How to Get a Breakthrough in Ukraine
The Case Against Incrementalism
NEW DEMOCRACIES, OLD WOUNDS
"No one touches anyone," warned General Augusto Pinochet in October 1989, two months before Chile's first free elections since his 1973 coup. "The day they touch one of my men, the rule of law ends. This I say once and will not say again." The old junta leader's comment, made almost casually to reporters, cast a pall over the fiesta-like campaign atmosphere. As expected, the anti-Pinochet forces won. But the general's warning still hangs in the air. Pinochet's democratic successors have chosen not to call his bluff.
Pinochet's language was unusually blunt, but the dilemma that the old tyrant's warning created for the new Chilean republic was nothing new. One of the first questions a newly democratic nation must face is that of what to do with its old dictators. Since the French Revolution, it has been clear that the choices new democracies make -- whether and how to investigate tyranny's legacy, try its leaders, purge its bureaucrats, or touch one of its gunmen -- can set the course for a nascent democratic system. But only in the past 15 years or so have nations become fully aware of what is at stake when dealing with a repressive past.
After World War II, the notion of human rights and civil liberties -- previously believed to be out of reach for the citizens of most countries -- was increasingly accepted by a growing number of nations. In addition, since the mid-1970s, a staggering number of countries have turned from dictatorship to elected civilian government. First came southern Europe -- Portugal, Greece, and Spain. In the 1980s, the wave hit Latin America -- Argentina, Bolivia, Brazil, Chile, Ecuador, Honduras, Nicaragua, Panama, Paraguay, Peru, and Uruguay. In 1992, El Salvador ended a war that took the lives of 75,000 civilians. In the 1980s and early 1990s, at least 15 African nations moved away from repressive one-party rule and held multiparty elections. After 1989, the Soviet bloc completed the avalanche. All are now wrestling with their repressive pasts.
There are two main reasons to confront a grim past: to heal tyranny's victims and to alter the conditions that nurtured dictatorship in order to prevent its return. The new democracies have dreamed up a plethora of creative and often contradictory methods for fulfilling these broad obligations to past and future. They include choosing to leave the past behind and start afresh, an official apology by the new head of state, monetary reparations to the victims or their families, employment bans and purges that keep abusers from positions of public trust, truth commissions, and trials of political leaders or those who carried out torture and murder.
The instruments chosen depend on the type of dictatorial system, the types of crimes it committed, the level of citizen participation in the dictatorship, the nation's political culture and history, the abruptness of the transition to democracy, and the new civilian government's resources and political power. As these factors vary widely, so do the choices countries have made. While it is early to judge these choices, some general guidelines can be drawn up by comparing two large groups of new democracies: the former military dictatorships of Latin America and the former Communist dictatorships of Eastern Europe.
In the two regions, both the type of the past victim and the nature of the future threat are almost diametrically opposed. Roughly put, repression in Eastern Europe was wide, while in Latin America it was deep. And in Latin America the challenge to democracy comes from military dominance of a weak civilian government, while in Eastern Europe the danger is repression by capricious government officials unchecked by law. The challenge to both continents is to deal with past abuses of power in ways that do not replicate them.
Some nations have met the challenge. Most, although they could still change course, have merely reinforced old antidemocratic habits. The lessons of Latin America and Eastern Europe might help other countries to choose their paths: nations recently emerging from dictatorship or restricted democracy, such as South Africa, Haiti, and Malawi, and nations that are ending long and brutal wars, such as Ethiopia, Mozambique, Guatemala, and Angola. Sadly, for many countries, democracy will be only a temporary phenomenon. If they do not successfully deal with a repressive past today, future opportunities may await.
THE BAD OLD DAYS
The new democracies' strategies for confronting the past depend largely on the nature of the former authoritarian regime. While comparisons between such different regions must be flawed by overgeneralization -- Latin American countries can differ almost as sharply from one another as from the countries of Eastern Europe -- the differences between the two areas shed much light on the problems of confronting the past.
Ideology. Communist leaders pronounced themselves the instrument of the working class, the standard-bearers of a beautiful ideal. They aimed for nothing less than the transformation of their citizens, the building of a "new socialist man." The good socialist citizen attended May Day parades, joined Marxist-Leninist scientific study groups, voted for the party slate, and hung peace slogans in his window. In the harsher police states, he denounced suspicious activity by his neighbors or colleagues. Latin leaders, by and large, indulged in no such nonsense. They ruled because they possessed more guns. Military leaders held a highly developed anticommunist ideology, but they did not seek to impose it on the public. In Pinochet's Chile, for example, the regime's good citizen was apolitical -- he went to work, came home to play with his children, and kept his head down. If his neighbor returned from a long absence with a shuffling gait and dead eyes, the good citizen noticed nothing.
