland have had to deny or acknowl
edge that they had worked for or consciously collaborated with the communist secret
police. However, ex-collaborators are not banned from holding any positions.
Declarations of collaboration are published, and the voters themselves or, for positions
allocated by nomination, an appropriate agency decide whether the ex-collaborator
can hold the office in question despite his or her shameful past. Statements denying
AUTHORS' NOTE: The financial support of the Center for the Study of Democracy at the University
of California, Irvine, and helpful comments of Nigel Ashford, Brian Barry, Jon Elster, David Johnston, A.
James McAdams, Barry O'Neill, Melissa Schwartzberg, and Philip Tetlock are gratefully acknowledged.
The authors made equal contributions to this publication.
JOURNAL OF CONFLICT RESOLUTION, Vol. 50 No. 3, June 2006 383-408
DOI: 10.1177/0022002706287046
? 2006 Sage Publications
383
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384 JOURNAL OF CONFLICT RESOLUTION
collaboration are handed over to a special prosecutor's office for verification with the
use of files from the secret police archives.1 The archives are closed so the declarator
is unsure whether his or her past deeds appear there. The prosecutor compares the
declaration with evidence from the archives. When the prosecutor finds an under
statement of collaboration, the politician is accused of a "lustration lie" and tried
before a special division of the appellate court (Dziennik Ustaw 1997). The law stip
ulating this requirement, lustration, screens politicians for their collaboration with the
past authoritarian regime and limits their access to public office. However, lustration
is hardly a Polish specialty. It has drawn a great deal of media attention in postcom
munist Europe over the past fifteen years (see Figure 1).
It is important to distinguish lustration from decommunization. Both laws may be
proposed in one bill.2 Decommunization denotes purging the state's administration and
bureaucracy of high-ranking communist officials and resembles denazification in
Germany after World War II (McAdams 2001). In general, denazification had more
severe consequences than lustration or decommunization. Lustration differs from
decommunization or denazification in one important respect?namely, that in the lustra
tion case, the former secret agent is vulnerable to blackmail. The identity of a high
ranking communist or a Nazi is common knowledge. He or she cannot be blackmailed
by the threat of revealing compromising information about his or her past. Secret police
agents can. A former undercover agent is very vulnerable to corruption and may be
pressed to breach the norms of public service by somebody with access to his or her files.
Lustration procedures rely on the examination of the ancien regime's secret
police files to verify how closely politicians collaborated with the regime, either as
agents or secret informers.3 It is often argued that victims (those who were spied on)
should have access to their files after the regime falls. However, declassification laws
(i.e., legislation allowing for the opening of secret police files to the public) may
interfere with lustration if they rely on a subtle mechanism of withholding informa
tion from potential ex-informers. Therefore, declassification must be coordinated
with the lustration process.4 Both lustration and declassification may inflict serious
moral punishment. When compromising information about a collaborator's spying
activity is circulated, his or her professional career is harmed. Finally, lustration laws
do not impose criminal punishment on former collaborators. Instead, lustration
means that they cannot hold political and other public or quasi-public positions, such
as academic teachers, doctors, and attorneys, or, in some cases, that they can hold
such offices only by allowing their collaboration to become public knowledge.
1. Prior to June 1998, this function was supposed to be performed by a lustration court, whose
twenty-one members were to be elected by regional councils of the judiciary. Due to widespread opposi
tion toward lustration among the Polish judiciary (the first task of the lustration court was to lustrate itself)
in some of the councils, no one volunteered to run in the elections (Lack of candidates 1997).
2. Czechoslovakia until 1993, and later the Czech Republic, was the only country where joint lus
tration and decommunization gained approval of all veto players in the legislation process. Initially,
decommunization accompanied lustration in the Bulgarian and Albanian bills but was blocked by consti
tutional courts or presidential vetoes.
3. Both informers and agents were supposed to gather intelligence. The latter were assigned addi
tional tasks such as penetrating new opposition cells or uncovering meeting places and transfer channels.
4. We elaborate on this point in the third section.
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Kaminski, Nalepa / JUDGING TRANSITIONAL JUSTICE 385
country
Figure 1 : Lustration in the Media, 1989-2003
NOTE: The histogram shows the frequency with which "lustration" or "screening" appeared in the title
or lead paragraphs of major daily newspapers in thirteen Eastern and Central European countries between
1989 and 2003. The data were obtained by applying the following search criteria in the Lexis Nexis World
News search engine: Source of publication = European News Sources; Terms = country AND (screening
OR lustration); Date range = 1989-2003.
Lustration may, but need not be, preceded by a truth commission, a temporary body
of inquiry investigating patterns of abuses (Hayner 2001). Truth corrirnissions prepare
reports on the criminal activity of the ancien r?gime. Usually, they conduct public hear
ings of victims and sometimes name perpetrators or prepare tentative lists of collabora
tors. Some truth commissions have additional powers such as subpoena or search and
seizure rights. The best-known truth commission is the South African Truth and
Reconciliation Commission (TRC). A more recent one, from Peru, released its widely
publicized report in 2003. Truth commissions may also be instituted when lustration
procedures are not feasible because of lack of documents that could be used as evidence.
Since lustration procedures require an archive of names and cases, it could be used only
when there was a sizable secret police apparatus that documented its activities.
Lustration, truth commissions, and declassification jointly form what we call truth
revelation procedures, which comprise a subset of institutions of transitional justice
(TJ). Such procedures often so closely resemble traditional court proceedings and face
similar problems (Posner and Vermeule 2004) that one can easily overlook the fact that
they are not actual judiciary institutions. However, these laws are part of the labor code
rather than of the criminal justice system. The designers of lustration in Czechoslovakia
and declassification in Germany made this an explicit part of the law. The crucial dif
ference is that the courts are not empowered to disqualify a person from a certain post.5
5. To be sure, courts may have a profound effect on lustration. For instance, court decisions can
modify the consequences of lustration. A successful appeal may narrow the definition of lustration
(McAdams 2001). Similarly, a ruling of the constitutional court may eliminate a lustrable category
(Interviews JM 2004).
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386 JOURNAL OF CONFLICT RESOLUTION
Truth revelation procedures are examples of TJ in the aftermath of transition to
democracy as opposed to TJ following wars of independence or the restoration of
monarchy. They are also an important part of what Elster (2004) has termed endoge
nous transitional justice. Its key features are that it is implemented (1) by the country
in transition itself, not by any foreign power or court; (2) by the legislative or execu
tive branches of the government rather than nongovernmental organizations (NGOs)
or individuals; (3) shortly after transition rather than decades later; and (4) that it tar
gets the violations of rights that occurred before or during the transition, not after it is
over (Elster 1998). On the other hand, exogenous TJ denotes instances when interna
tional actors prosecute or significantly influence the prosecution of those who com
mitted wrongdoings during the authoritarian regime. Among the most prominent
examples are the Nuremberg trials and the recent trial of Slobodan Milosevic (see Bass
2000 for an illuminating account of the latter).
An important feature of TJ procedures is that they are legal institutions. What this
entails becomes apparent after contrasting it with "private justice." For instance, one
of the goals of lustration is to prevent vindictiveness and excess in settling accounts
with collaborators of the former political police via extralegal measures.6 Sometimes,
the demand for punishing former collaborators is so strong that placing them in jail
protects them from popular revenge. This happened in Poland in 1831 during the anti
Russian uprising when Poles who were former Russian secret agents were incarcer
ated to protect them from Warsaw crowds frustrated over the insurgents' losses to the
tsar's army. In the end, the loyalists were dragged out of their cells and lynched any
way, proving the precautions of the early lustration commission insufficient. The
institutions of TJ preempt and channel the demand for revenge on political opponents.
While responding to the urgent need to prosecute authoritarian wrongdoers, TJ satis
fies certain norms of procedural justice, such as impartiality, and it is created via the
standard legislative process.7 For this reason, the infamous summary trial and execu
tion of Nicolae Ceausescu and his wife had little in common with TJ.
