First Decade: 1949–1959

In 1949, Germans on both sides of the Iron Curtain desired to put the past behind them (Fertigwerden mit der Vergangenheit), as expressed by the first West German president, Theodor Heuss, after the first West German elections in the summer of that year.Footnote ¹⁷ From today’s perspective, this might seem rather odd, but it illustrated that indeed, only four years after the atrocious regime had ended, Germans and their political elite hoped that the past would no longer interfere in their political affairs once trials had been completed and reparations were paid. It also shows that the years to come were an experiment in terms of linking TJ measures to the way Germans would understand and exercise their own responsibilities for war crimes and the atrocities as such, even if they had not committed them directly. In the first years of regime transition, the aim by the main opposition party, the Social Democrats (SPD) at that time, some intellectuals, writers and a few victim organisations, was to achieve a common narrative that it was not ‘only’ a few Nazis, but that the population as such had a shared responsibility. But they were yet in the minority. Their hope was that this would also allow the population to reflect upon the urgent need for a new, different (democratic) regime. A public opinion survey conducted prior to the first elections held in 1949 by the German Institute for Democracy (later the Allensbach Institute), revealed that the majority of Germans neither strongly supported nor opposed the Nazi regime. It showed further that 60 per cent of citizens with a higher level of education tended to dislike or oppose the Nazi regime and its atrocities more than those without that level of education. However, the academic and intellectual elite, let alone victim organisations, were rather small, as many had fled the country or been exiled. Interestingly enough, those asked in the surveys were fully aware of the Holocaust and persecution of minorities, but did not want to use the word ‘killing’ or ‘murder’ in that context, nor did they wish to accept a shared responsibility of all Germans for these atrocities. For the majority of Germans, the Jews were expelled, persecuted or disappeared during a period that ended in 1945. It seemed as if the German psyche was not ready to openly face the painful truth, although everyone knew the real fate of those persecuted, expelled and tortured.Footnote ¹⁸ This denial showed that there was an understanding that it was a deeply rooted anti-democratic ideology and widespread belief that caused the atrocities of World War II and that therefore a change of attitude and behaviour towards democracy was important. The survey also indicated that West Germans were willing to obey the new rules of the democratic constitution, but that they were not familiar with these rules and did not fully understand what the separation of powers entailed – let alone accountability, transparency of free participation.Footnote ¹⁹ Although a process of national catharsis had started to begin, but only German nationals living in Germany at that time were able to take part in it. Those formerly enslaved, excluded or persecuted and thus no longer living or working in Germany, did obviously not take part in this catharsis.

Politicians reacted and responded to citizens’ perceptions, highlighting the illegitimacy of the past regime bit with yet little reference to an alternative future. At the same time, anti-Semitism and prejudice against Jews was still widespread among Germans in both East and West Germany at that time, which indicates how the Nazi ideology prevailed for a very long time. Over 40 per cent felt reservations against Jews and many believed that more Jews had survived and remained in Germany than was actually the case. Prior to the war, there were over 500,000 Jews registered as citizens in Germany, and yet by 1949 only around 20,000 remained in the country. The majority of Germans believed that reconciliation and reparations with the Jews and Israel in particular was necessary (54–60 per cent). But unlike attitudes towards this ‘payment justice’, only 40 per cent believed that those responsible for the crimes should be prosecuted.Footnote ²⁰ There was an evident discrepancy between attitudes towards reparations on the one hand, and towards prosecution on the other. Thus, it was not a lack of acknowledgement but a lack of knowledge on how to deal with the past in an adequate way. In summary, it was believed that the state, not the citizens, should take responsibility for the past. Twenty-eight per cent even thought that prosecution of perpetrators would be illegal because German law prohibited retroactive application of the law.Footnote ²¹

After holding elections and legislative meetings in September and October 1949, East and West Germany were officially established as semi-sovereign states under Allied forces. The East German government was under the complete control of the Soviet Union and, therefore, the powers that ruled in Moscow. It was led by a one-party government, namely the East German Socialist Unity Party of Germany (Sozialistische Einheitspartei Deutschlands, SED). The Soviet Control Council issued Order no. 201, which stated that the new East German authorities should continue to try Nazi perpetrators, but it would not further supervise this process unless it was opportune.Footnote ²² The West German government under the leadership of the conservative Christian Democrats (CDU), on the other hand, was under constant surveillance by the Allied High Commissioner of the western forces. The countries on either side of the Iron Curtain enjoyed neither full sovereignty nor independence in setting up their new regimes. Both regimes, the communist-socialist and the liberal-democratic one, were imposed upon the populations with very different constitutional provisions. Yet, the governments in each Germany formally committed to democracy during the constitution-building process. Regime change in East Germany took place quickly, as a consequence of the Stalin Note of 1952. This document demanded a neutralised Germany since the Soviets aimed to take over more of Germany in light of the still-present threat of the Cold War turning into a hot war. It took a further six years before the western Allies recognised West Germany as a quasi-sovereign state.

Meanwhile, due to the anti-democratic character of the East German constitution, in which the communist and socialist elite aimed to govern alone through a single-party system, pluralism was a farce and any efforts of democratic regime change or consolidation soon came to a standstill. Consequently, a workers’ rebellion against the communist regime took place in 1953 and was suppressed violently by Soviet tanks with the killing and injuring of hundreds of protesters. The regime turned against its own citizens and in the subsequent years millions of East Germans fled to the west. Those citizens who suffered under the Nazi regime and realised that their claims for reparation would not be recognised under communist doctrine, soon expressed their unhappiness with the one-party government. In the same year one of the very few victim organisations in the east that existed since 1947, the association of those persecuted under the Nazi regime (Verein Verfolgte des Naziregimes) was dissolved by the Stasi because this CSO aimed to look for Nazi perpetrators to try them in their own capacity and thus undermined the government’s efforts to dominate the TJ process. Many of their members fled to West Germany as a consequence. This uprising was an early warning of the dysfunctional character of the regime in the east. In the 1950s, the only way to openly show one’s dissatisfaction with the communist regime was by fleeing the country across the open borders into West Germany, otherwise known as voting against the communist regime ‘by foot’. An average of 350,000 citizens per year left the country, many of them highly qualified young people who would have otherwise have helped to build a new civil society. It led not only to a political brain drain but also to a dramatic economic breakdown in the east.

Ten years after the Nazi regime collapsed, massive protests in the east and the continuous large refugee flow from the east to the west marked the end of any serious democratisation process in East Germany. Although the East German government successfully used TJ measures such as memorials, trials and reparations to delegitimise the Nazi past, it could not use them to effectively legitimise itself.Footnote ²³ It soon became clear that there would be no inclusive TJ process and it was later left entirely to the Stasi and thus the state secret service to decide who was a Nazi and was supposed to be show-trialled, imprisoned or executed, and who was not. The same was true for victims. It was the SED doctrine and thus the politburo that decided who was officially a victim of the Nazi regime and who was not. Open and fair trials or public dialogue were not an option. The measures were used in an entirely exclusionary way, commemorating predominantly communist victims and using TJ trials to purge the regime of political opponents, regardless of whether these were seriously suspected of Nazi crimes or not.Footnote ²⁴

East Germany was eventually included in the Warsaw Pact, whilst West Germany joined NATO and the EC. Nevertheless, during the first post-war decade, neither side was able to join the UN due to the Hallstein Doctrine. This doctrine was proclaimed by West Germany and denied the de facto political division of Germany. The division of East and West Germany also had consequences for restitution claims that were brought; countries that held diplomatic relationships with West Germany filed their reparation claims in Bonn, whilst those who had ties with East Germany filed their TJ claims in East Berlin. The few countries that had ties to both Germanys filed their claims in both. The list of countries filing reparations included countries like Belgium, Denmark, France, Norway, Finland, Austria, Italy and the Netherlands. The SED leadership in the east was of the opinion that western countries that had not yet established diplomatic ties for ideological reasons with them were not countries the communist-socialist regime wanted to be allies with and therefore denied restitution claims from those countries. Any country that was perceived as anti-communist or hostile to the east was not eligible for reparations. Israel’s request to receive reparations from East Berlin was ignored by the SED until reunification in 1990. This shows how highly politicised TJ measures were and it became evident that granting or denying reparations was less about the people who had suffered, or the recognition of the individual or collective responsibility needed to achieve a national catharsis, and more about political opportunities.

In January 1950, the Soviet administration in East Germany transferred all restitution claims, political prisoners and alleged Nazi criminals to the SED-controlled administration. In subsequent years, the SED bribed countries such as France to establish diplomatic ties with them instead of with West Germany. In France, for example, Nazis had stolen many artefacts from private households and museums and brought them to museums in Germany or kept them privately. The West German government put reparation procedures in place to return these artefacts but also mainly for political purposes to regain trust among the governments in Paris and Bonn and to facilitate external relations. At that time the government in Bonn aimed to be reintegrated into the western alliances. If these stolen artefacts happened to be stored in an East German museum, the SED government in Berlin did not feel bound to reparation agreements between Bonn and Paris and thus kept them until they were useful blackmail material for political negotiations with France.Footnote ²⁵ In 1951, for example, East Germany denied restitution claims from French museums or victims unless museum directors in France agreed to pressure the French government to establish diplomatic ties with East Berlin.Footnote ²⁶ By means of the general restitution laws imposed upon them by the Allied forces, both East and West Germany were under legal obligations to return goods that had been confiscated during Nazi occupation without conditions, but there was no domestic or external supervision of East and West German compliance with that law.

Prior to reunification in 1990, all measures that can be seen as TJ measures in East Germany had been in the hands of the Soviet post-war administration. This administration employed a top-down approach until the end of the communist-socialist era. Among the goods claimed for restitution were many artefacts that were privately owned. Hundreds of pages of lists with names, addresses and the artefacts lost can also be found in the German archives. This testifies to the immense efforts to count and list all stolen property, or at least that which was supposed to be returned. But the most important goods claimed in restitution proceedings were manufacturing machines, horses and agricultural machines that were then located in German industries and in high demand for rebuilding the devastated country. Therefore, many of the claims for the return of machines etc. were dealt with reluctantly because these were also needed to rebuild the country. People and private industries had to give notice if they had any stolen goods, but often ignored this rule. The German railway company, the Reichsbahn, for example, was under an obligation to return trains and wagons they had stolen from France and other countries. The East German Department for Reparation and Restitution Claims tried to settle arguments, paying compensation instead of granting restitution, because it feared that soon the SED regime would be without enough industrial machines to produce and transport goods for its own people. At the same time, the East German government also had to pay large restitution sums to the Soviet Union, payments that constantly weakened East Germany’s economic power and eventually led to violent resistance in 1954. West Germany did not have to deal with such extreme pressure, but was nevertheless pressed by the Allies to respond to compensation claims of Holocaust survivors.Footnote ²⁷

To free themselves of the dilemma the restitution claims imposed on them, and to avoid a de-industrialisation of their emerging economies, East and West Germany soon lobbied for ‘global restitution’ and to close that chapter of the past once and forever. The governments of East and West Germany feared a second ‘post-World War trauma’, similar to what the Weimar Republic experienced after World War I. This referred to the Weimar Republic’s obligation to pay large sums of reparations to France and the United Kingdom, which eventually also fuelled the Nazi propaganda and led to resentments against the victors of that war, in particular France and the United Kingdom. Thus, bias and an opaque TJ policy contributed at that time to some extent the rise of Hitler’s Nazi Party in Germany. Some of these reparation measures from World War I had only been completed in 2014.

In the 1950s, however, the main difference between East and West Germany in terms of restitution had to do with the political regime type and the willingness to truly democratise or not. Many former members of the Nazi Party were still in influential positions in West Germany and many of them remained fanatical about Hitler’s Germany, whereas the communist elite in East Germany was mainly opportunistic towards Moscow. In West Germany, Chancellor Konrad Adenauer from the CDU, whose own past was impeccable, believed that the reconstruction of the country would be impossible without enlisting the competent bureaucrats of the Third Reich.Footnote ²⁸

The different political doctrines in East and West Germany also led to different ways of reacting to TJ claims. In 1952, and from one day to the next, the SED regime considered all restitution claims from Germany to be fulfilled and stopped responding to claims from other countries, except to those from the Soviet Union.Footnote ²⁹ This was in order to avoid further external pressure and internal turmoil. Thus, for the sake of regime stability, TJ measures of restitution were eliminated and claims ignored. Such decisions cleared a path towards deconsolidation.

Apart from the different paths towards regime change and consolidation, governments on either side of the Iron Curtain shared the burden of the deep legacy of the atrocious and totalitarian regime that lasted until 1945 and the fear of its return. The haunting shadow of Nazi ideology and Nazi elites threatened both regimes, albeit in different ways. The Third Reich left the legacy of massive crimes against humanity based on an anti-democratic ideology, attitude, behaviour, as well as institutions that were never democratically legitimised. Free civil society and voluntary engagement had been absent, killed, exiled or imprisoned. On both sides, this legacy heavily influenced the country’s process of regime consolidation, while both countries were forced by their allies to deal with their past for different reasons. In East Germany, the legacy of anti-democratic thinking made it easier for the new elite to establish a new dictatorial regime. Public accountability of civic participation was restricted.

The Allies made sure that reparation and restitution claims were also manifested through trials and legal reforms in both East and West Germany. This served mainly a re-education effect and cleansed future political institutions of Nazi perpetrators. Systematic vetting and lustration processes, like those used in unified Germany after 1990, were not in place in the 1950s. Trials were seen as the best way to deal with personal responsibility for the past.

Thus, it was private initiatives by survivors and intellectuals that pushed for a TJ process. Survivors of the regime soon started writing and publishing about their experiences in concentration camps and their sufferings whilst under persecution. Already in 1946, Eugen Kogon, a survivor of a concentration camp, wrote one of the most renowned novels about the Nazi regime (Der SS-Staat) with detailed evidence of how the regime came into existence, as well as a description of its terror and torture policies. Although neither widely distributed nor popular, such early testimonials of camp survivors were later used in trials and in school curricula.Footnote ³⁰ Personal narratives and evidence in book form or plays also served as proxies for non-existing truth commissions. Hans Fallada’s 1947 book and later film ‘Everyone Dies Alone’ (Jeder Stirbt für sich allein), was an early effort to come to terms with the private past of ordinary citizens, despite censorship from the American allies. The book aimed to show the dilemma of ordinary citizens who started to followed Hitler and the Nazi movement, but who later had doubts and showed signs of disobedience that costs many of them their lives. On both sides of the country, Germans saw themselves predominantly as victims of the Nazi regime, instead of as perpetrators or bystanders. Consequently, the first four to five years of West Germany’s democratic experiment and regime change was a period of economic, personal and political anxiety filled with a large number of trials against perpetrators and Nazi collaborators and massive reparation claims both from inside and outside the country. Since democratic transition started in 1949, West Germany’s political administrations and institutions were filled with technocrats who had no reliable experience with democracy and who needed to learn whether judges would actually apply the rule of law and parliamentarians would adhere to their own consciousness instead of loyalty to a political leader. Consequently, heated parliamentary debates on how to deal with the past commenced. These debates were mainly about whether war criminals should be judged under domestic criminal codes or international customary law (since international human rights law did not exist at that time) and whether there should be an expanded general amnesty for all former officials and military members. Opposition leaders from the Social Democratic Party (Sozialdemokratische Partei Deutschlands, SPD), including many of those who had survived concentration camps, raised their voices. SPD leader Kurt Schumacher was one of them. As soon as a parliament had been put into place in 1949, he triggered a debate stressing that ‘Hitler’s barbarianism’ and the Holocaust that murdered over six million Jews dishonoured the whole German nation. He argued that Germans as a society would therefore need to come to terms with their past if they wanted to be seen as a trustworthy nation again.Footnote ³¹ This was an isolated political voice at that time, and led to Tony Judt’s later assessment that Schumacher was among the only politicians at that time that could have provided a clear moral compass for Germans. Taking moral responsibility was not common at that time. TJ measures were introduced, if at all, only for tactical and strategic political reasons. The SPD could not compete with Adenauer’s conservative CDU, which brought most of the Germans who had been bystanders and former Nazi collaborators under their umbrella. It was simply the majority of Germans at that time. And it was Adenauer himself who explicitly expressed the desire to leave the past behind and to grant clemency to Nazi perpetrators.Footnote ³² During parliamentary debates, only a few emphasised the long-term character of the TJ process that was to follow the first trials and reparations. Carlo Schmid, one of the creators of the German constitution, stated during a parliamentary debate that reconciliation with Israel and those ‘Jews and other Germans who had been killed, but also those who resisted the regime and often paid for it with their lives, should be addressed in an honorary book of the German nation’.Footnote ³³ This was an early TJ effort to make Germans understand that individuals made and supported or resisted the Nazi regime and thus taking or acknowledging individual responsibility for the past was closely connected to how they would deal with each other in the present and the future, and consequently the way Germans would make use of democratic institutions. The imaginary honorary book that Schmid called 5 Vor 12 (Five Minutes to Midnight) never came about. There was not enough support either in parliament or in public. It was a metaphor for how Germans should view themselves: a nation that had been violently divided by Hitler and that desperately needed reconciliation. These moral aspects were raised in the early TJ and transition process, but mostly represented the views of elites, of which there were only a few left since most had been killed or had left in exile. Schmid’s warning of the return of the Nazi doctrine had little effect and mistrust prevailed among citizens towards and within institutions. Because of this, many victims, such as Holocaust survivors living in the diaspora, had little confidence in their fellow citizens and institutions upon their return to Germany.Footnote ³⁴

Instead, one of the first TJ measures the West German parliament launched independently of Allied supervision was not a punitive one, but an amnesty one. This law granted indemnity from prosecutions (Straffreitheitsgesetz) was passed in December 1949, benefiting 800,000 people. These people would have otherwise been prosecuted under the Allied laws from 1945. This quasi-amnesty law was enacted as a result of pressure by interest groups that represented former Nazi elites, for example those that did not pass the ‘denazification procedures’ under the Allies (for example, Deutscher Beamtenbund and Vereinigung der Entnazifizierungsgeschädigten e.V.). These groups exerted pressure on the Adenauer government, expressing the belief that the denazification procedures, which were in fact quasi-vetting procedures, went too far by imprisoning those who had only loyally served the regime, without actively participating in war crimes or genocide. These people saw themselves as the ‘real’ victims of victor’s justice and of the denazification process that had been in place since 1945. Generally and depending on how the numbers were counted, 3.5 million people, mostly members of the Nazi Party, benefited from the amnesty law.Footnote ³⁵

Interestingly enough, the West German government passed this quasi-amnesty law only three months after the state had been established, prior to granting any additional reparation, compensation or other legal TJ measures, and granted freedom for all those who had been charged with ‘minor’ sentences.Footnote ³⁶ The de facto amnesty law (Entnazifizierungsschlussgesetz), also called the Art. 131 law, allowed all former state officials (mostly technocrats such as lawyers and administrators) who were in office prior to 1945 to return to work in their previous political and state positions. Parliament also passed a guideline to accompany this law that regulated compensation of those state officials who had been expelled or disadvantaged by the Nazis while working for the former German Reich government, regardless of whether they were Jews or not. It was an amnesty law for both those who were expelled from their positions for political reasons and those who were accused of having collaborated with the Nazi regime prior to 1945. This type of clemency law, because it was illustrated as rehabilitation and not amnesty but which was de facto an amnesty law, was interestingly enough used in Spain 30 years later after that country turned to democracy in 1975.

A reason for this amnesty law was articulated already in 1946 by the American Military Commander in Germany, Lucius Clay, who expressed his concern regarding the lack of qualified men in the civil service. Many German civil servants had been called to the front lines of the war and had perished there. The ones who were not called and thus remained in Germany had often been devoted members of the Nazi Party. These civil servants had subsequently been purged from office, imprisoned or tried – but later amnestied under the 1950 laws.Footnote ³⁷ Moreover, since there were few highly educated women, there were not enough female judges, lawyers or administrators to replace the previous male bureaucrats who had either died during the war or were removed due to Nazi sympathies. The government was in such great need of technocrats to build up its new democratic institutions that they called for any German citizen from within or outside state boundaries to return to the country to serve as lawyers, doctors and civil servants. Remigration, as it was called, was aimed at those who were formerly expelled from Nazi Germany and now came back mainly from the United States to West Germany. It was an official policy issued by the West Germany governments. Lawyers, political scientists and other skilled technocrats were expected to bring back new democratic ideas that would fuel and inspire the new institutions in the west. Many followed the call, but also some remained abroad. Only a few German Jews heeded the call and returned to Germany, including the lawyer Fritz Bauer, who later became attorney general of the Federal State of Hesse and conducted the first Auschwitz Trials in Frankfurt in 1963.

The West German government saw no other solution to the lack of trained civil servants than to pass an amnesty law that would allow removed civil servants to regain their positions so that the institutions could start running again. By 1951, after the enactment of the amnesty law, most civil servants were back in office. In Bavaria alone, 94 per cent of the judges and prosecutors were former members of the National Socialist Party as were 77 per cent of the finance ministry employees. The overall majority of Germans supported these measures. Furthermore, in the West German Foreign Ministry, 30 per cent of the officials had been members of the party and almost 60 per cent were former members of the SS, Gestapo or other radical Nazi agencies.Footnote ³⁸ It is plausible that such high numbers of previous regime members in the civil service contributed to the widespread reluctance and even fear among citizens and victims to openly address the atrocities of the past. It is certain that the various de facto amnesty laws privileged Nazi Party elites because of the government’s urgent need for highly skilled lawyers, business people, physicians and other skilled functionaries. In 1954 another law was passed that had consequences on trials. In the years that followed, fewer than 50 people were tried and brought to justice for mass murder and war crimes. The reluctance of the West German judiciary was so strong that the public hardly took notice of the government’s continuing commitment to the Allies’ laws to indict those responsible for war crimes.Footnote ³⁹

At the same time, and after some of the initial chapters of ‘representative consolidation’ by norms and standards were closed,Footnote ⁴⁰ Adenauer’s government feared that if West Germany failed to ‘reintegrate’ former bystanders and low-level perpetrators into the new democratic regime, large parts of the old Nazi elite would not adhere to the new democratic experiment and might even attempt to undermine it. The young regime also had to deal with claims by victims from all sides. Among them were international victims’ organisations and foreign governments. The American Jewish Claim Commissions and the German Jewish Council both demanded to be more included in the restitution and compensation decision-making processes on laws and practice. In 1955, the German Jewish Council wrote to Adenauer several times, urging him to hear and respond to their claims for compensation and acknowledgement.Footnote ⁴¹ The government did so reluctantly, while continuing to privilege war veterans and those German refugees who lost all their property in the former eastern territories of the Reich after the war. The political and organised voices of these veterans and refugees were simply louder than those of the Holocaust survivors, of which only a few remained in the country. Victims of the 1936 Nuremberg Racism Laws did not get on the political agenda until later and did not play a significant role as an electorate or political constituency. Moreover, Adenauer saw that social peace and reconciliation depended more on those living in the German territory, meaning war veterans, refugees and those who had the privilege of not having lost lives or property. Plus, victims and survivors who were now residents of other countries than West Germany did not belong to the constituency of the chanchellor and neither to his electorade.

The dilemma of the successful regime change towards democracy centred on how many of the old elites should remain in office or be excluded. Vetting procedures were not sufficiently designed and were applied arbitrarily, as well as being applied differently from one Federal State to another. Nevertheless, due to movies, novels and a growing free media scene in the mid-1950s, a public debate slowly began to arise on questions of individual and collective responsibility, which had some eye-opening effects on many citizens. Adenauer himself avoided direct criticism of the recent German past and of the present problems with democracy. Instead, he often blamed the ineffective pressure put upon Germany in the east by the Soviet Union and the western Allies for West Germany’s continuing problems with democracy.Footnote ⁴²

In East Germany, the regime faced the same problems of transition and consolidation as West Germany. Although it did not match with the communist propaganda, former loyal Nazi technocrats and officers were also desperately needed to keep the country running.Footnote ⁴³ Thus the SED regime aimed to ‘convert’ these former Nazis into Communist followers – even though it was only on paper. Around 12 per cent of the new technocratic SED elites were former NSDAP members. ‘Reintegration’ and de facto amnesty of old Nazi elites and skilled workers in both the communist and the democratic West Germany regime were among the most common TJ measures applied in the post-war Germanys. In West Germany the old Nazi elite covered between 20 and 60 per cent of all governmental offices in the new ministries in Bonn. Among the one most influenced was the Foreign Ministry with around 66 per cent of officers with a NSDAP past.Footnote ⁴⁴

At the same time, citizens of East Germany experienced years of Soviet oppression and arbitrary trials of Nazi perpetrators. The arbitrariness reached a peak with the secretly held WaldheimFootnote ⁴⁵ trials against alleged Nazi perpetrators in 1950. These trials supposedly intended to be the eastern counterpart to the Nuremberg trials in West Germany. By January 1950, over 15,038 remaining war criminals were transferred from Soviet custody to the East German authorities to be tried. Most of those indicted had been in prison since 1945. Some had already been tried under Allied forces and others had never seen an attorney. The list of those who were considered victims was long and often arbitrary. Rumours of victor’s justice and arbitrary revenge were widespread. All members of society were affected by these trials: communists who had opposed the Nazis, those who escaped concentration camps, those who fought in the international brigades during the Spanish Civil War, Roma and other ethnic minorities, Jews who survived deportation and extermination and other atrocities. Since many of these people had no documentation that proved that they had been persecuted, enslaved, expelled or expropriated for political or ethnical reasons, proving victimhood was difficult. For those who could prove their status as victims, the state guaranteed compensation and certain privileges.Footnote ⁴⁶ The main purpose of the 1950 Waldheim trials was political. The trials were used to create a myth that all Nazi perpetrators had been convicted and that the country had thus been cleansed of all political evil. That was not the case in reality, but was a myth the government proclaimed. The East German regime’s attorneys filed over 100 cases a day and had to try people within a few minutes on evidence that was more than dubious. The result was that of around 3,400 accused perpetrators, approximately 40 per cent were convicted for up to 15 years, whilst the other 60 per cent was either sentenced to death (32 persons), sentenced to life-long detention (146 persons) or up to 25 years imprisonment (2,000 persons).Footnote ⁴⁷ Twenty-five were shot dead in the stand immediately after the ‘trial’ in which no lawyers were allowed to defend the accused. This is the official historical version of criminal justice in East Germany.Footnote ⁴⁸ Among those put on trial were children who had been imprisoned in 1945 because they had been members of Hitler’s youth groups at the age of 14, or civilians such as a young saleswoman who had used old German Nazi newspapers and anti-Soviet propaganda pamphlets in Russian – which she could not read – to wrap food in and was thus accused of anti-Soviet propaganda. She was considered a war criminal because she had insulted Russians when using the pamphlet to wrap meat and vegetables and received over five years in prison.Footnote ⁴⁹ That sort of criminal justice took place in most East German courts, in particular during the Waldheim trials with the desire to demonstrate to the new hegemon in Moscow that East Germany was free of Nazis. These trials did not adhere to the rule of law or principles of justice, as they took place entirely behind closed doors and were reported to be exclusive by nature, only punishing those who could be potential political enemies to the new regime. The only cases dealt with in public were a few in June 1950 in Waldheim for propaganda purposes (although international observers were not allowed, let alone an independent press). The process served to support socialist ideology and to show the SED alliance with Moscow. Thus we see how in East Germany, TJ tools were used to cleanse the new regime of old elites, who were portrayed as a danger to the new regime. Furthermore, these tools were used to show East Germany’s pure loyalty to the new occupying, yet non-democratic powers, the Soviet Union. Many of these trials were against ordinary citizens and those who opposed the newly emerging SED regime. TJ was used to manifest a new regime, through use of terror, fear and suppression.Footnote ⁵⁰ Many of those tried were even former communists or socialists and their only alleged ‘war crime’ had been that they were against Soviet-style communism. Other prominent war criminals had already been tried in Nuremberg, Poland and elsewhere. Those that were left by 1950 were former Nazi technocrats or prison guards at concentration camps. The higher political elite had been tried or were about to be tried. But what is remarkable for the observation of the spiral effect of TJ on regime consolidation is the fact that these trials were entirely exclusionary and biased.

The standards of evidence and proof relied on protocols and investigations the Soviets had conducted from 1945 to 1949 after occupying East Germany, rather than on original Nazi documents. The ‘Waldheim judges’ were loyal members of the party, not necessarily lawyers or judges and often without any legal training or experience at all. Many of them had been craftsmen, tailors, salesmen, electricians or mine workers before they were appointed legal officials. International and humanitarian law was unknown to them. The lack of qualified lawyers was due to the fact that trained lawyers at that time had been trained under the Nazis.Footnote ⁵¹ Lawyers who had been members of the Nazi Party most likely fled to West Germany. Moreover, some communist lawyers had often been persecuted or tortured under the Nazis or not sufficiently trained because communists were denied higher education during the Third Reich. This dilemma led to the fact that hundreds of unqualified lawyers determined the fate of thousands of citizens. This was not a good start for establishing trust in the judiciary and it was uncertain whether citizens would trust such an arbitrary and politically dominated judiciary in the future. While in East Germany many judges were unqualified but loyal to the new regime, those in West Germany were qualified but only loyal to the old regime.Footnote ⁵²

Eventually, in these early years of transition it became clear that due to its ideological authoritarian communist direction, all TJ measures by the East German government would not catalyse independent institutions, let alone democratic ones, but instead serve solely political purposes. The institutions in East Germany were not accountable to citizens, let alone transparent or independent and they denied any citizen participation.

But due to the bad performance of the judiciary in both Germanys, mistrust and a lack of confidence in the new institutions developed quickly on both sides of the Iron Curtain. This was mostly based on the fact that the massive number of trials in East and West Germany were perceived as victor’s justice, from which, for example, Soviet or American war criminals were excluded. Whilst there is an estimate that over one million women were raped by Allied military forces on all sides and thousands of alleged war criminals were victims of arbitrary vengeance and ‘justice’ by Soviet, American, French or British troops, these crimes were never prosecuted or, if so, they were never made public. This hampered the consolidation process because it fuelled the existing mistrust and conspiracy among the new institutions and citizens. Keith Lowe illustrated the massive crimes of vengeance and revenge committed by Allied forces as well as by Germans, Poles, Russians, Dutch, French, Italian, Ukrainians and Czechs after World War II in his bestselling book Savage Continent. In the aftermath of the war, the lack of a minimum sense of rule of law cost millions of civilians and prisoners of war their lives even after the end of war had been declared.Footnote ⁵³ In fact, the comparison between Nazi cruelties and alleged Allied atrocities was a constant theme in the public debate at that time, as Jon Elster illustrated.Footnote ⁵⁴ Both the Allied command and the German authorities had to react to these often false accusations as well as to downplay German atrocities in comparison to the Allied ones. Therefore, delegitimisation and demystification of the Nazi past and what really happened and who was responsible for it was urgently needed – on all sides. Instead, only a handful of those who took brutal revenge on civilians for the German occupation were ever convicted in public. Therefore, millions of Germans perceived the type of justice brought by the new regimes under the Allied Forces as biased and perpetuating injustice, a perception that Jeff Spinner-Halev and Gibson have also observed in many other twentieth-century TJ processes.Footnote ⁵⁵ The Allied commanders saw it as an urgent matter to install tribunals for German war criminals as early as possible to avoid further reduction in trust due to arbitrary acts of revenge against Germans. Otherwise this public perception would have a destabilising effect on the consolidation process.

Yet, the sources of the mistrust were not just the trials in Nuremberg and the lesser-known ones in Waldheim, but also the experience that many citizens had during the Weimar Republic from 1919 to 1933. At that time, democratic institutions had also been in place, but were badly executed, like the electoral system that brought Hitler into power in 1933. Those with the experience of both failed regimes prior to and after 1933 were sceptical towards the Nuremberg trials in the first place and were also hesitant to trust the new democratic regime, since the previous attempt at democracy failed to deliver peace and stability. At first, both sides were under pressure to do better than the previous democratic regime, but failed due to lack of mechanisms to bring civil society stronger into the democratic game, as before. Germans had learned after all that formal democratic institutions did not automatically equate to good democratic practices, the rule of law or justice. Additionally, many citizens were more concerned with safety issues and less with debates regarding democratic culture. They feared that the Soviet-imposed Berlin blockade of 1948 would divide the country even further, which later turned out to be the case. The Cold War showed its ideological face of ugly power games, played out beyond people’s real interests and both the urge for regime change and TJ were often used as tools in a game that was merely about power.Footnote ⁵⁶

Throughout the first decade of regime change, the number of prosecutions of war criminals slowed down dramatically in West Germany, although they were still in the hundreds. First, a statute of limitations and quasi-amnesty laws were passed on lesser crimes in 1950, as mentioned above. But nevertheless around 5,200 persons were still convicted in the following years, the majority of them in local courts.Footnote ⁵⁷ At the same time the West German legislature also wanted to respond to many citizens’ demands to ‘finally close the files’ of the Nazi regime and leave the past behind.

Many parliamentarians in Bonn had already decided to put a full stop to prosecutions (Schlußpunkt) since according to them ‘enough’ Nazi perpetrators had already been convicted and imprisoned. In September 1951, Chancellor Adenauer had given a keynote speech in the German parliament in which he recognised the suffering endured by the Jewish and other people and affirmed that Germany would make moral and material reparations.Footnote ⁵⁸ Although the reference to morality was more a rhetorical one at that time, it was at that date that West Germany started to take responsibility for its past as the successor to the Third Reich and introduced an unprecedented TJ process. Reparations (compensation) for individuals who suffered in concentration camps were seen as a novelty at that time, although today they are an expected element of many TJ processes.

In the beginning Chancellor Adenauer was in a constant dilemma and thus issued two parallel policies; one that was inward looking and one that was outward looking. The first one was to satisfy public opinion at home and the other to reintegrate West Germany in the international arena. TJ processes were seen as a tool, or as Pierre Hazan described it, a ‘great laboratory’ in which actors could experiment with different measures to achieve the anticipated political goals.Footnote ⁵⁹ At the same time as Adenauer’s political statement towards the world and his attempts at integration with the western Allies, the West German parliament passed another de facto amnesty law (Entnazifizierungsschlußgesetz) permitting the reinstatement of another large group of alleged perpetrators, namely over 39,000 convicted or excluded persons who had been removed from office under denazification proceedings in the 1940s. This way, Adenauer kept the critical voices in the country satisfied while he continued with his two policies of TJ and regime consolidation. And yet the trials also continued, although at a much lower intensity. As indicated earlier, the federal courts tried thousands but only convicted over 600 people in the following years; a number that was much lower than the figures before 1951.Footnote ⁶⁰ Despite the fact that there were fewer alleged perpetrators left, the figures also slowed down due to the lack of political will to prosecute.

The inward-looking TJ policy of the Adenauer administration allowed for the enactment of more quasi or de facto amnesty laws. This was the way parliament responded to public pressure. At that time, almost 25 per cent of the population – one out of four in each family – had either been affected by the denazification and vetting procedures of the Allied forces or had suffered personal or professional consequences, such as no longer being allowed to exercise their professions. In particular, it was people with higher education, such as lawyers and elites, who were affected by these vetting and lustration procedures because they had made their career under the Nazi regime and thus many of them remained somewhat loyal or at least indoctrinated by it. At the same time these technocrats were also greatly needed in the newly established institutions and bureaucracy.

Up to 66 per cent of people became affected by these vetting procedures but were also viewed as extremely unfair and as a matter of victor’s justice. Even among those who were not subject to these procedures, 33 per cent still perceived them as unfair.Footnote ⁶¹ The new government and political institutions in Bonn had a legitimacy deficit and felt the need to react. That is why they did so by issuing more amnesty laws. Moreover, the government needed a new strategy, it could no longer only use TJ to delegitimise the Nazi regime, but would have to start using TJ to legitimise the new regime. However, the amnesty law did not much contribute to it. Instead, they meant to silence and appease the society for the moment under the umbrella of ‘reintegration’ and ‘rehabilitation’ as the laws were officially titled.

Nevertheless, some cases against perpetrators continued; for example, against those physicians who murdered thousands of prisoners in concentration camps for medical experiments and who then went back to practising in German hospitals after 1945. Those cases often lasted years, starting in the 1950s and ending in the 1960s. This was partly due to a lack of political will, but also to lack of evidence. Many of the atrocities and war crimes had been committed by the Nazi troops in central and eastern Europe and the documents that could prove it were often in the hands of the Soviet government officials who refused to release them to western authorities, due to Cold War power games. Many of the defendants’ cases ended in probation due to the fact that the country needed physicians and many judges were thus reluctant to sentence these doctors to prison. There was not only a lack of physicians, but also a permanent shortage of other skilled people, lawyers and technocrats and trying them would have affected the Republic administratively as well as economically; at least, this was the fear. The result was a dilemma that neither the West German government, the public nor the judiciary could solve. The same was true for the East German administration at that time.

The easiest solution for the West German judiciary was to put these people on probation, in the hope that they would not embrace Nazi ideology and crimes again, but would instead just do their work. What seemed to be most important for the newly established judiciary was the fact that the few cases that did end in imprisonment were reported outside the country and helped external foreign policies, showing that the German government was serious about delegitimising the previous regime and was trying once again to be a reliable partner in the international political arena.Footnote ⁶²

Despite the rather low numbers of convictions and the reinstatement of most former elites and technocrats, the Allied forces supported the reluctant TJ process in the hope that not pushing too hard for trials and convictions would speed up the economic and political development in the country and the subsequent democratisation process. In 1952 an internal US report on the democratic developments inside West Germany stressed that denazification certificates or the ‘washing powder certificates’ (Persilscheine), as they were called, which benefited lower-ranked technocrats most of all, would avoid social instability. Those certificates were seen as a TJ measure to reintegrate or give amnesty to perpetrators, thereby allowing them to participate in the democratic consolidation from which they would otherwise have been excluded. The reinstatement of former Nazis into offices was thought to be less dangerous to stability than a technocratic vacuum or these people retreating underground.

Regime change and democratic transition in West Germany was, in the end, a ‘democratic revolution by decree’, or an imposed and monitored democratisation process. Germans were told that from 1949 onwards they were to adhere to democratic principles, or else they would never become a sovereign country again. The Allies hoped that with the trials of thousands and the convictions of hundreds, Germans would understand the illegitimate character of the previous regime and thus embrace the new democratic one. Accordingly, it was hoped that in the long term people would change their attitudes and behaviour and become democrats.Footnote ⁶³ But without a forward-looking TJ policy that would become impossible. Therefore, the western Allies, mostly the Americans and the British, pushed for both formal and informal re-education programmes, in which reflection on the past was seen as crucial for people’s understanding of the value of democracy. Education camps for young Germans were soon established in the American Allied sector under the name ‘German Youth Activities’. These education camps aimed to teach Germans democracy through games, films and comics.Footnote ⁶⁴ The United States also rolled out the Marshall Plan for Europe, which provided Germany and other countries with financial support and created educational programmes for the general public. Some of the short films shown for free at the cinemas were aimed at fostering understanding for the injustice of Germany’s anti-democratic past and stressed the importance of democracy in the future. Information on how decisions are made in a democracy, why economic growth is important for stability and how to solve problems in a peaceful manner were the core content of these programmes. It was soon agreed that in order to convince the German population of the benefits of the new political system, Germans must confront their gruesome and undemocratic past and prepare for an alternative democratic future.Footnote ⁶⁵

East Germany also launched re-educational programmes. Equally propaganda oriented in nature, these programmes aimed to convince the public that the socialist system was better than the ‘capitalistic and imperialist’ one of the west. It focused more on delegitimising the western concept of living than the Nazi past and was rather an effective tool used on the new generation and to legitimise the new regime as opposed to the west, but not towards the past. What both re-education programmes in West and East Germany in principle shared were the condemnation of Nazi atrocities. Second, they both were committed to a (formally) democratic system. Third, they tried to win legitimacy for the respective new governmental and administrative structures. In East Germany, a communist dictatorship in the name of democracy of the working class was manifested, while in West Germany a liberal but consensus-based democracy developed.

Finally, and after a lot of international pressure, the Luxembourg Accord was signed in 1952. The agreement obliged West Germany to issue official reparationsFootnote ⁶⁶ to Israel, where a great number of members of the Jewish diaspora sought refuge, as well as to those countries that had suffered great losses under Nazi occupations. The West German government saw this agreement not only as a way to deal with past injustice with monetary or technological compensation measures to the state of Israel, but also as a way to increase the international recognition of West Germany. Adenauer soon understood that Germany’s way forward was to seek integration in the west and not as a standalone state, especially after the threat of the Stalin Note in 1952.Footnote ⁶⁷ Partially as a result of this, and partially due to American and Israeli pressure, the West German government labelled the Luxembourg Accord the first Compensation and Reparation Agreement (Wiedergutmachungsabkommen). The Luxembourg Accord contained reparation measures for Jewish victims and survivors of Nazi Germany who immigrated to Israel before the end of 1945. This was a novelty in international law, which, at the time, did not provide for such forms of reparations. Nevertheless, the reparations arranged in the Luxembourg Accord should not be seen as an acknowledgement of past injustice or as based on a feeling of moral duty. The agreement in 1952 was the first of many agreements made by the West German government as part of its policy to be accountable for its legal status as successor state to the Third Reich. The reparations were thus a matter of official and formal state accountability and not a move towards reconciliation or apology based on ideals of morality. Moreover, there were no signs at that time of any wider public debate that would have supported apologies or reconciliation based on moral obligations. A public opinion poll conducted in 1952 by the Allensbach Institute confirmed that 44 per cent of West Germans thought that reparations to Israel were redundant and only 11 per cent thought they were justified. Almost half of the West German citizens cared less about the Luxembourg Accord in particular when granting reparation to people who lived outside Germany, than they did about measures for those living in the country.Footnote ⁶⁸ It mirrored the Adenauer administration’s consensual efforts at that time in which it tried to balance the interests of the ‘victims at home’ against those of the Holocaust, who mostly lived outside Germany and had become citizens of other countries – and thus also were no longer an important potential electorate for political parties. Both groups claimed compensation from the government, and most of them received it. But the focus was internal, due in large part to the influence of former war veterans and refugees who had become members of federal or state parliaments or the judiciary and favoured domestic reparation programmes. Consequently, in the first open vote in parliament regarding the reparations to Israel, only 106 out of 215 members of parliament agreed to payments. They did not understand why West Germany would owe anything to Holocaust survivors, since Germany had already paid for its crimes by losing the war (being liberated was not an alternative slogan at that time), losing half of its territories of the Reich, living in destroyed and damaged cities and by enduring the monetary and judicial consequences that followed. The Luxembourg Accord did not receive a majority in votes and reparations were eventually decided upon by governmental decree because Chancellor Adenauer saw the long-term political benefit of the Accord.Footnote ⁶⁹ For many years to come, the large majority of German citizens and parliamentarians continued to regard themselves first and foremost as misled ‘victims’ of the Nazi regime, having been seduced by Hitler and his regime. Holocaust and prison camp victims and survivors were seen as a sad and tragic consequence of Hitler and the Nazis’ wrongdoings.

Thus, more so than the number of trials, convictions and reparations, the greatest achievement of these TJ activities was the very slow but steady contribution to promoting an understanding of the severity of the atrocities committed by the Nazi regime, and the criminality and thus responsibility this implied. Delegitimisation of the Nazi regime and constitutional consolidation of the new regime was the primary objective of any TJ initiative taken during the first decade. One must bear in mind that there was no blueprint of best or worst TJ cases available and it was not evident at that time how trials, vetting procedures, reparations and the constant reminding by opening old wounds would positively affect the consolidation process in the country. West German TJ policies were not comparable to post-war and regime-building policies anywhere else in the world at that time. This was the first time a successor state to an atrocious regime felt obliged to pay large sums as reparations (Wiedergutmachung) to a country that had not even existed at the time that the war crimes were committed. Not surprisingly, the West German government did not get much domestic support for these actions. Nevertheless, as Adenauer had anticipated, West Germany’s external relations benefited tremendously from such measures in the long term, which in turn led to more democratisation internally over time, too. Thus, in the first decade after regime change, tactical and strategic reasons for using TJ tools prevailed. And, according to Hazan’s observations, even though moral motivations would come later, strategic ones remained present throughout the whole TJ process.Footnote ⁷⁰

Civil claims for restitution were seen internally as a potential threat to economic growth, the stability of institutions, and to Germany’s reputation. There was hardly any citizen pressure for granting restitution until the first trials against individuals responsible for war crimes brought up by the public in Kiel against a former euthanasia doctor in Auschwitz, and in Ulm against ten Gestapo members in 1958. Yet, the new (reformist) German elite knew they had to respond to the international and the growing domestic pressure and the tensions of the Cold War coming from the east. The one was external and came from West European neighbour countries and the United States and the other pressure was domestic and came from the growing civil society and victim organisations. Even though many of the claimants were not a part of the electorate because they lived outside Germany, they played an important role in building democratic institutions.

The sheer number of civil society (victims) groups that lobbied governmental institutions in the 1950s illustrates how many victim organisations the West German government had to pay tribute to.Footnote ⁷¹ There were those who considered themselves victims of denazification, claiming that they were incorrectly considered Nazis by the Allied forces. Additionally, there were groups with political power, such as the Bund der Vertriebenen, an alliance of Germans who had been expelled from Eastern Europe. This alliance claimed inter alia the ‘right to a homeland’, and pressured the government to raise the issue of their lost homes with the Allies and the UN.Footnote ⁷² The ‘right to a homeland or return’ was never recognised as a human right and these individuals never obtained the right to return to their homes in Eastern Europe. Citizen participation in pressing for victim interests was high and democratic institutions had to respond frequently and in a non-biased manner.

