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In March 1992, some fifty participants from twenty-one countries gathered in Salzburg, Austria for a two-day conference organized by the New York-based Charter Seventy-Seven Foundation. The group included a Czech journalist, members of the Lithuanian and Uruguayan parliaments, a former president of Argentina, a Hungarian philosopher, a professor of history from Madrid, and a member of the Bulgarian Constitutional Court. The subject of the meeting was the one thing this diverse collection of individuals had in common: each came from a country which had suffered through a brutal and repressive regime, been liberated, and was obliged to cope with the legacy of that ousted system.

One major theme of the conference (and of the effort to compile the present three-volume collection, which had begun in 1991) was the extent to which the Central and Eastern Europeans and former Soviets who were just emerging from communist rule could learn any useful lessons from the Latin American transitions of the previous decade.

A fascinating undertone seemed to dominate the first day of the conference, as the assembled began to describe the experience of their respective nations. In words spoken and unspoken, in skeptical glances and general body language, the Latin Americans and Europeans seemed to be expressing the same thing to one another: the suffering of our people during the old regime and the difficulties resulting from our legacy is far worse than any hardship you endured. Ours is the greater pain; there is little we can learn from your experience.

There is, of course, some legitimacy to each point of view. On the one hand, communism was entrenched for forty-five years in East Germany, seventy years in Russia--so long that whole generations of the citizenry knew no other way of life. Though the most horrific and large-scale abuses of the Stalinist period had yielded to milder forms of repression in later years, the entire culture and fabric of their societies had been decimated during those decades; in dealing with the legacy of the old system, those in the former Soviet bloc had to reconstruct both government and the private sector virtually from scratch. On the other hand, though the military dictatorships which seized power in Argentina, Uruguay, Chile, and elsewhere in that region ruled for much shorter periods of time, the brutality with which they systematically tortured, killed, and caused large numbers of their citizens to "disappear" numbs in its detail. Numerous other contrasts exist between the legacy problems of Latin America and of post-communist Europe.

And yet. By day two of the proceedings, there was a gradual but palpable recognition that many of the details and dilemmas were not so different. How best, for example, to highlight the division between old and new government, so as to instill public confidence in the latter? This was a key issue for the participants from both regions. How should they handle those perceived as having served the old regime--as senior officials and architects of the system, as bureaucrats who implemented the old policies and may continue to be obstacles to reform, as members of the military or secret police, or as paid or volunteer collaborators with the secret police? In some countries of the former Warsaw Pact, more than half the population was potentially implicated in one of these categories. The challenge, as one participant put it, was to strike the proper balance between a whitewash on the one hand and a witch-hunt on the other. Could victims of the old regime be fairly compensated? For that matter, was it possible to achieve consensus as to who were the victims of a system that, by its design, affected everyone in society? Above all, how to achieve authentic reconciliation and prevent the future recurrence of abuses of the sort inflicted by the old regime?
Criminal Sanctions

A basic question confronting all transitional governments, of course, is whether to undertake the prosecution of the leaders of the ousted regime or their henchmen for the abuses they inflicted upon the nation. Some will argue that trial and punishment of these people is not only essential to achieve some degree of justice, but that a public airing and condemnation of their crimes is the best way to draw a line between the old and new governments, lest the public perceives the new authorities as simply more of the same. Others will claim that these are simply show trials unbefitting a democracy, that they are manifestations of victor's justice, that the best way to rebuild and reconcile the nation is to leave the past ll behind by means of a blanket amnesty. In some cases, abuses have been committed both by the former government and by its opponents, and it can be argued that the best approach is to forgive the sins of both sides.