The nature of repression. The nature of the typical state crime in the two regions also differed. In Latin America, the generals crushed dissent with murder, torture, and forced disappearance. This intense repression was focused on a small percentage of the population. Even the 9,000-plus Argentines who disappeared in the "dirty war" against the left were a small slice of the nation. These crimes, while sponsored by the state, had clear authors. In tiny Uruguay, former political prisoners sometimes ran into their torturers on the street. Mothers in Argentina often knew the names and whereabouts of their disappeared children's military kidnappers. And torture and murder were illegal according to then-extant laws.
While Stalinism in the U.S.S.R. itself was violent and sustained on a scale unimaginable in Latin America -- 7 million executed, 5 million dead of government-induced famine, 15 million sent to the gulag -- Communist violence was much reduced in Eastern Europe. After Stalin's death in 1953, Communist regimes kept power mainly through corruption and coercion. Citizens and apparatchiks who behaved correctly won privileges, and those who did not lost them. Violence was seldom necessary. (The great exception was Albania, which was still shooting its poets in the late 1970s and was staunchly Stalinist until 1990.) In Eastern Europe, state repression was far more diffuse than in Latin America -- few people suffered physical harm, but almost everyone suffered some deprivation. While the outspoken went to jail, one did not need to be politically active to suffer the regime's wrath. Millions who exhibited insufficient Communist enthusiasm lost their jobs, their children's schooling, their weekend cottages, or their passports. All except the most privileged endured travel restrictions, lack of privacy, shoddy goods, shortages, and constant lies. All lived smaller lives in nations where all things were measured by political loyalty. This repression was not illegal, but the very foundation of the system. It was perpetrated not by an individual, but a whole government. Tapping a telephone or sending a family into internal exile can only be done with the support of an entire bureaucratic apparatus. Indeed, it required the collaboration of virtually the whole populace.
Cooperating with tyranny. Another difference between the two types of dictatorship is that Eastern Europe's Communist dictatorships sought public participation, while Latin America's right-wing military dictatorships sought public silence. In Latin America, although many influential people endorsed the ideologies that gave rise to murder and torture, one can point to a few hundred men who committed the actual crimes. The Eastern bloc dictatorships were conspiracies of all of society. Just as almost everyone was a victim of Communism by virtue of living under it, almost everyone also participated in repression. Inside a Communist regime, lines of complicity ran like veins and arteries inside the human body. Even the most natural responses of self-preservation were also, in a sense, acts of collaboration. The eighth-grade history teacher who taught students of the glorious march of the proletariat and its vanguard, the Communist Party; the journalist who wrote positive articles because she knew she would be fired for writing negative ones; the millions who fooled their leaders into thinking they were beloved by granting them their votes and cheering at party rallies -- all were complicit. Their complicity was hidden, even from themselves, by that fact that every ordinary citizen behaved the same way. It seemed normal. But such "normal" collaboration kept the regime alive. "The question we must ask isn't what some `they' did," said Jan Urban, a Czech journalist and dissident. "It's what we did." The horror of Communism was in the sum of the parts. In short, the East European dictatorships were criminal regimes, while the Latin American dictatorships were regimes of criminals.
LEGACIES OF INJUSTICE
Besides differing in nature, the Latin American and East European dictatorships also differ in the troubling legacies they have left behind -- legacies that threaten democracy in contrasting ways. In Latin America, the old dictatorships gave way to newly democratic states that are too weak to guarantee that the juntas will not return to power. In Eastern Europe, it is the state that is too strong, prone to abuses reminiscent of the dictatorial past.
The East Europeans lived on ideology, and that ideology is now discredited. In the former Soviet Union, there are several regimes as repressive, centralized, and personalist as their Communist predecessors, but they manage to achieve all of Communism's oppressiveness without its ideology. Although post-Communist socialist political parties thrive today and have even regained power in Lithuania, Poland, Bulgaria, and Hungary, they differ startlingly little from their current political adversaries. The 1993 elections in Poland, for instance, saw a dispute between the socialists and a center-right party over an economic plan they both advocated. In Hungary's odd current coalition between socialists and former dissidents, a socialist finance minister sped up privatization and other reforms that had stalled, paradoxically, under the previous center-right government. Clearly, Communism in Eastern Europe was shot through the heart and will not rise from the grave.