As each interest group was recognised as victims, they grew in importance due to their entitlement to financial benefits and other forms of compensation. These benefits or compensations were not necessarily financial or material, because the petitioners claimed lost territory or houses that now were located in Poland, Czechoslovakia or the Soviet Union and could not be returned. Instead, the claimants gained political influence, professional promotions or benefited from other types of affirmative action. Most of the petitioners received refugee status (Vertriebenenstatus) and could consequently benefit from informal compensation by receiving state positions in governmental institutions.

Although the general public wanted to forget the past and focus on the future, a significant group of writers and artists, many of whom were either survivors of the oppression and concentration camps or emigrants who had returned to Germany, started to revisit the past in films, books, plays and slowly gained a public voice. Some have been mentioned earlier, but since 1949 widely screened films such as The Call (Der Ruf) were an example of a voice that indicated that racism and anti-Semitism remained strong in Germany. The film received international awards and was shown at the Cannes film festival. It reflected the hostile and anti-Semitic atmosphere after 1945 that would remain in German society for years to come.Footnote ⁷³

During this first decade of West German regime change and consolidation phase, anti-Semitic graffiti remerged again and was found on newly restored synagogues and memorials, consisting of slogans like ‘Juden raus’ and ‘Heil Hitler’. It became obvious that Nazi ideology and anti-Semitism still existed in many levels of society and would require constant opposition, regardless of the recent establishment of democratic institutions and re-education programmes. Such artistic endeavours also showed that anti-Semitism and racism was a problem for society as such and a threat to democratic regime change in particular. Anti-Semitism and pro-Communist slogans were seen as threats from the right and left-wing opposition. The new and obviously still fragile regime in the west had to deal with right-wing and old Nazi elites on the one side, and at the same time with an ever-growing number of radical left-wing actors, many of whom were supported by the East Germany secret service in an attempt to weaken the West German consolidation process. Government records show that many of the members of these pro-Communist groups were young people who once were in Hitler’s youth organisations and had now turned to a new anti-democratic ideology, that of communism.Footnote ⁷⁴ Hence, the once radicalised youth continued to be a threat to the regime consolidation.

The establishment of the West German Constitutional Court (Bundesverfassungsgericht) in 1949 attested to a willingness to strengthen the rule of law and the Basic Law. Although a similar court had existed under the Weimar Republic, the West German court had a slightly different mandate and played a crucial role in upholding human rights norms and democratic values as guaranteed under the Basic Law. Ruling by constitutionality (Verfassungsgerichtsbarkeit) as it has later been described became one of the pillars of German democracy and marked the significant period of ‘constitutional and representative consolidation’ as phrased by Wolfgang Merkel, and yet slowly moved to one that would determine change in attitude, behaviour and eventually the solid engagement by civil society.Footnote ⁷⁵ Nevertheless, in the beginning, neither the legislative powers, the Federal States, nor the judiciary had significant experience with this new constitutional setup and thus it remained to be seen how this new institution would gain the trust of citizens and aid democratic institution building. Over the years, the Constitutional Court has evolved into a special kind of review organ and is often the last resort in political disputes, including those dealing with the past, its perpetrators and victims. At the same time, legally and in terms of values, in 1950 the proclamation and ratification of the European Convention on Human Rights and Fundamental Freedoms (ECHR) was a milestone in the promotion of human rights after World War II in Europe. It is the first legally binding human rights instrument monitored by the ECtHR, to which West Germany was a contracting party since 1959 and which slowly also became a benchmark for new values and norms in German constitutional law.

In order to understand why the majority of West Germans felt that the TJ measures were a form of victor’s justice or even punishment, one must consider the context. The majority of West Germans saw the Nazi war crimes as crimes that were committed by individuals – not by the state or society as a whole. Indeed, this individual responsibility was what the Nuremberg trials had aimed to emphasise, for the first time in history. The average German thus did not see themselves responsible and therefore punishable under the law for these crimes. In their view, Nazi perpetrators had nothing to do with the German population as a whole.Footnote ⁷⁶ On the other side, ‘Germans in general’ were of the opinion that they had already paid as a collective for all the crimes, aggression and atrocities during the war because they had lost territory, property and far too many lives. Thus, why issue any TJ measures in the first place?

This dilemma continues until the present day in the collective memory. On the one hand, the Nuremberg trials are a milestone in the history of international law, as individuals were held responsible for mass crimes for the first time in history.Footnote ⁷⁷ Yet, on the other hand, these trials and the individualistic approach they took led to the impression that the millions of bystanders and silent supporters of Hitler had nothing to do with the Holocaust. The combination of recognising individual responsibility and acknowledging collective responsibility only took place two and three generations after regime change. Meanwhile, West Germans were busy struggling for survival and the unemployment rate was of greater political concern than reckoning with the past. In 1956, more than ten years after the end of World War II, the West German public once again sought a final debate (Schlußstrichdebatte), which was only the beginning of many more demands to finally ‘forget’.Footnote ⁷⁸

By that time and due to the increasing hostility and change of political climate worldwide because of the Cold War and the Korean War, the western Allies (in particular the American administration) shifted its focus to the other side of the globe, to where the Cold War had turned fierce once again. Although West Germany was thought strong enough to stand on its own two feet, it was clear that both parties needed each other. The western Allies needed West Germany in order to establish a strong counter-balance in central Europe against the Soviet empire, and West Germany needed the Allies to withstand the threat from the east. The best way to achieve these goals was to create an economically strong and democratic state that was able to defend the western Allies against the Stalinist regime. TJ was seen as one of the many tools to help reach that goal.

At that time, as it would be expected, the communist regimes in Europe, under instructions from the Soviet Union, rejected the informal invitation to join the Council of Europe. Later this had consequences for the TJ process, since the fundamental rights enshrined in the ECHR would come to enter political and institutional practice during the decades to come. The West German Constitutional Court made reference to fundamental rights, albeit reluctantly at first due to inexperience with incorporating international standards into domestic law.

Meanwhile in East Germany, the SED leadership decided on the most appropriate manner to deal with the past without any public input. Citizen or victim participation was not appreciated unless it was organised by the party. Genuinely consulting citizens holding fair and open trials were unheard of. The most important post-war day of memorial in the east occurred on 8 May, commemorating the day the Soviet army liberated Nazi Germany. This TJ measure was organised in a top-down way and consisted of parades and events that reckoned with the past. The new SED regime imitated and perpetuated much of the propaganda that the Nazi regime had employed.Footnote ⁷⁹ The socialist-communist party knew this propaganda had been successful, to some extent at least, under the old regime and used it for their own purposes under the new regime. The SED believed that the manipulation of data, exclusionary TJ processes and constant reminders of how bad the Nazi regime was would work to delegitimise the past regime and legitimise their own.Footnote ⁸⁰

Other TJ measures were implemented by SED politburo decree. Mass graves were exhumed, memorials at former concentration camps were established and victim groups were classified. Communists who had been prisoners of the Nazi regime were considered the most important if not the only victims. Jews, Sinti and Roma, homosexuals and even social democrats or other ethnical, religious or political minorities that survived the horrors of the concentration camps were hardly mentioned at all. The SED had control over all publications and organised the publishing of communist stories of survival from concentration camps, like Bruno Baum’s ‘Resistance in Auschwitz’ (Widerstand in Auschwitz) and Agnes Humbert’s ‘Soldiers Without Uniforms’ (Soldaten ohne Uniform). These books were obligatory reading for schoolchildren as they portrayed a realistic but at the same time strictly communist view of Nazi terror. Non-communist friendly stories, for example from Germans who had suffered repression under the Soviet occupation, or faith-based groups that were suppressed by the Nazis, were not published. But stories of those who suffered from American on French acts of vengeance after the war in the west were also not allowed.Footnote ⁸¹

Over time, the narratives told in West and East Germany developed in different directions. Within a few years after 1949, two different narratives about the Nazi past came into existence. In East Germany, the government hurried to implement as many top-down and exclusive TJ measures as possible to delegitimise the past and celebrate their victory. In West Germany, TJ measures were mostly implemented under pressure from external powers but a bit more inclusive by nature. West Germany struggled to find a common narrative for the Nazi regime, as is illustrated by the case of the attempted military coup by German officers against Hitler on 20 July 1944. This attempted coup was seen first as betrayal but, since the 1980s, has been viewed as one of the main acts of resistance against the Nazi regime and, much later, this day became a memorial day in West Germany. East German historians did not mention this event at all, because it would show that even members of the Nazi Party opposed Hitler which was not part of the official communist narrative.Footnote ⁸² Citizen participation was initially weak on both sides, but increased significantly in West Germany throughout the 1950s.

As East and West Germany were competing with each other on ideological grounds and had different experiences of the Cold War, each country dealt with the issue of restitution claims differently during the first decade after regime change. The formal and legal foundation of the West German government’s approach was formed by the fundamental freedoms and human rights proclaimed by the international community, such as the UN and the Council of Europe. The east, however, adhered to the Soviet ideology that human rights, as declared in the UDHR, were incompatible with communism. Equality between people was not in the ideological doctrine of the communist states, as it would have meant that landowners had the same rights as workers. Fundamental rights and freedoms, on which the UDHR and the European Convention is based, contradicted communist ideology and, in particular, Soviet political practice.Footnote ⁸³ As such, the Soviet Union abstained from voting for the UDHR in 1948 in Paris, as did all of its satellite states. Communist values and norms propagated disparity between the bourgeoisie and proletariat. In their ideological setup there was no norm system to overcome this inequality by peaceful means, only by force and strict laws.

The East German constitution was grounded on Soviet doctrines and proclaimed East Germany as a socialist democratic state in which citizens’ rights were paramount. Yet, functional democratic structures that could serve people’s post-war claims were not developed and claims could only be submitted directly to the party leadership, which was free to (arbitrarily) decide whether reparation was due. Administrative legislative structures and free elections would have contradicted the major doctrine of the communist regime, the dictatorship of the proletariat. Instead, the party complied with communist ideology, believing that East Germany would reject the anti-fascist and anti-Nazi position and embrace a ‘new’ dictatorship, now led by the ‘working class’.Footnote ⁸⁴

While East Germany was strengthening its dictatorship, West Germany was struggling with its fragile democratic institutions and the lack of an independent judiciary. Although West German citizens were formally guaranteed the right to file their claims and lobby and participate in the legislative arena, this was far from the case in practice.Footnote ⁸⁵ The majority of the West German electorate consisted of citizens who had not experienced the suffering of the concentration camps (those who had survived had mostly emigrated abroad) but instead represented refugees to Germany who had suffered severe losses in Eastern Europe. These refugees were the dominant victim groups throughout the 1950s on the political TJ agenda in Bonn and many of their pressure groups claimed the human right to self-determination mentioned in the 1948 UDHR. They interoperated this human right as their right to repatriation to Eastern Europe, in the occupied territories by Soviet powers (nowadays Poland, the Baltic states, the Czech Republic, Slovakia, Hungary, Romania, etc.) which was never granted or taken up at the UN level, because there was no such right for repatriation and thus no realistic chance that six or more million refugees would be able to return to their homes; this could be guaranteed neither by the West German government nor by the Soviets. But the West German government had to react to these claims and did so by establishing a commissioner for reparations (Beauftragten der Bundesregierung für Wiedergutmachung), who collected claims on behalf of the refugees. In a second stage, the commissioner collected claims by those who had suffered Nazi crimes and whose property was confiscated before 1945. The West German government also established a Ministry for Displaced Persons and Refugees (Bundesvertriebenenminister für Flüchtlinge).Footnote ⁸⁶ It was supposed to be a TJ measure, even if it was strongly abused for political reasons. This was where most former Nazi elites played a role in the new regime and this particular TJ mechanism soon became a political tool in the consolidation process. The assigned Minister for Refugees, Oberländer, was a former high-ranked Nazi Party member and was highly controversial among the political elites. He had to resign from office in the 1960s, at the moment in which the first post-regime change generation came into power and would no longer tolerate high-ranked Nazi Party members in leadership positions.Footnote ⁸⁷

The government and the international community had to respond to claims from many citizens who perceived themselves as victims of the war. To deal with the millions of German refugees displaced throughout central Europe the UN created the UN High Commissioner of Refugees in 1950. Thus, as part of the TJ process, it was German refugees who were among the first to be acknowledged by Allied powers and the UN as victims of the war, particularly in West Germany. Chancellor Adenauer was under immense pressure to compensate these refugees. He did so by positioning them in the abovementioned ministries, before granting any claims for reparations from any other groups or countries.Footnote ⁸⁸

Victims of the Nazi regime who filed claims from the Netherlands, France or Denmark were dealt with exclusively under the category of reparations, because these were money transfers to a foreign country. Neither Bonn nor East Berlin responded with apologies or acknowledgement based on any moral ground. Nonetheless, starting already in 1949, the World Jewish Congress kept requesting a public and moral apology from the West German government. West Germany denied and so did the East. In 1951, the Israeli government under David Ben-Gurion requested another formal apology, recognising the Holocaust and the reparations to the Israeli state. The latter was later agreed to in the already mentioned Luxembourg Accord, but an apology was not issued.Footnote ⁸⁹ Adenauer feared that if he were to issue an official moral apology, it would lead to protests among his own constituency (and potential electorate), of which the majority were refugees from the former eastern German territories – known for their very conservative approach in dealing with the past. Thus any of these TJ measures was highly politicised from the beginning onwards. Moral aspects played little or no role at all.

The Allied High Commissioner in West Germany, John McCloy, commented several times on the resistance of the German government to apologise for the atrocities of the past, stating that the way the Germans dealt with their past and behaved towards Jewish victims would be a test for consolidation of their democracy. In his eyes, West Germany in the 1950s was far from passing this test.Footnote ⁹⁰ Yet, through rising external pressure in 1952, the mutually reinforcing interaction between institutions and TJ had started to begin. West Germany had made use of a number of TJ measures, including trials, vetting, formal apologies for war crimes, amnesty laws, reparations, compensations, re-education programmes, public debates, culture and (some) memorials. Victim groups slowly started to emerge and faced no major restrictions or limits, although their success depended on how well they were connected to the political regime at that time.

Adenauer made concessions and was tactically responsive but not truly apologetic. Safeguarding his government and fostering western integration were his foremost motives.Footnote ⁹¹ Germany’s first formal and public apology to all Jews only took place in 2000 and ten years after reunification, when the federal president of reunified Germany, Johannes Rau, spoke in the Israeli parliament, the Knesset. It was more than an official duty; it also symbolised that a politically and territorially divided Germany had found a way to reconcile itself.

Meanwhile, vetting procedures continued and of the one in ten Germans who had been a member of the Nazi Party NSDAP (Nationalsozialistische Deutsche Arbeiterpartei) prior to 1945 (the NSDAP and its sub-organisations had a total of ten million members). As explained earlier, many of them returned to comfortable positions five years after the end of World War II.Footnote ⁹² Any further vetting measures were left in the hands of the Federal States. Each Federal State dealt differently with Nazi perpetrators; some excluded them from higher public office, while others ‘reintegrated’ them and even gave them political leadership positions. But vetting procedures and reintegration laws varied per Federal State, which often led to incoherent lustration procedures. The Allied High Commissioner, to whom the government and the Federal States were accountable, accepted this compromise and refrained from arguing that the Nuremberg trials had already indicted those who were most responsible for the war crimes of the past.

But the way the government dealt or did not deal with the Nazi past was also a ‘thankful tool’ for the opposing parties or governments. The instalment of Nazi elites in the West German administrative system was enough reason for the East German government to argue that ‘all former Nazis have forever moved to West Germany where they enjoy successful careers and the continuation of their policy’.Footnote ⁹³ The ‘Bonner Republic’, as it was called, named after the interim capital Bonn in West Germany, was seen by the communist regime as a prolongation of the former Nazi regime. The SED was de facto correct because, due to the amnesty laws in West Germany, a large number of members of the Nazi party remained in public positions. However, the SED regime never did allow for any open and self-critical dialogue about its own TJ measures and amnesty laws and instead criticised the west for not sufficiently delegitimising the Nazi regime. Compensations to war victims, restitution to citizens of former occupied territories in Europe or criminal prosecutions of perpetrators were only useful for strengthening ties to Moscow. In this sense, both East and West Germany used TJ for tactical and strategic reasons to achieve their different political goals, such as the general compensation laws (Bundesentschädigungsgesetz) issued since 1953 in the west, which was amended and adjusted several times throughout history.Footnote ⁹⁴

Reconciliation and TJ in East Germany meant paying large reparations in the form of money and industrial goods to Moscow or other ‘communist brother countries’. Although the SED regime granted massive restitution claims of confiscated property in the first years from countries such as France, Belgium and the Netherlands, in their official political doctrines there was no room for TJ measures with Israel. Later they did not respond at all to any of these countries’ claims and victims.Footnote ⁹⁵ All efforts by the Jewish Claims Commission or the state of Israel to claim compensation or reparation of around 500 million US dollars failed. In 1952 Moscow issued a doctrine that stated that reunification with West Germany had to be accomplished (of course under sole communist governance) before any claims for restitution from Israel or other Holocaust survivors could be considered.Footnote ⁹⁶ In order to be acknowledged as ‘victims of fascism’ in the east one had to either be communist or socialist and to have suffered or been tortured under the Nazi regime in concentration camps. Other victims of the Nazi regime, such as religious or ethnic groups that were now citizens of East Germany, were neither considered victims nor received compensation.Footnote ⁹⁷

In West Germany, compensation to those who survived the Nazi camps was a technocratic response, not a moral one. Moreover, the rehabilitation and compensation of refugees and the ‘victims’ of the denazification process (those who did not succeed in being cleared of Nazi connections) were clearly prioritised above the rehabilitation and compensation of those who had suffered severe physical and mental injuries, lost lives, family or homes. This unjust prioritisation slowly became unacceptable for other victim groups.Footnote ⁹⁸ These groups had grown in number and had become organised around the world. Claim letters arrived from Vienna, New York or Jerusalem.

Despite the many flaws, constitutional and representative democratic regime consolidation slowly came about as the spiral effect slowly showed signs of mutual reinforcement in the mid-1950s. People started trusting institutions once the institutions took their claims seriously, although the procedures were still far from perfect. Newspaper articles in the international press and protest letters from all corners of the world reached the government in Bonn to demand increased acknowledgement of past crimes and of reparations. However, the government denied these claims for the most part, arguing that due to pressure from the Allied forces, it had to make concessions to all sides, to both victims and victimisers alike, and therefore could not address all claims at once.

One of the most prominent and disputed cases of a former Nazi elite in a high governmental position was that of Hans Globke. His rehabilitation and instalment as Adenauer’s Secretary of State led to enduring disputes in parliament, among victim groups and civil society, up until the end of the Adenauer era. Globke had never been a NSDAP member but a legal adviser who worked on the drafting of the 1934 Nuremberg Race Laws that led to the persecution and extermination of Jews and other ethnic minorities. This law has since been recognised as the point that marked the beginning of the organised genocide. Those opposing Globke, mainly the SED regime in East Germany, called him a Nazi perpetrator at Adenauer’s side. The SED government used Globke’s instalment as an example of West German moral corruption and had remarkable success in generating mistrust towards the government in Bonn. In a letter dated from 1949, Adenauer publicly announced that Globke had been officially ‘denazified’ by Allied US forces after 1945 because Globke had never been a member of the NSDAP – even if he had embraced Nazi ideology.Footnote ⁹⁹ Instead, so Adenauer claimed, Globke had tried to ease the 1934 Race Laws. But that was a common excuse at that time for former Nazi collaborators to explain why they had not openly opposed the regime.Footnote ¹⁰⁰ This explanation that Adenauer gave in the first generation of regime consolidation, set a precedent, which many of his successors and governmental officials followed when answering questions from journalists and international organisations about their political affiliations and private life before 1945. If they had been officially denazified by the Allies or had been beneficiaries of the quasi-amnesty laws of 1949 and 1951, they no longer took personal responsibility for the past.Footnote ¹⁰¹ In later years however, it became evident that many denazification and vetting certificates issued by the Allies had been granted rather hastily after superficial and subpar investigations. At the time, many of the files on the NSDAP members were held under Soviet surveillance in East Berlin and were therefore neither accessible to the West German government nor to the western Allies. Only decades later would these be made public. Nevertheless, Adenauer made it clear to everyone that integration of those who had gone astray was more important for building a functioning democracy than memory, an apology and justice.Footnote ¹⁰²

During the first decade of transition and regime change, it was crucial for the credibility of the new regime that all chancellors and government leaders had a visible record of their non-alliance with the Nazi regime. In this way, the past was omnipresent in politics, and so was, albeit indirectly, TJ as well. A chancellor such as Konrad Adenauer, or politicians such as Kurt Schumacher or Willy Brandt were seen as those with the most impeccable record, due to the time they spent in prison camps or in exile. Often, politicians were pressured to prove their resistance against the Nazi regime around times of election. Despite the fact that the majority of the members of government and in parliament could not prove this, the pressure existed, but it was left to the electorate whether they thought it to be a relevant matter for governing the country or not. Overall, this was part of the process of delegitimising the old regime and legitimising the new one.

In West Germany, the Hallstein Doctrine hampered Adenauer’s and later chancellors’ policies to come to terms with the past. This doctrine held that West Germany would not establish or maintain diplomatic relations with any state that recognised East Germany until Germany was reunified under its former borders. Named after Walter Hallstein, a West German politician and a refugee who escaped communism in East Germany, this doctrine was a strategic compromise with the millions of refugees from the east. But this policy prevented both German states from gaining membership in international organisations such as the UN and hindered any attempts at reconciliation between the two Germanys. It was imposed by the government in Bonn upon all countries that tried to establish diplomatic relations with East Germany and led to a friend-enemy politics that soon influenced all political and administrative policies in Europe. One was either with West or East Germany; diplomatic relations with both was nearly impossible, except for the Allied powers. On both sides of the Iron Curtain, the policy of ‘if you’re not with us, you’re against us’ remained in place throughout the majority of the Cold War period. The doctrine was finally abandoned in 1968, thus paving the way towards UN membership for both countries in 1973 for which the official acknowledgement of a two-state solution was a requirement.

In West Germany, it soon became evident that the legacy of the past heavily impacted on the newly formed democracy. The West German Criminal Code contained laws that restricted freedom rights with the excuse that the young democracy had to be ‘protected’ from its radical enemies, such as communists or Nazis. Citizens did not trust the institutions (enough), and the institutions did yet not trust the citizens to be ‘ready for democracy’ yet. After some initial euphoria, the consolidation process slowed down whenever these laws hampered a fully fledged TJ and democratisation process. Those who were indicted in Germany for mass murder or crimes against humanity during World War II were convicted under the provisions for murder and mass murder in the German Criminal Code, not according to international criminal law, which did not exist at that time. Thus, some of the sentences for those who had committed massacres during the war were very low. This was in part due to the weakness of the West German judiciary that remained, even though the law was amended several times in the following decade to meet international demands.

The obstacle posed by the many Nazi-trained judges and lawyers remained. These people had worked in high-ranking Nazi courts and were able to impose their own view of the Nazi past on these new laws by means of their judicial decisions. As a consequence, a deviation from the Nuremberg convictions took place in the 1950s. Many of those convicted at Nuremberg appealed to the newly established West German courts after 1949 and had their sentences revised.Footnote ¹⁰³

Nevertheless, citizen claims for more TJ measures slowly led to governmental and institutional responses. In 1958 one of the first criminal justice processes under the new criminal code took place in the court in Ulm, in the US occupied zone. The 1958 Ulm trials of former SS members were a milestone of regime consolidation and TJ and had direct spiral consequences on furthering institutional development, leading to the 1958 inauguration of a central office of investigation for Nazi crimes (Zentrale Stelle der Landesjustizverwaltungen zur Aufklärung nationalsozialistischer Verbrechen) in Ludwigsburg.Footnote ¹⁰⁴ Convening these trials was an important TJ step that led to many more indictments, reparation payments, lustrations and other TJ measures. The judiciary realised that without solid facts, data and documentation, any trial or vetting procedure would again trigger emotions, conspiracy theories, acts of vengeance and forms of anti-democratic activities. The Ulm trials dealt with the prosecution of ten alleged members of Nazi Germany’s Special Security forces (Gestapo Einsatztruppe) who were charged with killing more than 5,500 Jews on one specific occasion in the occupied Baltic territories during World War II. These members had already been indicted in 1953, but the case was suspended due to the lack of political will and the lack of public support at that time. Any conviction of ‘good German citizens’ – as many of these former high-ranked Nazis were seen – was considered to be counterproductive at that time and silence was preferred. In 1958, the state attorney tried to bring the case a second time, and not surprisingly faced opposition from the public again.Footnote ¹⁰⁵ But this time the younger and new generation of state attorneys succeeded, due to the fact that the majority of the prosecutors in this case had opposed Hitler, which was unusual at the time. Some of the prosecutors were of Jewish descent and had practised law in Germany before being expelled and returning to Germany after the war and only now started to ‘dare prosecution’. This was a window of opportunity that was used to create more trials in the future. However, since the judiciary and law profession was still so heavily populated by judges loyal to the former Nazi regime, by the end of the first decade during regime change only 6,000 of the 100,000 persons who had been indicted on charges of support and collaboration with the Nazi regime were ultimately convicted.Footnote ¹⁰⁶

The Ulm trials caused a shift not only in German courtrooms, but also in society in general. All those accused were sentenced to between five and 15 years imprisonment. The proceedings were surprisingly well received by many policy makers at that time and triggered an urgently needed debate concerning the German judiciary and its understanding of collective guilt and responsibility. It seemed that at this time, 15 years after the war had ended, there was a critical mass in society to accept a debate about responsibility. Until the trials in Ulm, most accused perpetrators saw themselves merely as bystanders or subordinates of the system, but not as individually responsible perpetrators. That blame was always placed on Hitler, Heydrich or Himmler and all the others ‘heavy weights’ that had already died or been sentenced in Nuremberg. However, the time was right for a debate about who among the so-called ordinary citizens, soldiers and officers of the armed forces had been a perpetrator, collaborator or otherwise responsible. Opening the scope for potential war criminals led to many more trials and convictions in subsequent years. This acceptance of individual responsibility for the atrocities of the Nazi regime also had to do to with the growing level of trust in the new judiciary.Footnote ¹⁰⁷ Even with many Nazi judges still in office, the foundation of a new constitution and newly appointed impartial, 20+ generation judges meant that the judiciary was becoming trustworthy. In addition to this, people started to bring cases without fear, once they saw that neither the accuser nor the accused would suffer heavy reprisals. Still, many, if not millions of victims never did file suit because they could not emotionally bear confronting those who had persecuted them and who were now living better lives than the victims. The trials that did follow resulted in realising the original aim of TJ measures, the symbolic attribution of responsibility showing that the new democratic regime would deal with criminals in adherence with the rule of law and human rights. Consequently, public debate about these trials triggered many of the subsequent proceedings, including the Auschwitz prosecutions in Frankfurt in 1963, almost two decades after the Holocaust ended.

In the east, the SED government stopped any possibility of citizen-driven TJ by decree. The SED declared all restitution claims closed as of 1952 and refused to respond to any further claims, for example to those from Israel. There was no change in attitude or behaviour on the institutional side. Trials that did not serve the purpose of stabilising the communist regime were non-existent. Instead, propaganda, official commemoration days and biased memorials replaced public debate. Mass ceremony and public parades to commemorate communist victims of the Nazi regime were used by the leadership as the main TJ measure to deal with past.

During this time, the economic development and growth in West Germany allowed the government to respond more positively to claims for financial compensation. Chancellor Adenauer knew that reparations to those who suffered from Nazi occupation was the price Germany had to pay for integrating into western alliances and pacts such as NATO, thus guaranteeing West Germany’s stability and security during the Cold War period. Despite not always having public support on his side, Adenauer saw this integration as guaranteeing the best possible protection for Germany in the event of military action between the Soviet Union and the United States. Since West Germany still did not have any manner of defence, it was highly vulnerable to the Cold War powers and Adenauer knew that if it came to war between the United States and the Soviet Union, West Germany would be in a very insecure position. This choice for integration was thus a strategic choice for security, and so it was for TJ.

Another factor that also impacted the slow take-off of the spiral effect to democratic regime consolidation in West Germany during the first decade of transition was the fact that many democratic-minded elites were still in exile or had been killed during the war. Therefore, a new democratic elite had to be constituted; a process that needed time. This had a significant impact on the political culture of the country, which was often dominated by those who had no or little experience with pluralistic thinking and respect for others.

In a similar vein, the neo-Nazi graffiti (such as the Nazi Swastika) that began to appear frequently at the time the Ulm trials took place also expressed dissatisfaction with the new democratic system. Some citizens continued to be true believers in the Führer cult, while others believed that a ‘tame dictatorship’ (gemäßigte Diktatur) would be better for West Germany than a fully consolidated liberal democracy. They feared that a democracy based on pure human rights principles, such as freedom of expression and participation, would only lead to chaos and disorder, and that the country was not ready for fully fledged democracy.Footnote ¹⁰⁸ This showed that those generations who had grown up knowing only the methods of a dictatorship lacked experience with democratic institutions and with the benefits a pluralistic and free society can offer everyone. Again, time was needed for citizens to become acquainted with chaotic parliamentary debates, differences of opinion and having multiple political parties to choose from.

Many believed that absolute freedom of expression was the main threat to the fragile West German democracy. This led later to the compromise position of ‘militant democracy’ (wehrhafte Demokratie), which entailed limiting basic freedoms, such as the right to expression, by forbidding Nazi or communist discourse and symbols in public and political parties that was sympathetic to the Nazi ideology in order to defend democracy.Footnote ¹⁰⁹ Legislative powers passed laws that allowed charges to be brought against those who made anti-Semitic statements, with sentences of up to two years in prison.Footnote ¹¹⁰ Trials were held against those who violated victim memorials, Jewish cemeteries and synagogues.Footnote ¹¹¹ This concept of militant democracy has since been adopted by other post-conflict, emergent democracies, such as Rwanda in 1994.

Attorney Fritz Bauer tried to counteract these fears of democracy, drawing a more realistic picture of what really happened in the past. Instead, he heavily criticised the West German government for the amnesty laws it passed in 1949 and the years following, because these laws were, in his eyes, the real threat to regime consolidation. Bauer often wrote about his concerns that the early release of Nazi criminals would endanger the fragile democratic institutions. Because of these statements, former Nazis and members of the SS often threatened his life. In an article published as early as 1952, he wrote that the German military officers, such as Graf Stauffenberg, who had been convicted by Nazi courts after an unsuccessful coup attempt against Hitler on 20 July 1944, were still considered traitors of the German Reich (Landesverräter). Although public opinion and the urge for commemoration of Hitler’s opponents had risen by 1970, it was almost absent in the 1950s. In 1951, 30 per cent of the population thought that those who attempted the coup of 20 July were rightfully executed, although the majority did not have a strong opinion about it. Only in 1970 did those who approved of the execution drop to 7 per cent, whereas the group of people who had always believed that it was unlawful rose to 40 per cent. This was due in part to the fact that fewer people remembered the controversies around these trials in 1944, and more wanted to forget all about it.Footnote ¹¹² It was only towards the end of the first decade and when the regime slowly consolidated that a critical mass of younger citizens arose that wanted to put an end to the black-and-white picture of Germans being the bad perpetrators while everyone else in Europe identified him or herself with the idea of a liberator.

Despite these developments in later years people like Fritz Bauer were still considered a threat to the country’s old and powerful political elites and he received many threats since he entered office in 1956. Then, in 1968, Bauer was found dead in his bathtub. Some conspiracy theorists claimed that the mysterious exiled organisation of SS officers executed him for his efforts to come to terms with Germany’s Nazi and SS past. Many Jewish victims’ organisations and survivors believed that former SS officers acting in secret killed him and many others during these times. Despite this unresolved case, similar acts of alleged revenge by former Nazi elites had happened throughout the first decades of transition and transformation and were a sign of mistrust and lack of confidence in political institutions.

Bauer was one of the very few promoters of legal reforms and restitution claims in the 1950s. Furthermore, intellectuals, academics and philosophers such as Theodor W. Adorno and Max Horckheimer who spoke and published to a rather small community, but eventually expanded their reach in the 1960s, also sided with Bauer. The majority of intellectuals who asked for more TJ were often of Jewish or socialist background and had suffered oppression under the Nazis and were thus deeply concerned about the continuation of anti-democratic thinking in the new republic. It was their own past experience that fuelled their plea for more restitution measures, trials and other TJ processes. The writer Bertold Brecht advised the same in East Germany prior to his death in 1956. Nevertheless, those who spoke out and asked for more trials and public acknowledgement did often suffer anonymous death threats and intimidation from private persons.

Obviously, taking individual responsibility for the past was painful. Many preferred to see themselves as victims of the Nazi regime instead of taking collective or individual responsibility for the past and for their role as bystanders and victimisers. This was equally the case on both sides of the Iron Curtain. In East Germany, many remained ignorant of the atrocities and crimes committed by Germans against Jews and other minorities. Anti-Semitism continued to exist in Eastern Europe, too.Footnote ¹¹³ It became clear that there was very little reason to believe that the new political communist elite would do better at implementing the rule of law than the Nazi regime had. By the end of the decade, dictatorship had been reinstalled, albeit in red instead of brown. The political elite in East Germany was once again cleansed of its Jewish population, and old stereotypes and anti-Semitic tendencies were not dealt with in a self-reflective manner. Although the SED regime did not instrumentalise Jewish stereotypes for its own agenda, even Jewish communists did not stand a serious chance of having worthwhile careers under the regime.

After the dramatic reappearance of anti-Semitism in West Germany, the Allies and federal agencies continued their efforts to ‘re-educate’ Germany. This method was called ‘grassroots democracy’ (Basisdemokratie) and included revision of textbooks, publishing of photographic records and tours of the infamous death camps in addition to the ongoing criminal prosecution of perpetrators.Footnote ¹¹⁴ At the same time, the media played an important role in civic participation by raising awareness and presenting a different perspective of the past. One of the major daily newspapers, the Süddeutsche Zeitung, placed a uniquely polemic article in 1958 entitled ‘The Murderers Are Still Among Us’ (Noch sind Mörder unter uns), noting the fact that the amnesty laws passed between 1949 and 1951 had allowed war criminals to continue to reside in German society and have a significant negative effect on the development of democracy in the country.Footnote ¹¹⁵ The SED regime in East Germany made a successful cinema movie with the same title for their anti-west propaganda, illustrating that the old elites were still in power in West Germany, in both business and in politics.

After a decade of experience with new regimes, victim groups of all backgrounds started to organise themselves more systematically and began to bring claims. In 1959, for example, victims of the racist Nuremburg laws (1936) formed a central agency for those affected by these laws (Zentralverband der durch die Nürnberger Gesetze Betroffenen). After being officially recognised as a victim group, they protested loudly in 1959 after a synagogue in Cologne was severely damaged by Nazi sympathisers. Their voices were heard and large public and political protests occurred.Footnote ¹¹⁶ By then it became clear that immediate negative repercussions against these victim groups was no longer opportune. This also marked a shift towards regime consolidation by using TJ measures to acknowledge these victims as rightful citizens of society and to delegitimise the Nazi regime. Although the public fear and mistrust slowly began to vanish, the presence of anti-Semitic discourse remained for a long time. In 1959, the American Jewish Committee, of which many members were former Holocaust survivors, wrote to Adenauer asking him to address their annual congress in Washington DC on the issue of whether anti-Semitic tendencies would endanger democratic development in Germany. Adenauer responded with a keynote address emphasising that there was no danger of massive anti-Semitism in Germany and that there was no threat to democracy. According to Adenauer, the majority of Germans would not and could not embrace anti-Semitism and the atrocious Nazi past had been overcome. He argued that the reported incidents of anti-Semitic slogans and violent acts were simply remnants of a number of individual opinions.Footnote ¹¹⁷ He was not naive when making these statements, but reflected on the majority of Germans who, despite the far too many incidents of anti-Semitism, did not want to return to the old Nazi regime.

But despite Adenauer’s efforts to persuade the international community that there was no threat from West Germany towards the world, it was not long before international support and protests began to pressure the government and local authorities to do more about this remaining anti-Semitism. In response to it, the parliament in Bonn amended Section 130 of the West German Criminal Code on ‘sedition’ and hate speech (Volksverhetzung). This was an attempt to suppress anti-constitutional parties and aimed to prohibit extreme right-wing neo-Nazi parties as well as left-wing communist parties.Footnote ¹¹⁸ Today, it is often referred to as the Law on Holocaust Denial and is found in the current German Criminal Code. This law places limits on the freedom of expression of those who deny that the Holocaust ever happened and on those who attempt to justify the Holocaust. This was a concrete way the West German government could mitigate the fear of those abroad that anti-Semitic sentiments were experiencing a revival in Germany. Decades later, international human rights organisations such as Human Rights Watch criticised the law for restricting the freedom of expression and thus weakening democracy. A prohibition on Holocaust denial entered into international law in the twenty-first century and was adopted by most European states in 2005, after a resolution by the European Parliament.

Section 130 underwent several revisions over the decades and today’s provision on Holocaust denial allows for the prosecution of those who used hate speech to defame other groups. Some German analysts argued that the restriction of freedom of expression was a sign of weak and fearful or ‘tamed’ democracy at that time. The majority of Members of Parliament always justified the restriction of freedom of speech and assembly in relation to activities, publications or films that glorified the Holocaust and neo-Nazism. As early as 1952, the Socialist Reich Party (Sozialistische Reichspartei), a successor to the NSDAP, and the Communist Party of West Germany (Kommunistische Partei Deutschlands, KPD) were forbidden on the basis of similar restrictive laws and the threat they were seen to pose to democracy. This illustrates that the young democracy had to learn to handle radical views that were part of the legacy of dictatorship. Whether the means used by the legislative powers were always democratic is debatable. Thus, restrictive laws as well as amnesty laws were a steady companion of TJ measures and institution building at that time.

But debates in the West German parliament on how to deal with the political legacy of the Third Reich continued. On the radical right, the German Reich Party (Deutsche Reichspartei), established in 1950, was a fusion of a number of right-wing and nationalist parties that did not receive many votes in the first West German elections. The party leadership was composed of former high-ranking NSDAP officials who wanted to reinstall the former German Reich and its nationalist policies and strictly opposed any TJ process in the country. Their supporters were former Nazis and many were refugees from former German territories in the east. There were several attempts to exclude the party from parliament through legal measures between 1953 and 1964, but they failed, because the party was not entirely unconstitutional. Instead the National German Party (Deutsch Nationalistische Partei) attracted more votes with a less radical party programme. Keeping this political party, with obvious Nazi sympathisers, in the minority position in parliament was a tactical decision. The party’s small number of seats in parliament did not pose a threat to democratic decision making and yet made those ‘old Nazis’ visible and in this way publicly controllable. The worst that could have happened was to force them to go underground and continue to commit acts of revenge and other serious threats to society. There were never any attempts to include the party in governmental coalitions, but their radical views held power over a significant number of voters. Because even though many Germans did not agree with the way victor’s justice was imposed, they did not support nationalist parties either. But this was not due to the instalment of TJ measures; it was due to the fact that the majority of Germans could not ‘forgive’ Hitler and his Nazis for seducing them into war. Hazan has argued that although many Germans did not become fully fledged democrats overnight, the national catharsis of the past had sufficient effect in the first decade after regime change to prevent a massive return to authoritarian rule.Footnote ¹¹⁹

Slowly, the use of TJ measures, however reluctantly, led to dramatic increases in political engagement and demands for more human rights in West Germany.Footnote ¹²⁰ Moreover, the fact that the two Germanys competed with each other during the post-war decades in terms of legitimacy unexpectedly fostered the development of democracy and human rights in West Germany. The West German government exerted tireless efforts to be the ‘better democratic regime’; a regime that was more democratic, freer and more economically successful than its communist ‘brother’ in the east. This competition, as well as international pressure, forced both governments to undertake substantial efforts to limit the influence of previous political elites on regime development. At the same time, the political alliances and loyalties towards the occupying powers (the United States and the Soviet Union) dominated the TJ process. As a consequence there were ‘formal democracies’ based on democratic constitutions on either side of the Iron Curtain’s ‘cold front’, but one turned to become more paternalistic and authoritarian in the east and the other one became slowly more liberal.Footnote ¹²¹

In East Germany, the main narrative was told from the perspective of the communist resistance movement and its victims. In West Germany, most conservative political actors identified with those who had fled from former eastern territories that were now under Soviet occupation or part of the Soviet Union. These competing narratives also provided the soil for political activism to grow during the first 15 years after the war ended. During this first decade after regime change, historians from East and West Germany only agreed on one fact: the Nazis were the main perpetrators. The rest was still up for debate. It was not until the 1960s and 1970s that the narratives about the past on either side of the Iron Curtain began to change, when the first generation of citizens born 20-plus years after the war started to raise their voices.

Second Decade: 1960–1969

After a decade of dramatic political and legal reforms, change, heated debates and diametrical transitions, the Eichmann trial in Jerusalem in 1961 marked the beginning of a new era of consolidation. West Germany began to deal with its past differently and Chancellor Adenauer saw the need for wider public debate. The change in attitude and political agenda setting among political and civil society actors became evident during this decade. By its end of this decade, the West German constitutional and representative consolidation stage would shift dramatically to one that also complied more with democratic principles albeit with all actors and institutions in society still struggling to fully adhere to it.Footnote ¹²² But throughout the second decade anti-democratic sentiments and unconsolidated pockets of violence were still widespread.

Parallel to a major shift in TJ policies in West Germany and the trial in Jerusalem, the East German government decided to build a wall and fence between East and West, which divided both states and marked the dramatic cessation of any democratisation efforts in the east. Many of those who struggled to cross the Iron Curtain to the west paid for it with their lives. Yet, as Mary Fulbrook has described in her analysis of the two Germanys at that time, it was this decade that was the beginning of the ‘normalisation’ of the political regimes in East and West Germany – the one becoming more dictatorial and the other one more democratic.Footnote ¹²³

The Auschwitz trials began in Frankfurt in 1963 and lasted, with some interludes, until 1968. Although the German High Court had already ruled in 1959 that individuals should be tried for the crimes of murder they had committed before 1945, the statute of limitations in the German Criminal Code continued to pose a difficult hurdle to further prosecution.Footnote ¹²⁴ However, it had been 20+ years since the end of World War II and there was now a new politically mature generation and enough critical public mass that would be able to face more openly the darkest part of German history. This second post-war decade is the period that Gabriel Almond and Sidney Verba would have looked at to test whether a political and civic culture had developed. It did. Moreover, the number of public cultural events, novels, films and debates about the war grew exponentially in this period. At the same time, the question about civic trust in the institutions was raised.Footnote ¹²⁵

Investigations into Nazi perpetrators had been going on since the late 1950s, mainly on the initiative of Attorney General Fritz Bauer. He tried to indict many of the leading officers who had served in the concentration camps of Auschwitz and who had, under the new regime in West Germany, turned into ‘ordinary’ and well-respected businessmen, pharmacists or physicians. Many de facto amnesty laws also provided much protection. These men and some women never left Germany and feared no indictment; never thinking that they would be held to account for the crimes they committed or were responsible for. Most Germans at that time were still convinced that the Nuremberg trials had dealt with the past in legal terms once and for all.

Therefore, the series of Auschwitz trials that started in Frankfurt in December 1963 must be seen in the context of the constant (international) pressure from survivors and victims as well as the West German government’s desire to become a fully fledged respected member of the international community and more so of the UN. Last but not least, the time was ripe for these trials because a new generation of post-war Germans, as well as the many victims who had been politically active such as Bauer, Eugon Kogon, Karl Jaspers, and Kurt Schumacher had tirelessly appealed to the German conscience to see the benefit in dealing with the past as a way to also legitimate the new regime. The trials ended with the symbolic convictions of over 20 persons, as a sign of the harm individuals can do, and the responsibility they have. This symbol was directed not only at victims but also at many perpetrators who at that time were still in hiding, had disappeared or had never been caught.Footnote ¹²⁶ Second, the trials had an educational aspect. They showed that the West German rule of law regime was strong enough (or rather ready enough) to deal with the worst atrocities in a way that did not threaten democracy. Despite the many shortcomings of post-war judiciary and its failure to sufficiently indict Nazi perpetrators, what also become an issue in the Frankfurt Auschwitz trials was the question of why these atrocities had been committed and why previous generations had contributed to the Nazi regime, either actively or as bystanders.Footnote ¹²⁷ This was the moment in which dealing with the past shifted from merely a tactical and strategic choice to a moral one.