This article examines the norms that the rule-of-law tradition imposes on lustration
and truth commissions in the form of the nonretroactivity condition (Schwartz 1995;
Kritz 1995, vol. 1). We present reasons against judging those procedures by identical
standards as courts in established democracies. In our analysis, the emphasis is placed
on the positive aspects of TJ and practical constraints on its implementation. In doing
so, we are not dismissing the idea of normative analysis of TJ per se. To the contrary,
we believe that purely positive TJ research would be deficient without studying its nor
mative implications and that the ultimate objective of truth revelation procedures is
reconciliation between members of the society who held opposing views of the past
regime. However, evaluating the institutions of TJ is an entirely new normative
6. Other goals of lustration include preventing officials from being blackmailed, as well as elimi
nating from public service persons who are considered not trustworthy because of their role in the ancien
regime.
7. For a definition of procedural justice and its different types, see Rawls (1971). Since transitional
justice (TJ) procedures manage to satisfy these norms only partially, they present an example of imper
fect procedural justice. For a useful discussion of the preemptive role of TJ, see Elster (2004).
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Kaminski, Nalepa / JUDGING TRANSITIONAL JUSTICE 387
endeavor. It calls for a new set of criteria developed specifically for procedures that
deal retroactively with authoritarian crimes and misdemeanors.
The next section begins with a discussion of the source of contention between TJ
and the principle of nonretroactivity. To illustrate the point that the normative litera
ture has misdirected its efforts in focusing on this principle, we describe how outgo
ing autocrats try to defend themselves against TJ by adhering to the rule of law
understood as nonretroactivity. The third section makes a distinction between two
kinds of truth revelation procedures: incentive-based truth revelations (ITRs) and
evidence-based truth revelations (ETRs). Finally, two alternative criteria for evaluat
ing ITRs and ETRs, the avoidance of false conviction and false acquittal, are pro
posed. These lead to an argument in favor of endogenous TJ, of which ITRs and
ETRs are chief examples.
IS TRANSITIONAL JUSTICE RETROACTIVE?
The most heated normative debates in TJ revolve around whether it is retroactive.
The question is simple: can new laws be applied to past atrocities? Legal and polit
ical theorists have long struggled to reconcile TJ with the principles of rule of law
(Teitel 2000; McAdams 1997; Welsh 1996; Huyse 1995; Schwartz 2000). By no
coincidence was the initial name for TJ "retroactive justice" (Tucker 1999). We dis
cuss arguments that may be viewed in favor and against placing such a heavily
loaded label on TJ.
von Hayek (1960), who presents the rule of law as an embodiment of three
principles?generality, predictability, and equality before the law?explicitly states
that retroactive law stands in contradiction to all three. The first problem with such
a point of view is simple. Authoritarian regimes may be willing to prosecute the
political opposition, based on legislation calling for the use of all available means to
prevent "counterrevolution": this was certainly true in the Stalinist periods in virtu
ally all Eastern and Central European countries in the Soviet Bloc. Excluding laws
exhibiting any characteristics of retroactivity would prevent rectifying those wrongs.
However, a more careful look reveals that the problem is complex. Even the
staunchest supporter of the nonretroactivity principle could hardly endorse the fol
lowing interpretation: "If a band of crooks take power, claim that the 'old law' is
invalid, and rule for a sufficiently long period of time on their own terms that they
call 'law'?then once they are put out of power, no legal action can be taken against
them." However, communists were neither crooks nor fully legitimate rulers. One
could locate communist rule at different points, depending on the period, between
this extreme case of crooks in power to a fully legitimate legal system.
von Hayek (1960) and other authors who have theorized on the rule of law provide
a good argument against such a broad interpretation of nonretroactivity by referring to
its meta-legal aspect (Teitel 2000). The idea of the rule of law has a different status
from ordinary legislation. It goes "beyond mere legality" by implying what law ought
to be. von Hayek states that "the principle [of rule of law] would not be satisfied if the
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388 JOURNAL OF CONFLICT RESOLUTION
law said that whoever disobeys the orders of some official will be punished in some
specified manner" (p. 206-7). In other words, law cannot, for example, make the citi
zens subject to the arbitrary discretion of bureaucrats. In fact, the legislation of com
munist regimes, especially in the Stalinist period, was so vague that the secret police
had wide discretion to arrest and imprison the citizenry. For instance, the Polish secret
police, the SB, kept a close watch on tens of thousands of Solidarity members.
Whenever the regular police were called to a crime scene, they were required to con
sult a database to verify whether any of the persons involved were under secret politi
cal police surveillance. If they were, a high-ranking secret police officer would have
exclusive authority over collecting evidence, which would then be used to blackmail
the ex-Solidarity member into cooperation with the SB (Interviews D 2004). A similar
tactic was employed by the StB, the Czechoslovak secret police, which was authorized
to reduce or extend a political prisoner's sentence, depending on his willingness to
become a secret collaborator. Czech dissidents quote stories about former opposition
ists, whose will to resist collaboration would be broken by the prospect of being
released from prison early (Interviews Su and U 2004).
But does the failure of a past regime to follow the rule of law entitle a succeed
ing democracy to implement justice retroactively? One could argue, on the contrary,
that the new democracy should maintain the rule of law in the strictest sense, even if
it requires avoiding retribution. We do not endorse such a point of view. Below, we
review additional arguments that can be used against such a broad application of
nonretroactivity to TJ.
First, the nonretroactivity principle was formulated in a different political context. Its
essence was to prevent incremental changes in law from interfering with the citizens'
sense of safety and predictability within a stable political regime (von Hayek 1960).
This rationale cannot be used in the aftermath of a comprehensive regime change, espe
cially if the past regime had committed numerous atrocities. Thus, we need to distin
guish between "incremental" retroactivity that may appear in a stable political system
and retroactivity that is connected to the comprehensive regime change and TJ.
Second, two broad categories of retroactive legislation should be distinguished in
the context of TJ. An act that was criminal according to the past legal system can be
examined or reexamined even though its statute of limitation expired or even though
it had already been brought before a court prior to the transition. In such a case, we
will talk about endogenous retroactivity. In exogenous retroactivity, a formerly legal
act can be redefined as a criminal one on the basis of some parallel legal system with
its own claims to legitimacy.
The justification for endogenous retroactivity comes from within the ancien regime's
legal system itself. The argument would proceed along the following lines: administra
tive incompetence, a confusing division of responsibilities among agencies of legal
enforcement of the authoritarian regime, or illegal activity of secret police and other
agencies, made the prosecution of crimes impossible at the time they were committed.
It is thus the responsibility of the succeeding democratic court system to deal with the
unsettled violation of laws of the ancien r?gime. The cases of endogenous retroactivity
mostly amount to lifting the statutes of limitation for such criminal activities that, due
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Kaminski, Nalepa / JUDGING TRANSITIONAL JUSTICE 389
to the lack of an independent judiciary, have not been prosecuted.8 The lifting of statutes
of limitation is justified by infeasibility of justice in the past. Numerous cases of when
the secret police or courts routinely violated the legal standards of their own authoritar
ian regime are trivial common knowledge among the former opposition members.9 On
other occasions, as in the case of Father Popieluszko's murder in 1985, an investigation
took place, but only low-rank foot soldiers were successfully prosecuted while no high
rank perpetrators were punished. Since the transitions in 1989, endogenous retroactive
cases have been reopened on the grounds of communist law that was in place when the
crime was committed.10
In specific cases, numerous unexpected problems may arise. For instance, the
offender might have known the criminal character of the offense, but over time, this
person might have acquired an expectation that she or he would no longer be pun
ished. If the offender originally expected to be punished, but at a later time still under
the regime was sure that it would not happen due to the statue of limitations, does
punishing this person after the transition violate the rule of law? Interestingly, the
Hungarian Constitutional Court apparently believed so, when it struck down a
statute allowing for the resuming of prosecutions for crimes committed by the ancien
r?gime. The court explicitly interpreted the rule of law as "predictability and fore
seeability" (Solyom and Brunner 2000).
Exogenous retroactivity, on the other hand, can be justified on the grounds of nat
ural or other law after demonstrating the lack of legitimacy of the past regime. While
we do not intend to dwell on the legitimacy debate, a summary of important facts
is in place.11 The Soviet Union installed communism in Eastern Europe by means
of the Red Army's residence in the region between 1944 and 1945. By 1948, any
8. Helmke (2002) has shown that even a judiciary tied to an authoritarian executive will sometimes
defy its orders, especially when the executive is losing power. Her evidence comes from Latin American
constitutional courts. However, European communist states had no high echelon courts, such as constitu
tional courts that could compete with the communist executive. Manifestations of disobedience in lower
echelon courts were infrequent. No wonder that in communist Europe, instances of "strategic defection"
of the kind described by Helmke were rare.
