[introduction by Elzbieta Matynia]

Tina Rosenberg: I am very pleased to be here. I'd like to correct one thing that Elzbieta said, which is that I'm not an expert on the region. I know about one aspect of it, which is how countries have dealt with the crimes of the past regime. And what I'd like to talk about today is to give a comparative perspective. Before I started working on Eastern Europe, I spent six years living and travelling in Latin America, and I wrote a book about political violence there, and was present when a lot of countries turned from dictatorship to democracy; I lived in two of them. So what I'd like to talk about today is give a little bit of comparison between what Latin America and what Eastern and Central Europe have done.

The subject of my talk is a curious one. It doesn't seem like it should be very important to people struggling to get by now in newly-democratic Eastern and Central Europe. It doesn't have much effect on people's day-to-day lives, and they have much more present problems: terrible salaries and pensions, finding work, finding decent health care, etc. etc.. They have daily burdens, and this really doesn't touch much on them. And yet this is very much on people's minds; it seems to have an importance, a passion and a vehemence in public discourse in Eastern and Central Europe that is far out of proportion to the actual impact it has on people's daily lives. And I think the reason is that it does not impact on the everyday life of people, but it does impact on the everyday life of society as a whole. It's an important subject because it carries very many psychological touchstones for people in newly-democratic countries. It deals with the myths that societies create about themselves. It looks at political memory, which has been extremely important, especially in a place like Eastern and Central Europe where many peoples lived solely on political memory for decades at a time, centuries at a time, because they actually had no geographical countries to live in, having been swallowed up by someone else. So political memory is extremely important. It is also important because politicians are very interested in the subject of dealing with the past, because it's very easy to manipulate it for political advantage, which is a subject we'll be getting into. I would like first of all to set out two challenges I think every society faces when they deal with the past, and what should be the two goals of a society when it looks at the crimes of the past regime. One is, it has an obligation to the healing of the victims--the families of those murdered by the regime, people who were tortured, unjustly imprisoned, physically harmed, denied the right to work in their profession, denied the right to educate their children; society's obligation to deal with the past is, in part, to allow these people to heal and become normal citizens.

The second obligation is to society's future. A country that is a new democracy must deal with the past in a way that helps ensure that past will not recur. In short, it must face the past in a way that helps transform rather than reinforce the culture it has inherited from the dictatorial regime.

Since the late 70s, there has been an epidemic of democracy, at least using that term in the formal sense of elected civilian government, all over the world, and these governments have chosen many different ways of dealing with the crimes of past dictatorships. I'll give you a couple of pairs of examples. In Spain, the politicians who took over after Franco's death decided to do virtually nothing. There were no trials, there were no purges. The Spanish democrats gambled, and they gambled successfully, that many of the faithful servants of dictatorship could learn to act like democrats, and that Franco's most serious crimes had taken place so many years in the past that people's desire for justice had faded--and probably also important, the political clout necessary to achieve justice had weakened, so there was no great political demand for trials to deal with.

Spain's neighbor in southern Europe, Greece, took a completely different approach after the regime of the colonels fell. It prosecuted several dozen leaders of that regime, including two former presidents, and some of those people are still serving their jail terms today, more than twenty years later.

In Latin America, we can also see great contrasts. In Argentina, where the military junta that brought about the dirty war in the mid-seventies left power in 1983 after being humiliated by its defeat in the Falklands War, the new democratic government prosecuted nine leaders of that junta, convicting five of them of murder and other crimes in scrupulously fair trials. But, as it attempted to extend those trials to lower-ranking officers, there were three different military uprisings that in effect threatened the fragile new government, and those trials were stopped and the convicted men were later pardoned. By contrast, there is El Salvador. After the end of El Salvador's very brutal civil war, there were two commissions; one was a truth commission, which we'll get into. Another one was called the ad hoc commission, and what it did was it named more than a hundred different military officers whom it accused of complicity in atrocities, and those people, after some struggle with the military, were made either to leave their military posts, or they were demoted or transferred to lesser positions. The military still retains a tremendous amount of power in El Salvador. The civilian party that backed the military remains in control of El Salvadoran politics; in fact, El Salvador's president at the moment is a man who is often accused of complicity with funding death squads, so there will be no trials in El Salvador.

In Africa, Ethiopia has been holding widespread and not very scrupulous trials of the people of the Mengistu regime, trials which have violated the rights of the accused; in South Africa, by contrast, what they are doing is starting a truth commission which will be headed by Archbishop Desmond Tutu. And that has an ingenious scheme: if you come and confess what you have done to the truth commission, you will receive amnesty for that crime, as long as it is a political crime and you confess it in full. If you do not confess, then you face prosecution, and they are at the moment prosecuting the former defense minister, Magnus Malan, which gives some weight to that threat. But it seems as though in South Africa they will be very respectful of defendants' rights.

That's just to give you a couple of examples of what the spread is, and how different countries have dealt with these issues. But what I'd like to do is get into some comparisons, specifically between the two situations which I'm most familiar with, which are Latin America and Eastern Europe. I will draw on examples from my travels and the books I've written on both continents. Then I'm going to propose some simple guidelines for how nations, in my opinion, should deal with the past, and try to apply them to what new democracies are doing today. I know that this is an audience full of people who are experts on Eastern and Central Europe, and this is a very controversial subject. I'm sure that all of you, or most of you, will be furious with me by the time I'm finished, so I look forward to a very rich discussion afterwards.

When I talk about the differences between Latin America and Eastern Europe, I am necessarily oversimplifying. I am well aware that Chile and Guatemala were two very different places; I am well aware that Albania and Poland were two very different places and the regimes in each case were very different. But in general, the Latin military dictatorships of the seventies and eighties had characteristics that unite them, and the East European Communist dictatorships had characteristics which unite them, and it is those groups of characteristics that I want to look at now. The other thing I want to say is that my research was only in East-Central Europe; I did not travel in the former Soviet Union at all, and the situation --it's not so different in the Baltic states from East-Central Europe, but in the rest of the Soviet Union it's very different, so I don't want to apply what I'm saying to that, because it's not the same.

The most obvious difference, that actually has some very interesting ramifications, between the Latin American military regimes and the Eastern European communist ones is something that is often characteristic of the difference between a totalitarian and an authoritarian regime. I don't particularly think that those terms are very useful, but some useful things come from them. One is that, in the authoritarian regimes of Latin America, what the Latin generals sought from their people was silence. They did not indulge in any sort of nonsense that they were ruling on behalf of a grateful populace. They ruled because they had more guns than anyone else, that was it. Military leaders did hold a very highly developed anti-communist ideology, but they did not seek to impose it on the public. For example, in Pinochet's Chile, where I lived for four years, the regime's good citizen was someone who was apolitical. He went to work, he came home, he played with his kids, he kept his head down. If his neighbor came back after a long absence with a shuffling gait and dead eyes, the good citizen noticed nothing. In Eastern Europe, by contrast, as you all know, what the regimes sought was public participation. They proclaimed themselves the standard bearer of a beautiful ideal. They aimed for the transformation of their citizens into a new socialist man. The masses were obliged to signal their transformation by hanging peace slogans in their windows, waving flags at rallies, attending Marxist-Leninist study groups, and in the harsher police states, if you found your neighbors not doing these things, you were supposed to inform the authorities.

Another difference in the nature of these regimes affected the scope of complicity in the regimes' crimes. In Latin America, though large groups of people did endorse the anti-communist ideologies that gave rise to torture and murder, particularly people in the upper class, one can point to a few hundred men in each country who actually committed these crimes. In Eastern Europe, by contrast, just as communist dictatorship made almost everyone, with very few exceptions, a victim of communism, it also made almost everyone complicit in some way; everyone was a cog in the repressive machine, unless you were someone who was so successful at removing yourself from society, but these people were very rare. I'm not saying, of course, that everyone had equal participation; obviously, some people were serious bad guys, while other people's participation was very small. But my point is, normal behavior of everyday life, by its nature, made people participants in the regime. For example, a teacher who taught communist history, the glorious march of the proletariat, etc. etc.; journalists who wrote stories that were uncritical of the regime. This, of course, was considered normal behavior, and people don't think of themselves as being bad people for having done it, and they're not; but such normal behavior was what allowed the regimes to continue and to be as harsh as they were for many years. I want to quote Jan Urban, who was one of the leaders of the Czech dissident movement, who always said, what we have to look at is not what some "they" did, it's what we did, we have to look at our own participation; and that's true to a much greater extent under a communist regime than it was in Latin America.