The Eichmann trial in JerusalemFootnote ¹²⁸ and the subsequent trials in Frankfurt were broadcast on German television, radio and covered in other media. Although television was still rare in ordinary households, most people were aware of the trials. The trials and later judgments gradually counteracted the policy of clemency, not just in West Germany but also throughout Europe. The moral and legal failings, both of the accused and the judiciary, came to light. Social elites from the realms of business, politics and culture showed remorse, many for the first time. Until this time, the Adenauer administration had used reparations to deal with issues of TJ as part of its foreign relations and integration policy. The administration had not yet taken an inward-looking approach and only a few had made the connection between TJ and the quality of democracy. Opinion polls in 1960 indicated that more than 80 per cent of Germans did not think much about the wrongdoing during World War II or the Nazi regime in their daily lives. That changed a bit with the Auschwitz trials, but the other major concern among people was future orientated. They did care about issues such as that of reunification, economic development and the threat the Cold War posed. Problems of anti-Semitism or prosecutions of Nazi perpetrators were not among the day-to-day concerns.Footnote ¹²⁹ However, after 1963 a place like ‘Auschwitz’ was no longer taboo and the term ‘concentration camp’ became synonymous with all places of Nazi terror. Hence, here too we see how a TJ measure, namely trials, catalysed a debate about a past that had been almost forgotten. As Bauer would have argued, this debate was important for the strengthening of democracy because it delegitimised the past and legitimised the new regime and its consolidation efforts.Footnote ¹³⁰

At the time of the trials in Jerusalem and Frankfurt, East Berlin felt under pressure and thus decided it needed its own Auschwitz trial. In response to what happened in the court rooms in Frankfurt in 1966, the SED politburo held a public show trial in East Berlin against a former Auschwitz SS physician Horst Fischer and sentenced him to death. He had been untouched until then, because the SED regime needed his skills and he turned out to be loyal to the communist regime. The main purpose of this trial was to send a strong signal to the world (not to its own citizens) that the SED regime was also willing to deal with the past for the sake of international recognition. Equally to Adenauer, the SED politburo was hoping for international recognition and subsequent UN membership.

Following these trials, a number of memorials were put in place in both East and West Germany, such as at camps in Bergen-Belsen (West), Dachau (West) or Buchenwald (East). The former Dachau concentration camp in Bavaria, for example, was inaugurated as a memorial only in 1965, based on the initiative of survivors. Although the Federal States usually supported these initiatives, local citizens did not always welcome such a memorial in their neighbourhood. Now that the crimes in concentration camps were named and categorised, thanks to the trials, such memorials reached a different acceptance among the general public because they were evidence of the past and used by the government to delegitimise the Nazi regime. Research and investigation into the past started to emerge slowly, in academia, but also in families and neighbourhoods. Nevertheless, in the West most memorials were established only at the initiative of survivors and victims and not state institutions, only later receiving governmental support and funding for maintenance. From the beginning on, the government did not own the TJ process; also, it was eager to control it both in the East and the West. Because unlike the case in dictatorial East Germany, memorials in West Germany were not created through a top-down approach, but almost exclusively bottom-up with later financial embracement by governments of the Federal States.

During the Frankfurt trials, citizen awareness and engagement became stronger and, not surprisingly, the government in Bonn reacted to it. The parliament passed a resolution urging all foreign countries that had evidence of Nazi atrocities to pass the documentation to the Ministry of Justice. The minister issued the office of the attorney general, Bauer, to facilitate bringing more charges against perpetrators in the future. The dam had broken and hundreds of claims swamped the offices of the attorney general and the government in the following years. As a consequence, in 1965 a range of documents, including witness reports and other evidence of war crimes, was sent to the Attorney General’s office and West German authorities from around the world. Documents that proved Nazi crimes came from the former occupied territories and beyond such as France, Belgium, Denmark, Yugoslavia, Greece, Luxembourg, the Netherlands, Norway, Austria, Poland, Czechoslovakia, the Soviet Union, the United States and Israel. The data provided insight into places where Jews, members of other minorities and political dissidents had been tortured and exterminated.Footnote ¹³¹ Some countries such as Italy, Romania and Hungary did not respond to the official request from Bonn due to their own involvement in war crimes or because their governments held them back for political reasons. The SED regime sent hardly any documentation to West Germany. This was not because East Berlin had no proof of Nazi crimes; in fact all main former Nazi ministries had been located in the then-occupied Soviet Sector in Berlin and thus most evidence about the details of mass murder and genocide was bunkered in archives in East Berlin or Moscow.Footnote ¹³² Rather, it was because the East German authorities were waiting for the ‘right’ moment when they could use these documents to discredit West Germany. Any moral obligation to hand over evidence about the fate of millions of murdered people was absent. For the dictatorial regime in the East, TJ measures were thankful tools to play out any political game that was possible at that time.

In 1966 and 1967 West Germany moved from the conservative Christian party to a coalition with the SPD. Interestingly enough, this was a coalition in which a former NSDAP member Kurt Kiesinger (as chancellor) and CDU and the former Nazi dissident and emigrant, Willy Brandt (as vice-chancellor), SPD, led the government from 1966 until 1969. In a way, this team was symbolic for the transition that had finally taken place. But for many, the transition was too slow and it was unbearable to see a former NSDAP member as chancellor. Student protests increased, and in 1968 Beate Klarsfeld, a French-German citizen who had dedicated her life to exposing Nazi perpetrators, slapped acting Chancellor Kiesinger in the face during a CDU party congress, screaming ‘Nazi, get out of office!’ (Nazi, tritt zurück!). Her action was highly controversial at the time, but made it into the international press and later in the history books because of its symbolic relevance for the changing attitudes among the new generation of post-war Germans.Footnote ¹³³

During these years of a political shift in government, the shift in TJ policies also took place. International cooperation in hunting Nazi criminals increased and the support from citizens in West Germany to deal with the past grew slowly. When the Nazi archives in East Berlin were finally opened in 1990 and more evidence came to light, many of the victimisers had already died and could no longer be tried. And it was not just East Germany that held back information for political reasons. West Germany also failed to hand over evidence to East Germany and Moscow, if trials against Nazi perpetrators were held in satellite states controlled by the Soviet Union. Only in the 1990s, after German reunification, did the United States and Soviet Union authorities also hand over some of the remaining documents and evidence to the German government.

Yet, in the mid and late 1960s the rise in free and voluntary citizen involvement in this period was fundamental for regime consolidation. One of the reasons for this rise was the insufficient way their governments had dealt with the past in previous years. Although it was still disputed whether West Germany should adopt laws to allow the prosecution of people for crimes against humanity (they never were), the Frankfurt Auschwitz trials showed the political and social necessity of holding perpetrators accountable. The attention given to the Auschwitz trials showed the willingness of citizens to learn more about what happened under Nazi rule. Additionally, these trials tested the independence of the judiciary. The trials are seen as a turning point in the development of the German judiciary and democracy, because they triggered a number of debates in the parliament in Bonn between lawyers and the public. The wider public recalled earlier writings by the German philosopher Karl Jaspers from 1946 on what he had called the necessary debate on ‘German collective guilt’ and how this guilt impacted the legitimacy and behaviour of the post-war democratic institutions and the judiciary.Footnote ¹³⁴ At the time Jaspers wrote about guilt and legitimacy, it did not receive much attention, but his work was republished in the 1960s, and received a large readership among the new generation.

The debate about responsibility, not only of the state towards victims, but also of citizens themselves, finally began in the 1960s and has continued ever since. This debate was reflected in the highly disputed book by Alexander and Margarethe Mitscherlich, Impossibility to Mourn (Unfähigkeit zu Trauern) in 1967, which illustrated the dilemma that many Germans still felt at that time over whether to reject personal ties to and responsibility for the atrocities altogether, or instead leave it to governmental institutions to deal with the claims. This difficulty in accepting collective responsibility was, in part, the result of trials, which by their very nature focus on individual and not collective responsibility. The new generation had to ‘learn’ and understand collective responsibility.

The Auschwitz trials of 1963 were only the first in a series of trials that prosecuted individuals who had been directly involved in the murders. One of the trials that followed the Frankfurt Auschwitz trials was the Treblinka trial, held at the District Court in Düsseldorf between 1964 and 1970. Eleven highly ranked SS officers were convicted and over 100 witnesses were heard. As a result, the general public came to realise the full extent of the crimes that had been perpetrated in occupied Poland. In the subsequent years, separate trials dealt with personnel from other concentration and extermination camps, including a trial between 1963 and 1965 on the camp in Bełżec, one in 1966 on the camp in Sobibor and later, from 1975 to 1981, a trial on the camp in Majdanek. These trials were more than just a means of convicting old and presumably no longer dangerous former prison guards; they were used by the wider public, the media and politicians to promote certain political agendas and standards for Germany’s political doctrines on domestic and international politics. Their main purpose was to legitimise and consolidate the new regime and show that a new and matured judiciary in West Germany followed the rule of law, which was a constitutional one.

And by 1965, 20 years after the war had ended and the time that the first post-war generation came onto the stage. Some of them radicalised in a right or left-wing direction that was often connected to the way the West German authorities dealt with the past. The media covered all the trials connected to the Nazi past, and these measures also entered into the cultural spheres of theatre, novels and cinema.Footnote ¹³⁵ Victim organisations and NGOs claimed their space. The Council of Protestant Churches in Germany, for example, one of the largest religious communities in the country, sent a letter to Adenauer in 1964, addressing both him and the German public with a statement on the importance of the Auschwitz trials for German democracy. According to the Council, the trials were the only way, besides other punitive measures, to get Germans to acknowledge, reconcile themselves with and recover from the past. After all, the Nazi terror had destroyed the solidarity and common ties among the people, which was only slowly restored.Footnote ¹³⁶ As Almond and Verba have repetitively emphasised in their assessment about the importance of political culture, these trials would not only affect legal regime consolidation that made them a turning point in German history, but also demonstrate how political and civic actors dealt with individual responsibility and brought perpetrators to justice.

With these citizen-driven trials taking off, another landmark stage of consolidation had been passed, which was indicated by the fact that all ‘sub regimes’, such as civil society, judiciary or media, within the regime were interacting and confronting a painful past without major censorship – albeit it still existed due to the restrictive laws that the West German parliament had passed earlier. But more and more, political parties, civil society and interest groups, political and societal elites, and the judiciary were all engaged in dealing with the past and citizens’ attitudes, opinions and behaviour were shaped by a respect for minorities that legitimised the new regime.Footnote ¹³⁷ The important role of diverse, diffuse and independent citizen groups and cultural activities, as highlighted by Merkel and Hans-Jürgen Puhle, can be seen during this period. The spiral effect of mutually interacting institutions, measures and actors continued slowly in an upward direction.

Further delegitimisation through public media and cultural events of the Nazi regime was taking place at full speed. In October 1965, Peter Weiss’ theatrical play The Inquiry (Die Ermittlung), which covered the controversies of the Auschwitz trials, became a success in East and West German theatres and somewhat surprisingly was performed widely on both sides of the Iron Curtain.Footnote ¹³⁸ And towards the end of the first round of Auschwitz trials in 1965, the West German parliament launched a debate about amending the statute of limitations (Verjährung) for murder and the 1953 compensation laws.Footnote ¹³⁹ These laws had already been amended in 1956 and 1960 in order to prosecute remaining perpetrators of war crimes and compensate victims of the Holocaust. The government had been responsive to requests in this regard, but no large-scale trials had been started, except in Ulm. Nevertheless, in 1965 the statute of limitations for murder was extended again after great public attention and pressure.Footnote ¹⁴⁰ It was not the last extension. Because of this, a new dimension of this debate was addressed by delegates from a younger generation who argued that prosecuting war crimes and mass murder would strengthen the rule of law in Germany, and thus also citizens’ trust in the judiciary. Furthermore, it would increase Germany’s credibility elsewhere in the world, which was a strong argument even for conservative minds.

Interestingly enough, references to international human rights norms, such as the UDHR and the ECHR, were used in parliamentary debates and among legal circles. The ECHR was one of the few international human rights documents with legal character in Germany at that time, a fact that convinced many lawyers of its utility. It encouraged national courts to prosecute individuals regardless of statutes of limitations, including the atrocities of the Nazi regimes.Footnote ¹⁴¹ Thus, the legal practice needed to reflect these provisions and abolish sooner or later the limitation of the law that allowed prosecuting mass murder. But in order to do that, one had to publicly recognise that the massacres happened during World War II qualified as such crimes.

Dealing with right-wing radicals continued throughout the second post-war decade and beyond. This fight had kept the government busy during the first decade, and now since the mid-1960s on top of that, leftist radicalisation began to emerge among the younger generation. One thing both left and right-wing groups had in common was their belief that the Nazi past had been dealt with in an inappropriate way. The Socialist German Student Union (Sozialistische Deutsche Studentenbund), which existed as early as 1946, started to remobilise and became more radical in the 1960s, with some financial and logistic support from East Germany. One of the Socialist German Student Union’s grounds for mobilisation and radicalisation was the presence of a number of former Nazi bureaucrats still holding power in high administrative positions in Bonn and in the judiciary despite the many trials. The group feared these and other former Nazis would lead to the ‘renazification’ of Germany, unless they were purged. After not getting sufficient response from government for their claims, they radicalised. It was this radicalisation that was a response to the many undealt pockets of Germany’s Nazi past and the response to the de facto amnesty laws from 1950 onwards.Footnote ¹⁴² Once the left-wing groups radicalised against the Nazis, there was automatically a movement on the right-wing side, vigorously defending the myth that Germans were the first and real victims of Hitler Germany.

The SPD distanced itself from the left-wing radical students’ movement, which went on to become even more radical and violent in its claims and later actions. The movement turned into a leading radical leftist opposition group, calling itself the Extra-Parliamentary Opposition (Außerparlamentarische Opposition, APO), because they felt that the presence of former Nazi members in parliament prevented the legislative branch from responding sufficiently to their claims. The democratic system in West Germany was, in their view, not democratic at all, but far too infiltrated with Nazis and their legacy. Some members of the radical movements later supported terror attacks against politicians and economic elites. In this way, an unconsolidated pocket of democracy emerged in West Germany: the left-wing terror groups, who with their terror acts submerged and weakened the consolidation process. They were formed by radical claims and fears of Nazi infiltration and re-emergence of a new totalitarian Nazi state. One branch emerged later into the terror group called the Red Army Faction (RAF). Its members, among them not but a few intellectuals, were held responsible for various killings of the political and economic elite in Germany until the 1970s and became West Germany’s major unconsolidated pocket since the war. The West German parliament responded by limiting certain human rights in order to combat these groups. Parliament restricted freedom of expression and association and labour rights for those who were allegedly members or supporters of mainly left-wing radical groups. These acts led to a parliamentarian justification for the restriction of fundamental rights and to the concept of ‘militant democracy’ (wehrhafte Demokratie). Freedom of expression, movements and work were limited and the government claimed that with this response it was ‘militant’ enough to combat terrorism. Interestingly enough, this concept had initially been created to defend the fragile German democracy against former Nazis and their resurgence in the 1950s, but was much more forcefully applied against the left-wing radical groups.

Meanwhile, West Germany strengthened its ties with the Allies. The Élysée Treaty between France and West Germany in 1963 institutionalised regular meetings between the Ministries of Foreign Affairs, Defence and Education, which led to a number of reconciliation programmes for both countries’ future generations. This is an example of using TJ in the foreign policy arena. In the years that followed, many more activities in the area of TJ were initiated, mainly targeting the youth and young elite to rebuild mutual trust on all levels among Germany’s neighbouring and once-occupied countries. Restoring trust between Paris and Bonn was the main motivation behind these measures. But remorse and a sense of moral duty grew slowly among the two countries. It was only in 1988 that a Franco-German Council took place that established regular meetings and consultations.

In addition to left-wing radicalisation, right-wing parties continued to pose a threat to democratic development as well. The West German parliament asked the Minister of the Interior to list all movements, groups or NGOs that could qualify as ‘right wing’ in order to have an overview of citizen movements that could threaten the stability of the still-fragile democracy. Such citizen movements had been a topic of parliamentary debate as early as 1961 and the lawmakers wished to know which NGOs could be a serious threat to democracy and how to pass new regulations condemning right-wing initiatives.Footnote ¹⁴³

Despite these motivations, the fact that more sympathisers with the Nazi regime than with leftist movements were in positions of power, meant that restrictions were applied more often to left-wing movements than right-wing ones. Not surprisingly, by 1967 67 per cent of Germans again asked for a Schlußtrich and sought to leave the Nazi past behind and in 1968 the West German parliament passed emergency laws (Notstandsgesetze) that limited the fundamental freedoms of members of communist, socialist or other radical left-wing groups. Such laws were never passed for Nazi supporters. Instead these laws led to a number of imprisonments of left-wing public protesters.Footnote ¹⁴⁴

At the same time as these shifts and debates in West Germany society, Germans who lived abroad continued to face hostility in the host countries. These political and social hostilities were often based on the host countries such as the Netherlands, France or Belgium’s inability to come to terms with its own past and involvement in war crimes or inhumane behaviour during World War II. Instead, whenever anti-Semitism arose in France, Belgium, the Netherlands or Switzerland, locals were convinced that it ‘had to be the Germans’ who had done it. There was a strong sense in these countries that only Germans could be anti-Semitic and violate human rights. This led to an atmosphere that even impacted business, foreign policy and political ties between Germany and its European partners. West German ambassadors abroad were alert to these anti-German sentiments and many of them reported back to the West German Foreign Ministry that many European countries saw Germans as easy scapegoats that impacted all aspects of trans-national relationships. In their view, this was because the French, Dutch or Belgians themselves were even more reluctant than the Germans to come to terms with their Nazi past as collaborators, and as such with their own history of anti-Semitism.Footnote ¹⁴⁵

In response to this trend, the West German Foreign Ministry wrote a 20-page document explaining what German embassies and consulates should do to respond to anti-German propaganda. It mainly urged the embassies to better explain and illustrate how West Germany had developed itself since 1945 and the efforts that had been undertaken to deal with its past. At the same time, with the support of the Marshall Fund, the West German government tried to encourage more democratic awareness programmes within its own country. This constituted the West German two-part regime consolidation strategy at that time; one part was directed at Germany’s external relations and the other was inward looking. The main concern at that time was that the democratic achievements of post-war Germany were not sufficiently understood both outside and inside the country and hence some extra efforts needed to be undertaken.Footnote ¹⁴⁶

Meanwhile, in East Berlin the SED regime’s democratic shortcomings in not allowing free elections, controlling business and preventing free public participation and civil society were directly linked to its one-party dictatorial structure. The second decade would show whether the seeds planted in 1949 would slowly grow to become effective. On both sides of the Iron Curtain consolidation continued in a different direction in East Berlin and the government tightened control over its citizens after the building of the Wall in 1961. The SED regime failed to acknowledge the shortcomings of a one-party ‘democracy’ in terms of pluralism, transparency or accountability but firmly believed it would succeed, even though many citizens had already fled to West Germany for economic and political reasons. By 1961 around three million East Germans, 15 per cent of the population, had already fled. The SED government reacted swiftly to this mass migration by building the Wall in East Berlin in August 1961, which marked the end of any democratic attempts in East Germany, because it de facto ‘imprisoned’ its own citizens. From then on, surveillance, suppression and restrictions were a daily practice. It was impossible for citizens to reflect self-critically on their past, which was particularly troubling since a new post-war generation had emerged in East Germany as well, asking their parents’ generation ‘what did you do during the war?’ But no public debate was allowed that went beyond the official doctrine that Nazis were evil and communists good.

With the Wall in place, the SED regime dramatically lost legitimacy. In order to hold power, the SED regime had to ‘imprison’ its people behind a 1,400 km-long fence in order to stabilise the regime. The Iron Curtain was drawn immediately and the division between the two Germanys was complete, at least for the time being.Footnote ¹⁴⁷

Consequently TJ priorities shifted as the Cold War reached new heights and a new generation entered the political arena. The focus turned from representative and institutional consolidation to a more value-orientated and attitudinal one in which people needed to adhere to common principles and believe in the democratic regime and not just to follow its new rules. In West Germany, this meant a shift from legal obligations to more rule-of-law practice by conviction, while in East Germany party doctrine played a larger role than ever and democratic principles became irrelevant. Although the pursuit for moral responsibility towards the past slowly arose because, for the post-war generation, an ethical and moral approach to the past was the only option, on both sides, the only place where people could express their moral concerns freely about the past was in West Germany. The ‘social capital’, the basis for civic trust based on reciprocity and civil engagement, as Robert Putnam phrased it, developed mainly in the west of Germany.Footnote ¹⁴⁸

It was still the case under the chancellorship of Adenauer, which lasted until 1963, during which he commissioned a study on whether European countries would once again be able to trust West German democracy. Moreover, this study investigated to what extent a shift had taken place in how history was taught in the German education system. The study focused on the extent to which former Nazi officials had been reintegrated into official positions without being vetted. The cases of former Nazi officers and bureaucrats such as Hans Globke, Theodor Oberländer and Gerhard Schröder were well known abroad and raised questions.Footnote ¹⁴⁹ The trust, or lack therefore, that other countries had in West Germany was a serious matter that impacted Germany’s aim to fully integrate into international organisations, such as the UN and Council of Europe. As mentioned above, because of this in 1960 the diplomatic service and the Ministry of Foreign Affairs urged its government to take the initiative, because the reputation of Germans and Germany continued to be very negative abroad. There was a lack of trust in German institutions due to the fact that people such as Globke and Oberländer were highly ranked officials in executive offices. And this distrust would not only affect politics but also business, so they feared. Adenauer kept responding by claiming that it was necessary to increase foreign awareness programmes highlighting the achievements of German democracy since 1949.Footnote ¹⁵⁰

Indeed and despite all efforts, it took decades before the rest of Europe started to come to terms with its own anti-Semitic and fascist past, and consequently made its peace with Germany. For the time being, it was convenient to place the blame on Germans for more than just a generation after the war. The constant blame also led to another negative effect, namely the cultivation of collective guilt among German citizens. Interestingly enough, this feeling of guilt was particularly strong among those who were born after the war. In particular the younger generation started to believe that they and their parents’ generations were the only ones who were responsible for the persecutions and atrocities during World War II and that subsequently Germans and Germany would need to take all the blame for the war and the crimes committed. But this was not what the philosopher Karl Jaspers had meant with his definition of ‘guilt’ (Die Schuldfrage) in 1946. He even denied the possibility of collective German guilt, arguing that because there is no collective morality there cannot be collective guilt. Guilt can only be individual and depends on the intentions of the perpetrator and individual responsibility as defined by means of trials. Thus what he had asked for in 1946 was bottom-up initiated trials against perpetrators as they eventually took place in Ulm in 1958 and in Frankfurt in 1963, but not collective guilt. Jaspers had been one of the most enthusiastic and optimistic observers of the Nuremberg trials in 1945 and 1946 when he published his book. It was the first intellectual reflection on the Holocaust and Nazi terror. He emphasised that Germans had to become aware of the fact that they all shared and carried individual guilt, if they had not opposed the regime, albeit to very different extents: some had moral guilt, while others had criminal guilt.Footnote ¹⁵¹ However, despite the author’s attempts not to be misinterpreted, the idea of collective German guilt had already taken hold in the collective consciousness and resulted soon in the concept of ‘German guilt’, which remained a solid paraphrase for decades.Footnote ¹⁵² This collective guilt positioned others as collective beneficiaries of this guilt. It also filtered through, for example, into the official German state doctrine to have specific state and thus collective responsibilities towards the state of Israel, for example.

More than 20 years after the transition, societal perceptions had changed and what Adenauer had officially called ‘Allied loyalty’ was seen now as treason to many Germans who suffered from the catharsis of the war. As Wolfgang Zapf and Dankwart Rustow have noted, it was at this time, thanks to a new generation, that rules (such as the constitutions of 1949) and practices (such as trials and TJ measures in the 1950s) became habitualised in citizen and elite norms, indicating that the regime had been consolidated.Footnote ¹⁵³ The trials, memorials and public dialogues in the 1960s was evidence of this development. Rustow has always argued that one generation is the minimum period necessary for transition to take place,Footnote ¹⁵⁴ a position supported by observations made by Merkel, Puhle, Almond, Verba, Juan Linz and Alfred Stepan. But this generation needs to be educated in this post-authoritarian and pro-democratic spirit, otherwise it won’t take ownership of democratic values. We can see an example of how the new post-war generation contributes to regime consolidation in the public reaction to anti-Semitic acts in the 1960s. It was not only government authorities that reacted but also thousands of citizens who gathered on the streets of West Berlin, Bonn and Freiburg to protest against re-emerging anti-Semitism throughout the 1960s and this growing civil society marked a turning point in West German political culture. Political education started to receive more public funds and public exhibitions as part of TJ policies on ‘coming to terms with the past’ (Vergangenheitsbewältigung) were state-sponsored. Under the slogan ‘unatoned Nazi justice’ (ungesühnte Nazijustiz) many were finally able to debate who was held responsibility for the atrocities. The media reported this widely.Footnote ¹⁵⁵ This was the decade when the media became heavily involved in TJ. Der Spiegel, one of the main West German political magazines, came to see it as its responsibility to initiate debates about World War II every so often, and has done so until the present day.

Manfred Kirchheimer, a Jewish-German constitutional lawyer who had immigrated to the United States in 1937 and who retained great influence in the legal discourse in Germany, published in 1961 a major work (first in English and later in German) on political justice in Germany. He highlighted that throughout history, victor’s justice is often political justice. Kirchheimer argued that this was the case for the Nuremberg trials as well. He saw the trials as an effort by the Allied powers to legitimise their power and their occupation of defeated Germany, without paying much attention to the legitimisation of the new German institutions. Nevertheless, he also emphasised that the trials had a strong preventive character too as they aimed to avoid future atrocities and war crimes and made people aware that whoever commits such crimes will not remain unpunished.Footnote ¹⁵⁶ His works were heavily cited in the 1960s and are considered to be one of the first in-depth analyses of the impact that TJ measures can have in a post-war or conflict-ridden society in positive or negative ways. He was part of what was called the Frankfurter School, a group of left-wing intellectuals and professors, formerly based at the University of Frankfurt, a university that employed many intellectuals and professors that had emigrated to the United States after 1933 and later returned to Germany. After returning to the University of Frankfurt in 1950, members of the Frankfurter School such as Theodor Adorno, Max Horckheimer and their scholars such as Jürgen Habermas (a member of the new post-war generation) analysed the impact the Nazi legacy of terror and the Holocaust had on societal behaviour and democratisation in West Germany. Their interest was in how TJ legitimised the new regime. One of their main arguments was that the Nazi regime had eliminated the role of the individual subject in society. Both victims and perpetrators were turned into objects and willing bystanders that served a higher purpose, which eventually led to one of the worst mass killings and atrocities in human history. Individual trials and responsibility, and thus accountability, could nevertheless break that vicious circle of mistrust and vengeance. This anti-democratic mentality had to be overcome by the new democratic practice. With their publications and radio broadcasts, the members of the School greatly influenced the (left-wing) student movements and protests against the conservative politics of the 1960s.

But Karl Jaspers continued to express his great concern and disappointment about the slow democratic developments in post-war Germany when he republished his book in 1962. He confessed that he had hoped that the Nuremberg trials would educate the Germans and strengthen their trust in the rule of law and democracy, but this had not happened. In his view, this failure was due to the fact that the Allied judges, while following correct legal procedures, missed the opportunity to issue justice on all sides. As Gibson has explained, such failures to issue justice arise frequently in TJ processes around the world. In Jaspers’ assessment, the Nuremburg trials were a window of opportunity for increasing trust in the rule of law and democracy, since it was the time when the national catharsis and anxiety among Germans was higher than it had ever been before or would be thereafter. Unfortunately, Jaspers claimed, this window of opportunity had been squandered. He argued in line with what Keith Lowe has called ‘missed opportunities’.Footnote ¹⁵⁷ It was a mistake not to charge those in the Allied forces who committed acts of revenge against Germans. Even though the quantity and consequences of Allied crimes were not equal in the magnitude to those of the Nazis, they were war crimes that deserved punishment. If the Allies had tried all war criminals equally, regardless of their country or army of origin, it would have set a strong moral precedent and re-established Germans’ trust in law and justice.Footnote ¹⁵⁸ The failure of the Allies to do so meant that an opportunity was missed to use the trials to legitimise the new rule-of-law abiding regime.

Hence, 20 years after the trials, Jaspers believed that the biased character of the Nuremberg trials was one of the root causes of the lack of trust in the judiciary. The reality was that for reasons of ‘peaceful reintegration’ and due to the de facto amnesty laws from 1950 onwards, far too many Nazi sympathisers were still holding high positions in West Germany. An official open-ended vetting or lustration policy did not exist at this time and there was never a systematic screening of ministers or other public servants to see whether and to what extent they had been involved in war crimes or other atrocities of the past. Yet, an indirect vetting procedure was conducted through the propagandist politics of East Germany. One of the most prominent examples is the Minister for Refugees and Displaced People, Theodor Oberländer (mentioned earlier), who had taken his office as a form of ‘compensation’ and appeasement towards former powerful Nazi members. He was known to the Allies and was often controversial. Although Oberländer had been involved in mass executions of Jewish civilians during the war, he nevertheless remained a West German minister for over ten years. In 1960 the SED regime in East Berlin conducted a show trial against Oberländer (in his absence) and convicted him to death (in East Germany the death penalty was still used). Although the evidence against him was dubious, since the documents remained only in the hands of the SED politburo, the trial resulted in a push from the West German public for holding Oberländer to account. The public pressure was so strong that he resigned from office. Thus, even in the absence of an official West German vetting procedure, this East Berlin show trial led to Oberländer’s resignation, which showed the power public pressure started to have on political change, at least to some extent, and only 20 years after the war. Once again, a TJ measure, although rather dubious in kind, was responsible for the removal of perpetrators from high-ranking political offices. Because the East German ruling had no authority in West Germany, the trial did not prevent Oberländer from being a parliamentary delegate from 1963 to 1965. This case illustrates on the one side the failure of the West German judiciary to prosecute war crimes, but it also marked the beginnings of citizen-driven claims for more TJ and more democracy.

In the years that followed, many debated whether regime change and democracy are affected by how political elites and society deal with the past. The issue of reparations was a recurrent issue on the political agenda. In 1968, serious, long-lasting debates on reforms to the 1946 Allied Laws took place in parliament, which resulted in granting more reparations and in the revision of the original law (Lastenausgleichsgesetz). This debate would have had different results in the 1950s and was a sign of consolidation.

By the time the decade came to an end in 1969, the parliamentary delegate Walter Scheel, who later became president of West Germany, noted how crucial it was for the government to respond in an adequate and non-violent way to the left-wing student protests. These protests raised – among others – questions about the past involvement of members of the government in the war, as the case of Oberländer had previously illustrated. It had to be taken seriously in order to increase trust in the new democracy, and Scheel criticised the parliament’s restrictive and anti-democratic reaction to the student protests. Yet in response to him, many conservative parliamentarians (many of them former members of NSDAP) doubted that the students’ concerns were authentic and suspected that they were supported and paid for by the SED regime and its secret service; a fear that was only partly proven true after the Stasi files were opened in 1990.Footnote ¹⁵⁹ Both the shadows of anti-Semitism and communism were widely feared by the West German public.

The influence of Cold War propaganda was always considered when gauging the effect of TJ measures and democratic performance. Yet the propaganda was a double-edged sword. Permanent competition between the two regimes triggered West Germany to compete to be the ‘better democracy’ and seek international recognition and acceptance into major international organisations, especially the UN. However, at the same time, conservative parliamentarians’ constant mistrust of left-wing movements and vice versa hampered an open dialogue with the left-wing youth organisations. The TJ process in West Germany at that time was thus trapped in a tangled web of domestic efforts to strengthen democratic institutions, to receive international recognition, and to deal with the ‘internal rivalry’ between the West and East German governments.

Moreover, within West Germany there was a continuous competition between different groups of victims that had started immediately after the end of the war. At the beginning, for Germans it had been evident that they themselves were the most important victims of all. First they were seduced and betrayed by Hitler and later they lost half of the Reich’s territory, as well as property and lives in abundance. Thus, the idea that ‘others’ were also victims of the Nazi regimes was only shared by a small group of people and predominantly those who had survived concentration camps. Public memorials initiated by ‘other’ mainly Jewish victim groups, commemorating the millions exterminated by the Nazis, were seen as ‘competing’ with the commemoration of the millions of dead German citizens, as well as with the million refugees and displaced persons and with those whose family members had perished during combat. There was a clear ‘hierarchy of victimhood’ and German victims – not even German Jews –were placed at the top by the government. In response to this, the West German government officially avoided public apologies towards the other types of victims since acknowledging past injustice with an apology could have led to more claims from more victims organisations, such as Jewish NGOs, slave labour forces or Sinti and Roma or from family members of the victims of the Nazi euthanasia programme. All of them raised their claims later in time, but in the 1960s their voices only started to be heard. But the bottom-up approach to TJ had already started and needed to be either embraced by the government in order not to lose credibility and trust, or suppressed – as in the East.

In 1969 both the new chancellor, Willy Brandt, and his now vice-chancellor, Walter Scheel, emphasised in parliament that democracy needed to live up to its ideals and not only be acknowledged on paper. In dealing with questions about the past from the younger generation, Scheel and his government generated new debates about restitution, in order to strengthen West Germany’s democratic culture. It was such a top-down approach to respond to victims’ claims that triggered more civic and also legal and political engagement of various actors and thus fuelled the upward spiral of consolidation.

A mix of TJ measure such as trials, compensations and memorials created a ‘historical and moral balance’ at that time, which paved the way to more democratic behaviour by acknowledging victims on all sides and thus avoiding major citizen resistance towards the new regime.Footnote ¹⁶⁰ While the issue of who should be considered a ‘real’ victim remained, the category of victimhood rapidly expanded during this second decade.

The hesitant and insecure attitude towards TJ changed when the country became economically stable and when compensation payments were no longer seen as a threat to the economic prosperity. Germans did not generally feel that the billions of marks paid in compensation prevented them from sending their children to school or led to low-quality public infrastructure. Thanks to the economic growth, many TJ measures could be issued and thus contribute somewhat to the upward spiral effect after 20 years and more.

Meanwhile, since the SED had erected the Wall in East Berlin in 1961, it was not only a manifestation of two separate Germanys and ideologies, but also an indication that the two Germanys would deal separately with their common Nazi past. In East Germany, the government continued to respond only to the Soviet Union’s claims for reparation, based on the argument that Nazi Germany had killed more Soviets than any other civilians anywhere during the war. That was de facto true. TJ measures in East Germany were centrally organised by the state and/or central party for their own interest and use. If any other TJ measures arose, these were suppressed. When TJ claims were citizen-driven, they were considered hostile and they were believed to have been instigated by the ‘Nazi regime’ in West Germany.Footnote ¹⁶¹ In contrast, West Germany was pushed by international as well as growing bottom-up pressure to take full responsibility for all crimes committed during the Nazi regime and World War II. This meant that the West German government had to respond to a much wider spectrum of claims and victims than the SED leadership did. An exclusionary, top-down TJ approach, such as that seen by East Berlin’s politburo was difficult in the west, due to growing civic engagement and claims. In contrast to the dictatorship in the east, Bonn had to deal with the concerns of all and could not just imprison or expel those considered undesirable – a policy frequently applied by East Germany. Yet, West Germany could not respond to all demands for TJ measures at the same time and was thus forced to set priorities. Plus, democratic elections were often the only way of indirect TJ, because election campaigns brought up debates about the past of candidates. The very different ways the two German governments responded to citizen claims for TJ measures illustrated the type of political regime they aimed to be. The one only responded to claims from one particular group while the other to more diverse types of claims for reparations and justice.Footnote ¹⁶² Despite the fact that both sides used the narrative of past for power games whenever it suited them, the key difference is that Bonn did not entirely ignore victims’ and citizens’ claims, while the SED regime in East Germany did. This was one of many indications that the regime in East Germany was making an authoritarian turn. Hegemonic regimes such as the SED one, as Steven Levitzky and Lucan Way phrase it, use the status of democracy as a facade, while in practice concentrating power in the hands of the few and exerting control over all judicial or political processes and CSO movements in the country.Footnote ¹⁶³

But despite all these changes and shifts in TJ policies, two decades after the war there was still no shared narrative and no common sense of responsibility towards the past, let alone any common German identity between the east and the west.Footnote ¹⁶⁴ This was in part due to, and maintained by, the fact that public debates and school curricula in East and West Germany contained different narratives of the past. Thus, even if West German politicians had wanted to put massacres against Soviet citizens during the war on the political agenda, this would have been played down in schoolbooks for reasons of Cold War politics. This was also true for East Germany, which rejected responsibility for the Holocaust because according to official SED doctrine, all surviving Nazi perpetrators were either located in the west or had been successfully tried in the political trials in Waldheim, Leipzig or Torgau, which implied that there was no need to deal with the Holocaust or claims from Israeli citizens. According to the official version of history, all crimes of the past had been atoned. The SED regime grounded its narrative of the past on the liberation of the country by the Soviets, and thus on the anti-fascism doctrine of which the Berlin Wall was more than a symbol. At the same time, the new regime needed to produce new enemies in order to ensure that their propaganda against West Germany remained alive and believable.Footnote ¹⁶⁵ But even the most authoritarian regime, as the SED regime was, sought legitimacy and needed its citizens for this. The only way the politburo could garnish legitimacy was through propaganda, including massive public events and ceremonies at memorials and memorial days. Without this propaganda that is intrinsic to any authoritarian regime, citizens would increasingly drift away from socialist doctrine.

Ironically enough, the SED’s Cold War game of naming and shaming West German public figures for their Nazi past unintentionally promoted consolidation of West Germany. The fear that one’s own past could be ‘discovered’ and revealed by files carefully guarded in the hands of the SED leadership, kept many old elites from returning back into power and corrupting governmental policy and weakening democratic institutions in the west. As the Oberländer case illustrates, these East German efforts to discredit West Germany could actually work in West Germany’s favour.

Thanks to East Germany’s sleepless propaganda machinery that put pressure on West Germany and the rise of a new (more liberal and fearless) generation in West Germany, regime consolidation and TJ claims mutually reinforced each other in spiral ways in West Germany. Throughout the 1960s, the West German parliament revisited the highly controversial 1953 compensation laws regarding Israel and broadened the spectrum of TJ measures. It also revised many laws, including those concerning mass murder, and purged more and more former NSDAP members from high-level political positions. It became more evident that there were cumulative causalities and correlations between the behaviour of parliament and the executive on the one hand, and TJ measures on the other. This is one of many examples that illustrate Gerardo Munck and Jay Verkuilen’s theory of cumulative causalities during regime change.Footnote ¹⁶⁶ Claims for restitution by victims, trials and the emergence of memorials triggered even more claims, and thus also responses from the executive, judicial and legislative powers. Yet there was the continuous fear that too many restitution claims or too many trials would weaken democratic institutions and increase unrest among citizens, thus having the negative spiral effect Rustow predicted.Footnote ¹⁶⁷

Setbacks were a common part of the consolidation process on both sides of the Iron Curtain and the spiral went up and down and was never linear as shown in Figure 2.1. For example, in 1966 the West German Ministry of Finance refused further claims from Jewish victims organisations in the United States because the 1956 reparation law (Bundesentschädigungsgesetz) and the 1957 restitution law (Bundesrückerstattungsgesetz) had already cost the West German state five times as much as they had anticipated when the first agreement had been reached in 1952. But by then only 15 per cent of all victim claims had been dealt with and many remained open and thus new measures needed to be installed. Instead of the estimated three or four billion marks, the expenses rose to around 20 billion marks (approximately 10 billion euros) for retirement benefits of survivors of concentration camps, in only one decade. This sum did not include the over 450 million marks (approximately 220 million euros) that West Germany had paid to the Jewish Conference for Material Claims against Germany (Härtefond für jüdische Verfolgte). This money was tax money and it was only because of the country’s economic growth that West German citizens were able to accept the fact that they had been paying for Nazi war crimes for so long. Many Germans felt they had already paid the price for the Nazi regime with their lives, bodies, homes and territory or by having survived the Soviet gulags. They were not convinced that they should have to keep paying compensation to others.Footnote ¹⁶⁸ But the government continued paying reparations for tactical political reasons mostly. Officially, the reparation payments to Jewish victims were classified as development aid and, ironically enough, most of it was given to Israel in the form of arms and weapons. At the same time Adenauer feared that if victim organisations gained more compensation, the right-wing parties in Germany (including his own conservative party, of which many were former NSDAP members) would seize the moment to revitalise German nationalism on the back of anti-Semitism. Thus the balancing of TJ with regime consolidation was a daily challenge for him and his successor administration and is in general a common element in consolidation processes, as Philipp Schmitter has noted.Footnote ¹⁶⁹ If the Right had opposed Adenauer’s policy, it would have been the end of the German democratic experiment as the many claims and pressures from abroad would have increased the number of radical and anti-democratic supporters. Thus, the Minister of Internal Affairs asked once more for a ‘Schlußstrich’, a final instalment of compensation. However, that final instalment never came. In a letter from 1966, the Minister’s office referred to the fact that many right-wing parties had already benefited far too much from the public debate about restitution. In his opinion, right-wing parties had gained a disproportionate number of seats in the Federal States’ parliaments due to the victim claims for more restitution, which was not shared among the public for the reasons given above. The Minister’s office also mentioned that victim organisations, such as the German branch of the Central Jewish Council, ought to understand the sensitivity of this matter and should no longer expect an increase in money, because it would only play into the hands of those who oppose the new democratic regime. Still, regardless of the political situation in Germany, victim groups based abroad annually increased their demands, endangering West Germany’s ability to pay any restitution at all in the future.Footnote ¹⁷⁰ Interestingly enough, the representatives of the West German claims’ commissions understood Adenauer’s fears and refrained from bringing more claims until the elections had passed.

For survivors of the Nazi regime who lived in Soviet-controlled and occupied countries, compensations by the West German government were impossible to reach. If, for example, forced labour requested (rightful) compensation from West Germany, the Soviet governments would have considered them traitors and collaborators with the West German regime. It was better for these victims, of which there were thousands, to remain silent until 1990 because after the end of the war and upon their return to the Soviet Union, many of them had been branded as German collaborators for the simple fact that they were forced to work for Germans. Despite having survived Nazi terror, they were seen as Nazi collaborators because they survived. Sadly enough, because of this, the Soviet military deported many of these victims to Siberian gulags shortly after their return to the Soviet Union and thus victimised them again.Footnote ¹⁷¹

For some time in West Germany, citizens were rather sceptical towards radical democratic shifts and coalitions between social democrats and conservatives. Eventually, Willy Brandt (SPD) became chancellor in 1969 and, along with him, the first post-war generation of political elites entered into administrative, judicial and political positions, changing institutional performance. Brandt aimed for a change in political behaviour and agenda setting concerning the past and thus TJ. The CDU’s long, previous hold on power had become a reason for international and domestic advisers to doubt the development of Germany’s political culture. To further the consolidation of democracy, it would have been better to have more frequent power shifts. Brandt’s succession was seen as a test of democracy and many people wondered whether his government could calm the student demonstrations and the radical movements that had arisen on both the left and right side of the political spectrum. Yet consensual democracy had its advantages, too. After some years of an unsuccessful coalition, parliamentarian debates became more civilised and the two opposing parties started to listen to each other.

At first, the left-wing student protests continued, even becoming stronger towards the end of the 1960s. They reflected a varied set of interests, including anti-Vietnam War sentiments, pro-communist sympathies but also the fear that too many Nazis would regain power in Germany. Some thought that it would only be a matter of time until the last Nazi officers would retire or die, but others raised the concern that much of their ideology and anti-democratic thinking was already transferring to the next generation, becoming a serious threat to democratic consolidation. The most prominent of these sceptical minds in West Germany was Ralf Dahrendorf, a liberal intellectual and politician who later became a leading academic in Oxford. He publicly raised his serious concerns about the anti-democratic culture in Germany that was, in his view, due to the Nazis still being in powerful positions. He also expressed concerns that this anti-democratic culture would provoke radical left-wing responses including terror, death and murder.Footnote ¹⁷²

Because of these fears of Nazi ideology still influencing German culture, violent opposition groups gathered towards the end of the 1960s and a smaller group of journalists and intellectuals formed the radical terror group, RAF. For decades to come, the RAF became a serious unconsolidated pocket in German democracy and consolidation process because of its violence. The RAF believed that because the Nazi regime had not been fully delegitimised, there would be a revitalisation of the old Nazi elites and the creation of another authoritarian right-wing neo-Nazi state. Furthermore, they assumed that democratic means alone could not stop the revitalisation of the Nazi regime, as Kiesinger’s chancellorship had proven. Therefore they saw no other way out than turning to violence and underground guerrilla actions. The authorities in West Germany reacted not only with massive policing, but also in a rather radical and undemocratic way too. Overwhelmed by the threat from the left-wing movement, which the government believed was entirely controlled by East Germany and the Soviet powers, parliament passed the 1968 Emergency Act (Notstandsgesetz). According to this Act, the Federal States were permitted to capture and imprison left-wing suspects without fair trials. In theory this law also applied to right-wing activists, but in practice it proved only to be used to target leftist movements. This law was widely condemned as unconstitutional, anti-democratic and a traditionally autocratic way to respond to citizens’ demands for more democracy. These measures were a logical consequence of the militant democracy Germany adhered to.Footnote ¹⁷³ The Emergency Act marked the beginning of a 15-year period of an unconsolidated pocket in West German democracy, triggered by the failure to fully delegitimise the Nazi regime in the years before. In response to this, the RAF reacted with terror attacks on parliamentarians, judges, businesspeople and whoever was seen to represent in some way the old Nazi regime. The government used these threats to justify limiting the freedom of assembly and demonstration, as well as to intervene by force if they thought peace was threatened.

The western Allied forces, in particular the United States, did not intervene at that time, although this law reminded many observers of the former Enabling Act (Ermächtigungsgesetz) that Hitler had installed in 1933, which gave the NSDAP a free hand in prosecuting, imprisoning and charging whomever the Nazis felt opposed them. This comparison fuelled fear in those who saw old nationalist movements regaining power over the country. It was only after German reunification in the 1990s when the East German secret service files were made public that it was proven that the RAF had acted for the most part independently, apart from some financial and logistic support from East Berlin. Although the SED did not create the RAF, it saw the radical group as a welcome ‘ally’ in their fight against the Bonn regime.