9. The reader may imagine the scale of such violations from the following story. One of us, a manager
of an underground publishing house, was imprisoned in 1985 in Poland on the basis of an illegal "arrest war
rant" for publishing uncensored books, an activity that was consistent with the Helsinki Accords. No search
warrant was presented on entry to his landlady's apartment. The SB officer called his university, lying about a
catastrophic water leakage in order to bring him home. No protocol was prepared to list confiscated books and
cassettes. No rights were read to him. No contact with a lawyer was allowed. The communist-controlled TV
broadcasted a defaming news clip describing the books as "pornography." He spent five months in jail as "tem
porarily arrested." No trial concluded his case. Finally, as he later discovered, the corrupted secret police chan
neled the confiscated books back into the underground Solidarity's distribution network (Kaminski 2004).
10. Examples include the trials of border guard shootings in Germany and the Czech Republic
(Interviews P 2004), as well as trials of the military and police for bearing arms against peaceful demon
strators in the Wujek coalmines and Gdansk shipyards in Poland (Czubinski et al. 1997) and the village
of Salgatorjan in Hungary (Halmai and Scheppele 1997). There were also trials of high-ranking secret
police officers for homicidal acts against Polish dissidents in Poland, such as the above-quoted
Popieluszko case; the case of the student anticommunist activist from Krakow, Stanislaw Pyjas; and the
case of the high school student and son of the Solidarity leader, Grzegorz Przemyk (Interviews Ur 2004).
11. For opposing positions on the positive versus natural concept of law, see Fuller (1958) and Hart
(1958), as well as their subsequent writings. The Hart-Fuller debate focused on the question of the validity
of the Nazi laws.
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390 JOURNAL OF CONFLICT RESOLUTION
remaining opposition was purged. Except for Czechoslovakia in 1946, where the
communists won a plurality in democratic elections, the election results showing
communist victory were falsified in all other Eastern and Central European countries
(Brzezinski 1989; Gross 1989). Communist rule was never legitimized later by free
elections. However, internal resistance to communist takeovers was not the sole form
of opposition to authoritarian rule. In many Central European countries, opposition
took the form of governments in exile. These bodies honored the pre-World War II
laws. Since holding mass elections was not a feasible option, succession of author
ity was regulated by the constitutional rules that specified relevant procedures in a
state of national crisis. From their perspective, as well as the perspective of the laws
of prewar political systems that were legitimized by free elections, the period of
communist rule between 1945 and 1989 was illegal. Most communist legislation that
could be considered amended "retroactively" would be itself retroactive according to
the earlier laws. Following free elections in 1990 and 1991, the governments in exile
symbolically surrendered their legal authority to newly elected presidents and
assemblies in East and Central Europe.12
Moreover, the communist political system underwent periodic unconstitutional
transitions of executive power followed by extensive purges in the remaining
branches of government, as well as in the military and administrative offices.
Blackmail, violent threats, and outright homicide (or rather policide) were common
methods of replacing an inconvenient top official.13 Usually, official statements
referred to poor health as the cause of abdication. In a few spectacular cases, such as
Nagy's removal by Kadar in 1956 in Hungary or Dubcek's removal by Husak in
1968 in Czechoslovakia, the illegality of the change according to the then-valid com
munist law was common knowledge. The new governments and, subsequently, new
parliaments, judges, and laws were illegal even according to the regime's own laws.
Internal legal inconsistencies of communist systems were exposed by the ratifica
tion of various international treaties, such as the Helsinki Accords concluding the
Conference on Security and Cooperation in Europe in 1976. The signatories of the
accords included, along with Western European states, Bulgaria, Czechoslovakia,
German Democratic Republic (GDR), Hungary, Poland, Romania, the Soviet Union,
and Yugoslavia. Chapter 7 of the accords was devoted exclusively to respecting
human rights. Over the next thirteen years, the communist signatories repeatedly vio
lated these commitments. For instance, the accords contained a commitment to allow
those drafted for military service to exercise a right of conscientious objection, while
the Polish military oath demanded of all conscripts that they swear to fight the ene
mies of the Soviet Union and forced them into taking arms. Those refusing to do that
12. For instance, in Poland, President Kaczorowski, the last head of the London-based government
on exile, returned the insignia of power to Lech Walesa only after the latter was elected president in the
first fully free elections in postwar Poland in 1990.
13. In the most spectacular series of internal turnovers from the 1920s to 1950s, the powerful heads
of the Soviet secret police murdered or supervised murders of their predecessors. According to some ver
sions, the Cheka creator Dzerzhinsky was poisoned by Menzhinsky, who was later replaced by Yagoda,
who removed Yezhov, himself purged by Beria, who in the process of the post-Stalinist purges was stran
gled or shot in 1953. In an externally enforced turnover in 1956, Polish first secretary Bierut "came from
his Moscow holidays in a wooden jacket," as a Polish joke put it. Officially, he died of heart attack.
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Kaminski, Nalepa / JUDGING TRANSITIONAL JUSTICE 391
were prosecuted. Similarly, the prosecution of underground publishers violated the
signatories' commitment to freedom of the press.14 The recurring violations sparked
opposition in the form of Helsinki Committees, which began with the Ukrainian
Helsinki Union in 1981 and spread throughout the Soviet Bloc. Their activity culmi
nated with the issuing of the Helsinki Memorandum in 1986, where "in addition to
the usual progressive politicians, academics, and activists from the West (who risked
nothing, of course, and were for the most part uninvolved in the process of dialogue
anyway), there were over two hundred signatures from Poland, Hungary,
Czechoslovakia, East Germany, and Yugoslavia" (Kenney 2003, 104).
The only serious claim to legality that the communist regimes could make, in
addition to having the silent readiness of the Red Army's tanks, was the wide recog
nition of their regimes around the world, especially by the United States. However,
one can hardly argue that the normative soundness of retroactive legislation in, say,
Albania should depend on Uncle Sam's taste for realpolitik.
Bold legislative acts declaring the communist period illegal were considered in
virtually all formerly communist countries after the fall of old regimes.15 If these
attempts were abandoned, it was usually to uphold former political commitments or
due to the lack of resources necessary to handle the likely legal confusion that would
result. The pre-World War II laws were inadequate to resolve disputes arising in the
1990s. All international treaties and other commitments would need to be renewed.
Also, many Eastern European countries were severely affected by the arbitrary
remapping of their borders by Stalin after World War II, something Churchill and
Roosevelt cynically pretended not to notice. The gainers feared that the losers could
revive their legal claims to lost territories, which could balkanize Eastern Europe.
Poles and Czechs feared Germans; Slovaks and Romanians feared Hungarians;
Ukrainians, Byelorussians, and Lithuanians feared Poles; and so on (Bartoszewski
and von Weizs?cker 2003; Naczelna Dyrekcja Archiwow Panstwowych 2001). Both
political pragmatism and the paucity of resources contributed to decisions that lacked
a sound legal foundation.
According to the next argument supporting TJ, adhering to the conservative inter
pretation of retroactivity benefits undeniable wrongdoers. It effectively promotes a dra
matically impotent version of procedural justice and prevents substantive justice from
being done. Political actors involved in transition were well aware of the distinction
between rectifying wrongs and restoring rule of law, as indicated by a comment
of B?rbel Bohley, an East German dissident: "We expected justice, but we got the
Rechtsstaat instead" (McAdams 2001). The rule-of-law and nonretroactivity principles
have been enthusiastically endorsed on a number of occasions by successors of
the communist regime while they were negotiating the transfer of power and shortly
14. For examples of successive violations of the Helsinki Accords, see Kenney (2003).
15. For instance, in the Czech Republic, the Act on the Illegality of the Communist Regime and
Resistance to It was passed on July 9, 1993. It was upheld by the Czech Constitutional Court on
December 21, 1993. A proposal of a law declaring the implementation of martial law illegal was put for
ward by members of parliament (MPs) from the ex-dissident party, the Confederation of Independent
Poland, in February 1992. It failed to gain the support of other ex-dissident MPs who participated in
roundtable negotiations with Generals Jaruzelski and Kiszczak, the two top communists who master
minded the military martial law in 1981 (Walicki 1997).