The nature of state crime also varied between communist Europe and military Latin America. In Latin America, the generals used physical violence to crush dissent. They used murder, torture, forced disappearances. These were directed in general against a relatively small group of people, but the repression was extremely harsh; in Chile, for example, there were probably about 3,000 people murdered or disappeared under Pinochet's seventeen years. In Argentina, it was probably 13,000 disappeared or murdered. Guatemala is an exception; Guatemala probably had over 100,000 people murdered over the course of the military regimes there. But in general, these were not so widespread as to touch huge groups of people in society. Also, while these crimes were sponsored by the state, again they had very clear authors. In Uruguay, which is a very small country, it's almost a city-state, people in Montevideo would very often run into their torturers on the street. In Argentina, the mothers of the disappeared often knew exactly who it was who had taken their child away. These crimes could be personalized, in the sense of you could point to "that person killed my son," or "that person tortured me."

Now let's take a look at communist Europe. Obviously, violence was a huge part of communism, especially in the former Soviet Union. Stalinism, Stalin probably killed what, 25 million people--that is a scale of violence that is absolutely unimaginable in Latin America. And of course there was plenty of violence in Eastern Europe as well, especially through the Stalinist years of the fifties. In fact, in the nineteen-fifties, in republics like Czechoslovakia, the situation was very similar, in terms of scale of violence, to what it was in Latin America in the seventies. But since Stalin's death, although violence continued to take place--especially in Albania, which continued to make violence a pillar of its regime's maintenance in power--it has not been the methods that the regimes have used to keep themselves in office. More widespread was, they used a system based on coercion and corruption. What this means is that the system was far more diffuse than in Latin America. It really affected everyone, it wasn't as focussed, but the harm that most people suffered was much less than the victims in Latin America. Relatively few people were killed, tortured or disappeared. Although the crimes committed in Latin America, torture, murder and disappearance, were illegal at the time of their commission, even under the current legal codes there, the crimes that the regimes of Eastern Europe used, for example, the formation of secret police systems, tapping your telephone, opening your mail, withholding privileges, using privileges, these were obviously not illegal under the current law; they were in fact the very pillars of that current law. And a final difference is they were not crimes that could be readily committed by individuals, they were crimes that needed a whole bureaucracy to allow their commission. So the shorthand I like to use is that in Eastern Europe, the dictatorships were criminal regimes, in Latin America they were regimes of criminals.

Now let's turn to the legacies that both systems have left behind. And these legacies of course remain to threaten new democracies, though in very different ways.

The Latin Americans drew sustenance from their weapons, and they still possess those weapons. They also retain the support of the upper class that they needed to be able to stay in power. The militaries in Latin America, though no longer--with one exception, Cuba, which is an interesting exception--do not hold formal power, they have informal power in many places, and civilian governments have proven themselves unable, or at least unwilling to try, to keep the repressive security forces in line. You still have a tremendous problem in many countries of security forces committing human rights abuses, especially in situations where wars remain; these are big problems in Peru, Guatemala and Colombia, where you still have wars. There are also problems in some places that don't have formal wars, like Brazil, Venezuela and El Salvador. In fact, elected government in Latin America is a very poor guarantor of human rights. One example is, take a look at Peru and Chile. In four years under a democratic government in Peru, for example 1982-1986, there were twice as many people killed and disappeared by the military as were killed and disappeared in 17 years of Pinochet's dictatorship in Chile. Now I'm not saying that dictatorship is better than democracy, I'm saying there are other factors other than the form of government that can affect how respectful a regime is of human rights.

The problem of the military is a recurring one in Latin America, which has had in this century, before this one, two other waves of democratization; each time, however, the military regimes have returned to power. Dictatorship is an ongoing threat. It continues to reign in what civilian governments can do. Civilian presidents cannot cut the military budget, they cannot take away from the military the control of very lucrative agencies like the customs office and other things that would give them great opportunities for corruption, and especially they are not allowed to try officers for human rights abuses. Anything that they do along those lines can lead to a recurrence of dictatorship. So dictatorship does fall periodically in Latin America to democracy, but unfortunately it doesn't stay dead.

Eastern Europe is under a much different circumstance right now. The old system, as it was, has been shot through the heart and will never again rise from the grave. This is probably not the case in the former Soviet Union. I'm not saying there's no threat of dictatorship in Eastern Europe; I'm saying it's not going to come back exactly like it was. The old system of communism is probably not going to recur. You at the moment do have many post-Communists winning power in many countries, and some of these are closer to the old system than others--I think that in Romania, for example, Mr. Iliescu probably rules much more like an old Communist than Gyula Horn does in Hungary--but the point is that these dictatorships, if they recur, will take quite a different form than they did before; the old system will not recur. But what Communism left behind is a very poisonous residue, and that is going to be problematic for the building of democracy. I'm not going to tell you anything you don't know right now: people got used to governments endowed with arbitrary and absolute power, law was twisted every day for political ends, there were no checks and balances on strong leaders, the concept of rights did not have any meaning to the average citizen or the government, and this has left a real double threat to democracy. One of them is that many countries lack institutions that can check the power of unscrupulous leaders: judicial institutions in many countries are subservient to the ruling party, the press is not completely free, officials use overly-broad defamation laws to stifle dissent. People who have no democratic experience, which many in Eastern Europe don't, sometimes will accept this as a normal process; they're not familiar with how western democracies look at these things, they don't know what the concept of rights is, that they belong to citizens and not to the state, they don't know sometimes that in a democracy a minority will retain its full rights even if the majority doesn't want it to. So that's one big problem.

Another legacy of communism that I think is particularly dangerous is, it has left citizens uncomfortable with the idea of looking inside their heads for their own values, and more accustomed to listening to what they hear coming through the loudspeaker. And that leaves them very open to the next demagogue who comes along. And we can see examples of this; Slovakia for example is one place that I think this is going to be a problem.

So to sum up the legacies of these two systems, this is an oversimplification, but in general the threats come from two different directions. In Latin America, democracy is threatened because the civilian government is too weak to govern a rogue military. In Eastern Europe, democracy is threatened because the civilian government is too strong in many ways. If an official wants to be unscrupulous and abuse his power, Eastern Europe does not have the fully developed institutions in civil society to be able to keep him from doing that. So in one place you have a weak government, and in one place you have an overly strong one--though Eastern European governments are not strong in certain other ways.

Okay. We have outlined some differences in the two types of regimes: the types of crimes committed, the distribution of complicity and the power held by the new governments. And let us also keep in mind the double obligation of a nation when it deals with the past, to the victims and to the future. What lessons can we draw about how nations can deal with the past? I would propose one very simple guideline, which is that a nation seeking to be a full democracy should deal with its past in the way a full democracy would. That's it.

Let's now look at some different measures that countries have used, starting with some of the simplest and least controversial. One of them is restitution. Obviously this is a measure that is directed at helping the victims. It can provide both monetary compensation and an acknowledgement on the part of the government that the citizen was wronged and deserves an apology and this is not how a citizen should be treated. It can also, as a side effect, help to encourage democratic culture and therefore serve the goal of helping the future by punishing the state financially for undemocratic behavior, though this is not the principal goal of restitution.

This is a much easier question in Latin America than in Eastern and Central Europe. In Latin America there are many fewer direct victims; the number of people who merit some sort of compensation is far less. Also, many of them were poor people, and the cost to a government of providing a scholarship for a poor child, or the material to rebuild a house, or a pension for a widowed person, is far less than the cost to the Czech Republic of giving the Schwarzenberg family back all their castles [laughter]; we're talking about two very different types of challenges here! This is not a problem that's going to bankrupt the state in Latin America, whereas it can be that kind of problem in Eastern and Central Europe.