After the Berlin Wall was erected, the East German government soon started to see a strategic advantage in becoming a member of international human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR) or the International Covenant on Economic, Social and Cultural Rights (ICESCR). However, East Germany never planned to implement these treaties in institutional policies or let them have any impact on criminal codes.Footnote ¹⁷⁴ East Germany held the belief that TJ was only useful in so far as it furthered the ‘socialist fight’ against anyone who seemed to threaten the socialist project. This was exemplified by SED political and administrative elites’ view that only communist victims of fascism should be recognised as victims of human rights abuses or as political prisoners. Only those communists who had fought against the Nazi regime were considered freedom fighters and everyone else was seen as an enemy of the regime.Footnote ¹⁷⁵ In this way, the communist regime in the east ignored its own political human rights abuses and its thousands of political prisoners. This tactic did not work in the long run.

Nevertheless, in the mid-1960s the SED regime was already fearful of losing more ground to the west.Footnote ¹⁷⁶ This fear was due to the large number of East German citizens that preferred the political system in West Germany to that in East Germany. Government-controlled opinion polls from 1965 and the following years showed citizens in East Germany complaining about the lack of freedom and democracy under SED rule. Over 22 per cent of all responses emphasised the fact that freedom of expression should be better respected. Those who dared to argue that true democracy could only be realised in West Germany suffered repercussions for saying so. Eventually, towards the end of the 1960s the SED could no longer hide its power deficit. Their citizens wished to have real choices between the candidates in elections. The fact that these elections were staged was not mentioned in the official interpretation of the survey.Footnote ¹⁷⁷ At the same time, a growing number of citizens in West Germany supported the democratic regime and over 50 per cent agreed that the Nazi regime had been an illegitimate and unjust regime (Verbrecherregime).Footnote ¹⁷⁸ These two different tendencies in the east and west illustrate the two diverging spirals towards democratic consolidation in West Germany and towards autocratic consolidation in East Germany, as well as showing the links between the selective and exclusive abuse of TJ measures and the subsequent downward spiral making the regime more of a surveillance one, based on strong propaganda policies that instrumentalised the Nazi past for its own political ideology and power.

In 1968, around the time of West Germany’s abolition of the Hallstein Doctrine, another Soviet satellite state, Poland, submitted a draft resolution to the UN Human Rights Commissions targeting West Germany’s many half-hearted TJ efforts. But Poland wanted to make West Germany’s UN membership conditional on West Germany’s payment of more reparations to eastern European victims of war crimes and crimes against humanity.Footnote ¹⁷⁹ Poland emphasised that the reparations must be paid to the communist states rather than to the individuals themselves. But West Germany had already decided in 1952 that compensation to individual victims instead of states was the preferred policy when it came to reparations. This was more then a propagandistic game, it was a policy statement on how to atone and reckon with the past. Collective payments would neither place the individual as victim nor as perpetrator in the centre of TJ.

But Poland also made this demand because it realised that it had to prevent Eastern bloc citizens from having direct contact with West German authorities and individuals. If their own citizens (among which there had been many victims of Nazi terror) were to have direct contact with the former ‘enemy’, so that West Germany could distribute benefits and financial compensation to the victims personally, the idea of the atrocious and hostile German Nazi would vanish and could undermine the totalitarian communist regimes. Although the West German government in 1968 was not the same from 1933 or 1945, even so that was the picture that Eastern European propaganda was drawing. Full reconciliation between Eastern bloc citizens and former perpetrators had to be avoided. Moreover, individual compensation entailed a risk that citizens would compare West German compensation to that of their own state. They would ask why the ‘enemy state of West Germany’ redresses its atrocious past through compensation funds, when ‘my brother and friend, the Soviet Union’, who also committed horrendous war crimes, never even mentions it? This would have eroded the strict narrative of the ‘good communist state’ versus the ‘bad western imperialist’. In the 1990s, these fears came to the surface when citizens in Poland and elsewhere across Eastern Europe stated that they could forgive Germans, but could not forgive the Russians, since Russians had never come to terms with their own war crimes.

West German diplomats at the UN feared that if they were to strongly oppose Poland’s resolution, it would trigger anti-German sentiments among other UN Member States.Footnote ¹⁸⁰ Instead, Bonn responded by showing all of the reparations they had paid since 1949, showing that West Germany had done their ‘homework’. With this, the West German government turned against the east and started to demand that Eastern European states also take responsibility for their role in the atrocities of the past, specifically calling on Poland, Czechoslovakia and Hungary – of which large parts of the population and political leadership had been in close collaboration with the Nazis – to not only acknowledge their own collaboration but also compensate and return the property of over six million German refugees who had suffered major acts of post-war vengeance after 1945.

In the years to follow, TJ measures became more and more part of political games in the international arena. In the end, the West German foreign ministry simply declined Poland’s request at the UN. Internally, the diplomats emphasised once again that West Germany had made large reparation payments around the world and had taken criminal justice and other TJ measures in a less biased way than in the east. Yet, West Germany was wisely advised to refrain from strong countermeasures against the Polish attempts so as not to spoil West Germany’s application for full UN membership. The change of strategy at the UN was based on an internal memo from the West German Chancellery to refrain from taking an active position, so as to prevent Eastern European countries from recognising East Germany as the only legitimate German state.Footnote ¹⁸¹ In the end, as a compromise on the international level, TJ concerns were entrusted to the UN Human Rights Commission. In 1970 the Commission passed a modest resolution on restitution acts and responsibilities. This resolution generally encouraged but did not oblige all UN Member States to take responsibility for war crimes and their consequences, a message also meant for parties involved in the recent wars on the Korean peninsula, Algeria, Vietnam and Angola, such as the United States, the Soviet Union, France, China and Portugal. Since this was not a binding resolution it had little effect at the height of the Cold War.

Domestically, the struggle between old and new elites continued on all sides and would do so even in the following post-war decade. In West Germany, the weekly right-wing journals such as New Politics (Neue Politik) that emphasised the achievements of the Reich over the democratic tendencies in Germany lost ground. Another radical right-wing group, the German Reich Party, the successor to the NSDAP, was finally dissolved in 1964. Many more radical right-wing groups disappeared by the end of the decade due to public disapproval and lack of political support.Footnote ¹⁸² Nevertheless, some remained, but became inactive as their members became too old to harm the system. One such group was the former armed militant groups of the Nazi regime, the SS (Schutzstaffel) aid and support association, the Quiet Help (Stille Hilfe), a citizen-driven initiative that called itself ‘quiet’ because it did not want to get into public controversies. This group supported former SS officers’ family members who were in social economic need, since many SS officers could never reintegrate into West Germany’s new political and economic elite due to their failing the denazification process or because a family member remained in prison. The Quiet Help was officially registered and was active for many years, even after Germany’s reunification in 1990. Multiple citizen-driven initiatives, even those that did not support the new democratic regime, were widely recognised and registered as associations or NGOs at that time in order to avoid them going underground or failing to submerge the still not fully consolidated democracy. On the other side it was a sign that the new democratic regime would accept diversity and pluralism of association – as long as they would not use violence and act unconstitutionally. Nevertheless, the controversial support of the new political regime still showed its fragile side from time to time. In 1968, Kurt Sontheimer’s second edition of his book on anti-democratic thinking in the Weimar Republic (Antidemokratisches Denken in der Weimarer Republik) made the link to the lack of democratic political culture in West Germany, but this was widely and publicly contested.Footnote ¹⁸³ The additional chapter on West Germany in the 1968 edition was later withdrawn from bookshops after completely selling out. No reprint was allowed. It was censored due to the fact that it hit the core weakness of the government in Bonn, namely the lack of systematic lustration procedures among the far too many former Nazi elites in office. The second edition of the book fuelled the left-wing resistance and was thus seen as a threat to stability by governmental officials. These officials even believed that this chapter of the book was organised by the East German secret service, the Stasi hence causing further mistrust to dominate public discourse about democracy. This suspicion was often legitimate, because the SED had installed an entire department in East Berlin, the Department Eleven within the central Stasi headquarters Department IX that was only responsible to look for Nazi perpetrators in the west to undermine the regime in Bonn. In the 1960s this Department IX started to launch annually the so-called ‘brown book’ with the names of former Nazi elites still in office in the West German administrative system, such as the Foreign Ministry, judges and other federal or state ministries throughout the country.

But alongside the battle between East and West over ‘who had more Nazis remaining in office’, civil and public engagement took place at full speed. Many NGOs for victims, human rights, peace and humanitarian aims started to grow in West Germany, most of them rooted in Christian or left-wing movements, such as Amnesty International in 1961. Action Reconciliation Service for Peace (Aktion Sühnezeichen), founded by the Evangelical Church in Germany, was the most prominent NGO in West Germany that reached out to former occupied countries that had suffered under Nazi terror, helping to rebuild or build memorials and working together with Holocaust survivors abroad. This NGO started to send volunteers to the Netherlands as early as 1958, and in 1961 to Israel and other countries. The Action grew rapidly towards the end of the 1960s and soon received public and state support and has since been one of the main actors in the reconciliation process between Germany and those countries that had suffered Nazi terror. In East Germany, however, the nature of the dictatorship prevented any such volunteer organisation or civil society movement from being established. The East German regime used its hardest weapon against any civil society rise, the Stasi, to suppress any TJ initiative that was not governmental owned. Any efforts to participate in the global peace movement were restricted and activists were often imprisoned. All reconciliation efforts, for example youth group exchanges with eastern European states, were organised by the central government.

Meanwhile, in the west, the radicalisation of both right and left-wing groups escalated in 1967. On 2 June 1967 a German police officer shot the left-wing student Beno Ohnesorg at an anti-government demonstration in West Berlin. The student was part of a left-wing movement that feared the return of Nazi politics. The police officer who killed him was never successfully tried and in 2009, and after consulting East German Stasi files, it became evident that the police officer had been a secret operative of the East German government, under orders to cause as much unrest and disorder as possible in the western Allied sector of Berlin. He succeeded in his mission as the left-wing movements, specifically the RAF, recruited heavily from groups that felt the government had responded insufficiently to Ohnesorg’s violent death. The radical ‘movement of 2 June’ named after the day of Ohnesorg’s death, also committed various terrorist acts against alleged right-wing Germans in the following years.Footnote ¹⁸⁴

The majority of these protesters were non-violent and many of those who organised the peace or civil rights movements at that time later became known as the generation of 1968 in Germany. It was the 20+ generation. The term ‘68er’ was used to denote a group of people who were mainly left wing; Willy Brandt supporters who massively distanced themselves from their parents’ (Nazi) generation. James McAdams cited this moment as a major turning point for TJ and regime consolidation in German history, arguing that the government’s ‘neglect of the obligation to seek retribution for past crimes promoted widespread cynicism among the German population about its government’s commitment to make a full break with authoritarianism, and from the perspective of some observers, it ultimately contributed to the violent rejection of German democracy by many young people after 1968’.Footnote ¹⁸⁵

The government reacted to the spread of left-wing violence with violent measures, but also by claiming to take more cautious measures and not to ignore the claims of this generation in the years to come. Willy Brandt stated it would ‘dare’ to allow more democracy. This was an occasion that Oskar Thoms et al. have characterised as the state taking ownership of TJ again.Footnote ¹⁸⁶ And thus, whilst the 20+ generation in West Germany raised its voice against the remaining former NSDAP members now back in office, the same generation in East Germany was rather silent (and oppressed) and many more even content with the way the SED had strengthened or consolidated the dictatorial regime through its steady anti-fascist propaganda. Christian Olivo assessed the East German 20+ generation’s silence and found two causes for it. First, the post-war period’s anti-fascist ideology had created a far-reaching political consensus between state power and intelligentsia in the east. The historical guilt of Auschwitz disciplined both sides, because even those who rebelled against the SED regime did not necessarily want to abolish it because it was left-wing in itself (although suppressive, but to reform it. The socialist-communist ideology seemed reasonable, although the reality looked very different. Second, the lack of free press meant that the new generation was heavily influenced by the official propaganda that all Nazis had fled to the ‘neo-fascist west’, leaving none remaining in East Germany.Footnote ¹⁸⁷ This belief prevailed even despite the case of Horst Fischer, the former Auschwitz SS physician, in 1965 which had proved that Nazi elites had remained and operated in East Germany well into the 1960s. The possibility of deporting, or rather ‘selling’, regime critics to West Germany continuously hindered consolidation of the opposition in East Germany. Thus, the student protests in Prague and other communist countries in 1969 hardly affected the regime in East Berlin.

Interestingly enough, in the west unconsolidated pockets such as RAF terrorism arose during this period due to the lack of delegitimisation of the Nazi regime. The West German government went so far as to fight these left-wing terror groups with anti-democratic and illegal means underground, in the name of state security. It was only in 2008 that the city of Berlin inaugurated a memorial in honour of Ohnesorg’s death and the violent abatement of the demonstrations in the late 1960s. However, radicalisation in the West did not end there. In one of the defining moments for the 1968 generation, a right-wing student tried to assassinate the left-wing student leader Rudi Dutschke in West Berlin. This student believed that Dutschke, and the communist views that he and other 68ers believed in, would take over Germany. Dutschke, who was known for his loud criticism of the government because it employed former members of the NSDAP, barely survived the murder attempt. In 1979, more than ten years after the assassination attempt, Rudi Dutschke died of his injuries. Today streets, buildings and organisations are named after him and he is seen as one of the icons of German left-wing political resistance and the 20+ generation against the remaining traces of the Nazi regime of that time.

All this illustrates that TJ in Germany cannot be separated from its democratisation process. It was at this moment when the analyst and writer Kurt Sontheimer accused German parliamentarians of tolerating nationalist parties to legitimise the use of force against student protesters and those who had formed the extra-parliamentary opposition and protest movements. In his eyes, the democratic experiment in West Germany had failed, and the current political elite ran the risk of paving the way for another non-democratic or rather non-fully consolidated system in the country. He saw this risk being caused in part by the lack of TJ measures and the fact that the population never learned to self-reflect and take moral responsibility. He argued that coming to terms with the past (Vergangenheitsbewältigung) was a way to learn from history and past injustices in order to establish a better, more humane, democratic order. Instead, Sontheimer feared citizens were not encouraged to sufficiently detach themselves from nationalist and anti-democratic thoughts. He believed that Germany only issued TJ measures because of international pressure and the fear that Germany would be excluded by international organisations, the Allies or other countries in the world. In his eyes, the shift of the 1960s was not sufficient to strengthen democracy.Footnote ¹⁸⁸ He was not unheard but fully democratic consolidation would indeed take place much later.

During an internal rally in 1969 between Chancellor Brandt and leaders of labour unions in West Germany, Brandt clarified that he would not let any more laws, censorship or restriction of political freedoms pass while he was in power. He hoped for a democratic solution to the problem of those that threatened democracy.Footnote ¹⁸⁹ This marked one of the most prominent moments of the West German history of regime consolidation and TJ. It was finally acknowledged that democracy could not flourish without a self-critical understanding of the past, for which TJ measures were necessary.

The following years, however, showed that Brandt could not ignore the fact that radical movements from the right and the left were continuing to attack each other and in the 1970s left-wing movements committed terrorist attacks. When Brandt became Chancellor of West Germany in 1969 he promptly reacted to the radicalisation. Brandt said he ‘dared’ to allow more democracy, meaning that West Germans would have to practise and experience more respect for each other, more pluralism and inclusion of left-wing thoughts, which had been labelled hostile by the conservative and nationalist majority in the country since 1949. Brandt also pushed his government and the parliament to accept his policy of rapprochement (Annährung) towards East Germany and to accept the deals he made with Poland and the Soviet Union in later years. His policy was highly controversial and was criticised by media and political opponents. He was ahead of majority opinion in the electorate and other interest groups at that time, even in his own party. Although Brandt paved Germany’s way to UN membership, eased relationships with the Soviet Union that led to the establishment of the Commission on Security and Cooperation in Europe (CSCE) in 1974, his friendly policy towards East Germany – and the discovery that he had a Stasi spy operating in his office – eventually cost him his position. In 1974 he had to resign from office. Although his resignation had many reasons, one was that because of his liberal and reconciliatory attitude towards the east (as opposed to Adenauer’s towards the west) and his demand for internal reconciliation in Germany, he was the political enemy of many old Nazi sympathisers and refugees. Yet, despite his three short years in office as chancellor, he managed to turn the West German political culture towards more civic consolidation, and thus beyond the existing constitutional, representative and institutional and even attitudinal consolidation, using Merkel’s categories again to illustrate the stages.Footnote ¹⁹⁰

In summary, the first post-war generation had a remarkable impact on the quality of the functioning of democratic institutions in West Germany. As opinion polls at the time showed, the majority of people during the 1960s in West Germany adhered to democracy as a concept and there was no way to go back to autocracy,Footnote ¹⁹¹ despite the radicalisation of political groups. The question for the third post-war decade was whether West German democracy would leave its militant character behind and instead become a more consolidated democracy. And for East Germany the question was whether the regime would be able to preserve its stability, and that would mean more authoritarian control.

Third Decade: 1970–1979

The third post-war decade began with Brandt’s 1969 challenge to ‘dare’ to have more democracy and to continue the democratic consolidation process when allowing for more civil society engagement and (painful) dialogue about the past. For the first time, he linked Germany’s regime consolidation to the unatoned legacy of World War II. His kneeling in front of the ghetto memorial in Warsaw in 1970 became a symbol for how closely both aspects were linked. He saw reconciliation as a long-term process that would eventually benefit the society and the democracy in West Germany. At the same time, indictments against alleged Nazi perpetrators and in particular concentration camp guards continued. Between 1970 and 1989 over 6,000 people were indicted and around 200 sentenced to prison.Footnote ¹⁹²

In East Berlin, Erich Honecker became leader of the SED politburo, but hopes that he would grant the young and restless generation more liberties soon vanished. He increased and standardised political repression throughout the country and thus consolidated the dictatorship more and more.

At the same time in West Germany and after Brandt’s inaugural speech, and his visit to the memorial of the Jewish Warsaw ghetto in Poland, he caused an affront to the millions of German refugees from the former territories in the east. In the eyes of many Germans, the Poles together with the Soviets were seen as the victimisers of millions of Germans by those refugee organisations in West Germany. Brandt kneeled before the memorial and made a formal apology to all victims in the name of the German nation. This official and moral acknowledgement by the head of the successor government of the Nazi regime triggered a new era of consolidation and TJ. His subsequent apology, which was the first of its kind in the twentieth century, was the illustrative symbol of the shift to moral responsibility. Decades later, when many heads of state apologised in 1995 for their inability to prevent the Rwandan genocide in 1994, they followed in Brandt’s footsteps. Today, to apologise for mass atrocities has become a common practice among politicians using TJ measures. It has almost become inflationary. But why would such a gesture in 1970 in Warsaw change all political agendas in Europe and ease the tensions of the Cold War, whereas today it has become a political ritual in most TJ processes? It was a first step of acknowledgement that later also led to restorative justice.

After passing the first step towards consolidation in the early 1960s, it became imperative for Brandt to increase civic trust in institutions. His prostration and apology in Warsaw led to that trust, in particular in regaining trust among the neighbouring countries. The following year he received the Nobel Peace Prize for his efforts. This again encouraged citizens to engage in TJ and encouraged foreign governments to have diplomatic relations with West Germany. In this way, the mutually reinforcing effect continued.

The attempts to democratise more in the west also meant to indict more Nazi perpetrators in the subsequent years. This did not remain unnoticed in the east, but the SED regime only reacted in ritualising its annual commemorations of its glorious anti-fascist fight more and more. CSOs and victims organisations that were not governmental run or controlled could no longer operate in public.

The process in the west instead has been described by Michael Naef and Jürgen Schupp as an engagement between the individual and institutions in which the trusting citizen freely transfers assets to another person or institution, without controlling their actions or having the possibility to retaliate.Footnote ¹⁹³ When citizens saw and experienced political actions based on a sense of morality, such as Brandt kneeling before the memorial – but also the many private initiatives, such as the Action Reconciliation Service for Peace – this contributed to citizen trust and thus the upward spiral of the mutually reinforcing trend between institutions and TJ continued.

Eventually, in the subsequent years West Germany signed diverse friendship and rapprochement treaties with Poland and the Soviet Union, thus marking the beginning of a new policy towards the east and the beginning of the end of the Cold War. Before and after his visit to Warsaw, Brandt triggered parliamentary debates on how German society was dealing with its past. He was the first post-war chancellor who called for a debate about whether 8 May 1945 should become a national holiday and commemoration day of German liberation, albeit without success. Many conservatives in parliament considered Brandt’s proposal unacceptable; the old elite maintained that the German Reich was defeated, not liberated. Additionally, this proposal received very little support because 8 May was already the official East Germany commemoration day of liberation. Brandt and others emphasised that this debate revealed the direct relation between how Germans reflected upon the Nazi past and their present understanding of democracy. Germans, in Brandt’s eyes, tended to radicalise political opinions and behaviour regardless of whether they were on the left or right of the political spectrum. Germans would need to learn tolerance and to respect diversity among each other if they were to experience democracy to a fuller extent.Footnote ¹⁹⁴ According to the regime change theories of the present day, we would say that West Germany needed to progress towards being an inclusive society.Footnote ¹⁹⁵ At the time, democracy was not necessarily perceived as an accomplishment that would liberate Germany from Nazi terror and oppression, but rather as something that had been imposed upon the country. Democracy was seen almost as a penalty for having terrorised Europe with the Nazi dictatorship for over a decade. Despite this, political analysts in the 1970s saw no serious threat to democracy anymore. It had become ‘the only game in town’ for the majority of Germans, according to these observations, albeit unconsolidated pockets continued to exist.

But the harm these unconsolidated pockets from the right and from the left could do is shown by correspondence between Brandt and Ephraim Kishon, an Israeli writer who published widely in Germany at that time. After the attacks on the Israeli Olympic team by a Palestine terrorist group during the summer Olympics in Munich in 1972, many Jews feared visiting West Germany. Thus, in October 1972 friends had advised Kishon not to enter Germany to advertise his latest book, since German authorities could not guarantee his safety and since attacks on Jews were still prevalent. Kishon contacted Brandt, urging him to guarantee his safety, arguing that West Germany needed people like him to show that there was a ‘new’ Germany that one could trust.Footnote ¹⁹⁶ Brandt agreed and guaranteed Krishon’s protection. Krishon’s visit to Germany went by without any difficulties but his case illustrated how deep the mistrust towards Germans and Germany still was at that time, despite the fact that 25-plus years had passed since the war.

After West Germany’s treaty with the Soviet Union, both East and West Germany finally became members of international organisations such as the UN in 1973. Meanwhile, West Germany enhanced its role in the Council of Europe and the EC. This played an important role in West Germany understanding its responsibility for establishing peace and stability in Europe on the basis of joint human rights norms and standards.Footnote ¹⁹⁷ For most of its existence, East Germany remained a party to the Warsaw Pact and did not question the Soviet hegemon. In East Germany, when the first post-war generation demanded more independence and rights after the CSCE Helsinki Act of 1975, the SED regime suppressed these movements and restricted fundamental freedoms.Footnote ¹⁹⁸ Most of the individuals involved in such movements ended up as political prisoners which reached a peak number despite legal reforms in the 1970s. A free and open discourse concerning the responsibilities of the post-war generation, let alone the SED government, for the injustice and terror that occurred before 1945 on German territory was equally denied.Footnote ¹⁹⁹ Instead, political persecution of those who even compared the totalitarian Nazi state with that of the communist SED regime increased.Footnote ²⁰⁰ Whereas in West Germany coming to terms with the past started to become part of the civic culture and thus TJ measures became a political decree and a prerequisite for any political and societal agenda towards the international community, East Germany maintained the official version that the SED regime was ‘anti-fascist’ by nature and thus did not need to respond to any citizen’s or victim’s claims for TJ.Footnote ²⁰¹ At the same time, between 1975 and 1981, the West Germany District Court of Düsseldorf held the Majdanek Trials, named after the concentration camp in Poland where over 80,000 people were murdered. The West German trials were part of a long history of trials for the war crimes that were committed at this camp. The first trials were held by the Soviets in Poland in 1944 towards the end of the war and after the concentration camp had been freed by Soviet forces. It was West Germany’s longest and most expensive trial, lasting 474 sessions and convicting 16 highly ranked Nazi officers and prison guards – of which many were women – of war crimes. They were sentenced to a minimum of three years imprisonment. It was a rather symbolic and insufficient trial because too many witnesses had passed away or were not allowed to testify or travel to West Germany since they lived under the communist regimes in Eastern Europe.Footnote ²⁰²

Two of the most prominent groups that fuelled the unconsolidated pockets of democracy were the Bader-Meinhof Complex and the RAF, which enjoyed growing support in the early 1970s.Footnote ²⁰³ Members of these groups kidnapped, killed and robbed those who they believed represented the old and new elite establishment. The RAF described itself as a communist and anti-imperialist ‘urban guerrilla’ group engaged in armed resistance against what they deemed to be a fascist state – the Bonn Republic. Their founders were academics and journalists, who feared a return to Nazi dictatorship because of the many old elites still in high-level positions and political functions. In 1970 they started to go underground and commit terrorist acts, robberies and killings against politicians, bankers and industrial leaders. They bombed a US air force compound in Germany and committed over three dozen assaults, many of which resulted in deaths. The authorities and government retaliated, killing and imprisoning a number of these members, often without the necessary authority from democratic institutions.

The unconsolidated pocket of left-wing violence reached its peak in 1977, after 34 homicides and an RAF hijacking of a German Lufthansa plane in Mogadishu in Somalia, a failed attempt to blackmail the West German government to release imprisoned RAF members. After the hijacking failed, many of the RAF prisoners in Stammheim committed collective suicide. Shortly after, the abducted president Hans Martin Schleyer of the German Federation of Employers was murdered as an act of revenge. But they targeted Schleyer not only because of his outstanding elitist position in West Germany, but because he used to be a member of Hitler’s SS troops during World War II. His homicide symbolised what the RAF violently claimed to aim at: to free Germany from a re-emerging old Nazi elite. It was the culmination of violence during a period that had been a clear failure for democracy and the rule of law in Germany under the new chancellorship of Helmut Schmidt. Due to massive counter-terrorism acts, but also thanks to more TJ and because the RAF lost ground in their anti-regime arguments, the RAF was disbanded in the 1980s – a fact that was only officially recognised in 1998. In hindsight, this period is often seen as a warning to legislative powers against enacting highly restrictive laws.Footnote ²⁰⁴ Stricter anti-terrorist laws (for example Art. 129a of the German Criminal Code) led to more resistance among civil movements. These laws were introduced after contentious parliamentary debates and a resolution that German democracy was militant enough to defend itself against terrorism, yet still able to leave many human rights and basic constitutional rights unaffected. This only led to further mistrust.Footnote ²⁰⁵ More legislation followed; for example, a law criminalising anyone aiming to create a group allegedly planning to use terror (Bildung terroristischer Vereinigungen). The question at that time was whether a consolidated democratic regime needed yet another law to combat terrorism or whether it was a lack of implementation and of letting those opposing the regime to participate more freely in public. Obviously, it felt it needed it.

The concern was whether the government would continue down the slippery slope of anti-democratic measures, as Sontheimer had feared. All these decrees and laws aimed at restricting basic human rights, such as the right to free assembly, the right to free speech or to exercise one’s profession was to control the new emerging 20+ generation and their claims for more truth through accountability and transparency. The law was never abandoned, although it was revised after the German High Court in 1978 criticised it for allowing the prosecution of people just because there was an allegation that they might be creating a terrorist group. Nevertheless, the fact that courts in Germany dealt with this issue also indicated that there was an open discourse and that such anti-democratic laws could be changed.

This period was a test for attitudinal and behavioural consolidation and because it was a painful period paired with violence and counter-violence it was also called the ‘German autumn’, an apocalyptic expression used to express the fear of a return to a repressive regime. But it was also a period of political awareness and moral attribution to the past. In the same year of the High Court’s decision, in 1978 Kurt Filbinger, prime minister of the federal state of Baden-Wuerttemberg, had to resign from office due to public pressure after his Nazi past was revealed.

The governments both on a federal level as well as in the states in general pointed mainly to the fact that the government had to respond to public needs and interest, both concerning the Nazi past as well as the threat that the RAF posed to democracy. Although Chancellor Brandt had promised more democracy and liberty, militant democracy still prevailed in the legislature and increased under the chancellorship of Schmidt. Despite Brandt’s liberal views and his commitment to more democracy, he passed yet another decree on radicalisation (Radikalenerlass) in 1972. This measure allowed public and private employers to expel employees and public servants from office if the employees were suspected of sympathising with communist or left-wing movements.Footnote ²⁰⁶ Teachers, postal workers and other public servants were affected. Special police units were formed and laws to restrict freedom of manifestation and expression were passed. Although these units were later abolished, they left a mark: the legacy of repressing freedom of expression.

It must be acknowledged that a significant portion of the younger generation did silently sympathise with these radical left-wing movements. Many did not believe that it would be possible to solve the political conflicts and disputes that existed in West Germany in a peaceful or democratic manner.Footnote ²⁰⁷ Yet, these beliefs were only a sign of unsuccessful regime change, incomplete consolidation and a lack of trust in democratic institutions, for which the old elites were most responsible. And this triggered dissatisfaction among citizens with democracy. According to a Eurobarometer survey in 1973, approximately 55 per cent of West Germans were not very or at all satisfied with democracy, and only 39 per cent were fairly satisfied.Footnote ²⁰⁸ By the end of the 1970s and after substantial democratic reforms, 70 per cent of Germans reported being fairly satisfied and 10 per cent very satisfied. This indicates that West Germans had come to accept democracy as ‘the only game in town’ more than they had in the 1960s, but they also remained sceptical.Footnote ²⁰⁹ As much as the late 1960s convinced West Germans that returning to the past was not an option, it took another decade before the regime was truly consolidated.

Meanwhile, cultural events also fuelled the shift from a purely tactical and strategic use of TJ to the acknowledgement of German moral responsibility and consequently a morality based use of TJ measures. One example is the 1978 US TV film series Holocaust that portrayed a German Jewish family fleeing Nazi Germany in the 1930s. This film triggered a shift in public opinion. The number of those who considered Germany’s past reprehensible increased. By 1978, around 71 per cent of Germans agreed that the Nazi regime was an atrocious and unjust regime, which also meant that radical neo-Nazi movements would receive increasingly less acceptance among the public.Footnote ²¹⁰ Civil society increasingly compared the past to the present and tried to learn from the past. Eventually, the legislature had to respond to this change in society, and radical laws were abolished.

With the series about the Holocaust, the issue of Nazi terror came into both East and West German living rooms and was widely discussed on both sides of the Wall. Twenty years earlier it would not have received the same positive responses as it did in 1978. The TV series also influenced public life, school education and affected political thinking for months, if not years, thereafter. The difference between the TV series and previous writing, lectures and documentaries about the past was that it reached almost everybody in society, young and old, and especially schoolchildren. After this, the term Holocaust became part of the German discourse and dominated any debate, including in parliament, on the Nazi past.Footnote ²¹¹

In addition to the endless efforts to enact and revise laws, deal with terror, prohibit civil organisations, organise cultural events, hold public debates and organise memorials, another factor was what to do with former technocrats of the Nazi elites. Retirement benefits and pensions soon became another issue in the wider field of TJ.

But by then it was evident that TJ brought more benefits to German society than restrictive policies, for German domestic and international politics, as well as business and investments abroad. It became official doctrine to commemorate the Holocaust and remember victims, in particular in West Germany’s foreign relations with the United States and Israel. The correlation between TJ and responsiveness of institutions remained strong.

Yet, controversies about how to deal with the past continued. In the summer of 1979 parliament debated whether the statute of limitations on crimes connected with genocide and the Holocaust should be finally abolished. Germany was about to close the files on World War II perpetrators because the statute of limitations had once again expired while many of the alleged perpetrators were still free citizens. In the end and after heated debates in and outside parliament, the delegates abolished the law that restricted prosecution of mass murder or crimes against humanity, thus opening the door to prosecution of those alleged to have committed genocide without time limits. Although this ended the parliamentary debates, it did not end the debate regarding democratic legitimacy. In the years following, the majority of delegates across all political parties came to be more open for abolishing the statute of limitation for crimes committed under the Nazi regime and they strongly opposed amnesties and clemency which led to a change in politics.Footnote ²¹² The statute of limitations for mass murder was abolished and this led to both the abolition of the 1972 law on radicalisation (Radikalenerlass) and the statute of limitations (Verjährungsfrist) on crimes against humanity. From that point on, mass murders and thus crimes connected to the Holocaust could be tried at any time in Germany and this has since become a pillar of criminal justice measures under German law and thus contributed to strengthening the rule of law in the country.

In this same period the SED regime in the east constantly changed and revised its laws to make them more compatible with the needs of the people, trying to ease tensions and give more liberties. However, in fact, the regime only succeeded in tightening its dictatorial grip on society. But at the same time in the west, without the continuous pressure from the UN or the Council of Europe on West Germany, many basic freedom rights would have not been installed either.Footnote ²¹³ And because the east was in constant competition with the west it also formally reformed the penal code, but because the Stasi made sure that the execution of such liberty rights was limited, they existed on paper only. Thus, both the integration in an international human rights regime and the growing bottom-up pressure triggered democratic reforms and leveraged the rule of law and compliance with human rights in West Germany. In the East, however, the spiral went further down.

Fourth Decade: 1980–1989

If it were not for the fall of the Berlin Wall in 1989, the fourth post-war decade would have been seen as the one of stability for the two regimes: the autocratic-totalitarian regime in the east, and the liberal consensus-orientated democratic regime in the West. Instead, it was a decade of erosion through civil rights movements, citizens’ claims and increasing participation that had a significant impact on political culture. On both sides of the Iron Curtain, a new generation of politicians, technocrats, judges, as well as civil activists in search of their identity, dared to look back to 1945 and allowed themselves to feel remorse and moral responsibility. They demanded more than just atonement, trials and convictions, counting the dead, or granting reparations. The Holocaust and the issue of German guilt had entered the public domain and media long ago and, more than any previous generation, this one identified with all victims of Nazi terror: communists, Jews, Roma, homosexuals and other ethnic minorities. In West Germany not a single week passed without the German media addressing the Nazi past in films, reports, media columns or talk shows. Researchers and academics soon filled libraries with their studies, doctoral theses, documentaries and conference reports on what had happened, when, how and why. For this generation, it was normal to see and hear parliament debating the creation of memorial days, trials of former concentration camp guards, the inauguration of memorials and the establishment of compensation funds. There were no longer any history books that denied the facts of the war crimes committed by the Nazis, although the precise interpretation of these historical facts remains contested even now. The massive, bottom-up demand for TJ had significant impact on German political perception and democratic behaviour, on both sides of the Wall even though in the east it could not be approached in the same way as in the west.Footnote ²¹⁴

TJ measures were no longer just the concern of an elite, exclusive circle of intellectuals and victims or only a response to Allied pressure and vigilance. Instead, they became part of both Germanys’ civic cultures. This was a period characterised by naming perpetrators and victims of the Third Reich through criminal charges and memorials. Prior to this shift, perpetrators and victims had simply been labelled as ‘Nazis’, ‘Sinti’ or ‘Jews’, but later turned into big memorials around the world. Now, people wanted to differentiate more. The desire to reckon with the past and the perceived moral obligation to redress past wrongs, spilled over to influence the political relationships between German and former occupied states and territories all over Europe, in particular France and Poland. Interestingly, when the Berlin Wall came down on 9 November 1989 the West German Chancellor Helmut Kohl was on a state visit to Poland.Footnote ²¹⁵ Some linked this moment and Kohl’s presence in Poland with another highly significant moment of post-war history 20 years earlier: Chancellor Brandt kneeling before the Warsaw memorial in Poland in 1970. Thus one can argue that the way TJ is linked to any consolidation process in Germany had also always been closely related to the relationship of reunified Germany with Poland. The fact that the Poles had suffered tremendously under the Nazi occupation and that Auschwitz is located in Poland, was one of the key issues in this relationship.

But let me start at the beginning of the decade. It started with the West German federal elections of 1982. Power changed hands from the social democrats back to the conservative CDU. Soon thereafter, Chancellor Helmut Kohl, himself a historian, gave a number of landmark speeches dealing with the past. In this third post-war decade, TJ slowly moved towards becoming state doctrine, a position that was solidified after reunification. Although Kohl was not always sensitive in character, dealing with the past (Vergangenheitsbewältigung) was a key issue for him, and he practised it widely in German external relations and in domestic politics.Footnote ²¹⁶ He aimed to revitalise German self-esteem, moving away from a guilt-ridden post-war generation towards a generation that could take responsibility for what happened in the past. In his inauguration speech to the German Bundestag in 1982, he emphasised that he wanted to give Germans more confidence in their achievements since 1945 and to shift the focus from atonement to responsibility. In 1984, he addressed the Israeli Knesset in Jerusalem and spoke about Germany’s special responsibility towards Israel, one that goes beyond normal foreign relations. He also spoke about the mercy he and his generation had been given by not having to carry any personal guilt for the Holocaust. The ‘mercy of being born late’ (Gnade der späten Geburt) – meaning born towards the end of or after World War II – became a metaphor that reflected the post-war generation’s feelings at that time. Kohl also indirectly confirmed that the post-war generation that entered into politics in the 1960s, as he did, would make their decisions on a different basis than those who had experienced the war and who perhaps had something to hide. In 1984, West Germany officially recognised the assassination attempt against Hitler on 20 July 1944 and remembered the opposition leaders who once had been considered traitors executed by the Nazi regime, now as resistance fighters. The so-called ‘men of 20 July’ had been controversial for over 40 years. In the first decades after World War II, it had been impossible to raise the question about these resistance fighters openly because there were too many NSDAP elites in office who would never agree to commemorate the ‘men of 20 July’ as rightful objectors to the Hitler regime. Forty years later that perception has shifted dramatically, not only due to the 20+ and 68er generation, but also because novels, films, documentation and the media had revealed some of the facts around 20 July 1944. Now, 60 per cent of all West Germans thought it was a heroic act, whereas only 12 per cent thought it had been wrong.Footnote ²¹⁷

Kohl inaugurated a German history museum in Bonn. The Home of German History (Haus der Geschichte) was primarily focused on post-war democratic history and the development of West Germany after the war. Until then, German history had been largely dominated by everything that had happened up until 1945 and not beyond. This was due in part to the division of the country, the Hallstein Doctrine and the ‘blind spots’ of political leadership. As a result, a common narrative among historians still had to be created on how to interpret the early post-war era. This museum led to public debates on whether German citizens should be proud of their democratic achievements as much as they should have a sense of responsibility for what happened prior to 1945. The museum project was realised in 1986, but only opened in 1994 due to German reunification in 1990.

Meanwhile in the east the civil rights movement rose more and more against the regime, but so did the neo-Nazi movement, too. The SED regime did not know how to react as it had always ignored the fact that there could be any traces of Nazism left in the anti-fascist SED regime. In 1983, however, one of the last trials against a high-ranked Nazi perpetrator took place in East Berlin. Heinz Barth had been accused of massacres against civilians during the war and thus been sentenced to life imprisonment. This was one of the last cases but a public one, in order to show to the world that attempts to indict Nazis also took place in the east.Footnote ²¹⁸

In 1985, a year after Kohl’s response to the public domain on how to deal with the past, President Richard von Weizäcker (CDU) held a landmark speech in the Federal German Bundestag declaring 8 May 1945 the liberation day from Nazi Germany.Footnote ²¹⁹ This represented a significant shift in the interpretation of the German perspective on World War II – similar to the one on the ‘men of 20 July’. Fifteen years earlier, Chancellor Brandt had failed to introduce this debate to the public. However, at this time, the common narrative switched from the idea that Germany had lost the war and sustained millions of German victims to the belief that Germany had been liberated from Nazi dictatorship. The current generation came to see the loss of the war as a chance to experiment with democracy. In a survey conducted in 1985, when West Germans were asked which event and date over the course of the past 40 years had been the most striking and important in their collective memory, their answer was 8 May 1945, the date they saw marking the radical and imposed regime shift. Surprisingly enough, this date was seen as more important than for example the RAF violence, the establishment of the Republic in 1949 or the recent instalment of Pershing rockets in West Germany in 1983.Footnote ²²⁰ This illustrated how relevant the war and its consequences had been in collective memory, although the focus had shifted from Germans being the victims to having been the victimisers.

At this time, the upward spiral of regime consolidation slowed down and started to turn into regime manifestation. The debate concerning the historical interpretation of the Holocaust that started in 1986 in West German media and among historians and philosophers (Historikerstreit) marked that phase. This debate was also inspired by a Frankfurt play by Rainer Werner Fassbinder that made indirect reference to the remaining anti-Semitism and the legacy of the Holocaust in Germany while portraying Jewish stereotypes. Shortly afterwards, a German parliamentarian and a city mayor made anti-Semitic comments on how ‘powerful’ Jewish business people were still in Frankfurt and elsewhere. Despite all the efforts to reveal and demystify the past, hidden anti-Semitism seemed to break out again – or in other words, denying anti-Semitism never worked to restrain it. A strong democracy ought to be able to tolerate these debates without fearing regime collapse. Yet, at first, the comments by the mayor became a public scandal, which also led to political and academic debates about individual responsibilities during the Holocaust. Due to these cultural activities referencing the need of more TJ in the years that followed, public debate focused almost exclusively on the Jewish victims of the Holocaust, and less on all the other millions of victims the war had claimed.Footnote ²²¹ In comparison to earlier decades and to East Germany, these debates were held freely and without major repercussions for those who led them, although stereotypes about Jews were still widespread.Footnote ²²²

Leading historians and intellectuals such as Habermas led the historical debates at the time, bringing to light controversial left and right-wing opinions on Hitler’s motivation as to why he initiated the persecution and genocide of the Jews.Footnote ²²³ The main controversy was whether the Holocaust was a unique genocide of its kind and even specific to Germans, or a genocide that could be repeated anywhere at any time in the future. The question was never finally answered, even after the 1994 genocide in Rwanda and the parallels some drew between those atrocities and Nazi terror. These debates had an indirect impact on democratic culture and citizen trust in public institutions. Regardless of their outcome, the fact that these debates could be held peacefully without major insults or terror threats from either side of the political spectrum was a novelty in West Germany. An opinion poll from that year shows that the majority of citizens supported strict consequences for public figures and politicians who made anti-Semitic or stereotyped comments about Jews in public. Seventy-one per cent of Germans believed that those public officials should either resign from office or apologise for their expressions against Jews.Footnote ²²⁴ At the same time, 66 per cent of the population also wished that they could finally leave the past behind.Footnote ²²⁵

Many West German politicians still showed great insensitivity towards the past. They did not so much deny the wrongdoings of the past, as they debated the consequences to draw from them. Above all, they asked the question whether German responsibility for the past should impact political doctrines (as it did in foreign policy) and whether an individual should take responsibility if one’s parent had been actively involved in the atrocities of the past. An example of this can be seen in the political scandal around Philipp Jenninger who was chair of the West German parliament in Bonn in 1988. In a speech in November 1988 to remember the 1938 Jewish pogroms (Reichskristallnacht) he asked whether Jews themselves were somewhat responsible for, or at least provoked, the crimes committed by the Nazis because of their ‘different Jewish’ behaviour.Footnote ²²⁶ The speech was criticised internationally by the media and across the political spectrum in Germany. Shortly after his presentation, Jenninger had to resign from office, which was also a first in the history of parliament, bearing in mind that only 20 years earlier a former member of the NSDAP could become chancellor. It has never been clarified whether he made his comments unintentionally or with the intention to provoke. The reaction of parliamentarians and the public, however, showed that in this fourth decade since regime change, making such comments was inappropriate and could cost one one’s office; as opposed to what had been the case in the 1950s and 1960s.Footnote ²²⁷

At the same time in the east, Erich Honecker, still head of the SED regime, sought more international recognition and aimed to be invited to speak on behalf of the ‘other’ Germany in Washington DC. He knew that his best chance of fostering strong relations with the United States would be via recognising the victimhood of millions of Jews and thus to establish ties with Israel. In 1988 he allowed the renovation of the main synagogues in East Berlin (formerly the largest in Germany) and invited religious and civil leaders from Israel for its inauguration. It was an act of TJ and establishing ties with Israel, but despite his attempt to finally recognise his own regime’s responsibility to reckon with the past, Honecker was never invited by western Allies and in the following year the Berlin Wall fell.

Meanwhile, throughout the 1980s trials against Nazi perpetrators continued, particularly focused on finding alleged perpetrators around the word. The Los Angeles-based Salomon Wiesenthal Centre reinvigorated its systematic search for hidden perpetrators in order to extradite them, if necessary, to West Germany where, thanks to the legal reforms of the 1970s, they could still be tried. Some were also tried in the countries where they were resident. Every time an extradition or bringing of charges was successful, it was taken up in the press. Nevertheless, it was at the same time more of a moral verdict than a legal one. Trials could take years, and often those convicted were too old to actually go to prison.

