During the Cold War, Western diplomats reproached representatives of the so-called socialist camp when they questioned the connection between human rights and democracy and interstate relations: “How can we trust your governments if even your own citizens don’t trust them?”
A related question for today: is it possible to build trust in relations with a country that has not only failed to account for its relations with the outside world, but has not even dealt with its own past? This is by no means an abstract question. It concerns – notwithstanding – Poland’s assessment of the future possibility of rebuilding trust towards Russia. And not only Poland’s. Even more so, for example, Ukraine’s, when the war ends.
After the fall of the USSR, after the fall of communism in Russia, few people in the West cared about how Russians would come to terms with the difficult history of Bolshevism, how they would organize the so-called transitional justice. Not everyone was indifferent to this. Poland was not indifferent, also because many Poles had a personal interest in ensuring that the truth about crimes and human rights violations during Soviet times came to light and that the perpetrators were identified, convicted or condemned. My family also had this personal interest.
In the West, however, indifference prevailed. There, the belief was established that the most important thing was internal stability in Russia and its predictability. If the transitional justice mechanisms were to complicate the process of Russia’s exit from communism, they could become counterproductive.
Years later, it is impossible not to believe that there would have been no Putin, there would have been no return of authoritarianism and imperialism in foreign policy, if Russia had properly assessed its own communist past and undertaken honest transitional justice.
Some Russian attempts at least at the beginning were visible, however. Thousands, if not millions, of innocent victims were rehabilitated. Documents were declassified and made accesible. Monuments were toppled. But the Russian authorities stopped altogether at the beginning of the process. And then there was Putin’s turnaround and regression. The return of the “Iron Felix” monument to Lubyanka Square in Moscow and the banning of “Memorial” became symbols of the fiasco.
Today, the West is not indifferent to how Russia will rebuild justice after Putin’s rule. Whenever his end would come.
The opposition in Russia, especially the anti-war opposition, wants to learn the experiences of other countries that liberated themselves from oppressive regimes. That’s glorious. There is a lot of experience, also from the area closest to Russia, i.e. countries that threw off the shackles of communism over thirty years ago.
Lessons which come from the experiences are different. Of course, the basic guideline is not to treat transitional justice as an end in itself. This justice is more than the restoration of truth. This is not revenge, retribution, redemption. It is about rebuilding basic cohesion and trust in society. And there is no universal, perfect model. You have to develop your own.
Much depends on how the change takes place. If it is the result of a political deal with the departing oppressive regime (as in South Africa), then transitional justice has more elements of reconciliation than retribution. It is a different matter if the change is the result of a fundamental revolution or even a civil war. Then elements of emotional retaliation may take over. And yet another situation arises if the change results from an internal coup within the ruling elite, a palace coup, or a coup d’etat at the top of power. Then there may be more elements of apparent justice, settlements for show. Well, a completely different transitional justice may occur if the change is the result of an external factor, as in Germany after the end of World War II.
Cultural factors, including religious ones, may also influence the transition process. Serious researchers argue that communities dominated by the Orthodox religion view transitional justice differently than Catholics and Protestants.
Due to my professional duties, I analyzed the experiences of transitional justice in the Balkans, in the so-called the post-Soviet area, but also in Africa.
Experiences vary. There is no clear recipe for success. But some general conclusions can be formulated.
First, it is good to build a broad political consensus around the principles of transitional justice, preferably throughout society, as was the case in Spain after Franco’s departure, or at least within the incoming post-transitional government. In Poland, after 1989, there was no such consensus, even in the post-Solidarity camp. The right part of it, including PiS, supported a radical, even retaliatory approach. The left and liberal sides demonstrated a more conciliatory approach. As a result, each change in the political composition of the government afterwards has resulted in legislative changes in the transitional justice mechanism in Poland, sometimes even fundamental ones. Public divisions have been ignited by the background of settlements and personnel verification for decades.
Secondly, the transitional justice process should be defined holistically and comprehensively. Textbooks and guides contain a rich list of actions that should be taken. Redressing wrongs seems most urgent. In Poland, already in 1991, an act was passed that launched the process of reviewing politically motivated court judgements. But it was only in 2009 that the payment of compensation to victims was systematically and finally regulated, and in 2015 – to opposition activists. It is also important to implement proceedings against perpetrators of committed crimes and violations.
Lustration and verification of personnel are other elements of justice. In Poland, initially only secret service officers were subject to verification. The new authorities were probably afraid of their disloyalty. The police were purged slowly (in June 1990, only 3,000 out of 80,000 officers were dismissed from service). The army was not verified at all. It was only in 2006 that the staff of the Military Information Services was verified (although in a mishandled way). Judges were not systematically verified, although discredited persons had to undergo disciplinary and court procedures. The civil service (and some professions of public trust) were initially verified in terms of truthfulness during lustration, and in 2023 in terms of contacts and work in the secret services. It seems that the entire process of rebuilding the credibility of state institutions should begin with the verification of judicial staff and the civil service.
The memory of the victims of repression and those who distinguished themselves in the fight against the regime was preserved. Monuments to the heroes of the communist power were quickly removed, but toponymic traces of the “heroes of the communist era” began to be removed late and inconsistently. The truth commission was not established, and the Institute of National Remembrance was supposed to research the past (not without controversial actions). Poland, despite moves that are sometimes chaotic, late, and sometimes implemented clumsily, is an example of a broad approach to transitional justice.