Now, in Eastern Europe obviously people deserve restitution as well; I'm not taking away their victimhood and the amount that people have suffered, but it's a much more complex problem financially. Can the state afford it, is one question. Some things have millions of claimants, and also many of these claimants tend to be older people, and this can end up being a tax on young people in Eastern Europe that's very problematic.

In a way, possibly, one form of restitution can be good government itself. For example, if people were denied the right to study, one way to do it is to give all these people full scholarships. But another way to do it would be to create a good educational system that allows everyone to have access to it, and put the children of the repressed, the people who were not allowed to study, at the top of the admissions list. So in a way, sometimes the dilemma for an Eastern European country is if you focus all your money on the restitution for the people who are victimized, it can keep you from the kind of programs that will in effect make restitution to all of society. So it's a very complex issue in Eastern Europe.

Let me move on to the issue of truth commissions. This is a very misunderstood term; a lot has been written about truth commissions, and a lot of it is wrong. A lot of countries like to say, oh, we don't need trials in our country, we'll just have a truth commission--like they did in Argentina or Chile or El Salvador. Well, the reason Argentina and Chile and El Salvador had truth commissions is that they could not have trials. This was not a substitute . . .

EM: Could you elaborate on what a truth commission was in those countries?

TR: The first one was in Argentina, and it was called the National Commission on the Disappeared. President Raul Alfonsin, who took office in 1983, appointed a group of, I think, 16 distinguished civilians from various parts of the political spectrum, and they set up offices all over the country and in Argentine embassies in Spain, Venezuela, the United States and other countries where there were a lot of exiles, and they took testimony. Anyone could come in. And this itself was very important for many people; in Chile, where they did something similar, one of the members of the commission told me, for example, he was in the south and a woman came in, and they invited her in, and they said, please sit down, senora, and have some coffee, and she sat down, and in the room was the Chilean flag, it was a very official thing, and she started to cry. Because the idea that the Chilean state was treating her seriously, and taking notice of what she said, and devoting its time to sit and listen to her, was in itself therapeutic. And that was also true in Argentina. But what the Argentines did, and what the Chileans did, and in El Salvador they did this too, although the commission was sponsored by the United Nations, was then compile the results, broadcast them on television, write a book, these books have been huge sellers, and inform people of what happened. And for many people, this was a great revelation. It's a very very important thing. In the first place, it's very important for the victims, because many of the crimes that were committed in Latin America depend for their very existence on secrecy, like torture. The torturer says to the victim, no one will ever know about this. So in effect, every day that that secret is maintained, the victim's punishment is continuing. To have this brought to light, and to have the person be able to read in a book, you were tortured by this person, in this place, is in a way a form of healing in itself.

Obviously in Eastern Europe this can be very important as well. Germany is the only country that has sponsored a truth commission. They've actually had two different forms of it. But these were of course governments that operated with total secrecy and absolute power, and many people whose lives were ruined by the regimes need to know what happened; they need to know what was the mechanism that oppressed them. The Germans have done this well. They've done two things that are important. One is that they've had something called an enquete kommission, or commission of inquiry, that has held hearings all over the country and has produced, in typical German style, a fifteen-volume book, which I don't know if anyone's going to read, of all of this, that tells the story of how the regime operated, its relations with the Church, its relations with West Germany, all sorts of different aspects of what the regime did. And the other thing that the Germans have done that I think is tremendously useful, and is a form of a truth commission, is taken the Stasi files and opened them to the victims. If you were a victim of the Stasi, you can go in and read about what happened to you. This has had lots of collateral effects, and one of them is that in Germany, the people who spied on you know they're going to get caught. They know that you can go and read on them. So as a form of damage control, spies have been contacting the people they spied on, and you have this bizarre German phenomenon of the opfer-taeter talks, the victim-perpetrator talks, where people sit down all night and go to a pub and smoke millions of cigarettes and cry all night about, here's what I did to you, here's what you did to me, and try and reconcile things. They've had limited success; they tend in some ways to be dialogues of the deaf, because what the victims want to hear is not what the spies want to say, and vice versa, but they have certainly been much more useful than the complete absence of discussion on this that has gone on in other countries. You can't find someone in other countries who admits to having worked for the secret service; they don't have to come forward, because they know they aren't going to get caught.

Another aspect of truth that's very important is that it should be presented to the public as it was presented in Chile. President Ailwyn, who took over after Pinochet, once the commission was finished with its report, went on television and apologized to the Chilean people in the name of the state, and presented this report. It is a very useful thing, not only to the victims, but also to help fulfill the obligation to the future. In Latin America, the publication of these types of reports can help smash the myth that the military likes to carry around that these are all lies invented by the Communists. That's something that's very important. These commissions are usually made up by people from all over the political spectrum, the Chilean one was adopted unanimously by the Senate, which has a very strong right-wing political representation as well, so the military can no longer go around and say we didn't do anything, this is lies; here it is in black and white, and the politicians have endorsed it.

In Eastern Europe, it can also play a very important role in helping to further a democratic future, for different reasons. In one sense, it is important because it can encourage ordinary people to think about the choices they could have made. Communism's greatest talent was recruiting ordinary, even idealistic people into doing evil deeds, and people have to be aware of how that worked, how ordinary people could fall under the spell of communism, and people need to think about their own responsibility and whether they could have made other choices. I think one reason the East Germans in 1948 fell so quickly into an extremely harsh Stalinist dictatorship is that they never were encouraged to think about what their own participation was in the Third Reich. They were told by the Communists that those bad Germans are the ones over there in the West, you guys, you did nothing wrong, don't worry about it, and they never had to mull over what is my own responsibility in making moral choices under an immoral state.

No other Eastern European state has done what the Germans have done, neither with a commission of inquiry, nor with opening the files, which is something which is more often talked about. One reason people say they can't do it is because it is obviously extremely expensive to do what the Germans have done and open the files. The Gauck authority, which has custody of the files--it's an independent group that has them--in 1993 had 3,500 employees. Now obviously you need a lot of money to do this. But not every country's secret police was as thorough as the Stasi. The records of the Stasi are so exhaustive that people are joking that they can take the second half of their life to read about what happened to them in the first half of their life [laughter]. But there are ways to do this that might not be as expensive. For example, you could have a lottery; you could say that everyone who has a file will eventually be able to read it, but probably not real seen. And you could do 200 a month, or however many. And so it becomes the person's right, they are the owner of that material about them, the citizen has the right to see how the state abused them, but it just may be something that may kick in ten years from now. In Germany it's getting to be that slow anyway.

Let me move on to what's proven to be the most controversial method of dealing with the past in Eastern Europe, which is administrative purges. This has been done in Latin America--very little, however. The one example I can think of is the UN sponsored commission in El Salvador that examined different crimes allegedly committed by military officers and then published a list of more than a hundred people who were then dismissed or demoted--including the chief of the army--actually the chief of the armed forces, which is higher than the chief of the army. But this has been obviously much more common in Eastern Europe, and its most famous manifestation is what Czechoslovakia called lustracje. It has also taken place in different ways in Germany, in Bulgaria among the academic community, and now it is about to be instituted in Albania. I will refer to all these purges with the shorthand of calling them all lustrace. If done correctly, they can contribute a tremendous amount to both goals--to the victims and to the future. To the victims, because people will no longer have to go to the police station and deal with the same cop who thumped them over the head during the demonstrations, which is tremendously frustrating; people will be able to look at those enjoying the privileges of office and know that they're not the same people who had them in the old regime; and victims will be able to feel that the new government has taken their pain into account and they don't need to feel resentment at the people still in office. Obviously it would help the building of democratic culture if the people who committed criminal or immoral acts in the old regime were no longer making policy. I mean, this was the whole motivation for lustracje to begin with; you have old communists still in a position where they can block reforms. Also there was a worry about people being subject to blackmail.

Unfortunately, while lustracje was invented with the best of intentions, it has not worked out that way in most places. In Czechoslovakia, president Havel proposed a law that would have barred from high office everyone who could be proven to have violated human rights in the old regime. I think this would have been an admirable law, but it didn't pass. It was considered impractical to have either to go to court or to create a commission to prove that someone had been a bad guy. Instead, there was a simpler method passed, that if your name was found in certain categories you were banned. It was supposed to be in effect for five years, but the parliament in the Czech Republic, over Havel's objections, just decided to extend it another five years, till the year 2000. In Slovakia, for reasons that are not entirely admirable, the government of Mr. Meciar has done away with it completely. The most controversial list, and the one where everyone has gotten excited, has been if your name appears on the secret police's list of collaborators that it maintained, the secret police's own internal records, then you were considered a lustrated person and could not be in the government.