There was also another major political shift that drove regime consolidation. The generation of 1968 gained political power and moved from the streets into parliament. The Green Party appeared on the political scene for the first time, making a strong statement that TJ was fundamental to German democracy and consolidation and that they would push for it. In 1982 and 1983, the Green Party entered the West German parliament under its charismatic leader Joschka Fischer who, 20 years later, became foreign minister of reunified Germany. The Greens made sure that radical right-wing speeches and arguments were countered and made it clear that not only West Germany, but also both Germanys had a unique and specific responsibility towards Jews and for the Nazi past as a whole. Kohl pushed for a ‘moral change’ (geistig moralische Wende) in Germany and a normalisation of its foreign relationships with Israel, France, Poland and other countries, as well as with the victim groups and survivors, although he did not clarify what ‘normalisation’ meant.Footnote ²²⁸

In the east, however, a generation similar to the 1968 one in West Germany never emerged, and the citizen movements that did emerge in the 1980s were rather late, even by Eastern European standards. Therefore, regime consolidation by civil society never occurred in the east and therefore the regime was never fully legitimised and had to rule by coercion only. This kind of failure in democratic consolidation was a frequent one in other countries, too, as described by Linz and Stepan.Footnote ²²⁹ Yet, in the 1980s, over 300 mainly peace and environmental movements (with around 15,000 people in a country that held around 18 million citizens) took off in East Germany. The majority of these movements acted locally, aiming to change or ‘improve’ the SED regime, but not necessarily to abolish socialism. Thus, while these groups did not engage in a major critique of the system, they did criticise the functioning of this particular socialist regime function. Under the umbrella of the Evangelical Churches, these groups protested against corruption, war, Stasi surveillance, environmental pollution and lack of freedom in the east. Yet, they did not necessarily connect the current authoritarianism of the regime to the fact that the past regime had never been delegitimised. This was a lost generation in terms of TJ, partly because of successful SED propaganda against Nazism and partly because of the fact that those who truly opposed the SED regime had already fled to the west in the 1960s and subsequent decades.Footnote ²³⁰

At the height of the Cold War there were more protests than ever against the US decision to base more nuclear bombs in West Germany. This increase in protest affected West Germany’s civil society and peace movements, of which mainly the 1968 generation were members. West Germans feared nuclear war more than reunification with the communist east and strongly believed that reconciliation between the two countries was possible, although it would require making compromises. In opposition to the demands of the peace movement, the United States installed more nuclear weapons on West German soil, indicating an erosion of the ‘stability pact’ between the east and the west that had kept the world more or less free of war until that point. The United States placed nuclear weapons in West Germany and the Soviet Union did the same in East Germany in the name of self-defence and deterrence. This even triggered the East German peace movement, including many churches (Schwerter zu Pflugscharen), out of which grew a civil and human rights movement that launched the Monday demonstrations of 1988 and 1989 and which contributed to the fall of the Berlin Wall.Footnote ²³¹ These were the only years in which there was effective citizen mobilisation in East Germany, according to Olivo.Footnote ²³² At the centre of the movement was the fact that people on both sides of the Iron Curtain had become aware that if a war between the east and west were to break out, they would be the primary targets of complete destruction. In West Germany, the peace movement linked the current threat of war with the memory of the past. Intentionally or not, this resulted in citizens on both sides of the Wall using the slogan ‘Never again war!’, a variation on the earlier ‘Never again Auschwitz’ (a slogan that had only been used in West Germany).

While East Germany heavily suppressed peace protests and activists had to go underground to avoid prison, protesters in West Germany became more institutionalised and organised, often led by CSOs and the Green Party. As a consequence, in West Germany the anti-nuclear war, peace and human rights movement that marched every year at the East German border for peace and reconciliation was a strong and significant constituency. This movement combined demands for peace and reconciliation, based on an overall awareness of the atrocities that potential war could lead to, as learned from the joint narratives of World War II. The past was always present in these political debates, as was TJ.

At this time, however, political debates were less emotional and the accusations less personal that they had been in the past, perhaps due to the fact that many of the accused perpetrators, bystanders, survivors, and resistance fighters were either no longer alive or were retired from prominent positions. It is by no means a coincidence that it took until after Weizäcker’s speech in 1985 that the thousands of death sentences rendered by the Nazi High Court were seen as unjust verdicts and invalid according to the norms of the 1980s. The West German parliament acquitted these victims post mortem, at a time in which hardly any of the old elites were still in office and thus no longer opposed this decision.

As illustrated by Jon Elster, it is a pattern that a society can only move on once its past has been demystified, the regime fully delegitimised and the files have been opened so that memorials are established and trials are being held without restrictions.Footnote ²³³ The public West German debates of the late 1980s were thus of a different quality than those in the 1950s or 1960s and far less polemic. Newspaper headlines by Springer Press, a conservative publishing house, for example, continuously led to public debates among left and right-wing movements, but in a less destructive way than in the 1960s. Springer Press was accused of being conservative and pro-right wing and of having rather strict anti-communist views and was held accountable for the impact it had on public opinion. Ever since the end of World War II, Springer had owned the largest media consortium in West Germany. The articles of its main daily publications such as Bild or Die Welt newspapers justified anti-communist laws and other restrictive measures against those who threatened German democracy, which of course, in their view, were the left-wing movements. Springer Press had been a big defender of militant democracy and had great influence on public opinion. This media outlet stood in contrast to the rather left-wing, often pro-socialist press that had gained ground in German public opinion, in particular among academics. These outlets, such as Der Spiegel, Süddeutsche Zeitung, Frankfurter Rundschau, all became very strong in the 1980s, again thanks to the 1968 generation which occupied many of the media sectors by then. This cannot be ignored when explaining the political shift towards TJ and how to deal with the past. One of the spiral effects was that victims and interest groups other than Jewish claims groups became actively involved in society and politics in the 1980s. They not only ‘dared’ to be more democratic, they also dared to use more TJ. Public awareness changed as well. German victims of deportation and refugees from the east were no longer seen as victims on the same level as Holocaust victims. The notion of collective memory, moral responsibility and a shared (unfalsified) narrative, which had been anticipated by Kohl and von Weizäcker, slowly replaced the term collective guilt in the public arena.

Yet, it became apparent that progressive TJ movements and politics do not necessarily work together in harmony. Not surprisingly, the 1980s were also the decade of a thriving neo-Nazi movement in both Germanys. Above all, this indicated that many of the past myths about the ‘heroic German race’ had not been sufficiently demystified or delegitimised. Although the neo-Nazi movement never reached a critical mass, let alone serious political influence, it threatened people with hate speech, thus threatening social peace on both sides of the Iron Curtain. Anti-Semitic movements and attacks against Jewish cemeteries led to new forms of thinking about the Holocaust and more policies and how to educate and provide information about the past. In East Germany, the SED regime applied its usual state-centred top-down approach, imprisoning people who took part in anti-Semitic action without allowing any public debate. The main newspaper in the east, Neues Deutschland, was a party propaganda outlet and thus state-controlled. An open, let alone controversial public debate about anti-Semitic tendencies, Neo-Nazi movements or TJ in general was not possible. Instead, and all of a sudden, the SED discovered TJ again as a useful tool for political concessions in reaching diplomatic ties with Israel and thus inaugurated memorials and celebrated prominent German-Jewish artists and communists, many of whom had been Holocaust victims and therefore had remained in the east.Footnote ²³⁴ This was a new era in East Germany’s top-down TJ approach and in its foreign policy. In the 1980s, the SED politburo aimed to protect the country from international criticism that it had not sufficiently fought Nazism and thus had to show how to combat anti-Semitism. Another example of the East German regime’s top-down approach to TJ is the restoration of the largest German synagogue in East Berlin that had been destroyed during the Reichskristallnacht in 1938 and remained untouched for over 40 years. As indicated earlier, in 1988 the SED ordered it restored to satisfy international pressure and to strive for recognition. This was not for moral reasons, but because the regime aimed for diplomatic ties with Israel and wanted to avoid neo-Nazi groups undermining the power of the one-party regime and its reputation abroad. It was the time of appeasement politics, the de-escalation of the Cold War and the opening up of the east. It was now, finally, that the SED did for tactical reasons what the Adenauer government had done 30 years earlier.

At the same time, suppression by the Stasi grew even stronger as the civil rights movement and the neo-Nazi movement became stronger, both posing a serious threat to communist doctrine and one-party rule. The right-wing movement often used violent means to express its disagreement with the political regime, such as the desecration of Jewish cemeteries. Although such violent neo-Nazi acts also happened frequently in West Germany, the manner in which they were dealt with by the regime was different by that time.

In West Germany, neo-Nazi attacks at the Oktoberfest in Munich and the killing of a Jewish publisher in 1980, garnished public attention for the movement, but more protest against the neo-Nazi movement. This neo-Nazi movement rose up at the same time as – and was soon outnumbered by – the peace movement. Nevertheless, the neo-Nazi movement remained a serious concern for all political leaders. Many of the members were prosecuted and indicted under Section 130 of the West German Criminal Code, a provision that was part of the German move towards militant democracy. One could be indicted under Section 130 for singing the Nazi Horst Wessel anthem in public, promoting anti-Semitic protest, denying or attempting to justify the Holocaust, displaying the Nazi Swastika or associated symbols, or celebrating Hitler’s birthday in public. Charges ranged from financial penalties to up to five years in prison, although defendants were most often released on bail and only received minor penalties of several hundred marks. Although Hitler nostalgia and Holocaust denial were illegal, it became clear that punitive measures alone could not halt the tide of neo-Nazism. Education and awareness programmes were installed again and ‘re-integration’ and ‘exit’ programmes were launched for Nazis who wanted to leave the right-wing movement, although it was not always clear whether this led to success. The difference between the neo-Nazi movement in the 1980s and that of previous decades was that the movement of the 1980s was almost exclusively composed of second post-war generation members who had never been through a war or seen a concentration camp. In the previous decades, the neo-Nazi sympathisers had been war veterans or former NSDAP and SS members who aimed to preserve the ‘nationalist glory of the past’. They saw themselves as elites and celebrated their nostalgia in closed circles. Such groups had little in common with the new nationalists who fuelled the racist and xenophobic movement in the 1980s. Public institutions reacted with increased surveillance of right-wing and neo-Nazi groups.Footnote ²³⁵

In the ‘new dictatorship’ in the east, another radicalisation of the young generation started taking place 20–25 years after the Berlin Wall was built and the Iron Curtain was closed. Similar to the first post-war generation and its radicalisation in the 1960s, it was now predictable that not only a left-wing movement would start questioning the governance practice of the SED regime, but that also a neo-Nazi movement would become active. These groups posed a real dilemma for the communist regime, since, according to its official propaganda, East Germany had successfully eliminated all Nazis in the country. But the new right-wing groups violated Jewish cemeteries and proclaimed the Third Reich as a successful era in German history. In 1987, the East German neo-Nazi movement had approximately 1,000 members in a country with around 18 million inhabitants. Some of these members raided a church concert of a rather left-wing activist group in East Berlin. Their actions undermined the official propaganda of the SED, illustrating that the SED’s suppression of open dialogue about the past had not created a socialist culture, as the communist leaders had hoped it would.

At the same time, human rights and civil society movements in East Germany grew out of the peace movement. These movements focused on two points: first, protesting the threat of a nuclear war; and second, joining a civil rights movement such as Solidarność in Poland or Charta 77 in Czechoslovakia. This movement had no direct connection to Germany’s past, but was a result of the government’s failure to openly deal with World War II and to become more democratic. Accordingly, this movement directly targeted the suppressive SED regime.Footnote ²³⁶

During this decade, citizen engagement and civic trust reached a peak on both sides of the Iron Curtain. Citizens used formal and public channels to make their demands with legal means, petitions and peaceful protest. It weakened the regime in the east but strengthened the one in the west. In the west, civil protest and growing citizen engagement in politics led to large political shifts and changes and thus to more accountability and responsiveness from the executive and legislature. Open and public debates were held and the questioning of the historical narrative of the past took place. The peace movement rose and executive and legislative powers had to respond in a more sensitive fashion to their claims. The ‘paternalistic’ or ‘militant’ democracy of the early post-war years had disappeared and been replaced by ‘citizen democracy’. But by 1989, civic turmoil and unrest in East Germany rose and in the west the large majority of Germans were either fairly satisfied or very satisfied with democracy (78 per cent had a high level of civic trust in institutions).Footnote ²³⁷

In November 1989, public pressure and civic engagement led to the fall of the Berlin Wall and eventually to the reunification of East and West Germany. From then on, TJ and democratic institutions were closely linked in the new transitional process in East Germany with a short period of regime change that quickly turned into consolidation.

This rupture and regime shift in 1989/90 took place under completely different conditions than the regime change of 1945. One of the reasons was the change in morality and the awareness about human rights norms and standards among the wider public. As Kathryn Sikkink and Beth Simmons have noted, human rights norm diffusion starting already at that time was part of the larger process of delegitimisation of autocratic regimes around the globe.Footnote ²³⁸ These certainly did have an effect on East Germany and, due to the pressures from below, the SED regime passed rehabilitation (de facto amnesty) laws for all political indictments and sentences (SED-Unrechtsbereinigungsgesetze) one week prior to the fall of the Wall in November 1989. These laws were aimed at easing tensions in society.Footnote ²³⁹ These quasi-amnesty laws were not only aimed at the massive number of political prisons in East Germany, but also intended to account for all ‘political crimes’ by the SED leadership. This was similar to what many regimes in transition did, such as the Adenauer government in 1949 and King Juan of Spain after Franco’s death in 1975. Seeing the end of the regime coming, the political elites took any measure they could to preserve as much status as possible and avoid future prosecution. It is more the rule than the exception that this will lead to a culture of impunity that can hamper democratic development as was the case in the early years of West Germany.Footnote ²⁴⁰

However, once the regime made these and other concessions to quell the growing unrest in the country and to appease the ‘Monday protesters’ throughout the cities in East Germany, more exposure for the regime followed. The rather peaceful ‘revolution’ of the autumn of 1989 made it clear that time for change was long overdue and that citizens would determine how the second German dictatorship in the course of a century would be dealt with. It was citizens who had dissolved the ‘shield and sword’ of communist power, the Stasi headquarters in East Berlin, in November 1989 and who had turned it into a centre of commemoration and education. There was no military intervention this time, a fact that certainly determined the role TJ would play in dealing with the communist past.

Between November 1989 and the spring of 1990, members of the political SED elite and the Stasi were highly intent on destroying, burning and shredding tonnes of files and documents that could prove the use of suppression, human rights violations and corruption to keep the ‘socialist revolution’ going. This showed that the SED and Stasi feared TJ measures and citizen acts of vengeance.Footnote ²⁴¹ The remaining political SED elite that was officially still in power after November 1989 immediately planned to establish their own commissions of enquiry as early as December 1989 and planned to include civil rights movements in dealing with the past. The SED reacted fast, using the promise of TJ measures and the justice and truth they could bring, to ease citizens’ demands and the violence on the street. The measures promised by the SED included amnesty laws and reforms of the secret service and other institutions.Footnote ²⁴² Political elites knew, either consciously or unconsciously, that democracy – whatever that might entail – could only be attained with TJ measures. Later in March 1990 the civil rights movement in East Germany demanded its own independent commissions of inquiry and further TJ measures. Thus, during the year prior to and the year after reunification with West Germany, the East German interim parliament (composed mainly of old SED elites), passed a number of rehabilitation and amnesty laws as a TJ package to deal with the dictatorial past. This package included restitution for property (which was later paid by West Germany) and rehabilitation measures. Yet, it also included a number of measures meant to allow communist party members to keep their positions in the government and bureaucracy of the state.Footnote ²⁴³ This plan did not work, as after reunification the joint German parliament introduced long-lasting lustration and reparation policies that counteracted the earlier political initiatives. The year 1989 was a milestone for both regime change and regime consolidation, because it was clear to all from the beginning that the unified country could not transition from one regime to another without the application of at least some TJ measures. This was a phenomenon that had been accepted across the globe, and one that would be put into place in many countries in the decades that followed.

Fifth Decade: 1990–1999

In ‘Germany’s Second Chance’, Anne Sa’adah illustrated the challenges and missed opportunities that Germany experienced after reunification in 1990. She wrote about the disappointments, compromises and identity crisis that the unified country faced during this decade.Footnote ²⁴⁴ Sa’adah particularly focused on the intertwining and spiral relationship of various actors and institutions that struggled between trust, legitimacy and the adequate use of TJ measures. As Hazan, O’Donnell and Schmitter have emphasised, it is this first decade during which the roadmap between the will to consolidate with the support of TJ is drafted and result will be seen much later.Footnote ²⁴⁵

By the end of the 1990s, all possible TJ measures had been introduced and applied, either in dealing with the legacy of World War II or with the legacy of the communist past in East Germany. Moreover, the 1990s saw the coming together of two different approaches to TJ – that of West Germany and that of East Germany – in the one country united. Because of that, this decade marked the most intense era in terms of TJ and regime consolidation, because it had to deal with two TJ processes at the same time – the ongoing post-World War II one and the new post-SED regime one. Although the unification in October 1990 came a bit by surprise, the reunified government had learned from the risks that too many or too few TJ measures at the same time can impose on consolidation. Even after the first fair and free elections on East German soil in March 1990, the new mixed political elites and actors in East Berlin who had already started to set up their own truth commission and mapped out possible trials, and so forth, were in a weak position to negotiate their own transition process with their western counterparts.Footnote ²⁴⁶ Only half a year later, the reunification of October 1990 made the outcome of the elections obsolete.

Without doubt, too many trials at once, biased lustration processes and exclusionary reparations to a few but not all victim groups can weaken this process if those responsible for past crimes are not all targeted on an equal basis. The benchmark for successful TJ was whether old East German elites would seek a recurrence of the former Stasi-based regime and receive a lot of support of citizens or if they would become an integrated part of all Germany without causing any unconsolidated pocket of democracy by the end of the decade.

Unique to any post-communist country in Eastern Europe, Germany saw the expulsion of all communist elites, all at once, from office through massive vetting procedures, thousands of trials in extraordinary chambers dealing with political and property claims, opening of the notorious Stasi records and establishing a truth and history commission in the German parliament. Within seven years after reunification the parliament had passed three laws to eradicate SED injustice, issued trials and massive vetting procedures, charged and compensated thousands of citizens who had been deprived of their property, been abducted or put into prison for political reasons.Footnote ²⁴⁷ TJ measures applied on East Germany meant overall acknowledgement and criminal justice through vetting and lustration procedures and reparations by dealing with property issues of the past. Most of these measures were symbolic, since East Germany no longer legally or politically existed after 1990. Jon Elster has stated that the post-communist elite was surprisingly passive and opportunistic in Eastern Europe and the TJ process was rather technical and bureaucratic.Footnote ²⁴⁸ The installation of TJ measures was confronted with less resistance than it was in the period between 1945 and the fall of the Wall.

Juan Espindola has assessed the TJ process in unified Germany concerning the east and has concluded that its main achievement has been the public exposure of former perpetrators, leading to delegitimisation of the communist regime and those responsible for it.Footnote ²⁴⁹ He described a truly anti-communist TJ process, with the sole purpose of delegitimising the SED regime, without seeing much need to legitimise the new democratic regime, since the institutions were mostly copied from West Germany and thus already in place. But this was also a missed opportunity, as it ‘imposed democratic institutions’ instead of allowing people to build them up, and has haunted East German political and civic culture since the 1990s, i.e. in how to treat and deal with minorities, a high level of xenophobia and neo-Nazi movements and other radical, nationalistic views which are much more frequent in the east than in the west.

This decade could also have been a moment for dealing with the West German past between 1949 and 1989, including the wrongdoings and human rights abuses of West German authorities against the RAF and other left-wing opposition groups during the Cold War. However, Germany neglected to deal with this past at all, thus making the TJ approach biased against East Germany. Blame was not put on all sides, but only on those who collaborated with the SED regime (and only if they were not prominent West German politicians). West German collaborators with the SED regime were hardly brought to justice. Many East Germans, even those who had risked their lives protesting on the streets of Leipzig and Berlin prior to 9 November 1989 (the day the Wall felt), perceived this way of dealing with the past, the total defeat of alternative elites from the former GDR and the swift imposition of democratic and liberal values as victor’s justice, similar to how Germans perceived the trials of their former political and military elites after 1945.

Nevertheless, regime change and consolidation in the east through accession continued swiftly and in a much more diverse and self-critical – albeit not ideal – way than ever before. The situation was such that McAdams referred to East Germany as a completely defeated regime that the West German authorities in Bonn ‘inherited’ in 1990. According to McAdams, ‘they did not have to worry about the kinds of concerns that have made the pursuit of transitional justice in other settings so precarious and complicated . . . there were no contending military elites in the wings waiting to reassert themselves should their country’s democratically elected leaders appear to go too far in their reckoning with past crimes.’Footnote ²⁵⁰ German authorities almost immediately introduced a functioning bureaucracy and there was never any serious social instability in the newly united regime. However, there was the risk of dividing the young reunified country into a ‘winner’ and ‘loser’ side, which indeed happened in the following decades.

It was almost a simple technocratic transition, but the hearts and minds of 18 million people still had to be won.Footnote ²⁵¹ A survey from October 1990 showed that a large majority of Germans had great confidence in the (new) democratic regime. Seventy-five per cent of all respondents expressed their overall satisfaction and trust in the regime – a regime that many East Germans had previously only known from television. Only 22 per cent expressed no satisfaction with these institutions.Footnote ²⁵² Public opinion was influenced by the fact that it was the financially well-equipped western institutions that were imposed on the smaller-sized eastern part of the country. Thus institutions and actors in the east could not grow out of themselves, make their mistakes, renegotiate laws and policies with groups, and thus often led to marginalisation of political opinion and thus their radicalisation in the east which remained way beyond another post-communist generation in 2015. Nevertheless, the idea that it ‘would take at least a generation’ to overcome the cultural and political cleavages and to fully adhere to democratic rules soon became common in German public life and the majority of people adapted. This TJ process would be less punitive or restorative and instead more about establishing a common narrative and culture among all Germans.

Nevertheless, this TJ was issued in a rapid and massive way. The Unity Treaty provided the provisions for TJ of the coming years, defining in particular individual responsibility for injustice and crimes, especially political crimes in the east, and the possible consequences in terms of vetting and lustration procedures. The Unity Treaty also dealt with property issues arising from both the Nazi and the communist dictatorships, such as the expropriation of Jewish property under the Nazis and subsequently also under the communist regime. After 1990, the unified government had to deal with the past of two dictatorships at the same time. But overall the dictatorship of the SED regime with all its shortcomings and crimes always stood in the shadow of the crimes and atrocities of the Nazi regime. To put equal attention, let alone mobilise large parts of civil society in all of Germany to support both TJ processes equally, was almost impossible and was soon given up on. TJ of the SED regime remains mainly a matter of courts, administration, foundations and private initiatives in federal states of East Germany.

The Stasi files were made public in 1990, and in 1992 parliament decided to set up a commission of formal inquiry into the causes and consequences of the SED dictatorship. The commission (Enquette Kommission des Deutschen Bundestages) met over a 25-month period from 1992 to 1994 with 16 members of parliament from all political parties, 11 academic advisers, and others. Forty-four public hearings and 150 subcommittee hearings led to several volumes of testimony and stories about the past. The commission was deemed a success and parliament decided on a second round of investigation in 1995.Footnote ²⁵³ Joachim Gauck, the first director of the Stasi Record Office, expressed his view that if ‘after more than 55 years of Nazi and communist dictatorship in East Germany, citizens were going to trust elected officials under the new democratic system, it was important that those officials be trustworthy’.Footnote ²⁵⁴ In Gauck’s view, public exposure and opening the Stasi files was a response to the East German citizens’ demand that persons who had conspired with the regime should be deemed unsuitable for public position. Nevertheless, only a handful of high-ranked officials have ever been put on trial, and thousands SED technocrats, although indicted, remained untouched. Espindola has interpreted this fact that so few collaborators have been tried and imprisoned as the result of an attempt to ‘reincorporate’ them into the system, even as opening the files and public exposure meant a rather unambiguous reprobation of those people’s missteps in the past.Footnote ²⁵⁵ With this policy the judiciary aimed to avoid parallel societies and new division among Germans.

According to Gauck and Hermann Weber (one of the most distinguished scholars of German totalitarianism at that time), the two German dictatorships from 1933–1945 and 1949–1989 displayed similarities in their mechanisms of oppression and totalitarianism.Footnote ²⁵⁶ For the new ‘Berliner Republic’, as the unified Germany was called, it was officially equally important to deal with both of these past regimes. Nevertheless, in reality, TJ measures were unfortunately split: the Nazi past and the communist past were two different avenues on the road to consolidation. The TJ process of the communist past was left to and kept by East Germans, while dealing with the Nazi Germany past remained in the hands of West German intellectuals, academics, media and CSOs. West Germans did not care much about East Germans’ difficulties in adjusting to the new democratic regime, let alone the new culture, narrative and behaviour. On the other side, East Germans often shook their heads when listening to the controversies surrounding West Germany’s ‘collective guilt and responsibility’ sentiments. Easterners did not share the collective guilt of the 1968 generation, let alone their sense of responsibility. To East Germans, Jews were not seen as having been more victimised in the concentration camps and atrocities of the war than communists, prisoners of war and dissidents of the Hitler regime or all the other millions of victims. The point that the racism laws were an inherent part of the Nazi policy and supported by a large part of Germany and which had led to the killing of millions of people based on the nature of their birth, and which made that dictatorship so unique in history, was not captured by many East Germans at that time.

Reunification also brought with it a chance to face democratic flaws and obstacles. Because the expectations of reunification and regime change had been so overwhelmingly high among East Germans, dissatisfaction soon arose. Dissatisfaction with the democracy had more than doubled in the three years after reunification and, surprisingly enough, on both sides. By 1993, almost half of all Germans (47 per cent) were not very satisfied or not at all satisfied with democracy, and most of them were East Germans who had expected other ways of dealing with their past. East Germans were particularly disappointed with a perceived lack of justice that the few trials and vetting procedures had apparently brought about. In their eyes they had been conducted in an unfair way.Footnote ²⁵⁷ After East Germans experienced and came to understand that democracy is a day-to-day process of compromise and that nothing can be taken for granted, they started to doubt whether democracy was really the best way to go. Thousands of political victims of the SED regime started to demand more justice and compensation by means of restitution of lost property. A federal foundation for political prisoners of the SED regime, already established in West Germany in 1969, became one of the key players pressuring government and parliament to find solutions to these demands. Another one was the NGO for victims of Stalinism (Opfer des Stalinismus), the largest membership organisation of victims that suffered SED and Soviet suppression since 1945 and from 1949 onwards. Although the government responded with a number of ‘victim’ laws including compensation, rehabilitation and restitution measures, the government also started a general debate about whether these people should be considered victims at all. Why not call them heroes who dared to oppose and fight against an unjust regime? Instead of political recognition, they received financial compensation. While this compensation in and of itself was not disputed, the method and means were.Footnote ²⁵⁸ Although the other half of the country remained rather satisfied with regime consolidation, the shift to more negative views indicated increased scepticism and disillusionment after the initial euphoria about democracy in 1990. Nonetheless most levels of regime consolidation as described earlier by Merkel, such as the constitutional consolidation, the representative or by attitude and behaviour were rather quickly achieved. The final level of democratic consolidation, however – namely to include civil society as a permanent motor of democracy – needed time and was far from being completed in the 1990s.Footnote ²⁵⁹ It would need a generation at least. Since West Germans were in the majority, they dominated the TJ discourse, much to the dissatisfaction of victims of the SED regime. In the West German TJ discourse the Holocaust was the main focus, not the SED regime’s massive human rights violations.Footnote ²⁶⁰

The Unity Treaty (Einigungsvertrag) in 1990 between the two Germanys and the four former Allied powers – France, Russia (Soviet Union), the United Kingdom and the US, ensured that war memorials, particularly in former East Germany, would be maintained on the territory of Germany. Although the Soviets emphasised their own version of World War II history in these memorials, the Treaty was clear on this issue. The former Allied victors’ commemorations of World War II had to be respected – even though, for many Germans, these memorials were symbols of massive violence, arbitrary killings of civilians, the systematic rape of women, show trials and 40 years of oppression.Footnote ²⁶¹ This posed a paradox: the victimisers were commemorated as heroes whereas the victims were not even mentioned – a situation that reminded many of the dilemmas Chancellor Adenauer faced in the early 1950s with regard to the German refugees. The government responded with memorials for victims of the communist regime. The Soviet memorials of honour that are close to the Brandenburg Gate and in the Teptow district of Berlin are some of the most prominent results of the Treaty, although they are ironically often mistaken for German war memorials. In addition to this, the Treaty provided for the withdrawal of Soviet troops from East Germany. The reunified German government paid for the removal, reintegration and housing of Soviet soldiers returning to the Soviet Union, not only as an act of reconciliation, but also as an indication that the Soviet government was in financial trouble and more than fragile. In the end, and in hindsight, many have wondered who this agreement humiliated more, the Soviets or the Germans? Most importantly, the Treaty revised and updated the German laws of restitution from the 1950s. Between the fall of the SED regime in November 1989 and the reunification of Germany in October 1990, the East German interim government made it clear that past injustice and, in particular, the political imprisonment of 150,000 East German citizens under conditions of ill-treatment or torture, had to be acknowledged. In September 1990 the East German parliament passed a rehabilitation (de facto amnesty) law for those who had been prosecuted for exercising their freedom rights, regardless of whether they were communist or in opposition.

One of the first public and parliamentary debates that linked TJ with consolidation was in 1991 when it was discussed whether Berlin should be reinstated as the capital of Germany. This debate indirectly reflected the question of how reunified Germany would deal with its past. According to the 1949 German Basic Law, to which East Germany had acceded, the capital of Germany would be Berlin after reunification. Yet, the parliamentarians from the younger, post-war generations wanted a more open debate on whether this was actually necessary. Bonn had since become the symbol of a successful, peaceful, and moreover consolidated democratic regime in the west. Berlin, on the other hand, had been the capital city of two German dictatorships, a Nazi and a communist one, in one century alone. Despite doubts and concerns, the parliamentarians voted in favour of Berlin. The parliamentary debate as such was interesting, as it indicated the role the past and TJ played in Germany’s regime change. During the days and weeks of the debate, parliamentarians from all factions discussed questions of the past, not only concerning World War II, the legacy of both the Nazi regime and the SED regime, recent history, historic symbols and their meanings, as well as what Jan Assmann later called the German ‘cultural memory’.Footnote ²⁶² Moving the capital back to Berlin was all about how the country would deal with its past in the future and about consolidation, too. Many parliamentarians feared that Berlin’s negative legacy of Nazi and Communist dictatorships was too loaded with unsuccessful attempts at consolidation. They feared Berlin as a capital to be a bad omen, because once again it would mean that Germany had to rebuild democracy in parts of its own country where democratic culture had been absent for over six decades, if it had ever been present at all. Now that Germany was a fully sovereign state, it could no longer rely on the Allied forces to check whether democratic consolidation was actually succeeding. It was up to the Germans themselves, and to their neighbouring states, in particular Poland and France, to watch its further development. Nevertheless, the government could count on international support especially after Germany was further embedded in the EU in 1992 and later took a significant lead as a country symbolising Europe’s unity after the German reunification process went on fairly smoothly. But first of all domestic fears were also fuelled by international politics. More than a few governments in Europe and beyond feared that a reunified strong Germany would return to autocratic forms of governance once it regained its sovereignty and that nationalist feelings would once again gain ground. These fears were not without reason, although democracy was on firm ground at this time. Those who won the first debate in parliament argued that it would be good to show that Berlin could finally be a place where a strong democracy could flourish and be ‘the only game in town’. At the same time, it still had to be proven that the citizens were ready for a fully fledged democratic state with a fully sovereign government.Footnote ²⁶³ It took until the end of the 1990s before the capital finally moved to Berlin, which was a striking symbol of an effective and legitimised regime, alongside a record number of TJ measures being put in place.

Initially, the moral aspect of TJ measures was not addressed, neither by former SED leaders nor by members of the East German notorious secret service and the Stasi never apologised. And as Wolf-Dieter Meyer, Chair of the NGO Victims of Stalinism has phrased it, as long as former Stasi officers were not publicly tried and sentenced, any moral sentiment to come to terms with the past would be absent in the wider public in the eastern part of Germany. Too many victims of the SED regime feel that they have not received the justice they aimed for.Footnote ²⁶⁴ In the parliamentary truth and history commission (Enquete Commission of the German Bundestag), the legislature made clear that any facts or evidence of past oppression could lead to criminal prosecution and personal consequences.Footnote ²⁶⁵ It was clear that the number of amnesties granted in 1950s must be avoided, but at the same time the new laws were viewed in combination with rehabilitation laws. This meant that, in the end, SED perpetrators benefited from de facto amnesties. While an official amnesty law was never on the table, the sentences given to perpetrators were so minor that they could almost qualify as acts of clemency. At the same time, there were enough West German administrators, technocrats, lawyers and otherwise skilled persons available to replace the East German communist elites all at once. Thousands of East Germans lost their jobs in public service shortly after reunification or were downgraded in their positions due to lustration processes.

As a consequence of the federal commission of inquiry, until 1998 the parliament passed a law that dealt with the files the Stasi had kept on individuals, as well as with the archives held by state-run research institutes in the former GDR.Footnote ²⁶⁶ The law laid down the foundation for one of the longest ongoing vetting and lustration episodes in history, allowing for systematic scans of millions of German citizens, in the east and the west, in public office. Today the Stasi files are open to researchers and investigators and have provided material to hundreds of academics, journalists and novelists writing about the 40-year-long dictatorship.

But ‘competing memories’ or the prioritisation of one set of victims of Nazi terror over victims of SED terror prevailed. As a response to this, the parliament issued more commemorations and other TJ measures than any other country in the world. Yet, the sheer number of TJ measures does not necessarily say anything about how consolidated the regime is, let alone how democratic. The point raised is who initiates and who embraces these measures?

This decade also brought up the debate about the public holiday and commemoration day of the end of World War II. Many proclaimed 8 May to be an official holiday for all Germans, to commemorate liberation from Nazi terror. A majority of East Germany favoured this day but it failed due to the dominance of West German conservative policy makers who did not share the common narrative of the east. Thus a common narrative about World War II, as Elazar Barkan had proclaimed it, was once again to be established in unified Germany. Although for some Federal States in former East Germany, for example in Mecklenburg-Vorpommern, the day remains an official commemoration day.

On the sixtieth anniversary of the end of World War II, the German parliament commemorated the day of German liberation, but without declaring it a national holiday. How to deal with this important day in German history became an example of and intriguing aspect of Germany’s TJ policies, considering that most European countries that were affected by German occupation, for example France, Russia and the Netherlands, celebrate the day of liberation from Nazi occupation in May as a national holiday.

In 1995 Chancellor Kohl invited the heads of states of the former Allied powers and turned the day into a state act confirming Germany’s unity and new role in Europe. For the first time since 1945, foreign representatives were invited to address the German Bundestag and the Bundesrat.Footnote ²⁶⁷ In summary, 50 years after World War II, the first official reconciliation ceremony took place between Germany and its former ‘enemies’ in the occupied territories from World War II. With this type of commemoration, Kohl made it clear that a unified Germany had been defeated in order to be liberalised and had only now become a fully recognised and sovereign member of the international community. It was also a symbolic act towards the new and old elite in East Germany. This day was a day of liberation for all Germans, not only for some. Regime consolidation was no longer questioned during this decade; but it was mistakenly taken for granted.

If unconsolidated pockets of democracy are marked by the level of violence and sabotage by groups who oppose democratic agenda setting and decision making, then some minor branches of these pockets also arose in Eastern Germany, often labelled as right-wing and neo-Nazi nationalistic movements which had problems accepting a diverse, pluralistic society. Nevertheless, some international observers stated that all major state obligations for reconciliation were technically fulfilled after 1949 and after 1989, respectively.Footnote ²⁶⁸ However, what was missing was the moral duty to reconcile the divided East German society, i.e. Stasi officers with their victims. This moral obligation to learn from history, to atone and reconcile, was impossible to pass by laws or to impose on people. It needed to grow in the years to come. But civil society grew and so did voluntary engagement, often with heavy financial support by the governments. This is the reason why, today, Germany has a number of federal foundations for remembrance that respond and tackle TJ demands from the past. They are semi-governmental entities that deal with these issues and aim to increase civic culture and trust through education and memory.

German authorities’ responsiveness to victims and perpetrators claims was high, although sometimes rather hasty. They faced strong opposition and engaged in debates on the extent to which TJ, and in particular restitution policies, could heal the wounds of the past, whilst at the same time strengthen democracy. ‘White spots’ in Germany’s two dictatorships’ past still needed to be found and dealt with. Often, these were discussed openly, although there were also parts of the past that were not openly talked about, such as massacres or individuals collaborating with the Stasi or Nazis.Footnote ²⁶⁹

At one point, the country was divided by the question of whether the former head of the communist party and leader of the SED regime, Erich Honecker, should be prosecuted for his individual and political responsibility for the killings at the Berlin Wall, the massive number of political prisoners and general oppression. Honecker fled Germany in 1991, sought refuge in the Chilean Embassy in Moscow and was later extradited to Berlin to be tried. He was released for health reasons and exiled to Chile in 1992, where he died in 1994. This case, more than any other, indicated the difficulties faced by the German judiciary in trying to reconcile the West German criminal code with the former East German criminal code. McAdams has argued that according to the German constitutions, the Basic Law, the value of human life outweighs the public clamour for retribution, thus entailing that Honecker’s poor health was a valid reason not to try him.Footnote ²⁷⁰ This example of a rather weak post-communist German judiciary led to the fact that most trials that followed had more of a symbolic and restorative purpose to ‘teach the rule of law’ than a punitive one. This led to resentment among victim groups. Only a handful of the SED elites were tried, most of them on the basis of complicity, with only minor charges or suspended sentences being handed down.Footnote ²⁷¹

Another striking parliamentary and public debate about regime consolidation and TJ took place on the issue of the federal commemoration day of reunification, 9 November. According to some observers, 9 November 1989 was the ‘happiest day in Germany’s history’, the day the Berlin Wall fell by peaceful means and by virtue of the will of the citizens. For many it was thus evident that this day must become the most important national holiday. However, 9 November is a heavily burdened date in Germany’s history. This day in November was the night of pogroms, the Reichskristallnacht in 1938, when Nazis looted Jewish synagogues and killed Jewish citizens, a day that is often seen as the beginning of the Holocaust. The compromise was to declare 9 November a national commemoration day, primarily of the events in 1989, while not converting it into a national holiday to avoid any possible insult to Holocaust victims. Today, most celebrations of 9 November take place around the remains of the Berlin Wall and no public representative or governmental official has failed to mention the events of 1938 when observing this day. But the official holiday for German reunification is now 3 October, the date on which the German Unity Treaty was signed in 1990.

Another cultural event that contributed to the common narrative of Germans, was the 1993 Hollywood release Schindler’s List. This film was watched widely throughout the country in the following years. It brought back aspects of the Nazi past into citizens’ living rooms and shaped their understanding of it, but this time in a unified country and supported by a majority of Germans, unlike the film Holocaust 25 years earlier. Throughout the decade, it became clear that dealing with the legacy of World War II remained mainly in the hands of West Germans. In the east those who cared about TJ were either too busy with the SED dictatorship or simply cared less about the Nazi past because it was still widely perceived as the responsibility of the west to deal with it. Films and textbooks about the East Germans’ unjust past surfaced only much later for the wider public but were not prohibited. As in any TJ process a common narrative and the catharsis had to be there, in order to trigger public debates; however, since the East German regime was toppled by its own people and not through a defeat, this soon came about. And thus in the first decade after reunification the Nazi legacy was much more present in the popular narrative than the SED dictatorship in overall Germany, but that soon changed.

Meanwhile public and private foundations aimed to support citizen-driven initiatives to commemorate or compensate the victims of past injustice – on all sides. The Holocaust Memorial in Berlin for all murdered Jews in Europe, for example, was a citizen initiative that started in 2003, after a decade of heated public debate starting in the mid-1990s. Although today it is part of a federal foundation, it started as a public-private initiative driven by German-Jewish citizens, many belonging to the 1968 generation. The projects were realised mainly through private donations from Germany and around the world. These were citizen-driven initiatives later embraced and supported by parliament and turned into federal agencies or supported by them. The same was true for the foundation dealing with the SED Dictatorship (Stiftung Aufarbeitung SED Diktatur). After the end of the commissions of inquiry, in 1998, the German parliament debated and enacted a law to establish a federal and state-owned foundation with the aim to commemorate, educate and investigate the dictatorial past of East Germany. But it also supported private institutions with tax money. Many more initiatives pushed by civil rights movements, victims and other private initiatives rose in the subsequent years with a clear mandate to delegitimise the past and to improve the democratic culture in the east.

Many countries have since copied the TJ model that German authorities and civil society had constructed since 1949, although their effect is not necessarily the same in other countries due to very different causes and consequences of past conflicts, dictatorships and how political actors and CSOs use them.Footnote ²⁷²

A much more controversial issue of restitutional justice in 1990 was property issues. In 1992 a law passed by the new parliament regulated compensation for those expropriated under communism. Trials were reluctantly or carefully initiated and the legal advisers to the Ministry of Justice identified around 11 types of crimes relating to the SED dictatorship. Among those were crimes of espionage, killings at the border of West and East Germany (136 people were killed during their attempts to cross the Berlin Wall between 1961 and 1989), corruption, perversion of justice and ill-treatment of prisoners. Over 700 cases had been dealt with in federal courts, although not all those involved were East Germans. During these proceedings, no charges for crimes against humanity were ever brought, much to the discontent of many former East German citizens and victims of decades as political suppression. Approximately 5,600 investigations of espionage took place up until 1997, with a few more taking place after that date. Approximately one-third of the people investigated were former West German citizens who had collaborated with the SED regime, in which case the investigation became a joint TJ issue for East and West Germany. Yet, most of those tried had been in leadership positions in East Germany and were soon replaced or officially ‘retired from office’ after reunification in October 1990. The highest number of investigations took place before 1993; after that the number of denouncements and prosecutions decreased. This was also due to the fact that a functioning judiciary was soon put in place after 1990 (with lawyers and attorneys from the west) and neither laws, nor the application of laws nor the practice of how to run a court independently needed to be explored or learned – as would be common in times of regime change. Thus, the (few) cases that were brought up for trial were dealt with in a rather rapid but efficient way because there was no need to retrain lawyers or judges, as most of them were West Germans and their independence was almost guaranteed by the simple fact that they had never lived or worked under the SED regime.Footnote ²⁷³ By 1997, 98 per cent of all cases had been closed, but only 2 per cent had resulted in successful prosecution and sentences of up to two years in prison. Most of those indicted received a suspended sentence or probation. The main reason for the low number of charges and the high number of suspended sentences was the fact that after 1990 the country of East Germany no longer existed, and the Stasi was entirely dissolved, and thus those who had committed crimes no longer posed any risk for the democratic society of the (new) reunified Germany. There was no significant threat of recurrence, and therefore almost all those sentenced for crimes such as ill-treatment and espionage received parole.Footnote ²⁷⁴ This also indicates that trials functioned as a way to introduce East German (and West German) citizens to a functioning judiciary, whose aim was to reintegrate perpetrators into society whenever possible. A major goal often claimed by TJ was to increase the level of rule of law. The president of the German Constitutional Court, Ernst Benda, emphasised this when he mentioned, during the proceedings against Honecker in 1991, that the trial had the potential of becoming a ‘learning process’ for the new citizens of the east.Footnote ²⁷⁵ Egon Krenz, a former member of the SED politburo and the last head of government before the Wall fell in November 1989, was one of the few high-ranked politicians who were eventually prosecuted. He was charged with homicide for the order to shoot to kill (Schießbefehl) at the border of West and East Germany in the period before 1989. Dozens of citizens had lost their lives at the border crossing as they tried to flee the dictatorial regime. The attorney general started prosecution in 1993 and Krenz was sentenced to six and a half years imprisonment for giving and maintaining these orders, which violated international customary human rights law at that time. After various revisions and declines of his appeals in 1996, 1997 and 2000, the German Constitutional Court upheld his conviction, as did the ECtHR in 2001.Footnote ²⁷⁶ He was imprisoned in Berlin and released in 2003, serving the rest of his sentence on parole. Krenz’s case was part of the effort to respond to the victims’ claims and to show that what had happened under the regime was unjust and violated human rights. Moreover, the trial showed that the German Rechtsstaat was capable of delivering justice for the past and future. The fact that Krenz was prosecuted and sentenced to substantial jail time was, however, the exception and not the rule.

These mainly symbolic efforts to establish justice caused much discontent among former East German opposition leaders and members of the civil rights movements. Many East Germans expected nothing less than a miracle from the West German political regime and were without further surprise disappointed. They expected revenge and not a rule of law. Bärbel Bohley, a prominent civil rights activist from East Germany (who had been imprisoned several times by the SED regime) expressed the frustration many felt with the symbolic convictions that were often nothing more than symbolic acknowledgement of past wrongdoings forcing many Stasi officers to early retirement but more or less doing nothing. She therefore paraphrased an oft-quoted sentence, ‘We wanted justice and got the rule of law instead’ (Wir wollten Gerechtigkeit und stattdessen bekamen den Rechtsstaat).Footnote ²⁷⁷

In another case, an East German soldier who killed a person attempting to flee at the East and West German border in 1972 was given a suspended prison sentence of 22 months. When he appealed to the ECtHR, the Court ruled that even under East German law the right to life, and thus basic human rights principles, had to be respected. The Court held that the soldier had made a conscious decision to kill the person who wanted to flee.Footnote ²⁷⁸ Yet again, this case was more of a symbolic act than anything else. The sentence could by no means capture the violent and dehumanising acts or the criminal intentions of the SED regime to suppress and terrorise the people of East Germany. But the courts in Germany held the view that since the country of East Germany and the SED regime no longer existed there was no threat of recurrence. That was one of the reasons why the sentences were often so low. Moreover it was a matter of principle to uphold the rule of law and if one wanted ‘to educate’ the East German public that democracy was about rule of law and not about revenge, that meant that regardless of how unjust and inhumane the communist regime was personally perceived by many, the laws had to be respected.