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392 JOURNAL OF CONFLICT RESOLUTION
afterwards. These successors have sought to use these principles as a shield from TJ.
They supported as strong a judiciary as possible in the new system. For example, dur
ing the final stage of the roundtable negotiations in Czechoslovakia, when Vaclav
Havel suggested that the new federal government ought to have some authority over
the justice system, communist Prime Minister Caifa objected "that the judicial struc
tures should be subject to the legislature only and that the judiciary should check the
executive." Caifa was counting on the fact that replacing the communist judiciary elites
would take longer than the turnover of members of parliament.16 Valdemar Komarek, an
independent participant of the negotiations, responded that debating checks and balances
was entirely superfluous when the communist nomenclature dominated virtually all
social and political institutions (Calda 1996). One can perhaps interpret the outgoing
Hungarian communists' insistence on establishing a constitutional court and the
Bulgarian communists' desire to see a constitution in place before handing over power
in a similar manner. Both tried to construct institutions that would save them from
retroactive justice after the transition (Bozoki 2002; Schwartz 2000).17
Finally, we believe that all arguments based on retroactivity must take into account
the type and severity of punishment. In nine out of eighteen cases of truth revelation
procedures labeled as mild (see the appendix), the sanction is simply releasing com
promising information to the public. One can plausibly argue that the softer the pun
ishment, the weaker the argument against retroactivity. On the other hand, publicizing
information about a politician's past political activity may and has been interpreted as
a very basic right of a voter (Solyom and Brunner 2000; McAdams 2001). When
applied to elected politicians, as is the case with many lustration laws, putting them
in the spotlight is no more than what the free media have been doing for many years?
or what candidates in elections have been doing to themselves during campaigns.
There is little doubt that a legal procedure can handle sensitive information about a
candidate's past better than a tabloid or his or her opponent's campaign manager.
TRUTH REVELATION PROCEDURES
The development of truth revelation procedures independent of mainstream judi
ciary proceedings has drawn the attention of policy-oriented human rights organiza
tions. For instance, the gacaca ("grassroots") court procedure recently adopted in
Rwanda offers a significant sentence reduction to those responsible for the 1994
16. Calfa's intuition was correct. In Czechoslovakia, the first postwar noncommunist parliament
emerged quickly by means of "cooptation." Existing MPs would decide who among them was too com
promised by their involvement in the ancien r?gime to continue work in parliament. Such persons were
replaced by members of the dissident Civic Forum. The internal reform proceeded very swiftly. On the
other hand, the judiciary took a very long time to change. Justices of lower echelon courts had their life
tenure appointments substituted with five-year contracts. A constitutional court independent of the com
munist executive was not operational until 1992.
17. Hungarian communists wanted to set up the constitutional court prior to free elections to get the
widest control over the nomination of justices (Halmai 1995; see also Schwartz 2000). The developments
in the Hungarian Constitutional Court took an unexpected turn when Imre Konya and Laszlo Solyom
rewrote the draft legislation for setting up the constitutional court so that the nomination of justices could
not be controlled by the outgoing communist regime (Interviews S 2004).
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Kaminski, Nalepa / JUDGING TRANSITIONAL JUSTICE 393
genocide who testify to their crimes. In one of its press releases, Amnesty International
commented on the Rwandese procedure by saying that the "extrajudicial nature of
gacaca and the inadequate preparation for its start, coupled with the present govern
ment's intolerance of dissent and unwillingness to address its own poor human rights
record, risk subverting the new system." It urged both the Rwandese government
and the international community to "take steps to ensure that gacaca complies with
minimum international standards of fair trial" (Amnesty International On-line 2002).
The international organization wanted the Rwandese authorities to abandon the self
revelation mechanism "because it violated due process."
Before we analyze the criterion that we consider more appropriate for judging
truth revelation procedures than their compatibility with the nonretroactivity princi
ple, we need to define a few concepts. The normative literature on TJ makes a clear
distinction between truth commissions and lustration laws, with the former predom
inant in Latin America and Africa and the latter present in postcommunist Europe
(Hayner 2001; Rotberg and Thompson 2002; Kritz 1995, vol. 1). As we argued else
where, another kind of distinction is useful as well (Nalepa 2003). The main fire of
criticism is directed at ITRs, one of the two types of procedures.
An ITR procedure is legislation that provides ex-collaborators with incentives for
revealing themselves. Examples of ITRs include both Eastern European lustration
laws and various African and Latin American truth commissions such as the gacaca
procedures or Polish lustration described previously (see the appendix). ITRs oper
ate in the reverse order of traditional court proceedings. They create incentives for
perpetrators to step forward and testify against themselves before any trial takes
place. The reward offered to the perpetrator or ex-collaborator is usually immunity
from criminal charges or significant sentence reduction. Such procedures can prompt
admissions from wrongdoers even when objective evidence is no longer extant.
An example of ITR is provided by the Polish lustration law, described earlier. It
is worth noting that to preserve the truth-inducing power of lustration, ITR elements
had to be introduced into the declassification law. The agency overseeing the
archives of the former secret police, the Institute for National Remembrance (INR),
makes files available exclusively to victims. Every person wishing to inspect her or
his file must declare in the application that she or he was a victim of the system but
not an informer. Similarly as with the lustration procedure, the declaration is con
fronted with the contents of the archives. The INR's response to an application is
either (1) positive, indicating that the applicant's files as a victim are in possession
of the INR, or (2) negative, indicating that no such files designating the applicant as
a victim of informing have been found. The negative response does not specify
whether the applicant is denied viewing because her or his files as a victim have been
lost or because the files implicate this person as an informer and not a victim
(Dziennik Ustaw 1999). Thus, a former collaborator who asks for his or her file, pre
tending to be a victim, cannot learn more than he or she already knows.
The Rwandese gacaca courts use yet another inducement for self-revelation.
During the genocide, about 800,000 people were killed in 100 days, and 124,800
suspected participants in the killings were incarcerated. The gacaca courts have
authority over three categories of detainees (categories 2, 3, and 4 of Rwanda's
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394 JOURNAL OF CONFLICT RESOLUTION
genocide legislation). The self-revelation mechanism applies to prisoners in the
second category, comprising alleged perpetrators or "accomplices to intentional
homicides or serious assaults that led to death" (Amnesty International On-line
2002). In return for confession, the accused may have their sentences reduced by up
to 50 percent. For many detainees, this means immediate release, as they have
remained imprisoned since the Arusha Peace accord in 1995 (Rae-Olson 2002).
Category 2 defendants who do not confess and are convicted face maximum terms
of imprisonment of between twenty-five years and life. Category 3 contains persons
accused of other serious assaults against individuals. Category 4 covers persons who
committed property crimes. Category 1 relates to the "most serious genocide
offences and includes individuals who allegedly organized, instigated, led or took a
particularly zealous role in the violence. Category 1 defendants will continue to be
tried by the formal court system" (Amnesty International On-line 2002).
Certain procedures resemble ITRs but lack their fundamental property of putting
a lustrated person under incomplete information and verifying his or her declara
tions. In post-World War II Germany, after the Germans had taken over the respon
sibility for denazification from the Allies, they distributed a questionnaire among
civil servants, teachers, doctors, lawyers, and the wider state bureaucracy. The aim
was to identify former Nazis; 11,674,152 responses were returned. However, the
answers were not confronted with existing evidence, and each questionnaire was
processed separately without cross-examination. Thus, there was no incentive on the
part of the questioned to reveal the truth except, perhaps, to obtain the psychologi
cal benefit of coming to terms with one's own personal past (Frei 2002). A similar
problem appeared in the Czech screening process for verifying who was a member
of the People's Militia. Since no central register of all members ever existed, it was
impossible to verify the truthfulness of declarations (Interviews P 2004).
An ETR procedure does not provide incentives for revealing the truth and oper
ates in a fashion similar to an ordinary court system. ETRs apply traditional prose
cution methods and rely on gathering evidence of collaboration from archival
resources or from victims' testimonies. When evidence is found, a report is issued or
a politician is held accountable for his or her involvement as a secret informer.