Now there are several problems with how these laws have worked out in practice. In one case they have been highly politicized. This can be most easily seen in Albania. The president of Albania, Sali Berisha, is the head of the Democratic Party, and the opposition party is the party of former socialists. Many of those people, the former Socialist party, had no positions during the dictatorships of Enver Hoxha and Ramiz Alia, but because of this new lustracje law, they are now barred from running for office against Mr. Berisha, including some of his opponents who he felt most threatened by. This was clearly a politicization of the law. It was passed in the same year that an election campaign is going to be held. It smells like communism; I mean, this is the way the communists did things. It reinforces the old ways of doing business and does nothing to increase democracy's chances o of taking hold in Albania.

In the Czech Republic, the situation is not as extreme, but there are still risks of politicization. There was a vote in parliament last year, I believe, or the year before, to try and set up an independent commission that would have custody of the files like it does in Germany, and it was voted down. Two groups formed to vote it down; one was the former communists, and the other was the members of Vaclav Klaus's ruling party. And they voted it down, because at the moment the files are in control of the Interior minister, which is very convenient for them; they don't have to share that information with anyone else. This is potentially very dangerous. If you are lustrated in the Czech Republic, what you get is a slip of paper with a single letter on it, A through H. That's all you know. You never know exactly what you were accused of, what the evidence is against you; there's no information provided. Needless to say, this can be open to political abuse.

It has other problems as well. This system is a tremendous abuse of the rights of citizens. Many people on the secret police list are there through error of some kind. A lot of people signed a paper saying they would inform for the secret police but never gave any hurtful information. A lot of people were blackmailed into informing. You have a lot of people on the list whose crime was they failed to be a hero; they didn't spit in the face of the secret policeman and say, I will never sign your paper. So now can they be punished for having failed to have been a hero? And I think they should not be.

Another problem with the list is it presumes guilt. You must go to court to prove your innocence. Almost everyone who has gone to court has won, by the way; the Interior Ministry in the Czech Republic has won I think ten cases, and all those so far on technicalities. But this is not a good way of doing business; it takes a long time and a lot of money to go to court and hire a lawyer, and it's a bad system. It also makes the citizen once again an object rather than a subject. Instead of getting information that allows you to take control of your life, you are once again given this piece of paper with no explanation and the state is doing something to you. The German system I think is better in many ways; it not only gives the victim full information, for the person who is lustrated it's much fairer. The judgements your employer will make on you are done not by just receiving this one letter, B or C or D, but a whole chunk of your file. So your employer may make a decision to fire you or not based on, he can read whether you were a real scoundrel and did real harm, or you were some poor schmo who got blackmailed into this and didn't do anything bad. Also the person doesn't have to be fired, he can be fired but doesn't have to be.

The German system is much more unfair than the Czech system, however, in another aspect, which is that it's much broader. It doesn't just apply to high officials; everyone can be lustrated, in a sense--there's different ways of doing it, but--teachers, bus drivers, anyone who had any connection with the Stasi is going to find it very difficult to get any public sector job in Germany, and the public sector in Germany is huge.

Because lustrace abuses people's rights as it is practiced, and punishes people for their appearance on a list where they may or may not have actually done something wrong or violated someone's rights, I believe it is not helpful for trying to build democracy. It encourages some of the old habits of communism: the politicization of law, the mentality of the list--you know, who is the list of people who are enemies, the idea that people who think in the incorrect way are to be punished. Once again, the basic idea I have no quarrel with; if it had been done as it had been done in El Salvador, or as Havel had proposed, where people's individual guilt was assessed and those who did commit crimes or violate rights were banned, I would have no problem with it. Instead, it has become, in practice in most countries, an example of how hard it is change the habits of the old system even though the old system is gone.

Finally, I will go through now what most people consider the most serious method of dealing with the past, which is the trial in a court of law. If done correctly, trials can do a tremendous amount to help the victims of injustice, and can also contribute to a democratic future. They can remove criminals from positions of power, they can focus public attention on the crimes of dictatorship--often trials serve an educational purpose as well as a legal one, they place the moral weight of the state firmly against abuses, and they show the future abuser, someone who is contemplating doing something bad, that there is a cost to such actions, this is not free. In Latin America, which has seen centuries-long cycles of repression and impunity, such trials are really the only way to impose civilian control on the military; and since the threat of a military coup in Latin America often comes form the same people who did it last time around, trials are often an individual deterrent; the people who are most likely to make trouble can be locked up for past crimes, and trials can also help erode public support for rogue militaries.

In Eastern Europe, the need for trials is slightly different than in Latin America. Obviously, the victims of injustice of the communist regimes have a need to see justice done. But trials play less importance in building a democratic future, in large part because there is no serious threat that the people who were on top in the old regime are going to come back again in the same way. Let's take the chief of the Stasi in Germany, Erich Mielke--it's important for Germany to try him, but it's not particularly important to prevent Mielke from recreating the Stasi. A lot of those people are very old and feeble, their ideology has been discredited in the form it was practiced, and those people are really no longer a danger. For example in Hungary, attempts to try people who gave order to shoot or shot during the 1956 uprising, obviously the desire to try these people was understandable, but nobody considered these very old men to be an ongoing threat to Hungarian democracy. [side 2]

Despite the importance of trials in both continents, they have not been used correctly. In Latin America, the reason again is the weakness of the civilian governments. Most of them consider that putting military officers on trial is the functional equivalent of jumping out of a thirty-story window. It would be suicide for these regimes. In Eastern Europe, they have been misused in different ways. And one reason is, it's very hard in Eastern Europe to figure out what to try people for. There are still people alive who committed acts of violence, murder, torture, beatings, which were illegal at the time of their commission. In my opinion, all those people should be tried. Albania, for example, is beginning to try officials of the Hoxha regime who murdered people or gave those orders, that's completely appropriate. In Poland, General Jaruzelski is due to begin trial for having given, in 1970, orders in Gdansk to shoot at unarmed protesters. I think that's appropriate. The Czechs have not used them as much as they could. They know who the policemen were who beat up demonstrators and they have not tried a lot of those people.

In many cases, however, this violence is very old; in Hungary, for example, it took place in 1956. In other places, the problem with these trials is it doesn't really capture the crimes of communism that most people are angriest about. The average person was not a victim of this kind of violence in the last few decades, they were a victim of other things and they are mad about other things. But how do you get at the people who tapped your telephone, opened your mail, gave you lousy educations, etc.? These are very difficult to try in a court of law. Trials by their very nature try individuals, and these are bureaucratized crimes. Also, they were considered legal, and democracies frown on ex-poste-facto justice--criminalizing an act that was not criminal at the time it was committed. The exception is, you can do it if it is an act of such obvious atrocity that anyone who committed it should have known on its face that the act was illegal. For example, if a government passed a law that torture was legal, then a new democracy would consider that the act of torturing was so horrible in and of itself that the torturer was put on notice that he was committing a crime. But it's a little different if you're tapping a telephone; the atrocity of these acts is not as self-evident.

A second problem that is affecting trials in East and Central Europe is that a lot of the things that societies are trying their former leaders for have not been truly crimes, but political decisions, and I think this is a mistake. One example is Bulgaria, where a couple dozen former officials were tried for giving away Bulgarian funds to third world communist movements. Now that may have been a bad decision, it may have been a good one, but the point is is you cannot criminalize a political point of view, no matter how unpopular it seems to be today. Remember our guideline is, would a democracy do this, and I don't think a democracy would have that kind of trial. In Poland, General Jaruselski has been undergoing an excruciatingly long series of hearings that may lead to a trial in the state tribunal for having called martial law. Now I don't believe General Jaruzelski's defense in this case, but I think the whole concept of trying him for that is wrong; it was a decision the communist state made to keep itself in power; it was no more criminal than other decisions the state had made throughout history to keep itself in power. I believe that if during the course of martial law General Jaruzelski had given orders that led to people's deaths, then he should be tried, but specifically for those crimes, not for the political decision of martial law itself.