The debate recurs time and again. Following the death of Franco, the relatively peaceful Spanish transition was marked by such a mutual amnesty. In Greece, nearly twenty years after the conviction of junta leaders who had overseen the torture of hundreds, plans to release them from prison still prompted huge protests. In newly democratic Argentina and Chile, the prospect of trials for the gross violations of human rights that had occurred under the old regime provoked bald threats of military intervention and a return to the terror of the past. In post-apartheid South Africa, disagreements at the end of 1994 regarding amnesty were reported to threaten the stability of the new coalition government. International standards are evolving which help deal with this question; there is a growing consensus that, at least for the most heinous violations of human rights and international humanitarian law, a sweeping amnesty is impermissible.

When a decision is made to prosecute, the desire to use criminal sanctions against those who served the old regime may run directly counter to the development of a democratic legal order. The principles of ex post facto and nulla poena sine lege, for example, form one of the basic concepts of that legal order, barring the prosecution of anyone for an act which was not criminal at the time it was committed. At the very time that countries emerging from repressive regimes are committing themselves to these basic principles, the reality is that many of the acts that they desire to punish today were not crimes when they were committed under the former regime; they were often laudable and encouraged under the old system. In post-war France, for example, this issue was fiercely debated. Ultimately, thousands of people were prosecuted under a 1944 law establishing the new offense of "national indignity" for acts they had committed prior to the law's adoption. In the immediate post-communist period, largely owing to this same ex post facto dilemma, German officials initiated proceedings against Erich Mielke, the former head of East Germany's Stasi secret police, not for any abuses of the hated Stasi, but for a murder he had allegedly committed half a century earlier--based on evidence extracted by Nazi police. Although some sort of justice might have been served by this trial, the Mielke prosecution could not provide for East Germans the kind of catharsis that would be achieved through a public airing and trial of secret police wrongdoing.

Some of the worst abuses inflicted by former regimes were crimes under the old system, but they obviously were not prosecuted. If the statute of limitations for these crimes has already elapsed by the time of the transition, can the new authorities still hold the perpetrators accountable for their deeds? In both Hungary and the Czech Republic, post-communist legislators argued that since these crimes (particularly those committed to suppress dissent in 1956 and 1968 respectively) had not been prosecuted for wholly political reasons, it was legitimate to hold that the statute of limitations had not been in effect during the earlier period. Now, freed of political obstacles to justice, the statutory period for these crimes could begin anew, enabling the new authorities to prosecute these decades-old I crimes. Legislation was adopted accordingly. In both countries, the matter was put to the newly created constitutional court for review. In a fascinating pair of rulings, each court handed down a decision which eloquently addressed the need to view this question of legacy and accountability in the context of the new democracy's commitment to the rule of law. On this basis--with plainly similar fact patterns--the Czech constitutional court upheld the re-running of the statute of limitations for the crimes of the old regime as a requirement of justice; the Hungarian court struck down the measure for violating the principle of the rule of law.

How widely should the net be cast in imposing sanctions on those who served the former regime? How high up the chain of command should superiors be responsible for abuses inflicted by their underlings? What standard of evidence is required to demonstrate that, rather than random events, these acts of persecution, corruption, and violence were designed, or at least condoned, by those at the top? Conversely, how far down the chain should soldiers or bureaucrats be held liable for following the orders of their superiors in facilitating these abuses? In dealing with the legacy of the former East Germany, several young border guards were prosecuted in 1991 for implementing shoot-to-kill orders that produced nearly 600 deaths of East Germans attempting to escape across the border. Many criticized the first of these trials for punishing the "small fry" at the end of the chain of responsibility who actually pulled the trigger, while leaving untouched the party leaders who had designed the repugnant system and given the orders. (In January 1995, seven former senior East German officials were eventually charged, in a 1,600-page indictment, with manslaughter and attempted manslaughter for their roles in developing and overseeing the system.) In Rwanda, after ousting a regime that organized genocidal killings of at least half a million people, if the new government were to undertake prosecution of every person who participated in this heinous butchery, some 30,000-100,000 Rwandan citizens could be placed in the dock--a situation that would be wholly unmanageable and extremely destabilizing to the transition. Moving the nation forward toward both justice and reconciliation plainly precludes an absolutist approach to the chain of responsibility.