Examples of ETRs include both lustration laws and truth commissions. The appendix
lists all major truth revelation institutions and their key characteristics.
We have demonstrated above the inadequacy of applying the principle of non
retroactivity to the evaluation of truth revelation procedures. However, if we were
forced to compare ITR with ETR performance with respect to this principle, ITRs
would emerge as a clear winner, even though ETRs are close cousins of traditional
court proceedings while ITRs differ from them in many important respects. Note that
collaborating with the authoritarian regime was not a crime at the time it occurred.
Just the opposite?it was officially encouraged. For this reason, one would expect
the nonretroactivity principle to be in conflict with both types of lustration. However,
in ITR lustration procedures, it is not former collaboration but the act of "public
lying" that is sanctioned by a ban from office. ITRs can be shown to be superior to
ETRs also in terms of another important aspect of procedural justice, the assignment
of individual responsibility. The determination of individual guilt is built into every
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Kaminski, Nalepa / JUDGING TRANSITIONAL JUSTICE 395
ITR institution because the procedure begins with a statement from an individual.
A claim to innocence is further verified by a lustration agency or truth commission,
again on an individual basis. ETRs, on the other hand, frequently overlook the need
to determine individual responsibility. They establish the target was involved in the
activity investigated but pass over the question of actual guilt. An illustration of how
this can lead to mistakes is provided by the lustration procedure adopted in the
Czech Republic, where the problem of destroyed evidence was solved by using the
well-preserved Czechoslovak secret police registers as the sole source of evidence.
The StB register (seznam) contains citizen contacts and agents, but it also includes
persons who had been contacted but refused to collaborate and those who had been
suspected of underground opposition activity. The use of the seznam as a source of
evidence was criticized for neglecting the obligation to prove individual guilt, both
through memoranda issued by international organizations and on the floor of the
Czech legislature when it was implemented (Interviews U, K, JM 2004).18
AVOIDING FALSE ACQUITTAL, KEEPING
FALSE CONVICTION LOW
We are going to discuss criteria that follow from two major criticisms of lustra
tion laws and truth commissions. First, the documentation of abuses committed in
the past may be incomplete. Second, some of such material may constitute false evi
dence. Prosecuting perpetrators with incomplete evidence is unfair because it
reaches only those whose collaboration is documented, leaving other collaborators
intact. The consequence of this, false acquittal, can be associated with Type II errors
in statistical hypothesis testing (i.e., the failure to accept a true hypothesis). On the
other hand, when fabricated evidence is used, innocent persons may be accused of
human rights violations. This kind of injustice, false conviction, relates to Type I
errors in statistical hypothesis testing (i.e., accepting a false hypothesis).19 Table 1
illustrates when both errors arise.
Changing the legal threshold of evidence for filing charges of collaboration affects
both the guilty and the innocent. If only minimal evidence is sufficient to file charges,
the innocent will suffer. Their files may include fabricated documents, and the regime
will continue to victimize those who fought against it, even after it is gone. If
the threshold increases, the innocents will be less likely to be wrongly accused
but perpetrators whose records have been misplaced or partially destroyed will evade
justice.
18. The International Labour Organization issued Recommendation to the Czech Federal Assembly
to Repeal the Screening Act of October 16, 1991 (Kritz 1995); the Council of Europe issued Memorandum
on the Applicability of International Agreements to the Screening Law (Kritz 1995). For internal criticism
about collective guilt of the screening law, see speeches to Federal Assembly of the CSFR on October 16,
1991 (Parliament of the Czech Republic On-line 1990).
19. The terminology of false acquittals and false convictions pertains to truth revelations procedures
generally. However, since lustration is not a judiciary institution per se, and using the words conviction or
acquittal may seem out of place, false conviction should be interpreted as false disqualification, while
false acquittal should be interpreted as "failure to disqualify" (this suggestion is due to James McAdams).
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396 JOURNAL OF CONFLICT RESOLUTION
TABLE 1
Two Types of Errors in Truth Revelation Procedures
The Target Is
Outcome of Truth Revelation Process Innocent Guilty
Do not name "collaborator" Correct False acquittal error
Name "collaborator" False conviction error Correct
It is obvious that there is a trade-off between the two principles. An immediate
question is, what are the relative weights we should give to them? This issue can be
developed in a normative discussion using the arguments from criminal justice.
Consider the following reasoning:
Intrinsic ... to the criminal law ... is the escape of some violators from effective
enforcement. The escape of some violators is unavoidable and therefore is not unjust.
The proper objective of an enforcement program is not the unrealistic one of penaliz
ing all violators, but the practical one of penalizing enough violators to induce a satis
factory degree of compliance. Therefore, the prime requirement of justice is not to
penalize all violators, but to avoid penalizing the innocent. . . . Justice is done as long
as only the guilty are penalized. (Davis 1969, 81-2)
The argument presented above can be summarized in the context of our terminol
ogy with two points. First, false acquittal errors are unavoidable in any criminal jus
tice system. The normative assumption is that the objective of justice is to keep
compliance with law at a "satisfactory" level. Of course, in our case, compliance does
not mean "Don't collaborate." It means "Tell the truth about your past." This objec
tive of "general deterrence" is achieved through a successful deterrence of potential
violators. The argument holds that as long as practically all violators are unsure that
they are safe and the probability of punishment is sufficiently high, justice is not
threatened. Second, false conviction errors are a more serious threat to the operation
of a just criminal system. Since satisfactory compliance can be achieved without pun
ishing all violators, it is unjustified to pay the cost of tracking all of them down, which
is the conviction of some innocents. The threshold for conviction should be set high.
This line of reasoning must be modified before we can apply it to the TJ context.
First, instead of being a deterrent, harsh punishment may create the opposite incen
tive, as the expectation of harsh TJ may actually prevent dictators holding power
from stepping down and making the transition to democracy possible. A dictator
who expects to be prosecuted for past human rights violations has a strong incentive
to hold onto that post, even if at the cost of vast atrocities. A perverse scenario of
inducing a dictator to fight for his survival may have happened recently when the
prosecutor for Sierra Leone's International Criminal Tribunal indicted Charles Taylor
in Nigeria. This action prevented diplomatic efforts from striking a deal with the for
mer dictator, who arguably could have facilitated a smoother transition (Bravin 2003).
Second, false acquittal interferes with the most desirable consequence of TJ?
reconciliation. It is often argued that naming and punishing human rights violators
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Kaminski, Nalepa / JUDGING TRANSITIONAL JUSTICE 397
promotes reconciliation between former dissidents and the oppressors by healing the
wounds of the dissidents and their supporters.20 Research conducted with focus
groups tends to confirm this insight (Backer 2004).
Third, the biggest problem with truth revelation procedures is their nonrandom
selection of targets. In lustration, evidence of past abuses may have been destroyed
so as to protect the most prominent functionaries or agents of the authoritarian
regime.21 In truth commissions, victims who suffered more atrocities may be more
reluctant to testify. Only ITRs deal with this problem.
Finally, and unfortunately, Davis's (1969) "prime requirement of justice"?not
penalizing the innocent?cannot be satisfied. One can never be certain that a given
file is not a product of some unusual circumstances. Secret police officers would
receive special benefits for recruiting famous or important agents.22 Hence, those
who fall prey to false accusations are likely to be ex-dissidents or celebrities (see,
e.g., Kavan 2002). Widely known in Prague is the extraordinary case of Ladislav
Stros, a famous stage director of the State Opera, professor, and director of the
National Theatre. After he was renominated after the transition for his managerial
(and lustrable) position, he applied for a lustration certificate and received a negative
one. When he was invited to see his file, he suffered a heart attack. He was listed as
a secret police collaborator! After a long process, he was cleared of charges.23
When former dissidents are unjustly accused of collaboration with the regime, they
are revictimized through the legal institutions of the new democracy. The problem can
be dealt with only by setting the threshold for declaring a lustrant guilty sufficiently
high. Such a threshold is set independently of whether a truth revelation institution
is an ITR or ETR. Thus, we will evaluate both institutions with respect to identical
guilt thresholds.