Finally, the big problem with trials, and the biggest threat they pose to democracy, is that they have in some countries been used to political advantage, which is not how things should function in a democracy, and let me go back to the example of Albania. In Albania, President Berisha' s most serious political opponent was a man named Fatos Nano, who was the head of the Socialist Party. He was given a 12-year sentence two years ago for misuse of Italian aid, and many people think it was a trumped-up charge to get him out of the political scene.

However, surprisingly, in my opinion the worst offender with the politicization of trials has been Germany, which should know better; after all, Germany is a rich country, it has fifty years of a legal tradition. But what Germany had which no one else had was it was the only country where the state was in essence trying someone else's citizens. Many East Germans thought that the trials that took place there were victor's justice, were really West Germany's attempt to show the East Germans definitively that they had lost. There are a lot of bad trials to choose from there. One of them, for example, is the trial of Markus Wolf. Wolf was the head of foreign spying for the Stasi, equivalent of the head of the CIA, and he was given six years for treason and bribery. Now this is first of all ridiculous; he could not have committed treason, because treason is committed against your own state, and West Germany was not his state, but also what Wolf did is done, and continues to be done, by every head of a foreign intelligence service, including George Bush, who had been the head of the CIA and president of the United States when the Berlin Wall fell. So in effect a lot of East Germans feel that Wolf was tried for having the bad fortune to have lost the Cold War. There are other bad trials. Erich Mielke, the head of the Stasi, was given a six-year sentence for his participation in a murder that he committed in 1931, two tyrannies ago. The evidence in this case was collected by the Nazis, and there is lots of indication that it was collected under torture. Now certainly the Germans could have found something better to try Mr. Mielke on than this. EM: Mr. Mielke was a communist prior to the war? TR: Yes.

One of the other ones that has been particularly difficult for the East Germans has been the trials of the border guards who shot people at the Berlin Wall. Now you may or may not think that this crime should be tried; I actually think it should be, but the way they've done it is they've started with the little guys, and the superiors, the men who gave them the orders, come to testify, and if they are employed by the government, they get paid for the day in court testifying, and then they leave and they're free men, and meanwhile these 22-year-olds who were working for them are the ones who are being tried for this. And this was upsetting to a lot of people.

To sum up, trials, like everything else, need to be used the way democracies use them; you need to choose real crimes, not political decisions, not directed at your political opponents; things that were criminal at the time of their commission; you cannot go back and recriminalize something that was not criminalized. The danger once again in Eastern Europe is the power that regimes conserve to abuse the law. This I think is the single biggest remaining threat to democracy, and trials misused can be very dangerous in these places.

So just to summarize, democratic political culture is best served by pretending that it's already here. Attempts to deal with the injustices of the past must have, as their first requirement, not to repeat those injustices.

EM: Thank you very much.

Slovak [Gabor? Dino?]: I have a comment from the example of Czechoslovakia. In 90-91 there was published in the Czech and Slovak press an index of all ? of candidates, which was very questionable. Currently in Czech Republic they are talking about government proposal that would require all people to look to files of agents, also for Slovak citizens. And it is very questionable how new democracy elites should eliminate society from this secret police agents, because speaking in general terms, they do not play fair with us. And one could interpret speed of Czechoslovakia also in these categories, that in Slovakia we failed to eliminate secret police agents from society, from press, from economic power, and they joined Mr. Meciar and they help him.

TR: Well, obviously there is a tremendous need to ensure in some way that these people are not continuing in positions of power. I'm not denying that that need exists, and that's the motivation for lustrace, so you bring up a good point; I don't think the way it's been done has been helpful, but you're right, it addresses a very real need, and I don't have any good ideas on how to do that.

Gabor? Dino?: I want to add something to the remark of my friend: after the velvet revolution, we did not deal only with the old regime, but we are dealing with networks--with good, well-functioning networks of the old regime until now. And if that's not effective enough, they will come back, partially, the old regime. And as you see, not only inside of one country, but also their external contacts. And that's really dangerous for our whole region.

TR: I think that this is a problem that doesn't necessarily have to have the past as its focus. If there are people now who are engaged in practices that are dangerous, illegal, treasonous or whatever, then they should be prosecuted for what they're doing now. Whether or not they were secret police agents in the past is almost not the question anymore. Obviously those people are more likely to be involved in those types of activities, but I'm not certain why this has to have the past as a focus.

Elzbieta Matynia: A good example, there's the example of the currently or until recently spying former prime minister of Poland, Oleksy, quite recently, post-89, involved in what seem to be activities against his own country, at a time when he was speaker of the parliament. But what I think it's interesting to notice in that whole remark about networks is that it actually is extremely difficult to organize the type of activity you describe, in the situation when the restoration of former networks is so advanced, because you have very little, it's democratically brought back, when the old networks are democratically brought back, because there was no way to stop some of those people running, in the absence of lustration, in running again for parliament, or to be appointed as a government official. We are already five or six years after the original changes, and already it seems there are some threats coming from not taking action early enough, that it might be difficult to do it, or that things will be done in the way it seemed as though it would be done in Poland, when the current new president is pushing for a fast and very superficial lustration of a less than the Czech model, in which it will be very similar, and you won't actually be able to get any healing feedback from the arranged situations because you will be outside the process of lustration. I don't know how to deal with it, but that is clearly a moment in which I think some of the new democracies are going to have to look again. the electorate.

Mariela Vargova, Bulgaria: My question is, bearing in mind that we have in Eastern European countries a party-state regime in our countries where the state was the communist party with different nuances inn each country, so I remember in Bulgaria the big discussion, it was the political scandal about the responsibility of the communist party. For me, the biggest problem with this discussion, how can we differentiate between the collective and the personal responsibility, bearing in mind that the party apparatus was the state apparatus, these were the same people, and how can we separate the political moment of their activity, this political responsibility, which it's evident we can't accuse them of implementation of political decisions, and how to separate this political activity from the criminal one? And my second question, maybe it's just a comment, about the lustration legislation in Bulgaria: We had a lustration law for the educational system, where the professors at the universities who were members of the communist party or were activists at the university were forbidden to take such positions as head of department and so on. It was a lustration that I think recently was overruled by the Constitutional Court. But how you would explain this lustration in the educational system was that academic criteria were replaced by this criteria of involvement in the former regime. And they are accused as criminal persons under this law.

TR: Your question is . . . EM: Whether the value of the person is put below, secondary in academia, where it should be primary, and the person's political involvement is considered primary, whereas professionally speaking it shouldn't be that.

TR: Well obviously I agree with that. I think the feeling is that that's a shorthand, that one can determine who's a good teacher and who's a bad teacher by saying who is the person who was involved with the communist regime and who wasn't, and that' s just not true. It's not an effective shorthand, I don't think. It's not a substitute for academic criteria. I don't know how it's worked in Bulgaria, has it weeded out bad professors?

Mariela: Yes, actually they couldn't take such positions in the department, even if they had academic experience, they were just professors. Some of them retired.

EM: But the premise of course is that their whole career was built on political involvement.

Mariela: yes but sometimes some of them had academic experience.

Question: I would like to ask you about the Latin American countries. My question is, has any kind of reconciliation between the oppressed and oppressors been achieved, and did the actions that were undertaken help in any way to bring it about, if it happened at all.

TR: Yes, there have been some important things. Fro example, in Argentina now, you have a military that is very firmly under civilian control, and has a very different attitude than it did before--much better situation. The new chief of the army in Argentina has gone on television saying that anyone who gives or carries out an illegal order is committing a crime and will be prosecuted. It's a much better situation than it was. I'm not quite sure what it was that led to that, but certainly the discussion about how to treat the military and that whole problem has probably helped encourage that.

Reconciliation is a very difficult thing, and in Latin America it's often been used as a code word by the pro-military people, and what it means is let's just forget about it, let's just not think about what happened, let's get past it and let's not have any trials or truth commissions. I think that's wrong, that's essentially reconciliation at gunpoint. It's basically saying, if we don't have reconciliation the military will be back. And that' s not reconciliation, that's not true forgiving.