In bringing those who served the former regime to account for their actions, what kind of deeds should be scrutinized? Should prosecution be limited to egregious violations of human rights? Should they be extended to charges of corruption and economic mismanagement? In Bulgaria, for instance, several former officials were convicted because of their role in specific foreign aid decisions that contributed to the country's economic nuin.

Should there be limits on the penalties imposed in these criminal cases? Some will argue that, even in those countries in which capital punishment is used, it should not be available in transitional purge trials. Given the high emotion and political pressures inherent in these trials, they suggest that use of the death penalty will further aggravate tensions within the society.

The temptation of victims of ghastly human rights violations under the old regime to make short shrift of the criminal procedural rights of those put in the dock for the crimes of that regime--to pay them back for the abuses they inflicted--is certainly understandable. Providing yesterday's dictators and torturers with the judicial guarantees and procedural protections that they never afforded their victims may be a source of short-term frustration during the transition, prompting cynicism of the sort expressed by an East German activist: "what we wanted was justice; what we got was the rule of law." Nonetheless, if these defendants are not afforded all the same rights granted to common defendants in a democratic order, the rule of law does not exist and the democratic foundation of the new system is arguably weakened.

Non-Criminal Sanctions

At least as great a challenge to the installation of democracy and the rule of law comes in the context of administrative penalties. Most frequently, the issue is that of purging from the public sector those who served the repressive regime. In post-war France, the process was called epuration; in the Czech and Slovak Federal Republic, lustration. A variety of effective arguments are made in favor of this process. The new democratic authorities must find ways to restore public confidence in the institutions of government. The public may reasonably be skeptical when told they will now be treated differently, if these institutions simply retain all their existing personnel. These, after all, are the same people who kept the engine of the repressive state operating; it is unlikely that many of them have undergone a sudden epiphany that has turned them into committed democrats. Even if they do not actively attempt to sabotage the changes undertaken by the new authorities, these people are set in the old ways and will serve as obstacles to the process of democratic reform. Finally, jobs in public service, whether as senior ministers or as clerks, should be granted first and foremost to those who have demonstrated loyalty to the democratic ideals of the new order.

Depending on the country, those perceived as having supported the old regime might include senior officials and architects of the system, bureaucrats who implemented the old policies and may continue to be obstacles to reform, members of the military or police, paid or volunteer collaborators with the secret police, or even simply party members. Perhaps the most difficult of these categories in one country after another is the vague description of "collaborators." In some emerging democracies, those who fit into one of these categories potentially comprise more than half the population.

On the other hand, particularly in those countries where the ousted regime was in power for many years, these people may be the only ones with the knowledge and experience to staff the ministries and the banks and the other institutions without which the national infrastructure would surely collapse. Practical considerations may make them indispensable.

How to undertake such a purge while rebuilding on the basis of democratic principles? These programs of administrative sanctions do not, as a rule, provide individuals with the same level of due process protections from which they would benefit in a criminal proceeding. Driven by the fact that they involve a large number of people, purges tend to be conducted in summary fashion. Beyond procedural considerations, the rule of law rejects collective punishment and discrimination on the basis of political opinion or affiliation. In establishing accountability, even in a non-criminal proceeding, the burden of proof should be on the authorities making the accusation, not on the accused to prove his or her innocence. When large numbers of people are removed from their places of employment purely because they had worked there under the old system or because of their membership in a political party, without any demonstration of individual wrongdoing, they may legitimately cry foul and question the democratic underpinnings of the new government. Rather than contributing to reconciliation and rebuilding, the result may be the creation of a substantial ostracized opposition that threatens the stability of the new system.