Implementing TJ measures such as public trials, commissions of inquiry, memorials and foundations was one thing. Changing people’s minds and winning their trust for democratic institutions, however, was a much longer and enduring challenge. One of the highly contested matters was whether basing lustration judgments on files and records from a dictatorial regime and its corrupt Stasi was fair and just. The Stasi had violated many human rights in collecting the information by spying on their own citizens, and much of the information came from fraudulent or false statements.Footnote ²⁷⁹ It had terrorised the majority of citizens but it was a philological and much more subversive terror than a physical one and therefore justice was difficult to get in court.

The fact that little about the past was included in schoolbooks and curricula, and that, until very late in regime consolidation, very few movies or cultural events took place in reunified Germany, shows that Germany did not prioritise dealing with the SED period. Most TJ efforts aimed at re-establishing a legitimate regime and strengthening the existing democracy, not at working through the SED history. TJ was used to promote state-supportive values and habits, mostly among East Germans, as Stephen Winter has observed.Footnote ²⁸⁰ Nevertheless, approximately 18 million citizens, or one-quarter of the total population of reunified Germany, had no experience with democracy.Footnote ²⁸¹ And yet, they were thrown into a consolidated regime expected to behave like any citizen in a long-term mature democracy.

Therefore it was not too much of a surprise that disorientation and radicalisation among the wider public in the east was common in the 1990s and beyond. Racist, anti-Semitic and xenophobic attacks increased dramatically in the first years and even led to murderous attempts against asylum seekers, indicating that an anti-democratic culture was still alive in this part of the country. These attacks never posed a real threat to further consolidation, but nevertheless left traces of unconsolidated pockets. As a result of intensive democracy and civil education programmes, these attacks decreased from over 1,000 to 500 per year by the late 1990s, but did not disappear completely. In 1992 alone the German Federal Office of Protection of the Constitution noted 1,163 crimes and attacks with a xenophobic, racist or anti-Semitic motive, the large majority of which took place in the eastern part of Germany, in Hoyerswerda, Rostock, Magdeburg and smaller towns. Some of these attacks resulted in the death of foreigners, many of whom had been brought to East Germany during communist times as contract workers from Vietnam or Mozambique. At the same time, East and West German civil protest movements against racism and xenophobia united, starting in Munich in southern Germany. Within weeks after the killings of Vietnamese contract workers in East Germany in 1992, three million Germans around the country set up ‘candle chains’ by which they posted candles as a sign of peaceful disagreement and protest against those crimes. This civil engagement was a mix of the fully formed West German civic culture and the very weak but emerging one in the east. But neo-Nazi attacks that also resulted in murder crimes often remained untouched. This was a political and administrative disaster for the German National Security Agency, the Federal Investigation Bureau (Bundesnachrichtendienst, BND), which had long underestimated the harm that these neo-Nazis in the east – and also the west – could cause. Since the anti-communist hype of the 1960s, the German Secret Service had continued to focus on left-wing movements instead of right-wing ones.

Alongside this the TJ activities continued and were costly, in particular the vetting and lustration procedures. It was a unique experiment in opening up archives far before the usual waiting period of between 30 and 70 years. These specific German lustration laws opened the East German files held by political institutions and the secret service, despite international rules on closure for privacy protection. Other Eastern European regimes which found themselves in a similar situation, such as Hungary, Romania or Poland, watched German TJ efforts carefully but failed to install many of them in their own country due to lack of money, rule of law or support from civil society.

Nevertheless, vetting procedures had initially led to a certain uneasiness on the side of perpetrators and victims alike in East Germany; in the end, it resulted in a successful practice that other transitional countries have attempted to copy. It is possible that this was such a successful measure, and that the files were not misused for major acts of revenge, because stable institutions, such as the judiciary and legislature and a free media were already in place by the time reunification took place. Rules and regulations that reflected the basic principles of human rights and equality, as well as a strong judiciary, were already in place to consider claims. Thus, rather than using TJ measures to establish a rule of law, these measures were used to conduct a ‘fact-based and values-oriented reappraisal’ (Aufarbeitung), as Joachim Gauck has called it.Footnote ²⁸² As a consequence, civic trust in the German Constitutional Court has been exceptionally high for decades. Citizens affected by potential misuse knew they could demand their rights in court. Some citizens went to claim them before the ECtHR and Germany’s Federal Court had to implement the ECtHR’s decisions.Footnote ²⁸³

Throughout this decade, it became evident that serious efforts to leverage democratic culture in former East Germany was not moving past the elite circles of those who once were in opposition to the SED regime, members of the church and civil rights movements who had been engaged with the ‘peaceful revolution’ in 1989. Attitudinal and behavioural regime consolidation was slow, although on its way. It was difficult for the 18 million East Germans who had never experienced public, open and pluralistic debates about the Nazi past, let alone their own communist past, to practise this dialogue and reflections. Public events about the SED regime often ended in heated discussions. There were hostility, polemics and mistrust between those who had been victims of the SED regime and those who had not. The debate about the East German past was somewhat different than the debate about the Nazi past since it was much longer ago.Footnote ²⁸⁴ Even with a non-corrupt police and independent judiciary in place, some incidents of revenge and intimidation by former Stasi agents against former dissidents were reported and had to be prosecuted. But many of the former SED victims did not dare to confront and face those responsible for the SED state terror and human rights abuses because they feared the hidden strong arm of former Stasi agents. Those who had spied on each other were neighbours, friends, colleagues or family members, which made it very difficult to reconcile and apply TJ measures.

The strong push to remove agents and politicians who had been involved in the SED regime from office as soon as possible, along with many laws and regulations – including international human rights law, reduced sentences, parole and large pensions after 1990 – was not necessarily perceived as justice. Although this may have been a political necessity, the public did not perceive it as fair.Footnote ²⁸⁵ East Germans’ first in-depth experience with democracy gave them the perception that the rule of law was merely a technocratic tool that did not necessarily correlate with individuals’ sense of justice. These feelings were also reflected in a 2000 general evaluation of the post-1990 TJ process. Citizens’ and victims’ perceptions were not affected by the fact that there was wide-scale compensation and rehabilitation and that thousands of perpetrators and elites were tried and either sentenced or deprived of their position due to lustration laws. Martin Gutzeit, a former dissident and later the commissioner for the Stasi files in the Federal State of Berlin, explained ‘that all these TJ measures did not necessarily lead to more citizen engagement; they served a mere technical purpose and helped us to know what had happened’. However, he also added, ‘the opening of the files did increase the trust in the public sector and institutions, and that was its main achievement’.Footnote ²⁸⁶ However, in general the process during the first decade was widely perceived as independent, transparent and accountable and not corrupted, although for many it was seen as incomplete.Footnote ²⁸⁷

Bohley and many other former dissidents from the civil rights movement in East Germany (many of whom had spent several years as political prisoners until 1989) were now members of new civil rights movements and political parties in reunified Germany. The New Forum (Neues Forum) and later the Green Party (Bündnis 90 die Grünen) are evidence of this shift. Today’s Green Party carries the title ‘Alliance 90, the Greens’ and is the only political party whose name makes a direct link to the democratic shift and reunification of 1990. The subsequent Socialist and Communist Party, the PDS (Partei des demokratischen Sozialismus) was the only party with a direct link to the SED. The PDS existed from 1989 until 2007. Although controversial, the existence of this party was important to filter and absorb the millions who supported the previous dictatorial regime, people who otherwise might have turned to undemocratic means.Footnote ²⁸⁸ The existence of the PDS gave them a way to have their voices heard. These people had needs and demands like everyone else and wanted fair treatment and not winners’ justice, as the accession of East Germany to the west was perceived by most former members of the SED regime and the Stasi. Although they were ignoring the fact that it was the first freely elected East German parliament in 1990 which voted for the accession and unification with West Germany, the fact that hundreds of thousands of East German citizens opposed reunification and the decline of the communist regime was not to be ignored for the sake of peace and stability. This is why TJ measures had to be carefully applied. With the legalisation of the successor party of the SED, the PDS, the aim was to reintegrate them while at the same time not repeating the mistake of giving them highly ranked positions in politics, as Adenauer had done with Oberländer and Globke in the 1950s. It was an attempt towards an inclusive TJ process. Supporters of the former regime were therefore allowed to create political parties and other pressure groups, but they had to pass a vetting procedure if they wished to hold political office. As a result of this, many were excluded from higher public offices.Footnote ²⁸⁹ A decade later, the PDS moved away from its strict socialist or communist outreach with a ‘left-wing’ focus, and in 2007 it renamed itself the New Left (Die Linke), distancing itself from Marxism and communism and declaring itself a left-wing party focusing on solidarity.

The 1990s saw parties and movements that included both those from the elite of the former regime and those who had been victimised. Elites from the former regime were allowed to participate in the new regime, under the same conditions as everyone else. Yet, this was not always perceived as fair, since those who had been imprisoned for years, if not decades, had lost their youth and health because of the oppressive regime and received compensation worth less than the pensions the former Stasi offices received due to their early ‘retirement’ after failing the vetting procedure. Although victims, and in particular former political prisoners, were all officially recognised as victims and had been granted access to their files, they never received an apology from former SED party leaders, such as Egon Krenz, let alone Erich Honecker. Nevertheless, the intense vetting and lustration procedures of the 1990s excluded almost all former GDR political elites from re-entering parliament or the administration. By October 2000, all SED cases were statute-barred, making it impossible to continue to try former regime members.

Thus, the country continued to struggle with the intertwining benefit of TJ and democratic institutions in particular when the competing memories of World War II and the SED regime had to be taken into account, although the first dictatorship was the one that all Germans shared in memory. When a private research institute, the Reemtsma Institute for Social Research in Hamburg, held in 1997 a large exhibition about the war crimes committed by the German soldiers during the war (Deutsche Wehrmacht’s Ausstellung), it caused unexpected tensions amongst the public, even though the war had already ended 50 years previously. The exhibition contested most Germans’ interpretation that it had been a small military elite that had committed the atrocities of the Holocaust. This was the common narrative about this part of the past. However, this exhibition showed ordinary soldiers (fathers and grandfathers) as among those who committed the atrocities. The exhibition reignited the debate about German bystanders and the responsibility for crimes against humanity held by more than just a small SS elite, more so in the west than in the east.

The German sample only illustrated the similar challenges that all former post-communist countries in the east faced in terms of TJ and memory. In 1996, the Parliamentary Assembly of the Council of Europe (PACE) issued a milestone resolution, Resolution No. 1096, on ‘measures to dismantle the heritage of former communist totalitarian systems’. This resolution was meant as a political statement to all of the Council of Europe Member States that transition carries the risk of failure if not conducted properly. Many national institutions, lawyers and NGOs used this resolution as a benchmark to refer to when facing difficulties with democratic institutions and their reluctance to come to terms with the past.Footnote ²⁹⁰ Internationally, due to the amount of transition and post-conflict society during that period, much attention was placed on individual victims; the importance of individual claims, instead of only state responsibility, grew, and the way the German justice system dealt with its own past was often observed with great interest. How to deal with the past in legal terms also impacted the reforms in penal and criminal codes.

By the end of this decade in 1999, in East Germany satisfaction with the new regime slowly increased again, but the trust in the political institutions still remained much lower than that of all Germans (38 per cent to 59 per cent). At the same time, a Eurobarometer survey showed that opinions remained stable at the extreme ends of the spectrum. Nine per cent of the population was either ‘very satisfied’ or ‘not at all satisfied’ with the way democracy worked, which indicated that the overwhelming majority was satisfied with the regime.Footnote ²⁹¹ It was only towards the end of the decade that it became evident that TJ measures would pay off and people slowly saw the advantage of rule of law over revenge. Confronting the unjust past and arguing about whether, and to what extent trials should be issued, challenged the public to think about democratic values and human rights.

The fifth post-war decade, and the first post-communist one, was without a doubt the most important one for citizen-driven consolidation in Germany since World War II. In this vein, Anne Sa’adah concluded her essay on Germany’s second chance with the statement that ‘without trust, there is no democracy’.Footnote ²⁹² This echoed Martin Gutzeit’s experience that all the TJ measures primarily served to enhance civic trust. By this time, TJ was an integral part of political doctrine, civil society and civic culture, although the extent to which this was the case differed per region. TJ measures were used whenever opportune to trigger or test institutional performance and were a catalyst for civil engagement.

Sixth Decade: 2000 to 2010 and Following Years

McAdams concluded on the tenth anniversary of the fall of the Berlin Wall, that ‘a decade’s worth of wrestling with the wrongs and injustices of the GDR era seemed to be given definitive legitimation when the Bundestag chose Stasi files commissioner Joachim Gauck to represent the interest of eastern Germany’s civil rights activists at the anniversary celebrations over the Wall’s fall’.Footnote ²⁹³ Joachim Gauck, who later became president of Germany from 2013 to 2017, used his speech in 1999 to address all the shortcomings and disappointments of the civil rights movement and of the victims of the SED regime. Yet, he also emphasised that the revolution of 1989 and its aftermath was a gift to German democracy. Regime change was the result of a citizen-driven movement, instead of the result of violent defeat. This fact certainly determined the progress of the transition. By the end of the sixth post-war decade and second post-communist decade, there had been more than 40,000 cases of lustrations and thousands of trials. These were all individual cases; lump sum payments to groups, general reparations and general accusations did not occur. Yet, many victims still felt that justice had not sufficiently been done. Despite this, civic trust in democratic institutions had increased which also indicated the surveys. The mutually reinforcing spiral seemed to have progressed upwards in terms of trust and responsiveness and, consequently, also in terms of regime consolidation. If, arguing alongside Larry Diamond and Leonardo Morlino, the existing German democracy had its own role in this, since the high-quality democratic performance of institutions was already in place, consolidation was therefore never truly threatened after reunification in the east.Footnote ²⁹⁴

Thus many TJ measures continued to focused on individual needs, not collective ones. They largely aimed to achieve moral justice and did not prioritise punitive measures.Footnote ²⁹⁵ Victims needed to be convinced that legal measures benefited all Germans and that they delivered no more justice than absolutely required by the nature of the offences. But this process was not only an ‘educational exercise’ for East Germans. Consolidation is part of a long-term transformation process and thus never really ends. The light-handed approach taken in regard to former members of the SED regime, especially in contrast to the fact that TJ continued without restriction in regard to the Nazi past, might partly account for the increasing electoral success of The Left (Die Linke, the successor party to the SED) in eastern Germany. Claus Offe and Ulrike Poppe, the latter a former dissident, have argued that The Left and its constituents were perversely able to profit from the lack of criminal justice measures applied against members of the SED, of which many were now party members of The Left. The failure to use punitive measures might have failed to demystify the SED regime and made them continue their politics, just under a different label.Footnote ²⁹⁶ A critical reflection of what was just and unjust never really took place among SED members. And external pressure, such as from cases pending at the ECtHR, decreased. After a decade, all cases at the ECtHR had been resolved, or were regarded as too minor to peruse, due to international law and the fact that there was no fear of the previous regime regaining power.Footnote ²⁹⁷

Around the year 2000 scholars continued to disagree on whether it was proper to compare the post-war TJ process with the process of the post-communist period. Although political institutions emphasise that both processes occurred according to international standards and that there can be no competition between those that suffered in the war and those that suffered in East Germany, various observers disagree. Ulrike Guckes, for example, conducted a comparative investigation of both German regime consolidation processes – the first one from 1949 until 1989 and the second one from 1990 onwards – from which she concluded that the victims of the Holocaust were better compensated and received more justice than those of communist terror, even taking in consideration that the crimes and level of injustice have been different. According to Guckes, this is due to the fact that post-war West Germany was under immense international pressure to redress its crimes and that such external pressure often pushes a government to respond more than pressure from domestic actors and victims does.Footnote ²⁹⁸ Whether this is in fact the case is disputed, but it does show the dangers of allowing the desire for successful democratic regime change to override the implementation of a non-biased TJ process.Footnote ²⁹⁹

The East German TJ process, however, was often perceived as an internal affair. Significant external pressures, such as from the Council of Europe, the OSCE or the EU let alone the UN are not reported. This resulted in a TJ process that was very different from the West German post-war one, and had the consequence that victims of the SED regime felt like second-class victims. In reunified Germany, the bargaining power of the East German victim groups, which were already marginalised groups in East Germany, was relatively limited. Justice against former elites played a less significant role than these groups hoped in 1990.Footnote ³⁰⁰ If these groups were organised, it was because West German civil society leaders had taken over, including many who had fled East Germany decades before the regime ended – and now had returned in different official functions. There were very few genuine civil society groups that had emerged from those who risked their lives on the streets of Leipzig and Erfurt in 1988 and 1989.

Despite some dissatisfaction among victims of the SED regime, the overall satisfaction with the democratic regime rose steadily from 2000 to 2010, increasing from 47 per cent among East Germans in 2003 to 55 per cent in 2010, and in West Germany from 72 per cent to 79 per cent, and has continued to rise since.Footnote ³⁰¹

In 2000, after a decade of parliamentary initiatives, the compensation fund for forced labourers during World War II (Stiftung Erinnerung, Vernantwortung Zukunft, EVZ) was finally established. This is a joint governmental and civil institution, similar to the many others Germany has established to deal with its past. Established 60 years after the first deportations of people from Eastern Europe to do forced labour in the agricultural sector or war industry, this compensation fund was the last parliamentary measure for groups that had suffered great injustices during World War II. It was a legislative and private response to responsibility and remorse. It had been difficult to establish anything of that sort during the Cold War when more of the forced labourers were still alive. The reason was simply that the large majority of these victims came from Eastern Europe, Russia and the Ukraine, which had been in the grip of the Soviet Union. To acknowledge these individuals as forced labourers would have put them in danger. Stalin would have accused them of being traitors and collaborators with the Nazis and they would risk deportation to the Gulags. The ability to recognise the injustice this group experienced only came about in the 1990s. The narrative of the forced labourers is not a black-and-white story and can be difficult to grasp with linear causalities, just as so many other stories of the war are. When, ten years after reunification, German parliament and the companies that benefited most from the forced labour finally addressed the issue, it revealed a new dimension of TJ. The initiative was entirely driven by civil society, including citizens, victims and industry. The government only supported the initiative much later, finally establishing a foundation under public control. These are examples that illustrate the spiral interlinkage of TJ and regime consolidation and the fact that when civil initiatives – for whatever reason – are taken up by government, the level of trust among institutions and citizens increases.

This was a milestone, and in the years to come more companies and other entities started to take responsibility for the past – although legal measures had not yet been taken. The lack of legal measures was mainly due to the fact that most of the German companies directly involved in the Holocaust (for example, IG Farben and Krupp) had already been tried during the Nuremberg Tribunal under pressure from the Allies. This was the first time that compensation funds had been established under federal law (Bundesstiftung), filled with money from German industry and private corporations that had benefited from forced labour until 1945, such as BASF, Volkswagen, Beyer and Mercedes Benz and that had not been found guilty at all or partially guilty at the Nuremberg Tribunal. This type of compensation fund was a new TJ tool, showing that Germany was continuing as a laboratory for TJ, as Hazan had once described it.Footnote ³⁰² After compensating the forced labourers, the remainder of the fund was used to benefit a federal foundation dedicated to educational and awareness-raising activities in the field of TJ throughout Europe, with a particular focus on those countries from which forced labourers were taken to Germany. In this way, this foundation combines reparation, restitution, compensation and education.

And yet the past continued to impact democratic consolidation; for example, by the notorious Section 130 of the West German Criminal Code (Para. 130 Volksverhetzung). Since 1949 this paragraph haunted Germany’s way to deal with the past and it was revised several times. This provision, which prohibited denial of the Holocaust and denial of other mass killings and atrocities, underwent further transition. In the twenty-first century, parliamentarians and politicians debated whether this provision should finally be repealed, since it restricted the freedom of expression and could be considered anti-democratic and a violation of human rights. This provision had been a symbol of militant democracy, and this type of democratic practice – namely to limit freedom of expression – was only meant to be a temporary stage in the development of German democracy. This provision’s repeal would have been another milestone in the improvement of German consolidation. For many, it would have meant that the legacy of the Third Reich had finally been left behind and that democracy could be fully embraced. However, the law was not abolished. It was extended in 2011 and it later became mandatory that all EU Member States implement a similar law into their national legal framework. The question remains whether such a law strengthens or weakens democracy.

While the EVZ compensation fund provided monetary compensation, the claims for commemoration and symbolic reparations continued. This was driven in part by the fact that there were now multiple generations of people who had not directly experienced World War II or the communist regime. In Eastern Europe, the focus was on coming to terms with the communist past, more than on the Nazi past. Thus, government initiatives, international NGOs and international organisations, undertook significant efforts to commemorate the past by declaring years of commemoration or launching TJ tools such as the UN Office of the High Commissioner for Human Rights (OHCHR) in Geneva. In 2005, the UN General Assembly declared 27 January as the International Holocaust Remembrance Day. This was the day that Soviet troops entered the concentration camps in Auschwitz and allegedly freed the prisoners (it is not clear whether the prisoners were freed by the Soviet troops or in fact freed themselves). Germany adopted this day as an official day of commemoration, as did many other countries. The ‘globalisation of the Holocaust’, as some call it, took place on 13 October 2005 when the EU parliament passed a resolution on the remembrance of the Holocaust, as well as of anti-Semitism and racism, encouraging the observance of the International Holocaust Remembrance Day in all the EU Member States. The International Holocaust Remembrance Day has entered into the collective memory and has become part of the way Europe deals with its past.Footnote ³⁰³ Ruti Teitel has described this process as ‘globalising transitional justice’.Footnote ³⁰⁴ This globalisation of the Holocaust and of TJ marks a shift in how political and civil actors deal with the legacy of totalitarianism and violence.

As global commemoration has become more common, the responsibility for commemoration as a tool for dealing with the past is no longer only Germany’s, but is shared by the EU and many more countries. Holocaust remembrance is today seen as a way to encourage critical reflection among younger generations.Footnote ³⁰⁵

In the same year that the EU passed the law, in 2005, the Holocaust Memorial for murdered European Jews in Berlin was inaugurated, underlining that this was part of Europe’s collective memory. As mentioned above, the Memorial was the result of civil pressure, although eventually the German parliament also supported the initiative and established a federal foundation to raise money to build the memorial. The important aspect here is that survivors and CSOs initiated these TJ measures. These examples illustrate how the TJ process has quickly changed from a top-down one (either initiated by governments or international pressure) to a bottom-up and civil-driven one. During this decade, almost all TJ activities were the result of civil or private initiatives, to which state authorities eventually responded.Footnote ³⁰⁶

It took a decade before East German intellectuals, writers and filmmakers dealt with the notorious SED in ways that were accessible to all Germans. The real shift took place around 2002 when East German filmmakers and authors shaped the common narrative with their popular films and literature. Monika Maron’s novel Endmoräne in 2002, Christa Wolf’s Ein Tag im Jahr in 2003, and in particular the 2006 internationally broadcast film The Life of Others (Das Leben der Anderen) brought the SED reality to the living rooms of all in Germany and beyond.Footnote ³⁰⁷ Similar to the film Holocaust and later Schindler’s List, these films created a common shared memory and narrative and triggered civil engagement. In her assessment of the different German generations, Fulbrook argued that the shift in values only came with a common generational memory and understanding of the past. She referred to this as ‘history from within’, in which cultural activities play a pivotal role.Footnote ³⁰⁸ Fifteen years after the end of the SED dictatorship, members from the younger generation, a generation that never consciously participated in or experienced the communist regime, demanded – as a group – answers to their questions about the past.

A culture of apology and commemoration has long replaced the technocratic reparations and restitution in German consolidated democracy. The recent decades have shown governments, but also CSOs, private initiatives, and individual politicians across the political spectrum apologising on behalf of former governments or on behalf of previous generations. TJ has become a matter of individuals dealing with their countries’ past and thus also a matter of dealing with questions of both national and individual identity. However, surveys from 2006 and 2008 showed that public support for vetting was divided. Around 50 per cent was in favour and 50 per cent against the continuation of the vetting procedures, although all groups attested to the importance these procedures had in the first years after reunification.Footnote ³⁰⁹

It would take pages to document all civil society initiatives that were active in Germany during these first two decades of reunification. For 20 years an abundance of educational, cultural programmes dealing with past was initiated (although the past was often dealt with in a way that was biased against East German history). Money was not as much an issue for TJ in unified Germany as was the willingness of civil society to engage with it. Today, no governmental official would dare imply that the SED regime or the Nazi regime was just or that victims need not be acknowledged. Rather, current disputes revolve around what is the best way to acknowledge victims, reintegrate perpetrators and compensate victims. Trials, commissions of inquiry, compensation, textbook reforms, media coverage and public debates, both in and outside of parliament, have become a daily factor in Germany’s political and social life. Yet, a 2012 compelling TJ survey among high school students and the wider public revealed that there is little understanding of the difference between the two German dictatorships of the twentieth century, or of democracy. Fifty per cent of students with and without an immigrant background thought that neither the Nazi state nor the SED regime were dictatorships. They thought that there was little difference between then and now because the one is remembered only by its war and the other by the Wall without reflecting on the political ideologies that caused the war and the Wall. Only one-third of all students could clearly identify East Germany as a dictatorship, most of whom were students from East Germany. The majority of students did not consider the SED regime as an unjust regime that violated human rights – a finding that alerted many NGOs, media and foundations that dealt with these issues. Parliamentary outrage surged and fault was found with the way the past had been dealt with, namely with facts and figures but without any contextualisation of the present. This aligned with Martin Gutzeit’s assessment that the TJ process in Germany is more knowledge-driven than value-driven.Footnote ³¹⁰ Because dealing with the past in a purely historical way fails to create an understanding of what distinguishes a free from a non-free society.Footnote ³¹¹ Since this moment, people have acknowledged the failure of German history books, countless memorial sites, Holocaust education programmes, trials and lustration processes to make a clear connection with democratic values over dictatorial ones. The result is a relatively limited understanding of democracy. This of course does not mean that more initiatives for recognition or memorials should not be started, but that focusing on democratic values and empathy with victims of past injustice must be a fundamental part of these initiatives which continued to exist way beyond 2010.

Today, the world is shifting towards individual claims and individual responsibilities. International human rights law is driving the change of this perception, as is the ICC and other tribunals that have set new norms and standards of international and universal jurisdiction, which dramatically impact every situation of regime change, consolidation and TJ.Footnote ³¹² This was also illustrated by the ICJ’s 2012 ruling in Germany v. Italy on massacres during World War II is a prominent and symbolic instance of democratic states’ accountabilities shifting.Footnote ³¹³ It also illustrates that the catharsis of Nazi Germany’s crimes is still ongoing in Europe and is thus something that German politics cannot ignore. For the time being, the ICJ (an institution of the state-centric UN) confirmed international legal doctrine that only states – and not individuals – could demand lump-sum reparations from foreign states. The case dealt with claims brought by former forced labourers from Italy in Germany for compensation in Italy in 2007, and later before the ICJ in The Hague. This lead to discussions on how governments should deal with individual claims. Whereas Italian courts had held that Germany must also compensate individuals for war crimes, in addition to the lump sum they had paid to Italy earlier, the ICJ decided that the current standard of state sovereignty and immunity against individual claims could not allow individuals to bring claims against a foreign state. This shows that international law has not yet fully developed beyond a state-centric perspective, although the individual criminal responsibility enforced by the ICC shows a shift in this regard. Somewhat linked to these developments on international jurisdiction and criminal justice one has to consider two of the recent German criminal justice cases against notable Nazi perpetrators in 2015 and 2016. In 2015 a former prison guard of Auschwitz was convicted and jailed to four years after being found personally guilty for being an accessory of the murder of over 300,000 people while serving at Auschwitz concentration camp. A case, therefore, of individual responsibility that would never expire. And in 2016 a 94 year-old former prison guard of Auschwitz was convicted in a court in the German city of Detmold for being an accessory to the murder of at least 170,000 people at the death camp. More than anything, these trials had not only the purpose for the very few living survivors of Auschwitz to testify, delegitimise the previous regime and face their perpetrators, but also to prove how resilient the German judiciary had become over these years, and how it would deal with crimes against humanity not only of the past but also in the future and thus legitimise the democratic regime one more time.

These trials reflect international developments in these matters and thus impact consolidation processes around the world. If international law was to develop past this state-centric position, any individual who was a victim of a crime against humanity could sue the responsible government or intergovernmental organisation. But it is also feared that such a possibility would lead to courts ruling individual compensation from states, which would be seen to undermine state sovereignty. This is a dilemma that will have to be solved in the future, but the examples from Germany have shown that trials generally strengthen the regime and do not undermine it.

Brief Summary of Germany

During the first two decades after 1949, a synchronic development between regime change, consolidation and TJ measures took place in East and West Germany. Whereas constitutional and representative consolidation was quickly achieved on both sides, the attitudinal and behavioural one was very different and the final democratic one, namely by civil society, only took place in the west. In the east the top-down dictatorial approach on how to deal with the past remained repressed from the 1970s onwards whereas at the same time West Germany consolidated its democracy.Footnote ³¹⁴ TJ measures played an important role in strengthening and mobilising civil society in West Germany. TJ was used for tactical and strategic reasons and to make political concessions on both sides of the Iron Curtain. But in East Germany TJ remained a top-down approach to exercise control over the historical narrative and through this strengthen the dictatorship, while in West Germany TJ became a tool for citizen engagement in a way that somewhat reflected and supported democratic values and norms. Starting in the third post-war decade, a vital and critical 20+ generation started participating in consolidation and TJ processes. In East Germany, however, all activist members of this generation were exiled, suppressed or imprisoned. Thus, in East Germany there was no critical mass of people using TJ measures to delegitimise the past, let alone to reform the existing regime as a dependent variable towards democratic consolidation.

Until 1989 one of the major differences between East and West Germany was that in the east the SED government used TJ measures for ideological and tactical reasons for their alliance with the new hegemon, the Soviet Union; whereas in West Germany this approach also existed in the beginning towards the Allied Forces, but was slowly complemented and sometimes even replaced by a citizen-driven, bottom-up approach after the student movement and the change of government in the late 1960s. The ‘Bonner republic’ slowly learned to accept TJ as more than just a tool to gain external legitimacy and international recognition. TJ became a catalyst for more civil engagement and thus trust in West German institutions. In East Germany, TJ remained centrally organised by the SED regime, while citizen ownership of dealing with the legacy of World War II was either fully controlled or forbidden. This led to consolidation of dictatorial regime based on exclusive TJ measures.

Consequently, in the Federal Republic as well as in the GDR, TJ delegitimised the previous Nazi regime, while at the same time legitimising the new regimes, even though in different ways. This parallel narrative worked for the first post-war generation because all narratives aimed to delegitimise the same past. However, in order for the TJ measures to keep contributing towards democratic consolidation for the next generations, the way they were applied had to change. Instead of the government applying the measures top-down, it was now citizens themselves who had to drive the movement, based on a feeling of moral duty and empathy. This was the critical moment at which political actors had to transfer TJ to the citizens. This transfer meant that TJ measures were no longer only the tactical and strategic tools of governments.

When the second post-war generation emerged in the 1960s and 1970s, the circular cumulative causation between institutions, TJ and actors became clear. Merkel has explained this as the moment when the civil society finally engaged with the state as a type of sub regime that legitimated and consolidated state institutions.Footnote ³¹⁵ East Germany’s SED leadership never intended to democratise the country and used, for example, memorials and trials as tools for authoritarian regime consolidation, leaving no room for a critical approach. In West Germany, however, Chancellor Brandt and his successors used these measures to respond to citizen pressure, which legitimised the governments and state institutions slowly, in a cumulative way. It was only in this period that citizens started feeling a moral responsibility, which was crucial for the spiral effect between TJ and the legitimation and strengthening of (democratic) institutions. After reunification in 1990, TJ measures continued. During this first decade after reunification, TJ’s tactical purposed merged with moral and civil motivations, but it was clear that it would still take a generation before citizens fully embraced the understanding and behaviour of a democratic society.

But since the rupture of the SED regime was triggered by their own citizens and not by defeat, the TJ process in unified Germany was also from the beginning onwards greatly citizen-driven in the east, although predominantly by Stasi victims and CSOs that had been in opposition to the SED regime, not by the general public. It was the former suppressed and persecuted opposition that after the fall of the Berlin Wall issued the commission of inquiry, the trials, the memorials, and so on. However, because there were quickly strong democratic state institutions transferred from the west to the east after the reunification in October 1990, they soon took over and formalised the TJ process.

This case study of ‘three’ Germanys in 70 years shows that in order for TJ to contribute to democratic regime consolidation, five conditions must be met. First, democratic institutions must be in place and governmental authorities have to comply with basic fundamental human rights principles (even though this will be improved by consolidation over time). Second, a minimum set of TJ measures must be applied and, thirdly, these must be applied during the course of at least a decade in order to achieve results in terms of civic trust. Fourth, social and citizen-driven demands (national catharsis and narrative) need to exist or be constructed to redress grievances and to turn the process into a moral one. The fifth and final condition is that a country in transition needs to have some sort of external and international engagement with international organisations such as the Council of Europe, the EU or the Allied Forces and the UN that can monitor, incentivise or pressure the transition and transformation process.

Whereas for West Germany and unified Germany these conditions were mostly met, even if in a non-linear process, citizen-driven TJ and thus civil society and citizen-driven consolidation never occurred in East Germany. Instead, in East Germany TJ was only applied in a top-down exclusive manner. The dependent variables thus showed different results even though the same or similar TJ measures such as trials, compensation, memorials and reparations in both regimes applied throughout the decades. Where the two countries differed was on the variable of civil engagement with TJ. While in West Germany institutions, civil society, victim groups and TJ mutually reinforced each other; this was not the case in East Germany. On the contrary, the top-down use of TJ undermined civic trust in institutions, leading to dictatorship.

First Decade 1975–1984

In November 1975 King Juan Carlos cooperated or rather ‘pacted’ with the Francoist Falange to ensure a peaceful regime transition to democracy. It was a tense time, as many Spaniards feared the power gap between those who had been oppressed and those who feared losing power would drive the country back into a civil war. Many of the state elites, technocrats and politicians were loyal to the ideas and concepts of a centralistic, non-democratic fascist regime. To these people, pluralism meant ‘chaos’ and democracy meant ‘uncertainty of leadership’. The reforms installed included dramatic changes from how the country had been governed thus far. In addition, generations of citizens who had never experienced pluralism in parliament, participation in elections or the rule of law were confronted with rapid democratic reforms. Therefore, a pacted or negotiated transition based on a consensual democratic regime was seen as the best of all bad options.

The first years of regime change were crucial for setting the legal and political framework for future elections and legal reforms, including pathways for consolidation. TJ measures were not foreseen as a means for delegitimising the Franco regime, because the king, most of the political elites, the judiciary and the military remained in power. It was not a complete shift, but rather opening up of the regime, namely to allow political parties to establish, to allow CSOs to form, reintroducing labour unions and overall allow for fair and free elections and reform of the constitution. Silence on the one side and incorporation of those once opposed to each other on the other side, was the dominant two doctrines at that time.

Whether TJ measures would be introduced to delegitimise and demystify the previous regime was debated mostly at a regional level, in the so-called autonomias, or locally. Many soon rejected a systematic TJ process, due to the fact that too many old Francoists remained in important positions in government and administration and to challenge them with TJ measures would have hampered this transition. TJ measures were left to a few isolated local initiatives that ‘dared’ to employ such measures. Thus, one could have soon come to the assumption that TJ measures are best made use of only in societies that had suffered atrocious war, genocide and suppression with a subsequent complete shift of political and institutional elites, but not in pacted transitions like in Spain and later in Latin America and Eastern Europe – which was partly the case.

The dismantling of statues or memorials to Franco by left-wing movements and victims of the regime stopped in the late 1970s. Private initiatives to build memorials remained the exception. One such private initiative was the 1979 inauguration of the memorial in Pozos de Caudé in Aragon for communists murdered during and after the Spanish Civil War. This location had served as the execution place of Franco’s opponents during and after the Civil War. Many of these local and private failed initiatives marked a retreat into the private sphere, which provided a basis for myth formation on both sides since the doors to historically grounded arguments about the past remained locked for the time being. Most often, those who tried to commemorate their murdered loved ones were intimidated by their Falange neighbours and were thus silenced again.Footnote ³³⁷ Public debates, media coverage and academic research on Spain’s past were unseen in the country at that time, although not only because of intimidation by those who were slowly losing power in society but also because no independent commission of inquiry existed and no public acknowledgement had been expressed. In retrospect, these fears may seem unreasonable, but to those at the time they were justified by the events of 1981. Interestingly enough, it is widely understood that both sides had something to hide, making it easy for the pact of silence to remain in place.

Now, in 1975 and the following years, amnesty laws and pension funds were the more obvious but also most silent measures often used in pacted transitions. In December 1975, the interim government led by Adolfo Suarez, the first appointed prime minister after Franco’s death, leader of the Union of Democratic Centre (Union Centro Democratico, UCD) and former leading figure of Franco’s National Movement, passed a decree on the revisions and nullification of administrative sanctions for communists, which were issued in 1939 straight after the Spanish Civil War. In the following years, the government passed decrees on extra pensions for seriously injured war victims, which everybody, communists and fascists alike, could benefit from.Footnote ³³⁸ The problem, however, was that there was no independent commission that would be able to determine who qualified as a victim. Since there was no governmental engagement and public debate about the past, no history or truth commissions, no tribunal installed, no vetting process, no opening of the Franco archives or anything of that kind, it was entirely up to the administrative powers to decide on the local level and from case to case whom to grant compensations or some form of acknowledgement of victimhood. Those decisions were mainly in the hands of old Francoist elites, who insisted on clear evidence and documentation of victim status.Footnote ³³⁹

Although democratic institutions and procedures were put in place, it was evident from the beginning that consolidation would never be straightforward. In 1976, vice prime minister and a minister of the interim parliament, the Cortes, and a former minister under Franco, Manuel Fraga Iribrane, introduced a programme for democratic reforms that would legalise political parties and pave the way for pluralism and elections. The government and the quasi-parliament adopted this ‘Law for Political Reform’ (Ley para la Reforma Política) and the law came into force despite mass protests. As a result of the law, Franco’s fascist nationalist movement, the National Movement (Movimiento Nacional), which had operated in a semi-single party system, transformed itself into various different parties. The main dispute among the political elite was whether to allow the Spanish communist party to take part in the political process. This party represented those the Franco regime had fought for over 40 years. Their leaders lived in exile, mainly in France and some in the Soviet Union. The main veto powers, as Merkel has called them, or the former political elites under Suarez and Fraga, eventually agreed to allow the party’s participation, thus paving the way for regime consolidation.Footnote ³⁴⁰ Shortly thereafter, in 1977 thousands called for retribution for the murder of opposition leaders in police custody prior to Franco’s death.Footnote ³⁴¹ The veto powers rejected this call, believing that they had compromised enough and any public trial or commission of inquiry on past injustice would have increased the unrest in the country – thus the fear of the leading policy-makers at that time.

Thus the new regime was under constant violent threat from either radical separatists or socialists on the one side and the loyal Francoists on the other side, all defending their cause and legacy by means of violence. The 1977 Massacre of Atocha, in which members of the Guardia Civil allegedly killed eight labour lawyers, is an example of the political agreement not to punish those associated with the Franco regime. Linz and Stepan have stated that due to the lack of a strong civil society (except, perhaps, in the Basque Country and Catalonia) there was no outcry to expect when these killings happened. But interim president Alfonso Suarez realised how precarious the situation was and initiated political reforms in the same year that would allow for indictments of those who did such murderous attempts and reforms that would later also allow for some modest TJ measures. That is why Linz and Stepan often called this transition a ‘reforma pactada-ruptura pactada’, a pacted reform agenda that determined future regime change, a very top-down approach by the government in response to the growing pressure from below.Footnote ³⁴²

The majority of the communist or socialist party leaders, both those returning from exile and new leaders, pleaded for a negotiated but radical shift (ruptura pactata) based on a ‘rupture by death’, meaning that there was no break with the past as such, let alone a strong opposition or civil rights movement demanding such a break, but rather a Franco-approved transition into leadership. The fact that an old man had died of sickness and had already prepared for a pacted transition, made the case for citizen-driven TJ rather weak. Neither Franco nor his political advisors had intended the regime to remain unchanged, so the break was not a real rupture with the past, but a negotiated ‘rupture’. In January 1975, ten months before Franco died, a master plan for transition to democracy was already in place for a pacted and thus negotiated peaceful transition for all groups in society after Franco’s death. The plan included parliamentary elections, adherence to the rule of law by an independent judiciary, adherence to international human rights and the young king becoming head of state. Yet, there is no doubt that Franco meant this all to take place under the strict surveillance of the National Movement, the Falange.Footnote ³⁴³ This pacted transition, or the ‘Rise of Forgetting’ as Omar Encarnacion called it, later became a case study for many political scientists interested in whether or not such a ‘planned and negotiated’ transition had led to real consolidation of Spanish democracy.Footnote ³⁴⁴

At the end the pacted break-up of the Franco regime was possible due to the king’s role as negotiator and mediator. He went much further than Franco had anticipated. Juan Carlos installed people of confidence as his assistant ‘negotiators’. Many of these people of confidence were members of the Franco movement but educated abroad and who nevertheless seemed dedicated to putting in place democratic reforms. They enjoyed trust from those on both sides; from those who remained loyal to Franco and those who wanted steady democratic reforms. The main obstacles lay in the strength of the armed forces, the military, the Guardia Civil and police forces, to which democracy meant nothing but chaos and the end of the many political privileges they had enjoyed.

Meanwhile millions participated in strikes and protests in 1976 and the following years, manifesting their discontent with the democratic reforms and the government had to respond to the pressure from the streets. ‘Liberty, amnesty and autonomy’ (libertad, amnestia y autonomia) was one of the slogans heard on the streets of Spain’s main cities.Footnote ³⁴⁵ Hundreds of thousands of people demonstrated and dozens of demonstrators were killed arbitrarily by the Guardia Civil during the first peaceful protests in 1976. The protesters wanted freedom for all political prisoners, respect for rights, and autonomy for the different states and regions in Spain. Protestors in Barcelona and Bilbao fought for more decentralisation and autonomy against a centralised government (as centralisation was a symbol of Franco’s power). This fight was a sign of liberation from the age-old propaganda of one nation and Franco’s rhetoric of a glorious Spanish heritage and tradition. In fact, like an earlier generation of post-authoritarian Germans, the Spaniards were decidedly inhibited about nationalism, and preferred being Catalan, Basque or Andalusian rather than ‘Spanish’.Footnote ³⁴⁶ The democratisation and denationalisation in southern Europe also led to a new approach to Europe: the ‘Europe of the Regions’. Under this principle, Europe was governed through regional administrations and governments. For some Spaniards, it meant in essence being Andalusian, Basque or Catalan in Europe. Nevertheless, it was this urge for independence and connecting to pre-Franco identity paths in the Spanish periphery, such as in Catalonia and the Basque Country, that was among the major driving forces for both regime consolidation and TJ, as illustrated by many examples in Ricard Vinye’s compilation on The State and the Memory.Footnote ³⁴⁷ If TJ and regime consolidation correlated during the first post-Franco decade at all, it was in these autonomous regions. It is here where TJ measures soon became tools in the hands of civil society, overall victim groups and regional governments. But they hardly made their way through to the central government in Madrid.

Interestingly enough, those who claimed amnesty for political prisoners on the streets of Bilbao, Seville or Barcelona were not necessarily united. Some wanted amnesty for communists in prisons, while others wanted amnesty for Basque nationalists, separatists or other intellectuals who were being incarcerated. The range of those imprisoned was wide and so were those protesting for their freedom. There was no clear divide between victims and victimisers and that did not make the negotiations easier for the king. He had to decide to whom to grant amnesty.Footnote ³⁴⁸

Terror and violence continued underground. The ETA representatives targeted the headquarters of the Guardia Civil, which they saw as a continuous symbol of oppression of the Basque people. Another anti-Franco terror group, the GRAPO (Grupo de Resistencia Anti-Fascista Primero de Octubre), targeted the Guardia Civil because it saw its chance to install a communist regime in Spain now that Franco was dead. The GRAPO was a communist armed force against fascism and the Falange that was founded in 1975, months before Franco’s death. The organisation grew in the following years and committed terror acts. The Guardia Civil and the Spanish Secret Service fought both groups with equally brutal and illegal means. The new regime, however, responded with secret detentions, ill-treatment and unfair trials of those captured and interrogated under anti-terror laws. Yet the GRAPO continued its plan to install a Marxist-Leninist state. Since it saw the United States as the main loyal partner to the Franco regime – and its successor government under the king – the GRAPO sabotaged US military facilities. Opposing Spain’s fragile path to regime consolidation in the first two decades after regime change, GRAPO carried out a number of terror acts against police officers, members of the Guardia Civil and civilians. It was only in 2007 that the radical arm of GRAPO dissolved itself, by then having lost most of its supporters (similar to the fate of the RAF in West Germany around the same stage in the consolidation process). This was interestingly enough at the same time that the Historical Memory Law was finally passed and consolidation was no longer disputed.Footnote ³⁴⁹

By the late 1970s there was little hope for a mutually reinforcing take-off between TJ mechanisms and democracy, due to the lack of both. In the Basque Country, Basque nationalists and the violent terrorist organisation ETA pleaded for a total amnesty for (their) political prisoners and those who had been convicted of murdering Franco supporters. The interim president of the government, Adolfo Suarez, and King Juan Carlos denied their request in 1976. This resulted in many more acts of violence by ETA against both security forces and civilians. At the same time, approximately 75 per cent of citizens were in favour of amnesty laws for political prisoners without any limits on who could qualify. This indicated that citizens overall wanted stability by any means, knowing that victims and victimisers would have to continue to live side by side without any atonement. Yet, by supporting these measures, they sacrificed justice and the spiral went downwards.