Also I think people really need to know exactly what it is they're forgiving before they can forgive, and that's another reason truth commissions are so important.

A lot of it it's hard to see, because it depends on the economy, for example. In Chile the economy is doing very well, and so everybody's thrilled with democracy and things are great. I think if there were a bigger problem with people's daily lives, you would see much more debate about this issue. There is however still in Chile, they have one military officer now in jail, and he happens to be the former head of the secret police, and the reason he's in jail is that what he did was order the bombing of the former Chilean foreign minister Orlando Letelier, which took place inn Washington. And by virtue of this crime having taken place in the US, Chile received a lot of pressure to put him in jail.

Heshan: he has a very comfortable imprisonment . . .

TR: Yes, he has a comfortable imprisonment. And the army was very reluctant to cooperate; in fact there were threats of a coup over this issue, but he's in jail now. There's nobody else. Actually his deputy went with him. But there are not going to be any trials. And most Chileans oppose that; only 17% in the latest polls of Chileans think that they should stop all trials. Most people do feel that they should continue, they should try and figure out what happened to the disappeared. I mean, you're asking for judgments on how things have turned out, and it's very difficult to tell, there's just so many factors involved; every country has its own political context, and it's hard to really make a judgment about whether something has worked or not worked. If democracy is still around in most countries twenty years from now, that will be a good sign.

Question: This problem hasn't been solved, at least on the psychological level. You say 17% in Chile, the majority are for continuing the trials . . .

TR: But I think the majority feel that those trials will help solve their problems and will bring about reconciliation, because they'll feel justice was done and they'll feel that there will be more information about what crimes were committed. And the fact that that hasn't happened . . .I mean we're talking about crimes that were committed twenty-five years ago, also--most of the Pinochet government's crimes took place in 73, 74, 75. It's still an open wound, the lack of justice is an open wound.

Heshan: You've mentioned the UN instituting a number of truth commissions, and one of the two problems that you've outlined is the fact that, internally, trials for example, particularly tend to be very politicized. Are there the international court of human rights, or whatever the body is called, would you be more in favor of trials for human rights violations being taken out of the countries themselves, would that work, what sort of teeth would they have.

TR: I think that it's always best to have the trials in your own country. It helps to build up a national system of justice, the trials are done according to local national standards, it's closer to home, the educational purpose it can serve is greater. But for example the UN now is debating whether or not to set up a permanent international criminal court that would take people who are accused of crimes against humanity or war crimes or genocide--I mean it has to be really serious things--if their own nations are unable or unwilling to try them, and can try them in the Hague or wherever it would be set up. I think it's problematic, but I'm in favor of that, I think it would be a good thing, because at the moment what you have in many countries, is the rule of law is so weak that people know they can get away with just about anything, most places, and that their political power will protect them, and this will act as a counter to that. You will know, if you commit horrible crimes, that even though you may be safe in your own country, you're too powerful for them to touch you, the UN can try you. And I think that would be very important. It's a subject that first came up after the Nuremberg Tribunals, people thought this would happen, but the Cold War prevented it, the US and Soviet Union couldn't agree on what the definition of a crime was, but now it's being revived and I hope it passes.

Question [Gabor?]You broached this topic on the basis of conditions for democracy, so you say that it is necessary to deal with the past because of building a democratic society, but did you feel in the region that people really wanted to clarify the past? Let's say in Hungary, because I'm not sure that there is much pressure on government to pick up these cases.

TR: I wasn't travelling in Hungary. In fact, when I went to Hungary, I wanted to put Hungary in my book, but there was nothing going on; there was a decision at the moment not to try the 1956 people, and you can't write about nothing happening, you can't write a whole chapter where nothing happens, so I decided not to write about it. Later on I was sorry, because they ended up deciding they would want to. So I think my focus has been on the countries where they're more interested in dealing with the past than in Hungary, I think Hungary is slightly a special circumstance where it may be less in the public mind. But at least in countries that had very strong secret police organizations, stronger than Hungary's, it seems that people are very interested in dealing with the past. And in Poland, where martial law was such a recent problem, people were very interested in that. But this may be something that's of much more interest to politicians than to ordinary people.

Question: You mentioned the example of Cuba. Could we say that Cuba is a mixture of communist oppression in Latin American style?

TR: Yeah, I think the best of both worlds. It's going to be interesting to see what happens if Castro dies, which is probably not a sure thing [laughter]. Part of it is complicated by the fact that the Miami Cubans are the mirror image of Castro--they're really no more democratic from the right than he is from the left, so that's going to be weird. I've never been, so I really can't talk about Cuba, but it's probably going to be a country that's problems are much more like those of an Eastern European state than those of a Latin American state, I think. In characterizing what it has done, how it has kept power, it is much more Communist than Latin, and I think it will be more similar.

EM: In spite of using the military uniform constantly.

Question: You talked about when you deal with the past that you have to keep in mind recognition of the suffering of the victims, and on the other hand the stability of the future social order. It seems to me that the relationship between those things changes with time. So that immediately after the fall of the communist regimes in Eastern Europe, there was a lot of optimism about what was going to come in instead, and as a result I think there may have been some more willingness to put some of these things behind, to not raise them, to not deal with them as much, with the idea that something better was coming and that would in some way compensate. And as the future has become more defined and more concrete, and as the system that's coming in to replace the communist system has become a little more clear and people are less secure in the idea that this will measure up to the ideal picture they had of it, they're perhaps finding themselves less willing to forget some of the things they might have been willing to forget earlier. So I wonder how can one deal with that? It seems to me the only way to deal with that is err on the side of bringing up too much of the truth.

TR: That's a complicated problem. I think in some cases, especially in countries where political culture is less democratic, you have a sense that people want someone to blame, that they need a scapegoat for the fact that life has not turned out the way the expected it to, and so who can we focus on. So that complicates matters. I don't think you can ever have too much truth, the more truth, the better. I think every country should have a truth commission, should tell people what happened to them, should do an academic study and a historical study and really write the story of what happened under communism to the greatest extent possible. Obviously it's painful, but I think it's a healthy thing to go through. I mean the German debate, for example, about Stolpe, who is the prime minister of Brandenburg and who has a very fat Stasi file, that has been released publicly, but he insists I was trying to humanize the regime, he had been the head of the Lutheran church, my contacts with the Stasi were to try and get things for the church, I was not a collaborator--it's a very painful debate, but it's a healthy one, people should be debating what the complicity was of people in the past regime. So I don't think a country can ever have too much of that. What I object to is these debates when they take place on the basis of lists, without looking at what individuals did and the harm individuals did. In the Czech Republic last year, there was a sense that now we have to pass a lustrace law that applies to private business, because you have old communists buying up all the privatized businesses, and that's unfair. Well, I understand why people are very frustrated about that, but then the question is where does it end, and are you not now motivated more by a sense of, yeah, it's unfair, but you can't necessarily say that it's criminal for them to be owning these businesses. So I think it can be a dangerous expression of frustration and vengeance, it can get to that point if it's misused.

Question: Right, and isn't there a fear of reviving the old animosities? For instance, in Bosnia, in what's going to be done, isn't that one of the concerns, that if too much energy is put on focussing on who did what to whom, will they be able to achieve any kind of reconciliation? Won't it lead to just a renewal of hostilities?

TR: Well here I disagree with you on that. I think it's almost the reverse that's true. If the international criminal tribunal for Yugoslavia is allowed to do its work and actually try war criminals, I think it will be helpful in a way because it will individualize guilt, and then the Croat can look at his Serb neighbor and say, that Serb was guilty but maybe you're not guilty. And that's in my mind one of the ways that can cut the cycle of endless revenge. By having some justice done, and by having people say, I feel good, there has been justice done, this person has been tried for his crimes, and I'm not going to confuse this person with every Serb or every Croat. I think that would be healthy, if it's done correctly and not politically abused.

Question: And in the countries where there's been more complicity on the side of everyone?

TR: Look, I think anyone who commits a war crime or an atrocity of that kind should be tried. I don't think you should be tried for a political decision. But if you committed genocide and mass rape and war crimes, damn it, you should go to jail.