In much of the former communist bloc, the issue of lustration was a source of great controversy during the first years after the revolutions of 1989. In Poland, for example, only 38 percent of those polled in late 1991 supported creation of a system for disqualification of former communists, officials, and collaborators from public offices; a March 1992 poll showed an increase to 64 percent in favor of disqualification. Some observers suggested that the trend was related to the complex questions of privatization and redistribution of wealth: necessary austerity programs and wrenching efforts to overhaul the entire economic system result in many people becoming more impoverished, and the desire consequently grows to assign blame for society's ills. In addition, a perception exists that many former communist officials gave themselves "golden parachutes" as they exited their government posts, in the form of embezzled funds and property or controlling interests in the newly privatized companies; rather than being punished, in other words, the old guard had won once again.

The courts reflect an interesting problem relative to the purge process. On the one hand, the rule of law requires an independent judiciary insulated from political pressures. This generally means that judges are not easily removable from their posts. Even if judges were easily purged, it might take years to train a qualified class of new lawyers and judges to replace them on the bench. On the other hand, in most cases of transition from totalitarian or authoritarian regimes, the judiciary was severely compromised and was very much a part of the old system, implementing the repressive policies and wrapping them in the mantle of law. In post war Germany, when victims of Nazi persecution were authorized to file claims for damages, some of them were stunned to find their claims assigned to the very same judge who had sentenced the claimants or their relatives in the first place. In order to enhance the power and independence of the judiciary as part of the democratization process in post-communist Poland, a law was enacted establishing the irremovability of judges. One consequence, subsequently recognized, was that many tainted communist judges thereby became entrenched in the "new" court system. An effort followed to create a system for the verification of judges based on their past activity and affiliation, and apply that system to both prospective new judges and those already in office.

In Ethiopia, it was proposed that all members of the former ruling party be denied the right to vote in elections. Such denial of suffrage based on previous party affiliation has occurred in other places, such as Norway after World War II. Other countries may attempt to ban the former ruling party and its successor parties. In Russia, President Boris Yeltsin's decree banning the Communist Party and seizing its assets was hotly debated and resulted in a closely watched case before the country's new constitutional court, which ultimately struck down half of the ban while leaving significant elements of it intact.

Once again, these efforts can rub against the intention to create a new, freer society wholly unlike the old regime. Administrative purge programs can easily be abused for purely political motives. In many cases, the old regime actually used the same methods, banning political parties, denying people a say in choosing their government. Citizens' rights to vote, to run for office, or to exercise their freedom of association are fundamental elements of a democracy. The balancing act for countries feeling their way through transitional justice is not an easy one.

Acknowledging the Past

In all cases of transition from a repressive regime, history has been controversial. Even after its ouster, the old guard will still have its defenders, who will deny that the evil acts of which it is accused ever took place, or will claim that they were actually perpetrated by others, or will suggest that they were justified by exigent circumstances. If left uncontested, these claims may undermine the new government and strengthen the hand of those determined to return the former regime to power. They will also add insult to the injury already inflicted on the victims.

Establishing a full, official accounting of the past is increasingly seen as an important element to a successful democratic transition. Criminal trials are one way in which the facts and figures of past abuses may be established. The establishment of a "truth commission," several variations of which are covered at length in each of the three volumes, is another. Following the initial phase of transition, this history may be reaffirmed in the long-term through national days of remembrance, the construction of museums and commemorative monuments, and the incorporation of this recent history into the curriculum of the nation's schools.

Compensation, Restitution, and Rehabilitation

In Russia, during the early stages of the transition from communist rule, there was no program to provide restitution of property or material compensation to victims. There was also initially no attempt to deal with recent abuses. Instead, efforts focused on restoring to victims of Stalinism their good names. On a case-by-case basis, hundreds of these victims were granted posthumous rehabilitation. While acknowledging the wrongs inflicted decades earlier, such an approach is, of course, far less costly to the new government--in both material and political terms--than compensation of recent victims.