But Communism has left behind a poisonous residue. The people of Eastern Europe had 45 years to accustom themselves to governments endowed with arbitrary and absolute power. (In many parts of Eastern Europe, they began getting used to this centuries ago.) They saw law twisted daily for political ends. No institutions existed that could check the power of the party -- no independent judiciary or stubborn legislature inside the government, no opposition parties or independent press outside. In Albania, the very practice of law was banned. With a few notable exceptions, there was no civil society. The word "rights" meant nothing to the average citizen.
This legacy poses a triple threat to the future of democracy. It has left citizens unaccustomed to searching for their own values and morals, and more comfortable simply accepting those supplied ready-made by the state. Today most people still do not acknowledge this lack of responsibility for their own actions, nor that this acquiescence was crucial to perpetuating the repressive regime. Such people can be easily persuaded to let demagogues do their thinking for them. Hagen Koch, a former East Berlin border guard official, described for me some of the cultural education projects he ran for border guards, including showing movies about the "Great Patriotic War," the Soviet name for World War II. I asked him if East Germany had been on the winning or the losing side. "Oh, we won, of course," he said. It was a staple of East German propaganda that the bad ones were those Germans over there. The last thing the Communist leaders wanted was a serious examination of their citizens' participation in the Nazi regime; the lack of such a national soul-searching helped East Germans slide smoothly and immediately into another dictatorship.
Today many East Europeans want new devils to blame for their troubles. They seek harsh measures to restore order to a complex and insecure world. The trend grows toward Europe's historic pathology, intolerant nationalism. Gypsies have been beaten or killed almost everywhere, and police often do little to investigate those crimes. Many countries treat ethnic minorities as second-class citizens. Today many East Europeans listen transfixed as Slobodan Milošević in Serbia, Vladimír Mečiar in Slovakia, and István Csurka in Hungary wave their lists of names of Croats, Hungarians, Jews, or Gypsies.
Communism's second poisonous legacy is a state unsure of its role. The states of Eastern Europe do not suffer the existential crises of the former Soviet republics, which are building governments from scratch. But they have no experience in checking the whims of their leaders through laws and constitutions. While most East European leaders are not budding tyrants, the point is to limit personalist rule with laws that can stop those who are.
The third piece of the grim Communist heritage is that Eastern Europe's democracies lack the judicial and civil institutions that could rein in unscrupulous leaders. In most East European countries, judges are accustomed to the phone call from a party boss suggesting the disposition of a case. Recently there has been a spurt of laws -- some of them revivals of Communist-era statutes -- punishing criticism of government officials and the publication of state secrets. These laws are so vague they can be turned against any critic of government policy. Political control of the judiciary and media and restrictions on free expression and assembly are most widespread in the former Yugoslavia and the East European countries where civil society always lagged behind: Romania, Slovakia, and Albania. Here, leaders' new "nationalist" or "democratic" labels seem to matter little; many still behave like old Communists. And a lack of democratic experience encourages the average East European to accept laws like these as normal.
The legacy of the Latin American dictatorships is very different. While the East European dictatorships lived on an ideology that is now discredited, the Latins lived on guns, which never go out of fashion. Even after a transition to democracy, powerful militaries still have those guns, the support of the influential upper class, and the arrogance that justified their abuses.
Civilian governments have proven unable to keep repressive security forces from carrying out torture and murder in many countries, notably Peru, Brazil, Venezuela, Colombia, El Salvador, and Guatemala. Even under democracy, police and soldiers remain secure in the knowledge that their crimes will be judged in friendly military courts or not at all. The number of security officers who served or are serving significant terms for murder or torture in all of Latin America's former dictatorships probably does not reach double digits.
The militaries are more than a day-to-day threat to civilians: they have put elected governments on notice that democracy exists at the military's pleasure. Latin America has seen two previous waves of democratization in this century. At the crest of the second wave, in 1960, Paraguay was the only military dictatorship in South America. But by 1976, Colombia, Venezuela, Suriname, and Costa Rica were the only non-dictatorships in Central and South America. And monsters lurk below the glassy surface of today's elected Latin American governments. Venezuela has suffered three recent coup attempts. In 1992 Peru's president, Alberto Fujimori, assumed dictatorial powers with the backing of the military. The army is rumbling in Brazil. In most Latin nations, civilian presidents face the threat of overthrow if they attempt to cut military budgets or pensions, investigate military corruption, or try officers for human rights violations. Dictatorship falls periodically to democracy in most Latin nations, but it never stays dead.