Thirdly, the transition process should be based on a solid legal basis. This applies in particular to states that are subject to the jurisdiction of international tribunals. For example, the Polish Lustration Act of 1997 was successfully challenged before the European Court of Human Rights in the first years of its application. And according to the Court, this legislation violated, above all, the principle of equality of parties, sacred in European jurisprudence. Because the person whose statement was checked for truthfulness did not have full access to the evidence and could only appear in the court as a witness. Not even European, but Polish courts themselves questioned the legality of the 2016 Act on the reduction of pension rights, the 2018 Act on the “decommunization” of the foreign service, or the 2023 Act on the “decommunization” of the civil service. And European courts will also question these laws, because they follow the principle of collective responsibility, which is unacceptable in Europe. In short, in a state of law, justice cannot be above the law.
Fourth, the process of transitional justice should take place within a reasonable time frame. Slowness, sluggishness and dragging out not only delay the achievement of real reconciliation, but also undermine society’s confidence in the intentions of transitional justice. In Poland, bringing to justice the perpetrators of communist crimes, such as the massacre of workers on the Coast in December 1970 or the pacification of the “Wujek” mine in December 1981, took a scandalously incomprehensible amount of time. The prosecutor’s office began preparatory activities regarding the deaths of the participants of the December 1970 protests already in 1990, and submitted the indictment to the court in 1995. However, the first verdicts were passed only in 2013, and even they were subject to cassation. The prosecutor’s office began investigating the death of the “Wujek” miners in 1991, but it was only in 2011 that the last verdict was announced (concerning the responsibility of General Kiszczak). Justice mechanisms must operate in accordance with their own procedural logic, in which time is a secondary factor, but it is difficult to expect any public understanding of these Polish cases.
The lustration and verification experience of Central European countries clearly shows that it is better to take these necessary actions at an early stage and coherently, as was done in the Czech Republic or Hungary. In Poland, lustration began only in 1997, and verification of the civil service began only in 2023. This could raise justified doubts.
Fifth, the verification process should be as consistent as possible. Lustration in Poland is an example of a lack of cohesion and consistency. The act adopted in 1997 was amended several times before a new lustration model was adopted in 2006, and in 2007 it basically returned to the solutions from 1997 and after a few months a new revision was made. Another new act was adopted in March 2010. As a result, the group of people subject to lustration has changed substantially over the years (ranging from 20,000 to even 400,000 potential lustration subjects), the principles of lustration and the procedure itself. Initially, it was only about establishing the truth about work or cooperation with the secret services, but when diplomacy was “decommunized” in 2018, and the entire civil service in 2023, retaliatory goals could no longer be hidden.
Sixth, the verification and vetting process must be transparent. There has been a dispute in Poland in recent years about whether judges were verified. PiS claimed that there was no verification at all, the democratic opposition claimed that there was verification. The facts show that elements of verification took place. The majority of the Polish People’s Republic’s Supreme Court (over 80 percent) quickly left this institution. Disgraced judges were not allowed to rule after reaching retirement age. In 1998 (only!) disciplinary proceedings were introduced for violating judicial independence, but with mediocre final results. More than a hundred judges were held accountable for their rulings during martial law. But it is true that the purging of the ranks of judges was not systemic and was carried out in a non-transparent manner.
The internal lustration procedures in the Catholic Church were criticised for the lack of transparency. And there was no lustration in the Orthodox Church in Poland. For example, in Russia, where the Orthodox Church cooperated closely with the authorities at the end of communism, would lustration be possible at all?
Seventh, settling human rights violations should have a clear cut-off point in the past. In Poland, the year 1944 was basically adopted as the limit. But for some past offenses, a statute of limitations has been introduced. Elsewhere (e.g. in Germany in relation to crimes during Nazism) the rule of limitation was abolished.
Eighth, the national mechanism of transitional justice must take into account the international aspect. Today this is particularly relevant because the power of international tribunals (Strasbourg, Luxembourg and The Hague) is particularly strong. National institutions should ensure harmonious cooperation with them and show respect for their rulings. This has not always been the case in the recent past, especially in the context of investigating crimes committed during the wars in the former Yugoslavia. Not only the Serbian, Bosnia and Herzegovina, but also Croatian and Kosovo authorities sometimes had apparent problems with coming to terms with the jurisdiction of the special tribunal. Countries that cleanse themselves after losing wars under external pressure do not always willingly give in to pressure. After World War I, the Allies hoped that the German tribunal in Leipzig would be up to the task of punishing their own war criminals. It convicted perpetrators only in 10 of the 900 cases brought up. In Italy, a broad amnesty was granted already in 1946. In Japan, after 1958, most of the convicts were released.
Ninth, and finally, transitional justice must include, in addition to accountability, the elements of education, generosity and reconciliation in good proportion. Whether it should be a thicker or thinner line in some aspect, whether it should be a conscious forgiveness of certain deeds, whether it should include people from the other (losing) side of the barricade, is a matter for public debates.
Reconciliation, according to the so-called Galtung’s triad, is one of the three elements of relationship repair. It concerns the cultural dimension. Its aim is to avoid a return to the emotional attitudes of hostility experienced in the past. Its goal is to raise society to a higher level of empathy. It assumes reconciliation of the victim with the perpetrator (forgiveness in exchange for repentance), the perpetrator with the state (truth in exchange for amnesty) and the state with the victim (compensation in exchange for closing the case).
The example of Poland shows that if, after the transformation, political groups with an inferiority complex come to power, convinced of the lack of proper benefits from the changes that have taken place, embittered and incompetent, their ability to think in terms of reconciliation and community building is seriously undermined, and blind retaliation against the past is an emotional lightning rod for one’s own frustration.
(based on a presentation at the “round table” with the participation of the Russian anti-war opposition in Brussels in September 2023)