In Chile, where the terms of the transition proscribed the criminal prosecution of former officials--and the sense of justice and catharsis which might be achieved thereby--the new democracy undertook instead one of the most comprehensive programs of compensation and rehabilitation of those described herein, encompassing life-long pensions for the survivors of those who died in General Pinochet's prisons, compensation for prison time and for lost income, educational benefits, a national network of medical and psychological services for victims and their families, and exemptions from military service.

More often than not, the legacy left by departing totalitarian or authoritarian regimes includes a weak economy and empty government coffers, depleted through corruption or mismanagement. The nascent democratic government must use its limited resources to turn the economy around, restructure the bureaucracy to restore public trust in government and better fulfill its basic functions, and invest in new present- and future oriented programs (such as overhaul of the educational system where it was previously infused with the ideology of the old regime) to ensure the security of democracy. In this circumstance, many will ask, how much of its limited funds should the new democracy be obliged to allocate for victims' compensation, paying for the sins of the old guard? In addition, some will argue, since it is impossible to adequately compensate all victims for their loss, perhaps it is unjust to divert precious resources when the only result is to make some more whole than others.

To be sure, the parents whose daughter was tortured to death by the former regime, which then disposed of her body without a trace, or the man who spent a dozen years in prison for his political beliefs when he should have been completing his professional training, building his career, and watching his toddlers become young adults cannot be made whole for their loss. Nevertheless, compensation serves at least three functions in the process of national reconciliation. First, it aids the victims to manage the material aspect of their loss. Second, it constitutes an official acknowledgment of their pain by the nation. Both of these facilitate the societal reintegration of people who have long been made to suffer in silence. Third, it may deter the state from future abuses, by imposing a financial cost to such misdeeds. There is a growing consensus in international law that (a) the state is obligated to provide compensation to victims of egregious human rights abuses perpetrated by the government, and (b) if the regime which committed the acts in question does not provide compensation, the obligation carries over to the successor government.

Internationalization of the Issues

In our ever-smaller world, the handling of transitional justice has increasingly become a source of interplay between new successor governments and those outside the country. When the Czech and Slovak Federal Republic adopted its "lustration" law to screen and purge a range of former communist officials and collaborators, it became a major focus of international attention. The Council of Europe and the International Labor Organization each analyzed it, as did numerous foreign non-governmental organizations. Foreign attention is often welcome. The report of the Chadian "Commission of Inquiry into the Crimes and Misappropriations Committed by Ex-President Habre, his Accomplices and/or Accessories" begins with a map and profile of the country--obviously meant mostly for foreign consumption. Foreign governments are forced to play a role in either providing refuge to those from the former regime or facilitating their exclusion or extradition for trial. Assisting in the tracing and return of assets which have been moved out of the country by the former leaders and their cohorts may also be appropriate. Some functions may be performed by wholly international bodies, such as the truth commission for El Salvador or the UN war crimes tribunal for Rwanda. Alternatively, foreign governments may play a part in advising, critiquing, or participating in the new leaders' plans with respect to such issues as amnesty, purging, and retraining for government personnel; the United States has arguably played such a role in Haiti.

These issues of transitional justice are highly charged flashpoints in many countries emerging from repression, with societal wounds still open and in need of treatment. Having recognized that the way in which these dilemmas are handled can directly affect the short- and long-term stability of the transition in many countries, foreign policy makers would be well-advised to keep this lens in focus as they monitor, anticipate, and respond to such transitions around the world.

Financing Transitional Justice

In theory, all victims of past repression are entitled to maximum compensation from a new government emerging from years of repression, but who is going to pay for it? High profile trials of former officials, particularly when they are looking farther back in time, can be expensive propositions, but justice done on the cheap is inadequate. Truth commissions, if they are to credibly research and create an unimpeachable historical record, need human, financial, and technical resources. Each of the aspects of transitional justice discussed above has a price tag attached--a serious problem for most emerging democracies struggling to rebuild their society anew. Most observers will agree, of course, that the long-term price of not dealing with these issues is greater still.