The challenges to democracy in Latin America and Eastern Europe, then, come from opposite directions. In Latin America, state power is too limited to discipline a rogue military. In Eastern Europe, state power needs more limits to keep abusive officials from violating civil and human rights, and such abuses are tolerated by citizens who have been taught to accept the ready-made values provided by the state. This is a situation ripe for exploitation by the next demagogue to come along.
THE URGE TO PURGE
The contrast between Latin America, with its dangerously weak governments, and Eastern Europe, with its dangerously strong ones, becomes starker as the fledgling republics consider bold methods for dealing with the past. One such measure is the purge. Victims everywhere deserve to feel confidence in their new democratic governments, to know that the torturers and repressors are now outcasts who neither represent the state nor are able to continue their old practices. Spain's remarkable transformation after General Franco's death shows that this is not necessarily an absolute -- people can break their old habits and forgive their enemies for events long past without purges. But in Latin America, such purges are crucial for democracy. There, the victims' blood is fresh, and the vicious cycle of repression and impunity that has plagued Latin America for centuries cannot be broken unless the military accepts civilian rule. Spain may have experienced real reconciliation, but most Latin countries have only an uneasy truce in which both sides are acutely aware of the distribution of power. True reconciliation cannot take place at gunpoint.
But guns limit the purges that have occurred. After El Salvador's civil war, the United Nations sponsored a groundbreaking ad hoc commission -- a panel of Salvadorans chosen to name military officers who actively participated in or covered up human rights abuses. The government promised to purge, or in some cases transfer, the officers named. The commission interviewed witnesses, invited officers to present a defense, and finally named 102 men. Few in El Salvador were surprised when the most powerful of them refused to resign. The top 15 officers named, including General René Emilio Ponce, then defense minister, served out their 30 years in the armed forces and retired with full honors and pensions.
Eastern Europe is attempting purges as well. In the fall of 1991, President Václav Havel submitted a bill to the Czechoslovak Federal Assembly calling for a ban on top government jobs for everyone the state could prove did concrete harm. This commendable bill failed to pass. Instead, the assembly passed a law that came to be known as "lustration," which bans from top public-sector jobs for five years all those who were members of the People's Militia, held high-ranking government or party positions under Communism, or appear in the secret police registry as collaborators. Those so found are considered guilty and must sue in court to prove their innocence.
Lustration shows that the trouble with purges in Eastern Europe is the reverse of the Latin American problem. The biggest danger is not that the guilty will stay in power, but that the innocent will be removed. Lustration's supporters maintain not that the secret police registry is largely correct, which is indisputable, but that it is perfect, and that no innocent person could possibly be considered guilty. The secret police, however, were no more perfect than any other large bureaucracy in Communist Czechoslovakia. Some secret police officers wrote down names to meet a quota or win more expense money. The lustration law has ruined the careers and reputations of many who were listed by mistake or whose collaboration harmed no one. Indeed, one of those listed as a candidate for collaboration in the secret police files from 1965 was a youthful absurdist playwright who thanked his interrogator for "giving him inspiration for further literary endeavors." On this basis, a secret police official wrote that the young Václav Havel had a "positive" attitude toward the secret police and should be actively recruited as an agent.
Czechoslovakia's lustration has been the most publicized, but other countries have comparable laws. Bulgaria's law, which applies only to people in academic posts, is being challenged by a new socialist government. In Germany, lustration for high-level officials is fairer than the Czechoslovak version -- firings are based on information from the subject's file, rather than just appearance on a list. But the average worker does not benefit from such subtleties. Every single holder of a public-sector job in eastern Germany can be fired for having informed or worked for the Stasi, the dreaded East German secret police. Berlin recently fired street sweepers who were found to have been on the Stasi payroll -- even if they had been only Stasi bus drivers or potato-mashers in the Stasi cafeteria. Some bureaucrats were required to fill out questionnaires asking if anyone in their household had contact with the Stasi. The bans last 15 years. While the cabinet minister from Prague can surely find a new job in private industry, where can the third-grade teacher from Dresden go? Many former East Germans perceive the firings as a massacre. They have produced the least auspicious emotion for working through the past: victimization.