Conceptually, an ETR lustration is simple. Either a lustrant's file meets the legal
criteria for declaring him or her a "collaborator" or not. The ITR case is strategically
20. See Hayner's (2001) account of the complaints of victims, who see their oppressors walking
freely while other abusers of human rights are prosecuted.
21. For instance, according to an anonymous historian of IPN, the most valuable agents of Polish
secret police were granted an opportunity to destroy their own files. However, since a "valuable" agent
was typically very active, the records of his activity were usually well preserved in the files of his victims
(Czuchnowski 2004).
22. Recruiting an ?migr? dissident gave the secret police officer a chance to accumulate quite a sum
out of per diems paid in foreign currency (Interviews D, K 2004).
23. A tragicomic story of his very thick file unfolds as follows: in 1967, Stros traveled to Edinburgh
with the National Theatre. At that time, he was introduced to a man who presented himself as "from the
Czechoslovak ministry of culture." Stros did not find his company particularly worthwhile, but his wife
did. Mrs. Stros, an otherwise quiet housewife, appreciated that someone took interest in her. She met with
the StB officer in Edinburgh on a couple of occasions and then back in Prague, where the officer opened
a file "Olivier" for Mr., not Mrs., Stros. Over the next ten years, Mrs. Stros told the StB officer anything
he wanted to learn about her husband. The officer was rewarded with promotions and finally with early
retirement. To prevent someone from taking over his recruit and discovering his trick, he asked his super
visors to end the collaboration altogether, explaining that working with the famous stage director was too
sensitive to survive a change of leading officers. His request was approved. Stros's file was closed and
sent to the archives. Like most closed files, it survived the transition since mostly files of active or "live"
informers were destroyed (Interviews C, G, P, Su 2004). In light of the Czech lustration law, Stros was
guilty of collaboration. He was cleared of charges in the lustration appeal case only because his lawyer
found the retired officer and convinced him to testify in court to Stros's innocence (Interviews R 2004).
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398 JOURNAL OF CONFLICT RESOLUTION
much more interesting. Consider the following decision model representing a former
secret agent's ITR dilemma. The agent has to decide whether to admit his collabo
ration. It is common knowledge that a certain proportion of files documenting the
secret informer network have been destroyed. However, the decision maker is
ignorant as to whether his particular file was destroyed or whether recriminating
information may be retrieved from the files of his victims.24
At time 1, the agent decides whether to reveal his collaboration. At time 2, if he
revealed himself at time 1, this information is publicized and the outcome is c (he is
publicly announced a "collaborator"). If he did not reveal himself at time 1, the
screening agency consults the available files, and the following results:
1. With probability p, the secret files demonstrating the agent's involvement still exist. If
they do, he is exposed and suffers sanctions for public lying. The outcome is situation
/ (he is denounced as a lustration liar as well as a collaborator).
2. With probability 1 - p, the evidence does not exist (perhaps the agent's files and
related material have been destroyed), and the screening agency has to accept his state
ment. The outcome is n (not identified as a collaborator).
Figure 2 represents the agent's decision problem.
Let the agent's preferences be represented by L, C, and N such that L < C < N are
von Neumann-Morgenstern utilities (capital letters denote payoffs associated, with
the outcomes represented with corresponding lowercase letters). The best outcome
is to be considered a noncollaborator (N), but it is better to be publicly identified as
an agent or collaborator (C) than recognized as both an agent and a lustration liar
(L). For simplicity, we set the reference utility of being declared a noncollaborator
at N = 0. The agent chooses between getting C for sure versus a lottery of L with
probability p and N with probability 1 - p. He declares collaboration if and only if
C >pL + (1 -p) N, or p > [(-C)/(-L)]. The final condition is
p > CIL. (1)
Condition (1) has a very intuitive interpretation. An agent has an incentive to declare
collaboration if the probability of the files surviving is not smaller than the ratio of the
punishment for being declared a collaborator to the punishment for being a lustration
liar. Note that for many different agents, the model could be easily modified to account
for personal differences in C and L. Such parameters could depend on the type of
personality of the former collaborator, his or her social environment, or the political
position to which he or she aspires. Also, p may be interpreted as a subjective prob
ability of an agent that his or her file survived. Thus, p also varies among agents, not
just because they may be optimistic or not but because they may have different
objective evidence of their files' survival.
We can now compare the performance of ETRs and ITRs. It is plausible that
under the circumstances of the transition to democracy, the conditions for revealing
collaboration hold for many former collaborators?namely, those who believe that the
24. The naming convention comes from the lustration context. An incentive-based truth revelation
(ITR) truth commission can be represented with the same model after suitable changes of terminology.
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Kaminski, Nalepa / JUDGING TRANSITIONAL JUSTICE 399
Figure 2: The Former Secret Agent's Dilemma
NOTE: Agent = decision maker (former secret agent); agent's action space = [Admit, Deny]; p = proba
bility that the evidence of collaboration (files) exists. Payoffs: C (collaborator); N (noncollaborator); L
(lustration liar); L < C < N.
probability of their files surviving is sufficiently high in comparison to relative
punishment. The interpretation of this result is straightforward. Every collaborator for
whom evidence exists will be revealed under both ETR and ITR procedures. However,
ITR makes it possible to extract more declarations of collaboration than can be sup
ported by existing evidence. Thus, keeping Type I errors constant, Type II errors can
be reduced in ITRs relative to ETR procedures. In other words, under plausible condi
tions, ITR lustration laws and truth commissions are more resistant to false acquittal
errors while performing exactly as well as ETRs with respect to false convictions.
ETRs are extremely susceptible to false acquittals because all perpetrators whose
evidence was destroyed will be declared noncollaborators. However, ITR procedures
make use not only of the existing evidence but also the beliefs of perpetrators about
the evidence preserved. Thus, ITRs can exploit perpetrators' uncertainty as to whether
evidence documenting their criminal activity exists. Gacaca courts reduce sentences,
while the TRC grants amnesty to perpetrators who testify. Polish, Romanian,
Lithuanian, and Estonian screening laws allow ex-collaborators who acknowledge
their past involvement with the secret police to continue their political careers. On the
other hand, wrongdoers who refuse to testify and are revealed as human rights viola
tors, as well as collaborators who are found to be "lustration liars," are exposed to
criminal sanctions (gacaca, TRC) or have their political careers at least temporarily
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400 JOURNAL OF CONFLICT RESOLUTION
suspended (lustration). In ITR, the collaborator may choose a mild penalty with
certainty instead of a lottery that brings a possibility of a harsh punishment.25 If the
punishment for not coming forward is sufficiently high, ex-collaborators prefer to pay
the cost of testifying about their abusive behavior to risking criminal prosecution or
professional banishment. If the incentives in ITR procedures are adequately designed,
referral to external evidence might be entirely redundant. The threat of using poten
tial evidence against perpetrators may be sufficient. For instance, Hayner (2001)
reports that in South Africa, just a few initial convictions in high-profile trials for
apartheid-era activity substantially increased amnesty applications. In addition, "in
order to increase the pressure on perpetrators to apply for amnesty the commission
held some investigative hearings behind closed doors, keeping secret the names men
tioned and the crimes detailed." A similar incentive-based plan was implemented in
Poland, as described in the previous section. Under the ideal ITR procedure, only
wrongdoers testify to their collaboration, while the innocent refrain from doing so.
We can now clarify the meaning of the argument recommending no TJ at all. TJ
institutions responsible for uncovering the truth and sanctioning past human rights
violations are unavoidably subject to false acquittals and false convictions. Should
policy makers and lawmakers refrain from designing such institutions altogether?
Doing this would be equivalent to accepting an outcome in which all innocents?and
unavoidably all guilty as well?are acquitted.