A recent Polish example drives home the point. A victim of human rights abuses under the old regime filed a successful lawsuit for damages from the government, resulting in an order to pay a huge sum to the plaintiff. Following a public outcry over holding the new, financially strapped government accountable for the sins of its communist predecessor, all the money was donated to charity.

If the transitional government cannot afford to pay for these efforts, foreign governmental or private funding is obviously an option. The truth commission for El Salvador received $1 million, some forty percent of its total budget, from the United States government. The commission in Uganda has received major infusions of funding from the Ford Foundation in the U.S. and Danita in Denmark. The Rwandan court system will hopefully receive foreign funding for the genocide trials it will undertake. In a lengthy bulletin produced "for NGOs and the media," the Special Prosecutor's Office created to investigate and prosecute crimes of the Mengistu regime in Ethiopia includes a section on "foreign support" which lists the contributions of six countries to the effort, ranging from a Canadian donation of $40,000 to $403,000 from Sweden. A recently established United Nations Voluntary Fund for Victims of Torture may also be of assistance in certain cases.

Some observers are wary of moving to foreign funding too quickly, particularly for victim compensation programs. If the national government is freed to allocate its resources and fiscal priorities without factoring in this issue, if it does not reach into its own coffers to acknowledge the victims of repression in a material sense, then the new regime may less effectively integrate the lessons of the past, and the sense that the state is paying its respect to the victims and restoring to them their dignity may be lessened--weakening both long-term democratization and rehabilitation.

The national resources so often embezzled by the leadership of totalitarian and authoritarian regimes--yet another issue facing emerging democracies--offers an interesting source of financing. Whether this entails efforts like that undertaken by the Philippine government to lay legal claim to millions of dollars worth of foreign assets and accounts controlled by Ferdinand and Imelda Marcos, or the efforts in Bulgaria and Albania to seize properties amassed by the former ruling clique and order them to reimburse the state millions of dollars, there is a certain sense of justice and balance to recapturing these ill-gotten gains and applying them directly to pay for other aspects of transitional justice. A curious variation on this was a legislative proposal in Poland to impose a special tax on communists, with a sliding scale based on one's position within the Communist Party hierarchy.

Particularly in countries emerging from communism or other centrally controlled economies, property restitution is not only a form of justice for victims, it is also a highly complex issue of economic conversion and privatization with obvious consequences for clarity of ownership and for business and investment opportunities in the emerging democracy. This may provide an additional incentive for foreign governments or businesses to help the restitution process along, including through subsidization.

As a rule, these are not problems that disappear quickly or easily. A half-century after the Second World War, the scars of Nazism are still felt in Germany. After the fall of the Berlin Wall and reunification, many acknowledged that the debate over decommunization was in many ways a shadow debate among East and West Germans over the success of denazification and was significantly colored by a desire to "do it better this time." The trials of Klaus Barbie and Paul Touvier for their crimes as part of the Vichy regime exposed still-raw nerves and soul-searching in France some fifty years after the facts in question. In Namibia, several years after the transition, officials claim that it is still too soon for an investigation and accounting of those who disappeared on both sides of the conflict, that such an effort would threaten Namibian stability; others argue that this past will haunt the country until it is dealt with. And in Cambodia, talk of bringing charges against leaders of the Khmer Rouge for the genocide they inflicted on their country twenty years ago will continue to affect the reconstruction process.

This is, of course, an ongoing process. A full accounting is yet to be written of transitional justice in countries such as South Africa, El Salvador, or Ethiopia. The current global trend from totalitarian and authoritarian systems to democratic ones will hopefully continue, producing new cases of transitional justice in the years to come. Through the publication of these volumes and the ongoing work of the United States Institute of Peace and others on this subject, one can hope that positive lessons will be derived from past experience, that future transitions will bolster their own stability by achieving justice and reconciliation through the rule of law.