Poland and Hungary have abstained from the lustration boom. In part this is because their Communist regimes -- and particularly their secret police -- were far less Stalinist. These were also places where the transition to democracy was negotiated, a process that encourages people to see each other in shades of gray rather than in black and white. Enemies become political adversaries, with whom it is possible to work. In Poland, the Solidarity government emerged from the transition negotiations with a policy of walling off the past with what leaders called a "thick line."
Still, many on the right fought for lustration. In June 1992, the government of Polish Prime Minister Jan Olszewski presented parliament with a list of secret police collaborators. It was a curious list, containing the names of most of the government's important political adversaries, including President Lech Walesa. A parliamentary commission found that of 64 names on the list, only 10 could really be suspected of collaboration. The Olszewski government fell and so did lustration. Neither ever recovered.
This is no great loss. Lustration smells like Communism. The accused do not enjoy due process rights or the presumption of innocence. It can be a powerful political tool used against those who inconvenience new governments. Lustration punishes people not for their individual actions but for their appearance on a list. "I do not protect Communists," said former Czech Premier Petr Pithart, a lustration opponent. "I protest against lists of any kind. Today it is Communists who are on the list. It could be wealthy people tomorrow, perhaps macrobiotics the day after, and certainly the Jews. The logic of lists is implacable."
In both Eastern Europe and Latin America, high-profile official commissions to investigate a former dictatorship's crimes can help restore integrity to a country's political life. Truth commissions are especially necessary after dictatorships or wars marked by widespread torture and disappearance -- crimes whose hideousness hinges in part on secrecy. Unveiling the full scope of tyranny lets its victims come to terms with their suffering and starts replacing the legacies of dictatorship with the habits of democracy.
It is not enough that the regime's crimes are widely known, or even that they are discussed on the state-sponsored TV news. The state must acknowledge and apologize for what it has done. On March 4, 1991, Patricio Aylwin, who succeeded General Pinochet as president of Chile, went on television and, voice breaking, apologized to the families of those killed by the previous government in the name of the entire nation. This was a moving statement, but more important, he presented a study of the junta's murders and disappearances, carried out by an eight-person Commission on Truth and Reconciliation whose members ranged from a human rights lawyer to former members of Pinochet's cabinet.
Aylwin took the idea from Argentina. When the junta's "dirty war" ended in 1983, Argentina's new democratic president, Raúl Alfonsín, named a panel of distinguished citizens to a National Commission on the Disappeared. When they were finished taking testimony in all corners of Argentina and in exile, they found the military junta had produced -- or rather, not produced -- at least 9,000 disappearances. "We have reason to believe the true figure is much higher," wrote the commission's chairman. Its report, called Nunca Mas (Never again), described the torture and killing inside secret detention centers, discussed the collaboration of judges and other groups, and told the stories of the victims where it could.
The value of such commissions is evident even before their reports are published. "We had just opened an office in a city in the south," said Alejandro Salinas, a commission staffer in Chile. "A woman came in to talk about her husband, who had disappeared. We invited her to take a seat. The Chilean flag was very prominently displayed, and she started to cry. To have the government of Chile invite her into this office to talk about her husband -- it was overwhelming to her."
Truth commissions would be just as beneficial in Eastern Europe, although for different reasons. For the victims of Communism, the workings of the repressive state remain veiled in secrecy, especially the great hydra-headed monster of the secret police. Victims deserve to understand the hidden structures that judged and punished them. In addition, democracy in Eastern Europe demands a society-wide self-examination to explain how dictatorship won the complicity of ordinary people.
To this end, Germany is carrying out two exemplary projects. First, to help individual victims of the Stasi, Germany allows them to request and read their own Stasi files. While in other countries this information is kept secret by the Interior Ministry, Germany is treating its people as citizens fully entitled to information about state actions that affected their lives.
The decision to read one's file can be a fateful one. Environmental activist Vera Wollenberger realized with horror that the informer who gave the Stasi intimate details of her health, finances, and letters to her children was none other than her husband. Because Stasi victims can find out who betrayed them, Germany is weathering a wave of emotional confrontations between victims and their spies. Some of these talks have been held in public auditoriums and on television. The sessions are painful but therapeutic, helping the spies to face their responsibility and the victims their anger. And while the Stasi files contain stories of horrifying betrayal, they also reveal great human goodness. After reading his file, newspaper editor Ulrich Schacter resolved to sit down and write all his friends thank-you letters; not one had informed for the Stasi.