Question: I don't disagree with that. I was just saying, isn't that a concern that' s being bandied about right now.

TR: Yes, it is, and so far I think it has proven unfounded. People feared that the court would be in the way of the peace process, but I think it helped the peace process, because it took the hardliners out. It kept Karadzic and Mladic from going to Dayton, where they certainly would not have signed that accord. And it has made way for more moderates to come forward in the Bosnian Serb and Bosnian Croat leadership.

David Plotke: I was really very taken with the effectiveness of the analogies between Latin America and East and Central Europe. And then when you began to get into your recommendations I began to feel that the structure of that analogy made it hard for you to think through the recommendations for East and Central Europe. Because basically in looking at the Latin American history, you used the criminal law model, that who did what, and the people who should be punished are the people who did something. But then when you look at East and Central Europe, you ask the criminal law question, even though you begin by saying, these are different types of regimes. So by the nature of the question you ask, you have to come to the conclusion that what should be done in East and Central Europe is something that is in a sense not quite appropriate to the kind of regimes that existed by the 70s and 80s. Just by the way you frame the question in the 70s and 80s, you say where are the people in Bulgaria throwing people out of airplanes into the Black Sea, well there aren't any. So then it becomes very hard to figure out exactly what the political punchline is vis-a-vis Central Europe. It sounds like the recommendation is essentially, at the level of individuals, let bygones be bygones; at the level of establishing a record, let's be as open as possible. That's what it seems to come down to.

Let me give an example of the complexity of it. You emphasize the way in which the Latin American regimes were far more violent in the 70s and 80s than the East European regimes, which I think is absolutely correct, if one counts bodies. But there couldn't be much doubt that, had anyone tried to do some of the things in some of those countries that people were doing in Latin America, they would have met similarly violent circumstances. And that people didn't even try to do some of the things you could do and then get killed for in Latin America. That is, for example, take up arms against the government. In Guatemala, where you cite that there's a 100,000 casualties, there's a civil war going on. And if people in Poland, in Gdansk, had started passing out weapons, I assume there would have been a slaughter.

TR: There was even without weapons.

Plotke: I don't pose this to say, aha, I know what we should do. But the people who were running the state in Poland or Hungary in 1975 or 80 weren't throwing people out of airplanes, but they were using force in an ongoing , threatening, pervasive, permanent way that just isn't captured by the criminal analogy. Now I don't know that that means we should do anything with them, but it's sort of like the pieces don't quite fit . . .

TR: You're right, I've framed it in a way that it's very hard to find, if you use a criminal law model, what it is about the Eastern European states in the 70s and 80s that's prosecutable. It's very hard. If you have a solution, I'd love to hear it.

Plotke: All the solutions that flow from these are like the American solutions following the civil war, and they have the problem of contravening now-established norms. In other words, you could say, for ten years, if you had an official position in this regime, you can't run for office, end of discussion. So there's no criminal penalty attached, but there's a kind of political repression. And that would same to follow as the recommended remedy from the structure of your analysis, but it's certainly not very appealing.

TR: That's why you have lustrace, that's why lustrace is so popular, it's the only way to get at what you're talking about. But I think that kind of thing is, what the Americans did after the Civil War was terrible, if you were a Confederate soldier you didn't even have the right to vote, you had your right to vote taken away from you. And I don't believe that it's any more helpful now. To do something like that, yes it would get those people out of the regime, but the problem is it perpetuates standards of law and decisionmaking that echo, that are continuations of the old system rather than a transition to a new one.

Plotke: I entirely agree, and I'm not raising this as though I know an answer, because I'm just provoked to think about things differently form how you described it. But think about this: one of the strengths of your argument about Latin America is it seemed to show that what' s going on now would be a real deterrent to people in the future. That is, if you do certain things, if you have a terrible regime and you kill people, you might end up in jail, or even executed. It's hard to see what the deterrent is in East and Central Europe, according to the logic of your argument. That is, we can all hope or presume that these regimes won't come back. But if there's no trials of individuals, for very good reasons, and we're skeptical of the lustration process, also for good reasons, what's the analogous deterrent?

TR: I think that's where truth comes in, because if people understand how communism worked, then that is going to deter a recurrence of that system. That's very idealized, obviously, but . . . I think you bring up a very very important problem.

Belinda: I also think that the German experience, in that sense is interesting, because although I hate any analogy between Nazism and the communist system, and it's often made in West Germany, but the fact is that the West Germans, although they never got rid of the Nazis in the country, I mean there was nothing done after the war, practically nothing, very little denazification, the system was riddled with Nazis for a long time after the war, they've turned into a really very democratic and very positive country. And a lot of what that was was exactly that, that in the sixties the demands for truth and the demands that the younger people made that the system, the mechanisms be exposed were actually what did it for West Germany, what actually made the system into what it is today. So they didn't really do very much on a criminal basis, except for the obvious, the Nuremberg, the War Crimes trials, but that was pretty much it . . .

Question: What is the responsibility of the media in these countries to recover these political crimes? I guess, as Gabor mentioned, in Hungary it's not a big issue, but we had other big issues, and that's why it became a secondary issue, but the public is very interested in the recovery of these crimes, and I don't know how it worked in other countries with the media, with free press now.

TR: I think these kinds of investigations are important, and one big component of truth is that people know about it, it should be published.

Q: But should the media be more aggressive?

TR: Let me back up for one second. I want to address something that the Slovak gentleman talked about, it's called Rude Pravo, which is the organization--organization, a couple of students with a computer--who published the secret police files in a newspaper in the Czech Republic. And this was absolutely horrible, first of all because it was a very bad copy of the files and a lot of names were wrong; second of all because they published files also for people who were considered candidates, and a candidate was someone who the secret police was trying to recruit, but for example didn't want to be recruited; Havel, for example, was considered a candidate. So a lot of people got tarred when in fact not only had they not been agents, but they actively resisted being agents. It was highly inaccurate, and everyone was reading it; you'd go onto the Metro in Prague when it came out, and every single person was reading it, and it caused a tremendous amount of harm to people. That is awful, that should not happen. But I think that in general, the more investigation the media does, the better--obviously as long as it's done responsibly, and not with just a political motivation, which is very difficult in many cases, because a lot of these newspapers are very much association with political parties. For example, in Romania now, the opposition paper published parts of Mr. Iliescu's KGB file, which has been very inconvenient for him, and they're being tried for it. The problem is that the Romanian judicial system is so heavily controlled by Iliescu's party that, even though all the evidence is in their favor, they may still end up getting condemned. But I think a press that really talks about these issues in depth is very important. And these are sometimes hard things for journalists to investigate, and these papers are very financially troubled, and don't have the resources to put into things like that, so it's difficult, but I think it would be very important to deal with questions like that.

Q [Darius?]: I've got a question, or maybe a comment, on the German situation, when you mentioned that those Berlin wall guards were shooting persons trying to escape, were tried but that's not correct to try them. . . . [changing side of tape] But I can't find who possibly could be accused for that crime, because under the logic of the legal reasoning, they were in the criminal court of that country those who are trying to escape are criminals, and under this clause in the criminal court, they are equal as other criminals, and possibly could be sentenced to death. So that it's question of procedure. Or you could just accuse those guys who implement this article to the criminal court, but it's . . .

TR: Well, one person who could be accused, and actually was, was Honecker. That was what he was being tried for, was giving the order. Question: But was it right, for this situation?

TR: Yes, I think Erich Honecker should have been, that was a correct trial. I mean, he was unfortunately let of for reasons of health, but I believe that was a very fair thing to try him on. I mean, he knew better. You may say that a 22-year-old border guard, who is very much brought up in this East German system, and accepted this idea that everyone who was fleeing was a criminal, maybe you could think that they might not have known any better than to shoot; but Erich Honecker was the head of state, issued the order, and I believe he could be tried for it. My problem is, I don't think the border guard trials were completely bad. I think they should have been tried. Some of them exceeded their orders. Some of them shot at people when they were already lying on the ground, that kind of thing. That's a criminal act and should be punished. But the people who just complied with their orders, in many cases they've been convicted and given suspended sentences. Which in my opinion is probably good. But what I object to is the way in which it was done, which focussed on the little guys before, I think they should have started at the top and worked down, rather than starting on the bottom and working up.

