Judging Transitional Justice

Published date01 June 2006
Date01 June 2006
DOI10.1177/0022002706287046
Subject MatterArticles
383
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
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
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collaboration are handed over to a special prosecutor’s office for verification with the
use of files from the secret police archives.1The 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.2Decommunization 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 régime’s secret
police files to verify how closely politicians collaborated with the regime, either as
agents or secret informers.3It 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.4Both 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.
384 JOURNAL OF CONFLICT RESOLUTION
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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