Other East European governments have been reluctant to open their files, arguing that they cannot match the German office's 1992 budget of 203 million marks and its staff of nearly 3,500. But scaled-down versions -- perhaps a system that pulled 100 applicants' files each month -- would still accomplish much of what the Germans have done. A 1993 vote in the Czech Republic in which ruling-party deputies rejected simply moving the files from Interior Ministry control to an independent organization suggests another reason for such reluctance: secret files are a potent political weapon, and governments are loath to relinquish absolute power over their use.
Germany is also the only East European country sponsoring a truth commission, a committee of 16 members of the Bundestag known as the Enquetekommission, or commission of inquiry. It has sponsored papers and held 44 widely followed public hearings all over the former East Germany and in Bonn on the Stasi, the justice system, prisons, church-state relations, and other topics.
Truth commissions, like the opening of citizens' files, have not caught on in Eastern Europe. One explanation may be that these nations, fortunately, lack a major reason for the popularity of truth commissions with new Third World democracies. As in Chile and El Salvador, they are often the furthest the new government feels it can go when the very people likely to be tried still command the army. This sad reality highlights the single most important difference between the threats to democracy in Eastern Europe and Latin America. In Latin America the threat to democracy comes from outside a government lacking the necessary powers, and in Eastern Europe the threat comes from within a government that holds too many.
CRIME AND PUNISHMENT
The most sweeping mechanism for dealing with past repression is trial in a court of law. Here, too, the contrasts between the Latin and East European dictatorships dictate very different paths for the two continents. External support and U.S. encouragement would embolden Latin America's weak new democracies, who fear that trying to bring junta veterans to justice might prompt a military coup. By contrast, in Eastern Europe, the danger is not that the new democracy might fall, but that it might go so far in its pursuit of the cogs in a Communist state's wheels that it mimics its dictatorial predecessor's contempt for the rule of law.
In both regions, victims of torture and the relatives of the murdered and disappeared deserve justice. Trials can help restore victims' dignity and prevent private acts of revenge by those who, in the absence of justice, would take it into their own hands. Some lawyers also view them as an obligation under international law.
In Latin America, torture and murder were typical of a regime's repression, illegal at the time of commission, and committed by clearly identifiable perpetrators. Trials for such crimes are crucial for democracy's long-term prospects in Latin America. They are the only way to establish civilian control of the military and the primacy of law over force. They warn would-be murderers and torturers that crime carries a price. And, of course, convictions deter the specific individuals on trial, many of whom still pose a threat to democracy, from future offenses. Trials demonstrate to polarized nations accustomed to solving disputes through killing that other ways exist, express society's condemnation of violence, and show that democratic governments do indeed differ from dictatorships.
The few trials of past human rights violators that the new Latin American democracies have managed to hold have given defendants no cause to claim abuse. The 1985 trials in Argentina of nine members of the "dirty war" junta were models of due process. When injustice has occurred, it has worked to the advantage of powerful defendants; those accused of death squad murders in El Salvador have usually been acquitted for "lack of evidence." Indeed, the truth commission in El Salvador recommended against trials, concluding that the courts were so weak that trials would not be a meaningful exercise.
Trials are crucial for democracy's long-term health, but they are seldom attempted. Most new civilian governments view trials as the equivalent of throwing democracy out a 20-story window. Three military uprisings in Argentina were enough to convince Alfonsín to end the trials; his successor as president, Carlos Saúl Menem, even pardoned the junta leaders already convicted. The newly elected government of Paraguay was able to try some of its human rights abusers only because they came from the police, not the army, which was more of a threat.
There are, however, ways to strengthen democracy in the long term without committing suicide in the short term. More pressure for justice from the United States, the Organization of American States, human rights groups, and others could help balance military pressure for impunity. Civilian governments might privately welcome such pressure. In the past, the United States has often been a voice against trials -- most recently in Haiti, where the chief U.S. negotiator, former President Jimmy Carter, advocated a far more sweeping amnesty than the Haitian parliament later endorsed. While a country's own courts are the preferred forum, the Inter-American Court of Human Rights is now providing a court of last resort. In 1988 it decided its first case, ordering the government of Honduras to pay reparations to the families of two disappeared men. Since then it has heard 16 cases against seven countries and has become a regular forum for human rights trials when national courts have proven impotent.