Darius: But it's a question of legislation. I think that possible trial that this was was put into criminal court. The sequence of all that was just procedure, and in this logic thinking that this guy who was trying to escape, he could be possible to equalize to those who are trying to escape prison.

TR: That's certainly what they were taught, and that was their defense, but the judge for example in the case of the first trial issued an opinion stating that you should have known better, that you can't turn off your conscience. You should have known that they were just trying to flee to a different life, and you should not have shot them. That's a questionable thing, I don't know if I agree with that opinion, but . . .

Darius: That's a moral question, but it's not a question for the criminal justice. Nothing can be sentenced to those people. It's not the language of the criminal . . .

TR: Since the Nuremberg Tribunals, most countries have adopted the rule that you cannot use superior orders as a defense. You cannot say I was just following orders, and therefore you can find me innocent. You can use it after you've been found guilty to reduce your sentence, but it's not a defense. And that is what these border guards were arguing, I was just following orders, and in most systems of criminal justice, that is not a defense anymore. The question is whether they were obviously criminal in the sense that the order to torture is obviously criminal.

Darius: Nuremberg process was based on natural law, but how could natural law be applied to a criminal case.

TR: But superior orders not being a defense is now part of the legal system of most countries, it has been adopted as law in most countries' legal systems, including Germany's.

David Plotke: There's the tension again: if you use the Nuremberg principle, these people aren't running gas chambers, obviously, but then you have the basis of very broad culpability, of a lustration plus, as saying, this regime was suppressing human rights; we don't care what you thought, you should have known better, and consequently you can't do x, y, or z. In other words, the logic that you're just using, it's very hard to stop it from applying very broadly to whole categories of regime participants . . .

TR: These people killed someone. DP: Yeah, but it's illegal in most countries with decent constitutions to prevent people from exercising their right to speech or assembly, etc., that you can either treat it as a criminal thing about threat or a civil rights violation. So all I'm saying is the Nuremberg type claim of regime culpability cuts very widely, cuts a huge swathe through the regime that you are clearly unwilling to do, and I share that unwillingness, and it's a real problem, because it would be hard to find someone in East Germany who gave a specific order to this specific border guard to shoot this particular person lying on the ground. It was a system of terrible, oppressive laws. And likewise, if you say you should have known better, you're not going to come up with capital crimes, because most people weren't doing that, but you can make the same argument about what people should have known in repressing various other kinds of activity. I find it very difficult. I'm really not saying, aha, this is what we should do; I just find it very hard to sort out those conflicting imperatives.

TR: Most Germans agreed with you; there was widespread public opposition to these trials.

EM: I also think there is something interesting and important in your remark about how highly personalized crimes were inn Latin America, and how depersonalized was the repression of the societies in Central Europe. And I think the whole idea of trying to create some kind of a response to those crimes, to those oppressions, have to somewhat take into account that those guys were part of a system and a certain mentality, and the most important thing is to stop that mentality from recurring. I don't agree that this is on a one-to-one basis, that if Jaruzelski were prosecuted it might deter others. But I think some device has to be constructed which could capture, stop the recurrence of a mentality that was based on collegial networking, and I think this is something more into it than just . . .that's the difference between post-Nazi Germany and post-communist Europe.

Belinda: The mentalities? But I think it's the same thing that way, the mentalities having to be changed. That's why I said, I don't think it works through criminal trials, Germany didn't have any, and yet they changed the mentality, it was changed in a different way . . .

EM: You're talking about the mentality of society, and I'm talking about the mentality of the regime, and I think that was very clear, the division in most countries between the mentality which was exercised by the regime, vis-a-vis the rest, which was either trying to do something else, or at least be not . . .

David Plotke: Well one difference is, in Germany, Germany was under military occupation, so there was no prospect of a resurgence of actual Nazis, so nobody thought that could happen. So part of our discussion hinges on an empirical bet that there is no actual prospect of the resurgence of these communist networks as a serious political force. I think I agree with you about that, but if we didn't share that premise, the discussion would look very different.

TR: I agree. Well, you could say that the situation in Germany now is almost the same; it's not a military occupation, but it's a political occupation.

EM: That's right. And therefore it was so much easier to do that, and to come up with a device. Whereas the new governments, being on a very shaky and inexperienced ground themselves, were not able, or unwilling, to do that in many cases, like in Poland.

TR: In Poland, I think you also had the importance of the Round Table. When you have a negotiated transition, it's a much different feeling about how you treat your old adversaries than when you have something like the Czech Republic.

Magda [Poland]: Our first prime minister, Mr. Mazowiecki, gave up the idea of lustration. He gave it up. So we are saying that of course we Polish people have the privilege of the Round Table, but I must say, as I was listening to you, we are the country that gave up the idea of lustration, and the debate never came to an end. And maybe it is a naive question to ask, it refers to the problem, of course we can do the research about the mentality that is coming from this regime, but on the other hand--and it was not the first regime that existed in history, and I hope it will be the last--but some people, even while the regime existed, knew that they shouldn't act in a particular way; that's why it was not clear to me, when you mentioned--it means some people were not acting in this bad way--and still it is not clear to me, as you mentioned, that some acts were not criminalized while the regime existed; that's why some people who committed the crimes can't be put into the trial and sued. because at that time were not criminalized. But what kind of law do you mean, to avoid the situation.

TR: It's a tough problem, but in general what you find in international law is, obviously dictators write their own laws, and they can criminalize and decriminalize whatever they want arbitrarily . . . Magda: But torture was criminalized at the time, and killing people was criminalized.

TR: So there's no question in my mind that those people can and should be prosecuted. Give me an example of what you're talking about of something that was bad but no criminal.

Magda: As I was listening to you, you mentioned some, maybe not in Poland, but this is one of the arguments: because the acts were not criminalized under the regime, that's why today we can't put these people in . . .

EM: Putting someone in prison for signing a letter of protest, or for writing an article.

TR: But then you have another problem, which is who put you in prison, who's the person who you're going to judge? But let's deal with what you said. In general what international law has said about dictatorships that have left uncriminalized things a democracy would criminalize, such as for example illegal arrest; in a democracy you can sue a policeman who puts you in jail unjustly, you probably couldn't in Poland at the time--is that if an act is considered so heinous as to be considered a crime against humanity, then the fact that it was uncriminalized at the time doesn't matter, we can go ahead and prosecute. But if it doesn't fall into that category, then what international law has said is that we have to respect the law at the time. And so then the question is, how do you judge how bad something was? But illegal arrest is not generally considered a crime against humanity. EM: Imprisonment without trial? TR: There's very few things . . .

EM: There were ways of avoiding that kind of accusation, that the regime is doing something which is not in accordance with the law, because for example they didn't put people on trial, but kept them lingering in investigative arrest . . .

TR: I don't know what countries have done in terms of civil remedies. Can you sue now your former jailer in Poland and get a monetary judgment?

Magda: So what you're saying is there's a kind of legitimacy. And the problem in Poland is we had the law--there was a big discrepancy between what law was saying, and what was done, how this law was exercised. So I believe that at the time we had the law, that formally you were not allowed to arrest people, and the law was saying something different from what they were doing, and this is the problem, like two kinds of legitimacy: one based on what law is saying, and one says, the real one, when what is written in law is the same as the law that is exercised.

TR: If the law said that illegal arrest was a criminal act, and you can now decide who did it--if you can individualize the guilt, then I think you should go ahead and try that person.

EM: The whole problem is that person is not responsible, because there were some superiors deciding, this is the whole problem of these systematic systems vis-a-vis people, that's one of the troubles . . .

Heshan: And I think it becomes even more complicated if you carry that argument to its extreme, where you hold members of the Russian parliament accountable for what happened in Eastern Europe because of the occupations of 1945, you hold the CIA accountable for what they did with Allende in Chile, so where do you draw that line?

TR: That was Honecker's defense, it was them in Moscow, I was just following orders. Where does it stop?

DP: I don't know where it stops, but . . .

TR: You know when it stops!

DP: Thank you.