Increasing demand from the public forced the president and the king to react and pass amnesty laws. Juan Carlos also wanted to include members of the military and the Catholic Church in the amnesty, although strikes and protests against this inclusion continued during the first decade. The economic crisis contributed to the unrest and the abundant number of strikes. This ‘worker’s rebellion’ also symbolised the divide in society in general: on the one side, the working class mostly supported the socialist or communist party and thus opposed Franco; while on the other side the privileged elite, business people and landowners had supported Franco. By the end of the 1970s, workers had been on strike for a total of 150 million hours. In comparison, workers in 1975 had only been on strike for 14.5 million hours. These strikes severely threatened Spain’s season-dependent, agricultural and tourist economy, thus also threatening the regime change’s success. Fear that the country would return to Francoism kept citizens silent for the sake of quasi-tranquillity.Footnote ³⁵⁰ ‘Fear’ became thus the most persisting perception by which the government justified its top-down approach of reforms and the rejection of any TJ measures at that time.

Parliament passed the first amnesty law in 1976, covering a wide range of political prisoners. But because of it, acts of vengeance continued, including the 1977 Massacre of Atocha. It was such incidents, of which there were many, that caused citizens to fear the beginning of another violent outbreak and even a civil war between the ‘two Spains’: the left (red shirts) and the right (white shirts). This alarmed all those who wished to hold human rights abusers to account. Demands for TJ measures were made, but either ignored or half-heartedly followed up on. There was also no significant external pressure by the EC or other international bodies and CSOs to foster their instalment. Dealing with the past and bringing Francoists to justice would risk triggering a new civil war. Society still appeared too divided and the democratic institutions too fragile to protect against this threat. In the eyes of the political leadership at that time, TJ measures would have carried the risk of aggravating the division, potentially leading to the re-emergence of violent acts of vengeance. Instead this fear and tension resulted in a second amnesty law in October 1977, which again equalised all ‘political acts’ and put in place amnesty for those responsible for them.Footnote ³⁵¹

Instead of a democratically negotiated regime change, Spain’s transition became an ‘amnestied’ one, which sacrificed justice and the rule of law. Eventually, the king concluded an agreement between the former elites and those in opposition. Most of the latter were socialists, communists or regional-nationalists who led separatist movements in Catalonia or the Basque Country. The agreement of silence or forgetting (pacto de silencio or pacto de olvido), as it was often called, was seen as the only way to proceed with democratic reforms without risking any further outbreaks of violence. Fear, mistrust and lack of experience with democratic institutions were already deeply rooted in society and dominated the first decade of democracy. With the recent violent experience and the political killings on all sides of the political spectrum in mind, old and new elites, intellectuals and opposition leaders chose not to threaten their future by bringing up the past. Little was published, either academically or in terms of novels or films, that indicated that the people could deal with the past in a public space. Publishing about the past could only be done from abroad and preferably not in Spanish. As a result, the Franco past remained something that was only discussed in the family. Even today, every Spanish family knows who in the family fought on the white side and who on the red side.Footnote ³⁵²

No one expected an official apology from Adolfo Suarez, the first appointed prime minister who was later elected president of democratic Spain, although his party, the UCD (Unión de Centro Democrático), was mostly composed of former Francoists. Reparation payments, the installation of historical commissions, public debates and condemnations were not the first issues openly discussed.Footnote ³⁵³ But the more silent or ‘oblivious’ the society was about the previous regime, the more obvious it became that atrocities must have happened in the past. It became clear that something was being masked, something that could interfere greatly with the democratisation process. It reflected how deeply the injustice and fear had gone through all social layers. Those who could legally claim a fair trial or compensation feared that their claims would trigger unrest and disrupt societal peace; as a result, a culture of impunity for past injustices arose and compromised the country’s judiciary.Footnote ³⁵⁴ The failure to delegitimise the past also led partly towards a downward spiral effect in democratic development. Civic trust was difficult to develop and instead violence and revenge grew stronger.

The so-called rupture with the political past was finalised when the Communist Party was legalised in 1977 and democratic elections could finally take place. As mentioned before, that was not to delegitimise the previous regime, but rather to add more pluralism to the existing one. Parties such as the PSOE (Partido Socialista Obrero Español), the Communist Party (Partido Communista Español), the conservative right-wing Allianzia Popular (later turning into Partido Popular or PP) and the UCD representing those Francoists who ‘converted to democracy overnight’ were registered for the first elections in 1977. The UCD won the first democratic elections with almost 35 per cent of the votes and Suarez became president as expected. The PSOE only managed to get 29 per cent of the votes and could not form a significant coalition with the other left-wing parties, although it did move from 0 per cent to almost 30 per cent of the vote. The close election results reflected the divide between left and right in society. The fact that the successors to the previous regime won is not unusual in post-autocratic regimes, as citizens have the most confidence in someone they already ‘know’ from the previous regime – even if s/he had been part of it. Communist or socialist candidates could not yet demonstrate any track record of democratic performance and hence many citizens were rather sceptical of them. Mistrust of unknown new political actors was still high among the public. In that context, electing Suarez, who was at the same time a leading member of the Falange, was seen as the best compromise. The major opposition party PSOE, which represented hundreds of thousands of victims and oppressed people, became the second-biggest party, leaving all other parties far behind and achieving a remarkable and surprising result. The left-wing parties felt pressured by their more radical members to promote a less consensus-based and less silent approach to the past. Consequently, the communist and socialist parties made much greater reference to the persecution suffered in Spain during the Franco era than others.Footnote ³⁵⁵ The ‘new’ parties in the new democratic ‘game in town’ still had to gain the confidence of citizens so that they could also govern. Because neither the PSOE nor the Communist Party were seen as facilitators of peace and security, let alone economic growth, they could not gain a majority. Conveniently, Spain had a head of state already in place who did not require any political legitimation. The king became something of a guarantor for what citizens wanted most: peace, security and unity. He subsequently became a proxy for all the TJ measures that were never installed or openly addressed. As such, Juan Carols acted as a personalised TJ mechanism, probably the only ever in European history. He pushed for more democratic reforms on the one side and for some modest memorisation and acknowledgement of victims, pension funds or other activities that would qualify as TJ – whenever needed – hoping to restore unity in the country. Most of all, he stood for reconciliation.

But even after the first elections, the society was still unable to replace all the pre-existing bureaucrats with new technocratic elites due to the fact that those who opposed the regime had been in exile or in prison, or had been denied access to universities and other administrative education. This left many of them with a low level of education and training and no bureaucratic skills, preventing socialists or communists from taking up higher-level positions in the new democratic regime. Instead, public administration, ministries, universities and the education sector were filled with members of the Falange or the neo-Francoist nationalist movement. Regime consolidation was still a long way away. It was evident from the beginning that it would take a generation or two for the Francoist public servants to be replaced. Installing any TJ measure remained therefore a sensitive matter and could only be done if it served tactical political purposes, such as tactical reparations. After the amnesty law of 1977 ‘imposed’ a level of silence on the past, the government slowly and carefully issued reparation to specific and selective groups of victims, usually in the form of pensions.Footnote ³⁵⁶ Nevertheless, citizens were far from having a common narrative of the past and the only reconciling factor in society was the king, which was not a strong enough base for an intertwining regime change and TJ process. Not surprisingly, at the same time, insurgencies by the military and the Guardia Civil continued, because people did not use the judiciary or the parliament to solve their political disputes, but instead violence and terror. Their opposition to the democratic changes increased after the rehabilitation of incarcerated members of the Communist Party (under the amnesty laws) and after the Communist Party was given the ability to participate in elections. Some of the perpetrators of these insurgencies were indicted and sentenced, but it took a long time before the violence abated. Meanwhile, the police continued to carry out torture.

Efforts to apply restitutional justice faced a wall of silence and intimidation until the mid-1980s, while executive powers struggled to create harmony between new and old political elites in government institutions.Footnote ³⁵⁷ At the same time, the ETA and other groups continued committing attacks. This showed the discontent many citizens felt with the reforms and their mistrust in the shift of government in Madrid. It was a clear sign of the weakness and fragility of the regime, thus increasing the unconsolidated pockets of Spanish democracy. The terror groups did not see holding elections as a sufficient break with the past. Laws such as the Statute of Autonomy were passed to counteract separatist movements already in 1978. The laws affirmed that more political autonomy should be given to the Autonomous Communities and increased their political participation in the central parliament.Footnote ³⁵⁸ The hope was that this law would undermine political violence. Throughout the change and consolidation process these terror groups posed a serious threat to democratisation and they were the main weakening factor for the regime.Footnote ³⁵⁹

Nevertheless, the Moncloa Pact as the ‘pact of silence or ‘pact of forgetting’ as it was also called, indirectly acknowledged and confirmed that great injustices had been committed in the past.Footnote ³⁶⁰ But the downside of this was that a culture of impunity was soon established that would haunt the necessary democratic regime consolidation. Without an independent judiciary with independent, not loyal, Franco judges, neither the rule of law nor civic trust could barely take place. The improper functioning of the judiciary, which was filled with judges, attorneys and lawyers from the previous regime, actually increased over time. Trials against perpetrators let alone against members of the Falange were hardly ever initiated and, when they were, they were never held in public.Footnote ³⁶¹

But a spiral is never linear, and thus change continued, albeit often in a hazardous way. The amnesty laws paved the way for a constitutional referendum in 1978. Without the amnesty laws, the old elites would have never agreed to this referendum. In the Basque Country, a left-wing citizen movement called ‘Amnesty and Liberty’ (only for their own people of course) was launched, while a right-wing movement called for the boycott of the constitutional referendum.Footnote ³⁶² The constitution was in the end a compromise for both. This marked a major shift towards party pluralism and civil society engagement, which is a prerequisite for democratic regime consolidation.

Thus, many of those who had suffered political oppression even made their approval of the constitutional referendum conditional on these laws. These groups did not anticipate the fact that Francoists would also benefit from these amnesty laws, but eventually they were part of the compromise as well. On the other hand, if Franco’s followers had not benefited from this amnesty, they would never have supported any constitutional referendum. It was a trade-off, but nevertheless opposition from right-wing movements to the draft constitution was significant, with many fearing that they would lose their privileged status. At the same time, as the left-wing parties called for the amnesty, the right-wing parties and Francoists campaigned against the constitutional draft in 1978 with slogans such as ‘Yes to Spain – No to the constitution’ (‘Si a Espana – no a la constitution!’) on the basis that the conditions set out in the constitution were not right for them.Footnote ³⁶³ The fear in the ‘generation of victimisers’ was that this constitution would eventually serve to hold them accountable for their wrongdoings.

The historical and collective (unspoken) narrative continuously and indirectly intervened in regime change policies. If, for example, history or truth commissions were used to deal with the past, many of the myths that led to flaws and vicious circles of violence and amnesty could have been broken. For example, shortly before the referendum on the constitution in 1978, public debates arose in relation to dealing with the past. The conservative-run media, such as the ABC daily newspaper (previously a Franco-supporting paper) did not mention the term ‘civil war’ once, let alone write about any responsibility the Falange had in it, whereas the newly established left-wing newspaper El País mentioned civil war in almost 40 per cent of its editorials. This type of rhetoric also showed how divided the country remained and that there was no common narrative during the first post-Franco decade; a situation that would persist for another two decades.Footnote ³⁶⁴ In the end, the referendum took place and clearly confirmed a desire for democracy over dictatorship and for the slow but steady dismantling of the old Franco institutions. With a 77 per cent election turnout, of which 95 per cent voted ‘yes’, the referendum was a major success, although the conservative powers maintained a grip on the country and TJ remained taboo. Discussions around decentralisation and the adoption of the Statute of Autonomy followed.

Soon afterwards, Spain received official support, or rather pressure, from other EC Member States in its economic and political and institutional transformation. Thus representative consolidation was anticipated, but a behavioural or attitudinal one was yet to come about. A mix of old and new elites in power, especially at the level of the federal or autonomous states, designed a decentralised autonomous federal state composed of the Autonomous Communities. As a result, the Communities’ new statutes received immense support from the EC, which invested in the underdeveloped regions and Autonomous Communities in the country and thus supported decentralisation and consequently moved power from Madrid to the peripheries. The EC believed that economic growth through better infrastructure and industrialisation would also strengthen democratic forces and lead to democratically minded citizens. This ‘Marshall Plan’ for the southern European countries in transition at that time (Greece, Spain and Portugal) was called the EC Structural Fund, and had the same intention as the Marshall Plan did 40 years earlier for northern Europe and Germany: improve public infrastructure and skills and the economy so that the path towards democracy will be easier. The plan worked, but would have been more effective if TJ measures had been included in the plan, a sentiment similar to one the former Allied Commander for West Germany in the 1950s, Commander Clay, had once noted about the consolidation process in West Germany: the consolidation process in West Germany worked better with TJ than without it.

In the EC, in particular in Germany and France, governments understood that only a quick integration into the EC and active membership in international organisations would enable foreign powers to influence democratic institution building in Spain.Footnote ³⁶⁵ Spain’s willingness to democratise and participate economically in the European Common Market was a formal requirement of becoming a member of the EC. Yet, it was exactly the fact that its institutions were far from stable and solid that triggered EC Member States to embrace Spain even more strongly. The EC hoped that once Spain was a member, it could influence and facilitate the development of Spain’s institutions, even if at the beginning Spain did not completely fulfil all the criteria of a democracy since, for example, it lacked an independent judiciary and the Guardia Civil often operated outside its legal authority. But in all that, the systematic application of TJ measures was not a requirement for any international membership during the first post-Franco decade (which was very different from Germany after 1949). For those in Spain who wished to democratise faster, such as King Juan Carlos and the opposition parties like PSOE, the EC’s interference was welcome. They could use the EC as an excuse when arguing with former Francoist supporters – it was the EC that demanded all of these democratic reforms, not only the PSOE or Juan Carlos. It is a common tactic for young democracies and their supporters to engage with international organisations in order to gain support in their ‘fight against conservative anti-democratic’ forces within their own country.Footnote ³⁶⁶ This was also true for Spain’s early commitments in the UN, the Council of Europe and NATO.

As indicated earlier, the main significant political shift took place with the referendum on the constitution in 1978. Yet it did, however, indirectly pave the way for much later TJ measures and somewhat for the reconciliation of the ‘two Spains’, although it would take another generation. Instead, during the first transition years, Guardia Civil, who had lost their scope of action as a result of the democratic reforms, fought all democratic efforts after 1978. They argued that the transition from dictatorship to democracy had resulted in more chaos than order. In other words: ‘Under Franco there was peace and security, now under democracy that respects communists and socialists, there is only chaos and insecurity.’ In fact, protests and strikes continued to be a daily annoyance and threatened the economic upswing. In the early years of transition, people generally did not trust the new regime, instead favouring peace over freedom and even over justice, as opinion polls from 1976 show.Footnote ³⁶⁷ In one year, the protests and strikes resulted in over 460 injuries and even some deaths in the streets of Madrid, Barcelona and Bilbao. The past continued to haunt the transition period and people feared another civil war. The outbreaks of violence and the acts of terror seemed so similar to those of the 1930s that even those who most strongly opposed Franco and had suffered imprisonment under him did not dare to break the pact of silence and deal with the past.Footnote ³⁶⁸

But after constitutional consolidation in 1978, the government could slowly allow for reacting to TJ claims, and did so albeit reluctantly and hesitantly. On 18 September 1979, the government adopted an Act ensuring pensions, medical assistance and social support to the widows and other family members of individuals who were injured or died in the Civil War as an act of TJ. Five years later, in 1984, the socialist government increased the pension funds for those who had served in the Republican Army.Footnote ³⁶⁹ The problem with acknowledgement and TJ measures was being able to find adequate evidence to justify their use. Without open public discourse, history commissions or forensic analysis of the hundreds of unrevealed mass graves from the Spanish Civil War, it was difficult to prove who were victims and who were victimisers because trials were off-limits. Instead, amnesties and pension funds for victims were put in place in the first five years of transition and were an indirect form of acknowledgement of past injustices.Footnote ³⁷⁰

Democratic efforts were weakened by the many cases before the administrative courts resulting from family feuds. They were often proxies for the lack of TJ trials and resembled old enmities from the Franco past and often resurfaced as administrative cases. The real cause for these claims was the desire to settle old scores between different factions and families that dated back to the Spanish Civil War. Thus, in some way, these cases can be seen as ‘hidden TJ claims’. In the absence of official trials people looked for proxies. Land or property disputes often served as a proxy for the quest for justice. Many of the minor cases that came before the Spanish administrative courts were in fact a result of never openly discussing disputes or vengeance of the past. Although it was evident that political change would only take place if people in the villages dared to talk, organise themselves in interest groups and face the past, this did not take place until the 1990s.Footnote ³⁷¹

In January 1981, President Adolfo Suarez resigned from office. Days later an ETA member died in prison from torture. This unfortunate combination of events caused serious tensions in Spanish society and was proof of the weak basis for representative consolidation. It led to further provocations from ETA, a strong governmental response and yet another major general strike in the Basque Country, which spread a sense of chaos throughout the country. Weeks later, due to uncertainty about the country’s political future, the power gap and the absence (or rather silence) of decision-making powers to openly confront the democracy gaps in the country, the Guardia Civil, under General Antonio Tejero Molina, wanted to restore law and order. Arguing that the democratic institutions had failed to keep order in the country, Tejero Molina launched a coup on 23 February 1981, during a meeting of Spain’s lower house, the Congress of Deputies. No one was seriously injured, but it was the biggest threat to regime consolidation in the first decade, causing people to fear a return to dictatorship. Many Spaniards, most of them communist supporters, had already packed their belongings, ready to cross the border to France (again) as their parents and grandparents had done in 1936 when Franco seized control in Spain. The coup was closely related to the failure to delegitimise the previous regime and the UCD could no longer contain the tensions caused by the economic crisis (with almost 20 per cent unemployment), the regionalisation in state autonomies and federalisation, the violent acts by the separatist group ETA, and the reluctance from a significant part of the Spanish Armed Forces, including the Guardia Civil. All actors needed to accept the constitution and the democratic regime and in order to do that the political elite had to distance itself from the past. Unconsolidated pockets were at their height in 1981. Nevertheless, due to the public intervention of the king, the coup failed. After holding the parliament and cabinet hostage for 18 hours, the Guardia Civil surrendered. In a nationally broadcast television speech on the day of the coup, Juan Carlos – wearing his Captain General of the Armed Forces uniform – denounced the coup and urged the continuance of the democratically elected government. He asked the guards to return to their barracks. The incident showed that the young democracy was unstable and (still) depended on the willingness and conviction of a single leader, especially the king. At that time, the majority of the population by no means saw democracy as ‘the only game in town’, but the subsequent imprisonment of the military personnel involved in the coup, and the trials completed in 1982, made this a crucial year for regime consolidation. As Linz and Stepan have stated, ‘[t]he trials helped to consolidate democracy because they showed how divided and without an agenda the military “alternative” really was’.Footnote ³⁷² The Guardia Civil officers who had launched the coup were sentenced to 30 years in prison that same year and more were convicted with lower sentences. This was the first time citizens had ever seen state institutions ensure justice be served against the Guardia Civil.Footnote ³⁷³

In April 1981, parliament passed a law to install an ombudsman (defensor del pueblo) to take up citizens’ claims and concerns in respect to the continued corruption and human rights violations by state forces after 1975. This office had been long anticipated, as it was intended to safeguard those human rights set out in the 1978 constitution, but it now finally became a matter of urgency. The government started to appreciate citizen participation and saw it as a vehicle to aid democracy, rather than impede it. The ombudsman had no power to take claims from the past, but was meant to signal that under the new regime, human rights violations should no longer occur and would be taken up by the judiciary. Although the first ombudsman was only appointed in 1982 with rather limited powers, the development indicated responsiveness to citizens’ needs. According to Merkel, consolidation only really began to take place when the PSOE won a majority in the 1982 elections.Footnote ³⁷⁴ Five years after regime change took off, trials, pension funds, and public acknowledgements of wrongdoings of the Franco elites started to (slowly) delegitimise the Franco regime.

Suarez’s government had already initiated some cultural and memorial TJ activities that indirectly acknowledged past wrongdoings, although it was – if at all – for tactical political reasons and not for moral ones. One such informal activity was ensuring the return of Picasso’s most well-known painting, the 1937 La Guernica, from ‘exile’ in New York to Madrid in 1981.Footnote ³⁷⁵ This was a memorial act of reconciliation between the central government and the Basque country and peoples who asked for more recognition of the suffering they had to endure under Franco. The government had started negotiations in 1977 with the aim of satisfying Basque claims for recognition of victimhood in the Spanish Civil War and the Franco regime’s responsibility for killing thousands of Basque people. The government responded to the Basque claims, but the return of the painting offended many of the Falange members who had supported the massacres against the ‘disobedient’ Basque people. For the Falange, the painting was an affront. Picasso’s painting depicts the atrocities during the Spanish Civil War and the destruction of the holy place in the Basque region by – at that time – allied German, Italian and Spanish forces. After its return, it was displayed in the Reina Sofía Museum of Modern Art in Madrid. In terms of TJ this was one of the government’s few early symbolic acts that acknowledged past injustices.

Based on the events of the previous year, in 1982 a shift in government took place and the PSOE gained an absolute majority and fostered economic reforms benefiting labourers. But the trauma of 1981 remained and the PSOE took actions to avoid a second attempted coup although most of their political leaders had suffered repression or exile under Franco, remained silent and did not openly deal with the past. Fears that Franco’s shadow would return, for example in the form of judges and technocrats, were omnipresent in all families and all institutions.

But inward-looking TJ policies such as amnesties, memorials or symbolic acts and pension funds can only trigger more TJ if there are external incentives that continue to exert pressure on the process. In the case of Spain, the EC was the only source of such pressure and, since Spanish civil society was so weak, it took a long time before more TJ was triggered and the spiral effect could take off. The PSOE government adopted policies to achieve a more rapid integration into the EC and NATO, hoping that international integration would trigger more necessary changes in political institutions, the military and the security forces. The PSOE hoped that international pressure would lead to the dismantling of the Guardia Civil and the Falange, since the constitution restricted internal forces from achieving this goal. The fact that even the Socialist governments continued complying with the 1978 pacts agreed among the various political parties and labour unions at the president’s seat in the Palace of Moncloa (a place in the University District of Madrid), the so-called ‘Moncloa Pacts’ showed the willingness to adhere to agreements and constitutional law. According to Guillermo O’Donnell and others, the importance of this willingness for a democratic culture must not be underestimated, even though it meant that Francoists remained largely unpunished.Footnote ³⁷⁶

In the subsequent years, pressure from the EC increased, as it aimed to prevent yet another fascist coup. This process led to Spain joining NATO in 1982 and the EC in 1986. Political power shifted between conservative and social democratic governments in 1982, 1996 and 2004. After the first legislative term of the PSOE government ended in 1986 at the end of the first post-Franco decade, Spanish democracy was internationally recognised as consolidated, after its first round of constitutional consolidation in 1978 and 1979. Interestingly enough, it was also during this period, around 1986, that parliament passed a law rehabilitating military personnel oppressed by Franco.Footnote ³⁷⁷ Researchers and politicians have long disputed whether it was the EC membership that marked the major democratic shift of regime change and consolidation. It is evident that Spain joined the EC not because of its excellent economic performance (the official criteria to seek membership at that time), but because European states wanted the EC to have a grip on the country’s fragile democracy. ‘Holding a firm grip’ was not an official criterion, for obvious reasons.

It soon became evident that the PSOE government would risk sabotage within democratic institutions, such as the courts or ministries, if they did not serve the interests of the former victimisers of the Franco regime to the same extent as they did those of their own supporters. Thus, in adherence to the 1978 agreements and constitution, the left-wing government left those from the ‘white’ side in peace and slowly introduced some TJ measures for their own supporters. Jose Tamarit summarised these and other silent measures of reparations as tools for TJ issued since King Juan Carlos’ Royal Decrees (Real Decreto-Ley) in 1978. To this, the PSOE government added formal acknowledgement in the form of contributions to social security in 1984. In 1986 they issued an ‘incorporation act’ for members of the army who had pushed for democratic reforms within the former regime (before Franco’s death), and were thus expelled from the army. Under the PSOE, they were rehabilitated and received full pensions. Nevertheless, during all this time the Amnesty Act of 1977 remained untouched while any TJ measures thus had to work around this Act, but abolishing it was unthinkable. Instead, the PSOE government slowly started issuing reparations and letters of acknowledgement and started to support cultural and popular events that acknowledged the past. Seeing that the government was willing to acknowledge past injustice triggered the civic engagement of those millions of victims who were predominantly supporters of the PSOE government. Yet, Tamarit also concluded that the government ‘failed to consider the period of almost forty years of dictatorship, thus revealing that the young democracy did not find a way to express its attitude towards the previous regime’.Footnote ³⁷⁸

A majority of the new communist or socialist political elites kept ties with their former exile residences, such as Germany, France and Latin America. Political foundations such as the German-based Friedrich Ebert Foundation and others financially and politically supported the new and often politically inexperienced PSOE leaders – not always by legal means and often with non-declared money transfers. At that time, external support was an important factor in regime consolidation. It steered political parties and civil engagement, and due to the fact that many citizens were too intimidated to discuss the past, civic trust had to be slowly re-established. A large left-wing citizen movement started to grow, comprised of members who had suffered in Franco’s prisons, campaigned for women’s and human rights and against nuclear power, as well as against membership of NATO.Footnote ³⁷⁹ The PSOE government soon became in favour of NATO membership in 1982, after deciding that it would help to reform the security and military sectors with new methods of security defence based on civil codes, too.Footnote ³⁸⁰ Apart from seeking membership of the EC and enhancing its role in the UN, membership of NATO was seen as a key way to integrate Spain’s main veto powers, the military and security sector, into the international community and, moreover, it led to the dismantling of old generals who were firmly loyal to the former regime.Footnote ³⁸¹ Another important by-product of NATO membership and the fact that the Spanish army would be integrated into NATO forces was that all high-ranked military leaders would need to communicate in English, the official NATO language. The old military generals of Franco’s time had to be replaced by new, young military leaders who were trained in the United States and Canada, like King Juan Carlos himself. This turned out to be an indirect way of ‘purging’ or vetting former elites. By replacing the old generals with new internationally trained ones, Spain removed its old military elites from important positions, thus also getting rid of the threat they had always continued to pose to the government. The military forces were cleansed of Francoist, anti-democratic members and westward-looking individuals were sworn in.

International integration and monitoring by the United States and Europe was the first step in delegitimising previous dictatorial habits. At the same time a bottom-up and citizen-driven approach to reckon with the past slowly started to grow. Local TJ initiatives in villages throughout the country hesitantly sought to exhume mass graves from the Civil War in order to demystify and thus delegitimise the domestic and local Francoist elites. They faced major resistance, however, since many members of the Falange continued as mayors and local administrators. Thus the main consolidating intertwining affect between TJ measures and institutions took place, mostly, if at all on local levels throughout the country, but not necessarily supported by the government through public statements or financial support. And time was running out, because each year there were fewer people alive who remembered the war, the arbitrary killings and mass executions of the Franco regime of the 1930s and 1940s. Although legacies and stories were passed on from eyewitnesses to their children, it would be a challenge to find mass graves somewhere under the huge wheat fields of Galicia, in Catalonia or Castilla y Leon. On the other hand, exhumations in the 1980s would have directly confronted still-living perpetrators and their influential families with the fact that men, women and children had in fact been buried at night in mass graves outside the villages. Yet, failing to address these crimes would make it very difficult to demystify the legend of Franco being a liberator and guardian of the Spanish nation.Footnote ³⁸²

The establishment of new universities and a broader non-Christian and non-Falange education system in the 1980s, fostered by left-wing political voices, led to a new desperate need for trained academic staff that was more critical to Christian or Francoist education type and which later became key to the TJ process that started around 2000. Large civil educational programmes were launched. The Catholic Church, which had dominated the education system in Spain for centuries and strongly supported Franco and the king, made sure that its Catholic values and the former Franco regime were not among the disputed issues in the educational programmes’ curricula.Footnote ³⁸³

Meanwhile, King Juan Carlos and the PSOE government tried to appease and hold together the ‘two Spains’ after the turbulence in 1981. But at the same time and because of the coup, unconsolidated pockets of democracy began to remerge again. Shortly after the coup, the ETA was thought to have found a new cause, thus raising its violent voice again and kidnapping and murdering a prominent politician of the PP in the Basque Country. As a result, the political arm of ETA, the Heri Batasuna party, reacted more strongly than ever against ‘the centralism of Madrid’ and demanded the establishment of an independent Basque Country, including the Basque region of France. Hence, the conflict between the Guardia Civil and ETA started again, although this time not under a dictatorship, but under fragile democratic institutions. In a way ETA’s terror has always been an indicator of the progress and pace of Spain’s democratic consolidation. The more ETA violently responded to governmental policies, the less likely these were to dismantle ETA’s base, whose members and supporters justified their killings and attacks by pointing to the lack of delegitimisation of the Franco regime. ETA’s violence even led to the socialist government condoning illegal action against them, for example the disappearances and torture of ETA members.Footnote ³⁸⁴ The way ETA moved in their violent cause has since been a benchmark for observers of Spanish democracy and whether or not it succeeded in overcoming its last unconsolidated pocket, that of separatist terror.

Spain’s centralist government had been the Basque nationalists’ bane for decades and continued to be so after the reforms in 1977, the Statute of Autonomy in 1979 and after the PSOE won the elections, even though it had guaranteed the Basque Country and Catalonia the greatest level of autonomy seen up to that point. This was not enough for those who sought complete independence from the Spanish state. The concept of statehood and/or nationhood was always a core issue in political fights between the periphery and the central government. In the Basque Country, the Statute of Autonomy was sufficient neither for Heri Batasuna nor the Basque nationalist governing party (Partido Nacionalista Vasco, PNV), which was the more moderate branch of Basque nationalism that formed the regional government from 1980 to 2009.Footnote ³⁸⁵ By claiming a right to self-determination, the PNV sought to detach itself from Spain despite its already existing financial privileges, such as tax autonomy. Those striving for independence employed the old image of the oppressive centralist powers in Madrid, arguing that Franco’s legacy remained in all central governments, regardless of whether they were led by the UCD or the PSOE. It was easy for ETA and the PNV to argue in such a manner, since Franco had never been officially demystified or delegitimised. The state responded by violently disrupting ETA’s manoeuvres. As stated earlier, the PSOE government even used anti-democratic and illegal means to combat the terror attacks. It launched anti-terror liberation units (Grupos Antiterroristas de Liberatión, GAL), which acted outside the legal and judicial rule of the constitution and contributed to the anti-democratic tradition of solving security problems with violent means, including illegal killings and abductions. In this way, both the GAL and ETA fuelled the unconsolidated pockets. Trials and the dismantling of Franco’s legacy would have been more effective, perhaps.Footnote ³⁸⁶

Although the PSOE government declared several ceasefires between itself and ETA, the group has continued to terrorise the country until the present day. ETA remains the prime example of radical nationalism and separatism in Spain and Europe, claiming to be a ‘non-state actor’ with many Basque followers. It has succeeded in intimidating the Basque and Spanish populations alike, as the Guardia Civil also did, although with different political motivations. Basque people have always been intimidated both by the Guardia Civil on the one side and by the ETA on the other side, a fact which has greatly impacted their voting behaviour and attitude towards democratic culture.Footnote ³⁸⁷

For a long time into the period of democracy and free elections in the 1980s, many Basques did not dare to vote for anything other than the nationalistic PNV party because they did not trust that ballots were truly secret. They worried that somehow ‘ETA’s silent eyes and ears’ would know who voted for which party and that those who did not vote for the PNV or Heri Batasuna would face repercussions or intimidation from ETA. Until recently, nationalist parties in many of the villages and rural regions of the Basque Country received a large proportion of votes during the elections. Nationalism, even if regional in nature, does not leave much room for pluralism.

There have been more than 860 ETA terror victims since 1970. On average, this means ETA was responsible for two victims a month for roughly 40 years, many of them civilians. All attempts to turn the organisation into a civil organisation with a strong political branch adhering to democratic principles have failed. Although ETA lost significant support over time, it was difficult to convince ETA members to deradicalise if, in their eyes, those who were responsible for Basque oppression were still in high-ranking offices in Madrid and elsewhere – and, of course, either members of the Falange or collaborating with them. As long as the myth of the past worked in ETA’s favour so that it could portray the current regime as having links to Franco, ETA could successfully continue its terrorist activities. Separatist propaganda with violent consequences and parts of the population’s voting behaviour has meant that the democratic order in the Basque Country was not consolidated. Even if these factors have not permanently obstructed Spain’s consolidation process, they have certainly impaired it. This impairment of democratic consolidation has actually benefited ETA because it allows ETA to keep Franco ‘alive’ as an enemy. Without this, the group would have lost ground and many supporters. I argue that if TJ measures such as history commissions, memorials and even trials had been put in place to deal with the past and shed some light on the terror from all sides until 1975, most of ETA’s victims would still be alive today.

Despite its difficult start and the drawbacks, violence, reluctance and shortcomings of democratic regime change, the period after 1982 is considered the second transition phase or consolidation phase, or the phase of representative and behavioural consolidation. The first attempts to establish an official memory culture can be found in this period.Footnote ³⁸⁸ Linz and Stepan, again, have pointed to the 80 per cent popular support for democracy by 1982, the necessary economic and social reforms and the success of the PSOE under Felipe Gonzales as having enabled the new system to consolidate only seven years after Franco’s death.Footnote ³⁸⁹ Nevertheless, the low election turnout illustrated many voters’ great dissatisfaction with the political transition. Therefore, some observers find that consolidation only took place in the mid-1980s, after comprehensive reforms of the legal and military apparatus and the removal of the Francoists from power.Footnote ³⁹⁰ Marianne Kneuer, for example, has argued that consolidation did not occur until 1986, after decentralisation was further advanced and membership of NATO and the EC were achieved.Footnote ³⁹¹ The general consent lies in the fact that the shift of government and the membership in the EC marked the stage of democratic consolidation.

Generally speaking, by the end of the first post-Franco decade in and around 1985, the country was still politically divided. According to Eurostat, 51 per cent of the population was rather satisfied and trusted the institutions, leaving around 40–50 per cent rather unsatisfied or expressing no opinion.Footnote ³⁹² The ‘satisfaction’ indicator was not surprising, as it reflected how divided the country still was between those who had supported the previous Franco regime and those who had suffered under the previous regime and supported the new one.

Second Decade 1985–1994

Ten years after Franco’s death, 76 per cent of the population was proud of the transition Spain had made. This sense of pride was particularly strong on the left, after the PSOE won the election in 1982 and the violence on both radical ends, left and right wing, decreased.Footnote ³⁹³ The second post-Franco decade included institutional reforms and executive and legislative responses to citizens’ demands for more TJ. For Merkel and others, the democratic regime was consolidated by that time.Footnote ³⁹⁴ Towards the end of this decade, the first post-Franco generation emerged. Yet, this decade is one in which also many democratic flaws and unconsolidated pockets of democracy remained or re-emerged.Footnote ³⁹⁵

Hundreds of thousands of Falangistas still annually celebrated Franco’s birthday (4 December) and the date of his death (20 November). He enjoyed great support among citizens and civil society hardly protested against the glorification of Franco, also due to the fear that to challenge his followers would end in many more acts of violence. Masses of people made annual pilgrimages to his grave at the Valle de los Caidos, the official war memorial and a TJ tool that Franco had used to manifest his own autocratic power. This annual pilgrimage did not remain unnoticed and even received media coverage. The only compromise made with Franco’s successors in terms of memorials was that the anniversary of the start of the Spanish Civil War was neither commemorated in public nor in parliament. The government tried to limit the provocation this had caused each year to the millions of victims of the war and the regime due to the still unresolved disappearances and abductions during and after the war since 1939. Here, too, King Juan Carlos played the main reconciling role in this strongly divided society. In 1985, on the tenth anniversary of his coronation, he inaugurated a monument in Madrid to all who gave their life for Spain, not distinguishing between communists, republicans or Falange. This was the first public inclusive TJ measure of its kind in Spain and acknowledged all victims. The wider public and Spaniards who felt their sacrifices had never been acknowledged received this gesture very positively.Footnote ³⁹⁶

But most of the time, the government acknowledged the past only very minimally through indirect TJ measures such as pension funds for former political prisoners of the Franco regime or private memorial activities that at least the government did not officially forbid. Citizens were only able to fully legitimise the democratic regime when it guaranteed the ‘order’ of the Franco era (in other words the absence of war) while providing them with more freedom and development than they had before. This was a difficult balancing act for the transitional government to maintain.Footnote ³⁹⁷ Because of the culture of impunity, silence and forgetting, even the PSOE government combatted violent threats to the stability of the country with equally silent and anti-democratic means. Its main tool was the GAL (Grupo Antiterrorista de Liberacion), an anti-terror death squad established illegally by officials of the government that continued the dirty war against ETA and other groups that formed a threat to the government. In the 1980s, the GAL and its activities remained largely unnoticed by the wider public, but eventually came to light as a result of media investigations. By the early 1990s reporters did not have to fear repercussions themselves and openly published their findings. This was followed by a multitude of political scandals with legal consequences, which in 1996 cost the PSOE leader and President Felipe Gonzalez his position. Eventually, about 20 years after regime change, the first post-authoritarian generation of political decision makers slowly started to dare to speak up.

Individual compensation and the public acknowledgement in the form of pensions and small memorials remained two of the most successful TJ measures throughout all Spanish legislative periods, including between 1985 and 1994. The payments for past injustices and suffering by way of pensions acknowledged that ‘something went wrong’, that the recipients had unjustly suffered and were entitled to compensation. Plus, each government extended these measures’ scope and the number of beneficiaries for decades to come. In June 1990, the PSOE government again issued monetary reparations and expanded the scope of people who were entitled to it. It aimed to reach those who suffered imprisonment for political reasons at any time – on both sides of the political spectrum. However, any other type of restitution, for example measures to aid in the return of lost or appropriated property were not considered, although claims slowly started to appear.Footnote ³⁹⁸

It was not until 1993, towards the end of the second post-war Franco decade and during the last PSOE legislature, that the party included the importance of (finally) coming to terms with Spain’s violent past in its political manifesto. Until then it had adhered to the pact of silence. It only dared to address the past when immediate threats from the previous political and military elite seemed to have vanished and when the new generation arrived on the political scene. In addition, PSOE was motivated by the need to respond to the growing national catharsis. And by that time in the early 1990s, surveys showed that 40 per cent of the population regarded the unaddressed past of the Spanish Civil War as a major issue and to which the government had to respond in one way or the other. A few years later in 2000, over 50 per cent thought it was an important issue to deal with. This group included many members of the younger generation.Footnote ³⁹⁹

As civil society movements emerged, NGOs such as Amnesty International put TJ on the agenda under the label of ‘fighting impunity’ and by drawing comparisons to other countries in the world, in particular in Latin America and the Balkans, which had already started using TJ measures. If less democratised countries used TJ measures to speed up their democratisation and peace process, it was not left unnoticed in Spain, too, despite all prior pacts and agreements. Some 20 years post-regime change, the government had to start responding to the internal and external pressure for TJ. A large part of the population on both sides seemed ready for it. Despite public concern for other current issues, such as economic growth or unemployment, dealing with the Franco past became an increasingly significant issue in electoral campaigns.

Meanwhile, the unconsolidated pockets hampered the upward trajectory of the TJ and consolidating spiral. The ETA terrorist activity in the Basque Country and the separatist movements in Catalonia and Galicia increased in parallel to the democratic reforms and dramatically illustrated that full reconciliation had not yet been achieved within Spain. The left and right, centre and periphery, those who enjoyed privileges and those who had been marginalised were still harshly divided. Political disputes and terror attacks in both peripheral locations like Catalonia and the Basque Country and in the centre of Madrid demonstrated this struggle. ETA sympathisers protested, for example, against the way ‘its’ prisoners were held and cases of torture and ill-treatment were reported. Over 500 prisoners, distributed over the entire country, were frequently exposed to torture, abuse, unfair court proceedings, as well as the violent work of the GAL anti-terror unit.Footnote ⁴⁰⁰ Nevertheless, the regime status quo remained stable and the danger of regressing back to an authoritarian regime change receded, even though civil engagement was still low and much of the population was still too intimidated to raise its voice.Footnote ⁴⁰¹ But social transformation and the first attempts at establishing one official and nationally shared memory also grew hesitantly. Almost a generation had passed and talking about the past was still largely limited to the private sphere. Only slowly did literature, film and theatre start addressing the issues of the past and of the dictatorship.Footnote ⁴⁰² But generally speaking in the 1980s and 1990s, schoolchildren learned more about the Nazi dictatorship in Germany and the military juntas in Latin America than they did about their own dictatorial past.

Because of Spain’s democratic development and social reforms, satisfaction numbers started to change. By the end of the second post-Franco decade, Eurobarometer confirmed that citizens’ opinions about state institutions had converged towards the middle. Seventy-five per cent of the population was fairly or not very satisfied and only 5 per cent very satisfied and 17 per cent not at all satisfied.Footnote ⁴⁰³ These figures also correlate with the wish for a general motion in Spain to finally put the past on the agenda.

It was thus the civil society and private research institutes that started to unravel the past. Historians, journalists, private initiatives, survivors and family members started gathering the first facts about the past, regarding cases of disappearances, illegal killings, ‘accidents’, torture and even rumours about abductions and concentration camps, which were slowly being made public. Academic papers and media reports mainly in El Pais and the Catalan paper La Vanguardia published articles about the Civil War and the Franco era and triggered public debates.Footnote ⁴⁰⁴ The TJ processes in Latin America (for example Argentina and Chile), as well as in post-communist Eastern Europe and the Balkans, continued to influence the development of TJ in Spain. While Spain was still struggling with its history because of the heavyweight amnesty laws from 1977, the post-communist and authoritarian regimes elsewhere in Europe, Africa or Latin America had already accepted the utility of TJ measures for building democracy – a development that neither the Spanish government, nor civil society or academia could ignore for much longer. Demands for trials, the abolishment of amnesty laws and exhumations also came up in Spain. Another fact that could not be ignored was the establishment of the ICTY in 1993 and the ICTR in 1994. Journalists or political analysts compared the atrocities of the present with the ones of their own past and questioned whether it was now perhaps time for trials. The only case brought between 1994 and 1996 was that of the student Enrique Ruano, who had allegedly been killed in police custody in Madrid in 1969. Although the Supreme Court valued the efforts to deal with this case, it came to the conclusion that due to statutes of limitation the case could not be dealt with. According to Julia Arnold, Spain generally dealt with its past with biased rehabilitation efforts, through amnesty laws and pension (compensation) until far into the new millennium.Footnote ⁴⁰⁵

One can see that external incentives, in this case examples of TJ from elsewhere in the world, had a causal effect on citizen demands, the growth of civil society and waiting for the government’s response. Thus, by 1995 it was not only the growth of civil society, the general satisfaction with the regime, the absence of violence and threat in the country that caused the rising claims for TJ but also the worldwide development in the TJ arena as such, putting TJ on the agenda of the UN and later also on the agenda of European institutions.Footnote ⁴⁰⁶

Third Decade 1995–2004

After some initial (and often externally driven) attempts for TJ during the second decade, the third was the one during which civil society and TJ finally took off. Civil society movements demanding commemoration of and truth about the past dominated the third post-Franco decade. It was also the decade in which questioning the past became a moral imperative and civil society reached its peak. Even those who had no personal memories of Franco’s regime felt the urge to explore their past. However, the third decade did not begin very promisingly. After the defeat of the PSOE in 1996, the conservative People’s Party (PP) came to power and started idealising and mythologising the Franco era again as a period of stability and peace. All thoughts of implementing TJ measures, such as history commissions or commissions of inquiry, and the taking up of citizen claims for individual trials were put on ice. The new government might not have openly made pro-Franco propaganda, but it did try to prevent any official process that would have delegitimised him. One cannot forget that the strongest and most loyal supporters of the PP were former Falangistas and that the country was politically still greatly divided between pro- and contra-Franco followers. Since there was never an uprising against Franco and he was the only dictator in modern times who died in bed, the existence of national catharsis had to grow much slower and later than in other transition and transformation processes. Nevertheless, it did and the government had to respond to it. However, the PP continued to resist acknowledging and accepting responsibility for its own Franco-related legacy and foundation, such as for example the fact that the founder of the PP, Manuel Fraga, had been one of Franco’s ministers, and remained an influential leader in the party.