As in Latin America, victims of torture and the relatives of the murdered and disappeared of Eastern Europe should demand full justice. But most of the criminals of the Stalinist regimes are now dead or very old, and since that time, acts of physical violence have been few. They should, however, be prosecuted. By the end of 1993, 198 officials of the former Czechoslovakia had been prosecuted -- some for corruption, others for beating demonstrators and other acts of violence. Twenty-nine have been convicted. Polish General Wojciech Jaruzelski may be tried for his role in the shootings of protesters in Gdansk in 1970, when he was defense minister.
These trials serve justice, but as the crimes involved were not the typical Communist abuses suffered by the general public, they do not satisfy the thirst for justice among Communism's victims. People want to try the men and women who opened their letters, taught them lies in the guise of history, designed their pitiful Trabant automobiles, and took their passports. But it cannot be done. Complicity was so widely shared that trials would add literally millions of new cases to already overburdened and understaffed courts. Such trials would be impossible without violating individuals' rights to due process. East Germans hated Erich Mielke, the head of the Stasi, and Margo Honecker, who was minister of education, but it is hard to find a legally indictable reason to try them: tapping telephones and teaching Marxist-Leninist social studies were both legal at the time. And who tapped the telephones? Who barred students from college? Trials by their very nature judge the actions of individuals, and these were acts of the great repressive machine as a whole.
Some of the new democracies, however, are determined to try their old leaders -- with the charges to be filled in later. They are like the marksman who shoots first and then chooses his target. The worst offender is Germany. Markus Wolf, the head of foreign espionage for the Stasi, was sentenced to six years for bribery and treason. Treason, however, is usually defined as an offense against one's own country, and West Germany was decidedly not Wolf's. In October 1993 Mielke, the Stasi chief, was sentenced to six years in prison for his part in the 1931 murders of two policemen on the basis of evidence gathered by the Nazis, possibly through torture. Germany has also tried border guards for killing fleeing citizens at the Berlin Wall. Their superiors, who gave the orders to shoot, often come to testify at the trials. If they are government employees, they receive a day's pay for their time. Then they walk out free men.
Such travesties of justice are unnecessary. Eastern Europe's new democracies need not struggle to convince the old dictators to submit to the law. Their surrender was unconditional. And surely the last place in Europe that needs to worry about the resurgence of its old Communists is Germany, which simply engulfed them. Mielke was 85 and doddering when he was convicted. His Stasi was occupied by students and peace activists cataloging the files; the apparatus needed for his crimes is impossible to reconstruct. There was no need to nab the erstwhile Stasi chief for tax evasion to keep him off the street. Erich Mielke is not Al Capone.
Even worse, ersatz justice resorts to the Communist habits of twisting law to fit political needs. In some places this means criminalizing decisions that were clearly political judgment calls. Bulgaria, for example, is trying several former officials for giving away government funds to Third World Communist movements. Trials are also used to solve current political problems. In Albania, former Prime Minister Fatos Nano -- the most attractive leader of the socialist party opposing the current government -- was sentenced to 12 years in jail for embezzlement. Many Albanians suspect that the government simply wanted to lock up its most charismatic critic. Such trials undermine the rule of law.
Unchecked power was necessary to maintain a Communist regime. But the reverse is not true; one does not need to be a Communist to seek unchecked power. Such power in the service of anti-Communism is just as dangerous. Unfortunately, many of the measures East European governments have taken to deal with the past abuse their power. Citizens do not enjoy full due process rights to defend themselves from lustration. Decisions that affect lives, careers, and reputations are made in secret. The legal system is placed at the service of political goals. This behavior is the legacy of the past that is hardest to change. The real threat to democracy in Eastern Europe today is not Communism but the state's unchecked power.
How can a nation deal with its history in ways that do not repeat it? Despite their great differences, the new democracies of Latin America and Eastern Europe have essentially the same task: to go as far as they can to bring past repressors to accountability without crossing the line into new injustice. The Latins must struggle to go further, while the East Europeans must resist the impulse to go too far. But Latin America and Eastern Europe share a newfound belief in tolerance, accountability, and the rule of law. For both, the best way to deal with the past is to treat it according to the democratic standards they have now supposedly embraced.