One may raise the point here that ITRs' superiority to ETRs can be defended only
on the grounds of consequentialist theories of justice. A successful ITR results in reveal
ing the truth about past human rights violations or about collaboration with the secret
communist police, but the success in inducing ex-collaborators to step down comes at
a price: the immunity from criminal liability or the interruption of their professional
careers. The incentive offered in exchange for truth inhibits the execution of justice in
any deontological sense. Kant and Hegel's lex talionis interpretation of justice requires
that crimes be rectified by a punishment that matches the crime, whatever the conse
quences of inflicting such punishment: "Let the world perish, but all guilty be punished"
(Kant 1970). According to deontologists, revealing the truth does not come close to
compensating the wrongs committed by authoritarian regimes and falls short of satis
fying even the mild contemporary interpretation of retribution of Reiman (1995), which
demands that the punishment be merely proportional to the crime. To make the case for
ITRs' supremacy, one must demonstrate that the consequentialist perspective is more
appropriate for the transitional context. In fact, consequentialism at the transition stage and
deontology at a later stage are not inconsistent. Transitional justice procedures are not
meant to be a permanent part of the political system. They are intended to operate only in
the initial stage of the transition, when the demand for holding the wrongdoers account
able for human rights violations persists. While one may argue that in constitutional
democracies, laws should be executed in a deontological fashion, one may also agree
25. In the case of the Truth and Reconciliation Commission (TRC), even though the perpetrator is
granted amnesty, having to make a public confession is itself a form of punishment. This is the view of
Justice Richard Goldstone: "the perpetrators suffered a very real punishment?the public confession of
the worst atrocities with the permanent stigma and prejudice it caries with it" (qtd. in Gibson 2002, 544).
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Kaminski, Nalepa / JUDGING TRANSITIONAL JUSTICE 401
that their design should be governed by forward-looking considerations. In other words,
once in place, laws of the newly democratized state should always be followed.
However, in the stage of institutional design, one should be guided by the long-term
desirability of their future outcomes.
Moreover, in typical cases of lustration, the reward for revealing oneself is not immu
nity from criminal charges for past offenses but only eligibility for a political position.
Such a declaration does not constitute self-incrimination in any specific criminal case,
but it also does not save the target of lustration from potential criminal charges.
Finally, there is another important advantage that ITRs hold over ETRs. ITRs
reduce the workload of a transitional court system. Similarly to martial courts, ITRs
are applied whenever time or other resources are unavailable to carry out full-scale
procedures. The preemptive declarations result in truth, unburdened with the trans
action costs of (unfeasible) court justice. The mechanism at play is similar to that
described by the U.S. Supreme Court in its defense of plea bargaining:
Plea bargaining is an essential component of the administration of justice. Properly
administered, it is to be encouraged. If every criminal charge were subjected to a full
scale trial, the States and the Federal Government would need to multiply by many
times the number of judges and court facilities. (Santobello v. New York 1971)
This last point suggests a possible reason why ITRs have been adopted exclusively
in endogenous modes of transitional justice. International tribunals firmly reject the
possibility of plea bargaining. The prohibition of "bargaining with war criminals" has
come at the cost of letting some authors of gross human rights violations thrive unpun
ished.26 Since the Nuremberg trials, prosecuting war crimes by international tribunals
has become incredibly selective. In fact, almost all guilty are left unpunished.27
IMPERFECTION OR IMPOTENCE: IN DEFENSE
OF ENDOGENOUS TRANSITIONAL JUSTICE
Endogenous TJ is a foundational act for a new democracy (O'Donnell and Schmitter
1986). However, some legal theorists dismiss it on the grounds that it gives the former
dissidents an excuse for taking political revenge on authoritarian wrongdoers. Giving
the new democracy a free hand in punishing its own perpetrators is criticized for
26. In Nuremberg, plea bargaining was offered to some high-ranking, but not top-ranking, Nazi
criminals. Erich von dem Bach, the commander of Nazi forces fighting with the 1944 Warsaw Uprising,
was responsible for the death of more than 200,000 civilians in Warsaw and mass executions in Belarus,
Estonia, and eastern Poland as well as the idea of setting up the concentration camp in Auschwitz. "In
exchange for his testimony against his former superiors at the Nuremberg Trials, von dem Bach was never
accused of any war crimes. Similarly, he was never extradited to Poland and the USSR" (Wikipedia 2005).
27. Although the International Criminal Tribunal for Rwanda was established in 1995 shortly after
the Yugoslavian Tribunal, it has achieved just eight convictions and one acquittal (as of April 2002). The
number of detainees responsible for the 100-day genocide of 800,000 Tutsis is around 124,800 (Walsh
2002). One cannot even say they have been falsely acquitted, since 99.99 percent of the guilty have never
even been charged.
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402 JOURNAL OF CONFLICT RESOLUTION
promoting "victors'justice" or, even more harshly, "witch hunting" (Rosenberg 1995).
The two categories of TJ examined here, lustration and declassification, are particularly
criticized for retroactivity and undermining the rule of law. Some consider them akin to
violent political revenge, almost on par with the crimes of the authoritarian regime itself
(Schwartz 1995). But if the proponents of exogenous transitional justice are correct
in reducing endogenous transitional justice to bare political vengeance, how can they
explain the postcommunists undertaking such "acts of violence" against themselves?
Such "self-lustration" is frequent in Central and Eastern Europe (Kaminski and Nalepa
2005). Remorse of the ex-autocrats is hardly an explanation for self-inflicted lustration
and the opening of the ancien regime's secret police files authorized by the very persons
who are implicated by them. Most important, no criticism can ignore the fact that bare
acts of vengeance are harsher. It does make a difference whether Mr. Ceausescu is shot
in the head in front of the camera or whether a note that he was a communist official is
published in the Romanian government bulletin. (We believe that Mr. Ceausescu would
have agreed had he been given a chance to register his opinion.)
The incentives in exogenous and endogenous transitional justice recall those
attributed by Mancur Olson (2000) to "roving bandits" and "stationary bandits,"
respectively. Stationary bandits, in contrast with roving ones, have every incentive to
make their subjects thrive economically. Like "roving bandits," international actors
do not have any vested interest in the long-term prosperity of the countries in which
they implement transitional justice. The careers of nomadic prosecutors are not
linked in any meaningful way with the success of a transition in Rwanda, South
Africa, or Hungary. Prosecutors who help a postauthoritarian country bring its
wrongdoers to justice are rewarded with the immediate publicity in the international
arena. They doubt the postauthoritarian country is capable of exacting justice on its
own perpetrators, and so they sideline the local politicians. However, democratic
consolidation depends critically on reviving citizens' spirit and reconciling former
oppressors with former dissidents. Outside intervention can be of little help in this
process. A country's prospects for reconciliation and, eventually, consolidation are
rather poor if, at the outset of its democratic experiment, the most crucial judicial
decisions are monitored or performed by international courts. The Serbian reaction
to Milosevic's trial in The Hague is a telling example. When Milosevic's trial started
in The Hague, his popularity surged, as upset Serbs, deprived of the right to try the
dictator by their own courts, increasingly took his side. Rwanda's resort to gacaca
tribunals in response to the impotence of the International Criminal Tribunal for
Rwanda provides another illustration.28 International courts and tribunals earn praise
and attention for doing justice in the short term and in a few spectacular cases. In the
long term, they may leave a society incapable of coming to terms with its own past.
Using mechanisms such as ITRs lays better foundations for the state of law.
28. In addition to criticizing the International Criminal Tribunal (ICT) for Rwanda for being slow,
the Rwandan government has frequently accused it of being ineffective or even biased. The ICT has also
been enmeshed in scandals, such as when three international judges burst out laughing during the cross
examination of a rape victim (Walsh 2002).
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Kaminski, Nalepa / JUDGING TRANSITIONAL JUSTICE 403
APPENDIX
Major Truth Revelation Procedures Created in the
Aftermath of the Third Wave of Democratization
Country/Type
ofTJ Description ofTJ
Bolivia/mild
ETRTC
Bulgaria/harsh
ETRLL
Albania/harsh Targets: candidates in parliamentary elections, high government officials, and
ETR LL supreme court justices; targeted activity: senior party or government position in the
former communist regime or collaboration with the secret police; targeted period:
1945-1990; dates in force: September 1995 to April 1996; source of evidence: files of
the Sigurimi secret police. Comment: Candidates positively screened were banned
from politics for five years (Done 1995).
Argentina/mild Targets: military officers; targeted activity: investigations of the military against
ETR TC political opponents and the disappearances of 8,960 people; targeted period: 1976
1983; dates in force: 1983-1984; source of evidence: several thousand testimonies
and 50,000 pages of nongovernmental organizations' (NGOs') documents. Comment:
The Argentinean CONADEP was victim oriented rather than perpetrator oriented.
However, "the information collected by the commission . . . was critical in the trials
of senior members of the military juntas" (Hayner 2001, 34).
Targets: military units combating political opponents; targeted activity:
disappearances of 155 persons; targeted period: 1967-1982; dates in force:
1982-1984; source of evidence: victims' testimonies. Comment: Commission was
disbanded without completing work (Hayner 2001).
Targets: academics and university administration and bank managers; targeted activity:
membership in the Communist Party and/or teaching Marxism-Leninism; period
covered: 1945-1990; dates in force: 1992-1997; source of evidence: register of Secret
Service Information and Bulgarian Communist Party archives. Comment: LL was
ruled unconstitutional in July 1992 (banks) and February 1993 (academia). The refusal
to provide statement was regarded as "admission that the person does not meet the
requirements for membership in those [academic] organizations" (Kritz 1995, 1:701).
Chad/mild Targets: political police (DDS), Police Security Branch (RG), National Union for
ETR TC Independence and Revolution (UNIR), and Presidential Investigative Service (SIP);
targeted activity: illegal imprisonments, detentions, assassinations, disappearances,
tortures, and acts of barbarity; targeted period: 1980-1990; dates in force: 1991-1992
(eight months); source of evidence: interviews with high ranking DDS and Habre
officials, testimonies of victims' relatives and testimonies of former prisoners.
Comment: The commission named perpetrators in the report and advised authorities
of the posttransition state not to rehire former DDS employees (Chad Decree 014
1995,48-100).
Chile/mild Targets: armed forces and police during the Junta government; targeted activity:
ETR TC disappearance, torture resulting in death, executions, killings by "private citizens for
political reasons" of the leftist opposition; targeted period: September 1973 to March
1990; dates in force: 1990 (nine months); source of evidence: testimonies of family
members of 3,400 victims, available death certificates, autopsy reports for victims,
and 160 testimonies of armed forces and police officers. Comment: Commission
could not name perpetrators but could forward all its evidence to courts (Kritz 1995,
3:101-68).
(continued)
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404 JOURNAL OF CONFLICT RESOLUTION
APPENDIX
(continued)
Country/Type
ofTJ Description of TJ
Czech
Republic/harsh
ETRLL
East
Germany/harsh
ETRLL
El Salvador/
mild ITR TC
Estonia/harsh
ITRLL
Hungary/mild
ETRLL
Lithuania/harsh
ITRLL
Peru/harsh
ETRTC
Targets: all nonelected politicians and civil servants; targeted activity: secret police
officer or informer, Communist Party official, member of the People Militia, or
member of 1968 verification committees; targeted period: 1945-1990; date initiated:
October 1991; source of evidence: register of collaborators. Comment: More than
420,000 persons have been subjected to LL. Source: Interviews (2004, SI).
Targets: members of federal and state governments and parliaments, employees of
public service (including the municipal level), international organization of which
West Germany was a member, or churches, public notaries, attorneys, and all
managerial positions; targeted activity: full-time STASI employees or secret police
informers; targeted period: 1951-1990; dates in force: 1991-present; source of
evidence: files and documents of STASI, including microfiche, film, and electronic
records. Source: Kritz (1995, 3:278-9).
Targets: government officials, judges involved in the civil war, and the members of
Frente Farabundo Marti para Liberaci?n Nacional (FMLN); targeted activity:
connection with death squads of the FMLN or with political police and military of
the governmental side; targeted period: 1980-1991; dates in force: 1992 (six months);
source of evidence: testimonies of all persons willing to testify, including
perpetrators. Comment: The commission was entitled to offer confidentiality. The
policy was known as the "open doors [for testimony]-closed doors [for
confidentiality] policy." Source: Kritz (1995, 3:186).
Targets: all citizens; targeted activity: officer or informer of the KGB; targeted period:
1945-1991; dates in force: February 1995; source of evidence: declarations of targets
and KGB files. Comment: Membership in Nazi Germany intelligence agencies was
also listed as targeted activity. Source: Keesing's Record of World Events (1995).
Targets: candidates in national elections; targeted activity: informers for the III/III
secret police; targeted period: 1945-1990; dates in force: December 1996 to 2001;
source of evidence: files from the former III/III department of the Ministry of Interior.
Comment: About 600 persons were subject to LL. Targets proven to be collaborators
were "advised to leave office," but this "advice" was not enforced. Source: Halmai
and Scheppele (1997).
Targets: deputies to parliament, members of ministerial departments, employees
of State Service, and administrators and deputies of cities and districts; targeted
activity: KGB officer or informer; targeted period: 1940-1991; dates in force:
1991-2001; source of evidence: declarations of targets and KGB files. Source:
Kritz (1995, 3:427-8).
Targets: Communist Party of Peru-Shining Path (PCP-SL), Tupac Amaru
Revolutionary Movement (MRTA), state police forces, armed forces, and self-defense
committees; targeted activity: participation in violent political struggle, which
resulted in the death of 69,280 persons; targeted period: 1980-2000; dates in force:
2001-2003; source of evidence: public hearings of victims and documentation from
state archives. Source: Truth and Reconciliation Commission of Peru (2005).
(continued)
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Kaminski, Nalepa / JUDGING TRANSITIONAL JUSTICE 405
APPENDIX
(continued)
Country/Type
ofTJ Description ofTJ
Poland/mild Targets: candidates for parliament and other national-level elected posts, president,
ITR LL justices, and lawyers; targeted activity: secret agents, secret police, ordinary and
military intelligence or counterintelligence; targeted period: 1946-1989; dates in force:
1997-present; source of evidence: secret police files and targets' declarations.
Comment: A total of 23,000 persons were subject to LL. Source: Interviews (2004, L).
Rwanda/harsh Targets: foot soldiers (mostly Hutu) responsible for "100-day genocide"; targeted activity:
ITR and ETR categories 2, 3, and 4 of crimes covered by the Genocide Laws; targeted period: 1994
special court (100 days); dates in force: 2002-present; source of evidence: testimonies of perpetrators
offered before gacaca courts. Comment: In late 2001, more than 10,000 gacaca tribunals
were set up; they involved 260,000 adults of "integrity, honesty and good conduct"
selected by local communities to serve as magistrates. At that time, 110,000 Rwandese
were awaiting trail since 1995 in detention centers. Source: Rossouw (2002).
South Targets: apartheid military and police forces, armed African National Congress (ANC)
Africa/harsh combatants; targeted activity: commission of a crime out of a political motive; targeted
ITR TC period: March 1960 to March 1993; dates in force: December 1995 to 2003; source of
evidence: testimonies of victims and perpetrators. Comment: Perpetrators who committed
crimes out of political motives were granted amnesty after giving full details of their
crimes. A total of 23,000 statements were obtained from victims and their families, and
7,000 applications for amnesty were filed. Source: Boraine (2000); Gibson (2004).
Uganda/mild Targets: military government of Obote; targeted activity: arbitrary arrests, detentions,
ETR TC torture, and killings by government security forces; targeted period: 1962-1986; dates
in force: May 1986-present; source of evidence: testimonies of victims and their
families. Source: Kritz (1995, 3:256-8); Hayner (2001).
Uruguay/mild Targets: security forces; targeted activity: disappearance during military rule; targeted
ETR TC period: 1972-1984; dates in force: April 1985-present; source of evidence: 164
victims' testimonies. Comment: Mandate did not extend to cases of torture, which
were much more frequent than disappearances. Source: Kritz (1995, vol. 1).
NOTE: The first column lists the name of country and the main features of its truth-revealing transitional jus
tice (TJ): if it is incentive-based revelation (ITR) or evidence-based revelation (ETR); if it is a lustration law
(LL), truth commission (TC), or other institution; and the type of punishment: "harsh" procedures usually
demand from targets demonstrating that they had not performed the targeted activity and specify more severe
sanctions than releasing compromising information to the public; in "mild" procedures, the sanction is usu
ally only releasing compromising information. The second column provides the following bits of information
about a TJ institution: the main targets (i.e., the main social groups or organizations whose members' past is
supposed to be revealed); the type of past activity, social role, or crime under examination; the historic period
under investigation, the date of implementation, sunset provisions, and so on; archives, depositories, registers,
and so forth that were the primary source of evidence; comments; and the source of data for the country.
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