Now in opposition, the PSOE no longer stuck to its self-imposed rule of silence as it did in 1982 when it first won the elections. In 1999, pressured by its large membership and together with the Catalan and Basque nationalists, it submitted a bill in which it suggested that Spanish Civil War exiles should be honoured with public compensation as an act of public acknowledgement. Following the examples of post-regime change, criminal justice processes elsewhere in the world and inspired by the birth of the Rome Statute for the first ICC in 1998, the draft bill focused on responsibility and the question of guilt for atrocities and war crimes committed between 1936 and 1939. The bill was rejected due to the low number of seats held by the left-wing parties in the parliament.Footnote ⁴⁰⁷ The governing PP, which held a majority in parliament, voted against the bill and angered those who were seeking more examination of the Franco regime. Instead, in 1999, almost as an act of provocation for those who sought TJ for the Franco area, the conservative government passed the Solidarity with the Victims of Terrorism Act, an act that embodied TJ in its most biased and exclusionary form. This Act was aimed at the victims of ETA and GRAPO terror and provided subsidies to all victims of terror acts since 1968. Most of these victims had been supporters of the Franco regime. Those who also benefited from these TJ measures were citizens who happened to be collaterally affected by these terrorist acts, although they were not the primary targets of the terrorist acts. The Act did not distinguish whether the violent acts and killings had been committed by ETA, the GRAPO, separatist movements or other left-wing terror groups, which was a step ahead in acknowledgement policies. However, given the timeframe to which it applied, this law clearly benefited one group of victims over others and raised many concerns in society. Enacting this law was another political move by the former elite to please its supporters.

The state terror carried out in the years prior to 1975 by the Guardia Civil and the secret police remained unatoned for. It was therefore rather dubious whether such governmental acts would lead to reconciliation in society. Curiously enough, the Act was later enhanced with the Historical Memory Law in 2007, which provided monetary compensation of 135,000 euros to the beneficiaries of the persons who died between January 1968 and October 1977, exactly the same period in which ETA had committed most of its terrorist attacks.Footnote ⁴⁰⁸ This law was seen as a compromise to obtain concessions from the PP to start dealing with victims during the Franco era – regardless of which side of the political spectrum they stood. By doing this, the law did not make any commitment at acknowledging the terror coming from the Franco regime. Most beneficiaries of the law were instead Franco supporters who had been injured or killed by ETA. The victims of the GAL, however, were hardly ever compensated, which could be interpreted as confirming that the anti-democratic and illegal practices committed by the GAL were a legitimate way of conducting governmental business against GRAPO and ETA.

Throughout the third decade, the government could no longer resist external pressure and the spill over from other TJ developments. Two Spanish lawyers, Balthasar Garzón and Manuel Garcia-Castellon (both known for their liberal legal philosophy and with a family history as victims of the Franco regime) set proceedings into motion that eventually resulted in the arrest of the former Chilean dictator, General Augusto Pinochet, in 1998. Due to the 1977 Amnesty laws, these Spanish judges could not indict any Francoists, but they did the Chilean one. But that was part of their plan and first step towards TJ in Spain. They had planned a long-term TJ coup that they hoped would have a boomerang effect. Garzón had agreed to hear claims of human rights abuses against Spanish citizens by Latin American dictatorships under the ‘popular action’ (accion popular), which permits any Spanish citizen to pursue a case in the public interest.Footnote ⁴⁰⁹ Garzón and Garcia-Castellon hoped that if these cases were heard at the Spanish National High Court, the Audiencia Nacional, sooner or later cases would come up also concerning Spanish citizens who suffered under the Franco dictatorship. They succeeded only in part, but eventually did break the silence about the past, thus paving the way for many more TJ efforts in the next decade and a half. Interestingly enough, the lawyers’ first attempts to try crimes under Franco came around the same time, namely 20-plus years after the regime change, as in West Germany, when Bauer had successfully tried the concentration camp guards.

The year 2000 (not surprisingly a generation after Franco’s death) finally marked a major shift for the multiple causalities of regime consolidation. The fear of the past had given way to the generally positive experience citizens had with the new regime, which had been able to prevent the country dissolving into another civil war. Merkel’s notion of ‘consolidation by civil society’Footnote ⁴¹⁰ had finally occurred. Values such as justice, freedom and democracy even began to outweigh the desire for order, which in any society is a sign of stability and consolidation. Last but not least, a new generation of educated and far more cosmopolitan young politicians and intellectuals entered the political arena and took the claims to the streets of Barcelona, Vitoria and Madrid.Footnote ⁴¹¹ Films, plays and novels that dealt with the Franco period increased dramatically. One of the most famous films was by Pedro Almodovar, Live Flesh (1998), which portrayed the painful and often uncertain transition period in Spain in the 1970s and triggered many overdue public debates. In 2001 the long-running TV show about the transition, ‘Tell Me How it Happened?’ (Cuéntame cómo pasó?), went on the air and became a milestone for initiating public debates and media coverage about the times around the year 1975. The show depicted numerous family stories from 1968 throughout the transition period until the 1980s. The show was watched by 40 per cent of the TV audience and was therefore one of the most popular TV shows ever in Spain, indicating citizens’ need and desire to deal with their political past. The importance of this New Spanish Cinema (neuvo cine espanol), which had been initiated by the former PSOE government and slowly started showing results of triggering debates and societal engagement with the past, cannot be underestimated. It greatly affected the mutually reinforcing effect between the claim for more TJ and trust in the institutions.Footnote ⁴¹² Many Spaniards later referred to it as finally opening the door to investigating their own or their family’s role under the Franco regime. In 2000, the journalist Emilio Silva Barrera, a leading figure in the civil society movement for TJ, searched for the remains of his grandfather who had ‘disappeared’ during the Civil War.Footnote ⁴¹³ He dared to publish an article about his project in a local newspaper in the conservative PP-run city of Valladolid and asked for assistance from witnesses of the events at that time. Unintentionally, his request ended up launching a campaign to search for the bodily remains of an entire war generation. The public response was overwhelmingly positive, as almost every family in Spain had a story to tell. Witnesses, archaeologists and forensic pathologists volunteered assistance in the search for mass graves and with their exhumation. At this time, opinion polls showed that 51 per cent of Spaniards still remembered the Spanish Civil War and the dictatorship afterwards and regarded it as an important issue that needed to be dealt with. More and more people considered the past a ‘negative period’ and joined Silva’s cause.Footnote ⁴¹⁴ In the same year Silva created an NGO, the Association for Dealing with Memory and History (Asociación para la Recuperación de la Memoria Histórica, ARMH), whose mission was to search for and exhume the mass graves of the Franco era. Initially a voluntary organisation, the Association acted via an Internet forum. It was not awarded any national allowances until the Historical Memory Law entered into force in 2007 under a new PSOE government. ARMH’s initiatives spread rapidly around the country in its hundreds run by citizen-driven and voluntary branches across the country in almost all Autonomous Communities and some smaller towns, leading to the identification of over 1,300 individuals in more than 70 mass graves that had been sealed for over 70 years. Most of the graves were in the rural parts of Castile and in the north of Spain, where Franco encountered the most resistance to his fascist regime. Despite the intimidation and personal threats aimed at those involved in the ARMH’s work, it was seen as a milestone in the TJ process of Spain.Footnote ⁴¹⁵ ARMH made Franco-era memories more public and led to a discussion about a common narrative of the past, a discussion that is still in progress. Yet, according to Emilo Silva, historical memory largely remains a private and family matter although ARMH brought it onto the political agenda.Footnote ⁴¹⁶ But knowing about the past and speaking about it in public without fear are two different things. Processing the past and processes of reconciliation accelerate the growth of trust in political institutions, especially when citizens who have experienced injustice see the public punishment of those responsible for the injustice.Footnote ⁴¹⁷ But that was a long way ahead, although for the upward spiral to gain speed the developments and initiatives around 2000 were essential.Footnote ⁴¹⁸

Due to the fact that the conservative PP government contained many members from the previous Franco regime, it avoided official recognition of and governmental debates about the Spanish Civil War and the 40 years of Franco’s reign. It was not until 20 November 2002, upon an initiative from the left-wing opposition and under great public and civil society pressure, that the Spanish parliament acknowledged for the very first time all victims of violence and injustice from the Spanish Civil War and the Franco era. Thus, 27 years after Franco’s death and a 20+ generation later for the first time in its history, the government and parliament jointly responded to public demands to officially acknowledge the atrocities of the past. This condemnation was an act of responsiveness, although it was not intended to hold anyone individually accountable for his or her wrongdoings. It had no legal consequences for those responsible for the killings, abductions and disappearances of millions. And yet the government also knew that in the 27 years that had passed, a new generation had grown into potential voters. It would be worthwhile to compete for their votes and address these issues.Footnote ⁴¹⁹ However, one year later, when the national parliament called for a commemoration session to remember the unjust past, the PP abstained from participating in the event, although it did not prevent it either.Footnote ⁴²⁰

The founding of NGOs like the ARMH and other Memory Associations and the condemnation in parliament triggered many local and civil initiatives, led by second- or third-generation survivors and victims’ grandchildren. The mutual reinforcing spiral effect went off again. In turn, these local and civil initiatives triggered further events and parliamentary debates. This was not only caused by this generation’s desire to search for their identity, but also by the lack of fear of repercussions for doing so. The plethora of civil and public initiative and debates was a fundamental indicator of the strengthening of civic trust and thus also of the strengthening of institutions. Even though the PP government initially refused to financially support such initiatives, there was a clear break with the silence and fear of the past.

In December 2000, the Catalonian regional parliament unanimously condemned the crimes of the past. Interestingly, the regional branch of the PP also voted in favour of this condemnation, as they knew that many of their supporters felt more Catalan than Spanish and were critical of the central government in Madrid. But this was more than a joint legislative response; it had dramatic consequences on the level of citizen participation and legal claims. The resolution called the past a ‘barbarous act’ against citizens, and condemned this act both in moral and political terms.Footnote ⁴²¹ It was a milestone in terms of parliamentary responses.

Despite such measures at the regional level, all central governments at that time did not yet see TJ measures as a systematic tool or as a means to leverage and consolidate democracy. If TJ measures were used, it was only ever for political strategic reasons, for example because TJ measures served parties’ political agendas before an election or to respond to citizen needs. Hence, the PP’s political agenda on the national and regional level struggled with TJ. The party had the most to lose if its clean image as the guarantors of law and justice in the country was challenged. When in government, the PP even commissioned a ‘counter-attack’ against TJ measures by generously subsidising the National Foundation in Memory of General Francisco Franco, which had been founded in 1976. Rather than subsidising NGOs such as the ARMH that aimed to dismantle and demystify Franco, the PP supported initiatives that commemorated his heroism. The privately held Franco Foundation holds Franco’s private records and only selectively opens them to like-minded researchers. There is no independent research or public state archive that supervises the General’s records and allows access to independent research, as is the case for all records concerning World War II and the communist past in East Germany, for example. Instead, the many dark sides of the Franco narrative must be extracted from information that is made available by testimonies, stories, pictures, oral history, literature and other sources of evidence, and this is what the many citizen initiatives such as the ARMH aimed to do. My visit to the Franco Foundation was an ambiguous one; they only allowed me access to documents that were cleared of any controversial political data beforehand and showed periodical time gaps.

In general the third post-Franco decade was an era of competing memories. One narrative was a result of the Falange’s efforts to glorify Franco, while the other resulted from the millions of families and victims that demanded recognition of their losses, pain and injuries. The number of popular films, TV and radio shows, exhibits and publications by academics, filmmakers, writers and hobby historians increased in the following years. Most importantly, Franco’s loyalists had no written record or evidence that they could use against these accusations. If they had, they would have brought this to the public attention. In many Autonomous Communities such as the Basque Country and Catalonia, hundreds of private initiatives to commemorate the atrocities and victims of Franco’s regime brought more and more facts and evidence of the atrocious past to light and soon received governmental support.Footnote ⁴²² Eventually, Franco’s victims’ narrative won out, finally succeeding to demystify and delegitimise Franco’s image.

Meanwhile, Catholic bishops, as loyal supporters of the PP and the Falange, found themselves under public pressure to come to terms with their part in the atrocious past. They only slowly revisited their members’ and supporters’ role during the Franco period, although they had already made confessions in regard to the role of the Church during and after the war. Moreover, the Vatican had repeatedly blessed priests and nuns who were killed by republicans and communists during the Spanish Civil War, but had never acknowledged those who had been deliberately killed by Franco’s soldiers with the consensus of the priests while seeking refuge in churches during the war. As a result, the debates about the superiority of victims and who had suffered continued among the Spanish public. Eventually, around 2006, the Vatican carefully revised its account of the war, acknowledging shared responsibility and the Church’s wrongful support of the massacres carried out by Franco. Shortly before the Historical Memory Law came into force in Spain in 2007, representatives of the church acknowledged that some of their priests had committed injustices towards civilians. They furthermore expressed that the Catholic Church had also been involved in other acts of severe injustice in the past beyond the war, including the forced abductions of children.Footnote ⁴²³ The Vatican recognised at least 1,000 victims of the Spanish Civil War, mostly communists and thus members of the republican forces against Franco, whose suffering could be linked to the involvement of the Catholic Church. The Church feared that if it did not atone and become more critical of its own involvement in the Franco dictatorship, it would lose younger members in the years to come. Considering the strong role that the Catholic Church plays in the public and educational lives of Spaniards, this way of responding to claims and needs was an act of accountability and atonement.

However, where the desire for change prevails, so does resistance, which grew even stronger in the third decade, both among the neo-Falange (some would call it neo-Nazi) movement and the radical left-wing and communist movements. This was similar to the situation in post-war Germany. A generation after Franco’s death, his statues could still be found in every major Spanish city. Different citizen initiatives attempted to ensure that Franco statues in heroic military poses were taken down. Cities that were governed by left-wing councils were often persuaded to take down the statues. Some statues, mainly those that portrayed Franco in a heroic position on horseback, were illegally taken down during the night by youngsters. Those who removed statues without city council consent risked being charged with disturbing public order. In 2002, citizen groups proposed that the government officially remove all monuments to the Franco era throughout the country, but the PP government at the central level and in many communities rejected this proposal. As a reaction, citizen protests and demonstrations by many organisations that had established their own historical memory groups, pressured for state and official support and acknowledgement of their actions. But whereas some aimed for official support, others could not wait any longer. They demolished statues of Franco, initiated private memorials for victims of the regime, exhumed mass graves and gave victims of the Civil War a proper burial.Footnote ⁴²⁴ The government’s unwillingness to respond to the citizen demands for more TJ in this regard often led to violent and illegal actions. During public riots, angry citizens destroyed many Franco statues and street signs with names of Falange leaders or war heroes of the past. Such riots often took place in Zaragoza in Aragon, a region that had once been a Franco stronghold, reflecting the political divide and now the radical shift that was taking place in the country.

Parallel to these developments and due to fear that the PP government would retaliate, ETA terror became prominent once again and the group demanded immediate separation from Spain. The upward spiral of TJ stagnated and even reversed, due to the PP government’s lack of response. And almost every time the PP held a majority in parliament, ETA terror re-emerged alongside. This development resembled the way the German government dealt with neo-Nazi movements and the RAF in the 1970s.

State institutions remained thus as repressive under PP leadership, which indicated that the unconsolidated pockets continued. In 2003 the Heri Batasuna party was outlawed after a court ruling declared that the party financed and supported ETA with public money. International human rights organisations such as Amnesty International were indignant and appealed to the public administration and the police to refrain from unnecessarily restricting freedom of expression. Such restrictive measures were not only anti-democratic but also ran the risk of being wrongful acts under international human rights law.Footnote ⁴²⁵ Amnesty International and other NGOs also demanded an end to the period of impunity for the Franco era and demanded immediate condemnation of those responsible for human rights violations. They realised that as long as the perpetrators had impunity and remained hidden, terror groups like ETA or GRAPO would not refrain from using violence to combat the Francoists they believed still controlled Spanish democratic institutions. The lack of an independent judiciary, the Franco-friendly voices in parliament and a conservative president who celebrated Franco’s legacy did not help to increase civic trust in order to strengthen democratic institutions.

Yet, the government did respond somewhat to these public claims. It did so not by prohibiting or prosecuting citizen initiatives, but by allowing private (local) history commissions to operate uninhibited. Textbook reforms, public protests for liberty and societal dialogues took place freely.Footnote ⁴²⁶ This post-Franco generation was also a significant group of potential voters for the PSOE and other leftist parties. The PSOE thus intensified its efforts to come to terms with the past to please these young voters. In December 2003, all parliamentary groups rendered institutional homage to the victims of Francoist repression and their families, which led to widespread support.Footnote ⁴²⁷

Nevertheless, not disconnected from TJ movements elsewhere in the world, the Spanish TJ process took off towards the end of the third decade and it became politically fashionable to examine and atone and apologise for one’s own past. Spain’s political and civil actors could not resist this global development. The main goal was the same as everywhere – namely to reconcile divided societies. The permanent exchange between Latin America and Spain on private, business and political levels meant that the developments across the Atlantic did not remain unnoticed in Spain. In fact, the ideas for protests, memorials, exhumations of mass graves and installing local history commissions were mostly copied from the TJ movements in Chile, Argentina and Guatemala at that time. The EU, the Council of Europe and the UN called not only on Spain but on all Member States to deal with their past, which intensified TJ claims in Spain, too. This international TJ trend was one to which the Spanish government had to respond, despite its notorious amnesty laws. Eventually Spanish society started showing less divisive opinions. Around 2004 surveys showed that slightly more than half of the population (52 per cent) was fairly satisfied with governmental institutions and their responsiveness to citizen needs, which included needs for TJ. At the same time, satisfaction with democracy in general nevertheless rose only slowly. Thirteen per cent of the population was very satisfied, whereas 32 per cent were not very or not at all satisfied, while the large majority was satisfied with this ‘game in town’.Footnote ⁴²⁸ At this time, political institutions enjoyed the highest level of trust seen since the transition and also openly expressed their own satisfaction with the way democracy was working. The regime was consolidated, but it still suffered major flaws and moreover unconsolidated pockets of terror and separatism which were clearly linked to an unatoned and silenced past.

Fourth Decade 2005–2014

In 2011, Juan Carlos Monedero wrote a chapter in his book about the transition in Spain with the following title, ‘If the transition was so wonderful, why then is Spanish democracy so weak?’ (Si la transicion fue tan maravillosa, per que la democracia espanola es tan debil?).Footnote ⁴²⁹ This title best resembles the state of the democratic consolidation at that time. Democratic flaws caused by the continuous ETA terror, the lack of resilience in dealing with critical questions and the refusal of the courts to challenge the amnesty laws of 1977 and the high level of corruption on all sides were just some of the troubles that Spanish society was struggling with.

In 2004 the PSOE regained a majority in government. A large part of the PSOE’s constituency was the younger generation and openly asserted that dealing with the past would impact the assessment of democratic performance. Thirty years after Franco’s death, a more comprehensive and thorough TJ approach seemed possible, as did the continuation of regime consolidation.

The shift in government to the PSOE occurred because conservative President José Maria Aznar had made a serious mistake in his treatment of the victims of terror, only weeks before the elections. He had failed to realise that citizens would no longer buy into the black-and-white portrayal of ‘good government’ versus ‘bad ETA separatism’. This strategy had worked for over 50 years, but now it seemed to have come to an end. Aznar’s mistake started in March 2004, after Islamic extremists attacked a local train in Madrid on 11 March 2004, killing 191 people on the same day. Aznar falsely accused ETA of perpetrating the crime. NGOs and victims’ organisations jointly commemorated the tragic date as ‘11-M’ which today is part of Spanish collective memory. Victims’ families pushed for clarification, investigations and compensation. Instead, Aznar wanted to use this case to accuse his strongest opponents, ETA, in an attempt to justify stricter and more violent measures against the separatist movements in the Basque Country. However, Aznar did not succeed in turning those with traditional Falange affinities against their lifelong left-wing opponents, because the victims of this attack came from all areas of society and the threat was part of a global terror movement. After the truth was revealed, the public punished Aznar for his false and unjustified accusations against ETA. The PP lost the respect and support of voters who voted instead for the PSOE, a party that promised to use strict and unbiased measures for dealing with terrorist acts and their victims. The victims and survivors of ETA as well as of the Islamic extremist terror attack, although different in kind, were united in their demands for clarification and demystification. The fact was that the Spanish government and judiciary had difficulties embracing the rule of law and indicting perpetrators regardless of their political persuasion, in particular when it came to the past. In order to increase trust in the judiciary, it was imperative that the government and judiciary learned to do so in the future.

The lack of rule of law and, in its place, the anti-democratic tradition of using the law and judiciary to further one’s own political ends, was no longer feasible. If institutions such as the judiciary or the government had used the Franco era as an educational opportunity to learn to apply the rule of law and indict perpetrators of the past (even if only symbolically, as was the case in post-communist unified Germany and many other transition countries of that time) it might have contributed to more respect for the rule of law at a later stage. Aznar’s failure in the 2004 elections also indicated that Spain’s democratic culture had become stronger than he had expected, but that political institutions had not yet necessarily done the same. Aznar’s false claims against ETA also triggered general debates about coming to terms with many other events of past injustice, including those of the Franco era. It was the box of Pandora that triggered the request for more TJ. The PP’s misinformation with regard to the terrorist attacks made people wonder if the PP had also lied regarding the Franco past. The public sought the truth about the past and wanted to name those individuals who should be held accountable for their actions, regardless of whether they were dead or alive. This was a novelty in Spain. Since the time of representative consolidation in the 1980s, the election turnouts had more or less resembled the traditional political divide in Spain: the PSOE (for the former republicans and socialist) and the PP (for the royalists and Francoists). The parties usually won and lost seats by small percentages, each sharing around a minimum of 40 per cent of the seats in Parliament.Footnote ⁴³⁰ Spain was far from being a consensus-based democracy, a model that Lijphart would have recommended in order to successfully overcome cleavages. However, the generational shift pressured parties and governments to change their rhetoric and agenda to become more consensual in the political culture, marking a new era of attitudinal and behavioural consolidation.

The PSOE government kept its promise to atone for the past by appointing Maria Teresa Fernandez de la Vega shortly after the election in 2004 as head of a governmental commission to create a historical memory law. In the following years, she chaired the Commission to Repair the Dignity and Restore the Memory of the Victims of Francoism (La Comisión para Reparar la Dignidad y Restituir la Memoria de las Víctimas del Franquismo) and proposed the Historical Memory Law (Ley de Memoria Histórica de España), which was passed after months of heavy parliamentary debates in 2006. The law entered into force in 2007 and the commission was the first of its kind to inquire about the past, 30 years after the general amnesty laws and 70 years after the Spanish Civil War. Omar Encarnacion has called this period of regime consolidation a ‘cultural revolution’ in terms of civic culture, a ‘revolution’ that was much needed to complete Spain’s democratic consolidation.Footnote ⁴³¹ His assessment goes in line with Merkel’s last two stages of democratic consolidation, namely behavioural through civic engagement.

Despite the fact that President Zapatero did not hold a majority in parliament, with the support of other parties, and with this law he turned the everlasting ‘Pact of Oblivion’ into a law of ‘Remembrance’. In the following years, this law not only delegitimised Franco’s ‘heroic’ past, but also one of its most powerful supporters, the Catholic Church. This heralded a new role for the Church, as religious symbols disappeared from public places (such as prisons, courts and military buildings), and abortion and same-sex marriage were legalised. These reforms also reflected the reluctance of the Church to deal with its own past. The leftist government aimed to push the Church to finally accept its dubious role during the war. Because until today, many churches in Spain post only the names on their walls of those who fought and lost their lives on Franco’s side. The many thousands of civilians, republicans and socialists who were executed, killed, imprisoned or raped are not mentioned, even though most of them were Catholic believers and members of the community. Nevertheless, in recent years, some churches have slowly updated their memorial walls and thus committed to the new TJ policies.

During the PSOE’s first year in power after the 2004 elections, the government enjoyed one of its highest levels of trust ever in Spanish history. Fifty-one per cent of citizens reported having trust in the government.Footnote ⁴³² This figure slightly decreased and increased again over the years, but fell dramatically towards the end of the decade, when the PP re-entered government in 2013. At that time only 8 per cent of citizens reported trust in government while 91 per cent tended not to trust the government. The spiral went downward, although not in challenging consolidation, but in terms of democratic quality also linked to the lack of transparency and accountability of governmental agencies, to which TJ is connected.

The reason for PP’s re-election was not the lack of TJ under the PSOE, but citizens’ dissatisfaction with the PSOE’s inability to effectively deal with the financial crisis. Due to a lack of alternatives this meant that the PP was bound to win the elections, despite the fact that it also had no solution to end the crisis. Corruption and high unemployment remain major problems in Spain.Footnote ⁴³³ This shows that TJ alone is never enough to keep a government in power or cause a government to lose power, although TJ can facilitate and catalyse political elections and turnouts.

There is also a correlation between the failure of democratic institutions to deal with general crises (of any kind) and the way they learn to be self-reflective and critical towards their own wrongdoings in the present and the past. I draw a link here to the fact that the Spanish legislative and judicial powers, let alone the government, never learned to deal with the unpleasant legacy of the past because they silenced or deliberately ‘forgot’ it. It was in this decade that the lack of institutional knowledge of how to deal with a crisis other than with undemocratic and violent means, or by simply silencing the crisis, showed its dark side. Dealing with the Franco past more transparently might have strengthened the institutions in a way that would have made them more able to cope with other major challenges such as the financial crisis since 2008 in a more effective way.Footnote ⁴³⁴

Nevertheless, since 2000 the number of civil groups increased and their engagement and participation rose as thousands started to pose questions about the past. One of the strongest NGOs in dealing with the past was the Spanish division of Amnesty International, which distributed several expert papers and lobbied the government to finally stop impunity and silence and to apply TJ measures.Footnote ⁴³⁵ Around 2005 they started lobbying the government to make a law to deal with reparations for the family members of the thousands of disappeared and that would allow for exhumations and collaboration with the UN working group for disappearances, since the UN started to become involved in Spain’s reluctant TJ process around that time. Furthermore, Amnesty International asked the government to establish more independent archives and release relevant documents, for example those that have been held in the Ministry of Defence since 1939 and that might lead to legal procedures.Footnote ⁴³⁶ But it has not only been NGOs and political parties that have mobilised in this way. Individual family members and descendants of victims chose the legal proceedings as a way to claim justice. Encouraged by the civil movements and the laws for remembrance, the first claims were filed at the Supreme Court (which was also responsible for military issues of the past) to revoke sentences and rehabilitate victims of Franco’s arbitrary and illegal executions. Some of the cases went all the way to the ECtHR, but none ever succeeded. Family members were fully aware of their low chance of success, due to the non-revised amnesty laws of 1976 and 1977.

Despite all the failures to ever bring a superior under the Franco regime to justice, in 2007 and thanks to the History Law, the Supreme Court revoked the Military Tribunal’s 1937 death sentence of Ricardo Puente, due to the formal unlawfulness of the tribunal at that time. This case aimed to illustrate the political motivation behind many of the thousands of arbitrary tribunal sentences during the war. In this case, as in many others, Puente was a republican and thus an enemy of Franco’s troops and thus was going to be eliminated regardless of whether this was legal or illegal. Therefore, the Supreme Court’s decision in 2007 was also a plea for the rule of law and thus for the strengthening of democratic institutions in modern Spain even 70 years later. Yet, according to some observers, the fact that this past political sentence was not questioned or publicly discussed during the sessions out of fear that it would trigger public protests was again a reason to doubt the progress of the rule of law.Footnote ⁴³⁷ But further appeals for the revision of death sentences for mostly republican, anarchist and communist victims of the Franco era, such as Julian Grimau in 1963 and Puig Antich in 1973, were almost all declined, even after CSOs and political institutions were in place. According to the lawyers who took up these cases, it was never a matter of winning or losing the case, but of showing the flaws of the judiciary. Bringing these cases before democratically installed courts was meant to show public and political actors that the past regime had been unjust and illegal, and that justice should be based on fundamental rights in the past and the present. According to Luis Fernando Para Galindo, a lawyer who argued the case of José Pellicer Gandía, who was executed in 1942, the main goal of these cases was to change people’s awareness.Footnote ⁴³⁸

After almost all cases were rejected by the Supreme Court, international pressure on Spain increased. In 2008, the ICTJ in New York launched a call to the wider public and government urging them to consider alternative measures in Spain. These NGOs, lawyers and victims were not necessarily aiming to have perpetrators imprisoned, but rather hoped for a symbolic act from governments and courts to revise the amnesty laws and end impunity. Instead, the Spanish government has indicated, on more than one occasion, that the amnesty laws and the agreements on the unwritten ‘Pact of Oblivion’ from the 1978 meetings at the Palace of Moncloa, mean that justice does not apply to all.

In its study, the ICTJ suggested that while the 1976 and 1977 amnesty laws hamper in-depth investigations and revocations, the judiciary could revise sentences according to their legal complaint mechanisms. In addition, the parliament could encourage courts to consider whether all defendants had enjoyed equality before the law. Last but not least, the ECtHR could give advice on how to revoke sentences despite amnesty laws. The Center’s researchers argued that there are always ways for political and educational bodies to implement TJ measures, even if laws do pose some restrictions.Footnote ⁴³⁹ Moreover, victims’ family members and leftist parties in parliament attempted to amend the law so that the judiciary would have broader powers of revision and be able to revoke sentences to rehabilitate victims of the regime. These attempts started in 1978 and were continuously taken up by groups of lawyers and CSOs in the 1990s without ever receiving the necessary majority of votes. Nonetheless, the legislature reacted and passed a number of smaller laws and decrees in the following years that had subsequent consequences for dealing with such claims. The majority of them dealt with issuing documents and subsidies from the central state to the Autonomous Communities, in particular Catalonia, which would make it possible to acknowledge and investigate the wrongdoings of the past.Footnote ⁴⁴⁰ But unsurprisingly, because of the strong resistance of the conservative branches in Spain, it took international state and NGO actors, as well as citizen-driven action in Spain’s periphery, to finally trigger the Historical Memory Law and the first commission of inquiry in 2007. It was a response to the private efforts to investigate, commemorate and file cases on behalf of victims over the first two decades and with support from the Communities’ government such as the one of Catalonia.Footnote ⁴⁴¹

Around the same time, in 2006, Pedro Almodovar’s popular film ‘Return’ (Volver) was one more push for the national catharsis to take off. The film dealt with the unresolved questions of the ‘frozen past’ of the Franco era, drawing parallels between the characters in the film and people in contemporary Spain with an overwhelming success.Footnote ⁴⁴² The film, and many subsequent novels and documentaries that told stories of this period, triggered public debates at a time in which public opinion and governmental responsiveness had changed dramatically. International incentives and pressure played their part in stimulating parliament to hold debates. Again, this bottom-up movement, a free media, novels, films and a free CSO movement paired with external interference was also a response to the PP government’s silence.

The year 2006 was also an anniversary year for Spain, namely 70 years after the start of the Civil War, and the government in Madrid had to react somehow, although it did not know how and what to do about it. In March 2006, the Council of Europe issued a report condemning Francoism and the serious breaches of human rights committed after the war between 1939 and 1975. Importantly, the report did not only refer to the Spanish Civil War, which had already been condemned by all democratic parties in Spain, but also to the crimes that happened afterwards.Footnote ⁴⁴³ This gave the TJ process a new direction. With this report, the Council had followed a recommendation made by the Parliamentarian Assembly of the Council of Europe in November 2005, which urged the Spanish government not only to investigate crimes linked to the war, but also to officially condemn the Franco regime, install critical (as opposed to heroic) exhibits in the Valle de los Caidos, open archives to researchers and install a national committee to inquire into violations of human rights and so on.Footnote ⁴⁴⁴ This international pressure and the public pressure from below caused a ‘sandwich situation’ for the government in which it felt trapped between the claims for more TJ from two sides. It was stuck between international pressure and citizen demands and thus needed to respond if it wanted to remain credible. And it did so almost immediately and issued parliamentarian debates about the amnesty laws from 1976 and 1977, which eventually did not succeed in abolishing the laws but in creating a new one, the Historical Memory Law in 2007.

It is not without the involvement of influential political actors that the EU watched Spain’s TJ debates carefully in 2006 and 2007. Following the example of the Council of Europe, the European Parliament also condemned Spain for its slow process in coming to terms with its past. The condemnation was an initiative of the president of the European Parliament, Josep Borrell, between 2004 and 2007. Himself a Catalan and member of the PSOE and the European socialists, Borrell aimed to ‘support’ his party members in the Spanish government and parliament who wanted a revision of the amnesty laws or at least the implementation of the Historical Memory Law. He used the European Parliament as a ‘boomerang’ to exert external pressure to trigger a change in the political debate in Spain.

But the PSOE government under Zapatero did not hold an absolute majority of seats in parliament at that time and thus needed external push factors for which Borrell’s initiative was the catalyst. His party had urged Borrell to issue the report in 2006 and to assure legitimate support from the EU. Borrell saw that one window of opportunity and on the seventieth anniversary of Franco’s coup d’état and of the beginning of the war in 1936, he successfully launched the debate in the European Parliament. A group of 200 parliamentarians, among them representatives of the conservative Spanish parties, signed a request to the Spanish government to finally issue a Memory Law. They also pushed for an oral hearing by the EU Commission and the European Council explicitly calling for a debate on condemning the Franco regime and his coming to power on 18 July 1936. Borrell argued that Spanish democratic transition had been based on selective forgetfulness and suspension of memory and that now more TJ was needed to overcome the flaws that this caused in Spanish democratic consolidation. This did not remain unnoticed by the larger public in Spain. And along the shifts and developments of memory, the bookshops started to fill up with biographies, novels and documentary literature about the past and the Civil War and the sales went well. Although there was still a long way to go,Footnote ⁴⁴⁵ this year marked a final turning point in the twist between TJ and regime consolidation in Spain.

Observers such as Tamarit Sumalla have therefore argued that Spain’s TJ process only started in 2006. According to Sumalla this was the year when specific requirements in the field of criminal justice, including the duty to prosecute crimes of the past, became also part of Spain’s internal criminal justice policy.Footnote ⁴⁴⁶ These years also illustrate how much Spanish political and democratic culture relied on the behaviour of contemporary social and political elites, rather than institutions, according to Merkel and Puhle’s approach to regime consolidation.Footnote ⁴⁴⁷ As Richard Gunther, Jose Ramón Montero and Joan Botella have argued, the new elites (including King Juan Carlos) and the sides they took played a larger role in transition than the constitutional setup and the rupture and break with the past regime – in both restrictive and progressive ways. And one could add that the way that the king has been in many ways a personification of the Spanish reconciliation process and has never openly banned any TJ efforts, he has indirectly been a supporter of it. Spanish political culture had long been characterised by authoritarian and corporatist tendencies that had long undermined consolidation.Footnote ⁴⁴⁸

Furthermore, the 2007 law gives guidelines and recommendations, for example recommending the removal of Franco statues in municipalities. If some are to remain part of Spanish cultural heritage, such as the Valle de los Caidos, they must be accompanied by critical voices, such as museums that explain the period.Footnote ⁴⁴⁹ This law responds to many demands from victim groups, such as the ARMH and the Spanish branch of Amnesty International. But another problem with Spanish consolidation remains – the amnesty laws from 1976 and 1977. The Historical Memory Law has been amended and extended several times in the past years. Later, the governmental commissioner for the law not only addresses memory processing in general but also looks into the possibility of compensation, reimbursement of private property, pension requirements and the overdue arrangement of dismantling public places featuring the names of ‘heroes’ from the Spanish Civil War.Footnote ⁴⁵⁰ It also supports initiatives to exhume mass graves to identify victims. Furthermore, it has started debates on the revision of the amnesty laws in 1977. But it also points out that the identification of victims and establishing the truth is not intended to be a public matter and only aims to reconcile the family members of those killed. But the law does not allow for judicial procedures or indictments. But regardless how modest this law may be, it did succeed in triggering further parliamentary debates, civil society initiatives, dismantling Franco statues, inauguration of memorials, exhumation of mass graves and public burials, TV debates, and overall media coverage about parts of the Franco past. All these TJ efforts triggered a change in attitudes, in behaviour and civic engagement that fuelled the upward spiral.

Yet, TJ policies were not necessarily supported by the overall majority and President Zapatero himself suffered personal insults from conservatives and other victims of ETA, which preferred a hard hand against ETA and which were mainly families with a PP background. Because ETA had always seen its terrorist acts as revenge for all that happened under Franco’s rule, the victims of ETA terror had little sympathy with the fact that Franco’s wrongdoings were made public, because it would have demystified it. During a public event in February 2006, unsatisfied ETA terror victim groups shouted ‘Zapatero, go with your grandfather!’ (Zapatero, vete con tu abuelo!), meaning that he should be executed just as his grandfather had been under Franco. This spontaneous insult became a political metaphor against the Memory Law in the following years and was cited widely in media and blogs to illustrate the still-existing irreconcilable divide and hatred between Francoists and socialists. Although the majority of Spanish society no longer felt this divide on a day-to-day basis, the smaller group of citizens that did expressed their discontent with parliament and the law in a way that exemplified the low level of democratic culture in Spain.

TJ continued due to the Historical Memory Law, for example, when in 2008 the Youth Branch of the Falange was prohibited from commemorating the anniversary of Franco’s death at his grave at the Valle de los Caidos. This commemoration had been held without interruption since 1975, and thus the supporters and members of the neo-Falange were outraged. But the most prominent of all TJ measures that increased after the instalment of the law was the exhumation of the hundreds of mass graves and the DNA identification of thousands of victims. The office of the president (Ministro de la Presidencia) provided direct financial support to NGO initiatives in their search for mass graves for which the minister of finance (Ministerio de Hacienda) is responsible. In addition, the legislature opened the Civil War archive (Centro Documental de la Memoria Historica) in Salamanca to the public. This archive not only named the crimes of the Franco regime, but launched exhibitions, publications and investigations into them as well. It has no educational mandate, but its website is highly accessible and contains information and documents which tell many of the stories that Francoists had tried to keep secret for decades.Footnote ⁴⁵¹ The archive was founded in 1938 and was used by the Franco regime to safeguard all documents from the Spanish Republic and Civil War.Footnote ⁴⁵² It is hard to know how many of the files could have facilitated the TJ process in Spain because, between 1975 and 2008, most of the archive was cleansed and documents were destroyed or removed. Thus, many claim that such archives are useless for prosecution or litigation. According to Spanish laws, trials would need to be based on other sources of evidence and testimonies that have become scarce in modern Spain. If this was not enough, it has been agreed that these files cannot be used for legal or political purposes. Key terms such as ‘use of force’ or ‘suppression’ are not found in the files. Nevertheless, opening the archive is seen as one of the first attempts to publicly shine a light on 40 years of Spanish dictatorship, some 30 years after it ended. Not surprisingly and because of years of silence, the amnesty laws and the cleansed or closed archives, many victims’ organisations found the Historical Memory Law insufficient and asked instead for legal investigation and prosecution of perpetrators. In 2008, Amnesty International again requested the government to start the first trials despite the laws and in respond to citizens’ human rights to truth by making reference to existing international human rights and criminal law (such as crimes against humanity) as a door opener to finally trigger trials in Spain.Footnote ⁴⁵³

Although this did not materialise, the claim arose again when one of the initiators of the earlier TJ process, the judge Baltasar Garzón was prosecuted for his attempt to investigate past crimes a few years later. For Spain he played a similar role as did attorney Fritz Bauer in West Germany in the 1950s and 1960s, but his success and fate were different. At his first intervention to challenge the amnesty laws from 1976 and 1977, public opinion was on his side. Surveys conducted in 2008 showed that the Spanish Civil War remained in the daily memory of over 50 per cent of the population. Even more striking is that one in three individuals (30.5 per cent) was still fearful of speaking publicly about the past, although this number was significantly lower than it had been in previous years.Footnote ⁴⁵⁴ Less surprisingly, it appeared that the older generation disliked discussing their memories of the past in public because they feared repercussions and confrontations from their peers. But the general opinion meant that the majority was no longer afraid and dared to start asking questions and, moreover, dared to take the initiative in finding the truth. Yet, among the older population, the fear of direct consequences remained at the local level, where most of the forensic exhumations take place, since mass graves are generally found in remote, rural areas and not in major cities. According to Paco Etxeberria, a forensic analyst from the University of San Sebastian and one of the first volunteers to start exhumations in 2000, the fear continues because many of these forensic initiatives are still private and not public. Since the private initiatives are not always supported by the government, people fear their involvement with these initiatives might have negative repercussions.Footnote ⁴⁵⁵

But according to the surveys by Paloma Aguilar, Laia Balcells and Héctor Cebolla-Boado the public attitudes towards the Franco era had shifted in favour of TJ. They found that over 50 per cent of Spaniards favour TJ measures, across the political spectrum, although those who have a ‘republican past’, or dead family members whose allegiance never became clear, favour TJ measures more than conservatives and they favoured prosecution of the authorities that violated human rights under Franco. The PP, other conservative forces and the Supreme Court have blocked such prosecutions, insisting that the amnesty laws cannot be changed and thus posted limits for judge Garzón’s efforts to investigate.Footnote ⁴⁵⁶

Just a few years earlier in the debates around the Historical Memory Law, the leader of the PP, Mariano Rajoy (who later became the president of Spain), falsely claimed that the ‘vast majority of Spaniards does not want to talk about the past, let alone about Franco’.Footnote ⁴⁵⁷ It should be borne in mind that today’s families are largely ‘mixed families’, composed of some family members with a pro-Franco past and some with a republican orientation. In these cases, families share a common interest in discovering what happened to their family members on both sides, which creates political space for more TJ measures. Due to the massive public controversies around the law and the way on how to implement it, in November 2008, and with great public and parliamentarian support, the parliament passed two amendments to the Historical Memory Law. One of these amendments facilitated reparation and personal acknowledgement for those persecuted or repressed during the war and the dictatorship. The other granted Spanish nationality to the international brigade volunteers and those who were descendants of Spanish refugees, in the Law of the Grandchildren (Ley de los Nietos). By 2012, over 240,000 ‘grandchildren’ (descendants of Spanish refugees) were granted Spanish citizenship, most of them from Latin America as an act of TJ.Footnote ⁴⁵⁸

The law resembled a similar restitution law in Germany that granted descendants of Holocaust survivors German citizenship. But here again, the Spanish government followed the international TJ trend of acknowledgement and individual compensation or restitution in other countries. The Law of the Grandchildren, as these amendments were called, meant that descendants of refugees would benefit from some government compensation. Many of these third-generation descendants now live outside Spain in Latin America, France, Germany or Great Britain, but could potentially become an important constituency in the future. With the passing of this law, it became a wishful thinking to all parties and interest groups involved in TJ that this was only the beginning and that additional laws and punitive measures would soon be adopted. In 2009 an organisation called Psychologist Without Frontiers began providing support and advice to victims and relatives on how and where to search for the remains of their relatives with help from the government. Today hundreds of these CSO initiatives exist, but the law has not been extended, but rather due to the financial crisis and shift in government they have even been suspended.

This did not stop the judge Baltasar Garzón further investigating and calling for criminal justice in Spain. After his first unsuccessful efforts in the area of universal jurisdiction in 1998, he began to pursue the investigation and prosecution of Franco-era crimes. In 2005 he requested the investigation in the Autonomous Communities’ provincial courts of an estimated 110,000 political killings under Franco. As one of the highest judges in the country, he openly criticised the amnesty laws of 1977. His position in this matter met with resistance from influential conservatives and Francoists, including many judges (and colleagues) in Spain’s higher courts. The public debates about the amnesty laws had fuelled Baltasar Garzón efforts to continue his criminal investigation into the Franco regime’s crimes. He argued that they had been crimes against humanity, in particular the thousands of illegal killings and disappearances during and shortly after the Spanish Civil War, and thus not covered by the Amnesty Laws of 1977, but well under international criminal law.

In May 2009 Garzón was indicted because he was allegedly ‘violating the laws of 1976 and 1977’ and his case was brought before the National Court (Audiencia Nacional), Spain’s highest criminal court. The claim against him was that his efforts to bring Franco perpetrators to justice would go beyond the scope of the Memory Law from 2007. Although Garzón received strong support from victims’ organisations, the influential ARMH, regional memory organisations, Amnesty International and even the ICC, as well as from many deputes and media, he failed to uphold his cause in front of the court. On the other side, he also received death threats, hate speech and other acts of sabotage that formed a daily annoyance. This procedure showed that the conservative forces were concerned about the pending questions about guilt and legal responsibility and wanted to suppress them, testing the rule of law once again. Until the court’s final decision, Garzón was suspended from office in May 2010. But parallel to his defeat, different victims associations increased their protests. Every Thursday in the heart of Madrid at the Puerta del Sol in front of the town hall, protesters called for an end to impunity and the amnesty laws in Spain, thus showing solidarity with Garzón. The Mayor of Madrid, a member of the PP, later suspended these marches for justice. The Thursday protestors followed the examples of a prominent TJ initiative, namely the ‘crying and protesting mothers’ elsewhere in the world, in Turkey and Argentina and in other post-dictatorial countries, by which they publicise stories of the Franco-era victims.Footnote ⁴⁵⁹ With the PP in power, TJ seemed to have been restricted as much as possible. At the same time, the UN Human Rights Committee expressed its concern about Spain’s constant refusal to reconsider its amnesty laws and the Committee asked the government to ‘consider repealing the 1977 amnesty law and take necessary legislative measures to guarantee recognition by the domestic courts of the non-applicability of the statute of limitation to crimes against humanity’.Footnote ⁴⁶⁰ Although the UN Human Rights Committee’s recommendation did not mention Garzón by name, it was evident the committee members were aware of his actions. The UN recommendations provided indirect support for his efforts to challenge the amnesty laws. In the following months, Amnesty International in London launched an international report addressed to the UN Committee against Torture stating that the Spanish government had failed to exercise its obligation under international human rights law to investigate cases of crimes against humanity and could not ‘hide’ behind the amnesty laws.Footnote ⁴⁶¹ By classifying the Franco crimes as crimes against humanity, Garzón and his supporters had opened Pandora’s box, because according to customary international law amnesty laws can never apply to crimes against humanity. The UN report supported his interpretation of the crimes under Franco and thus increasing the pressure on the government and parliament in Spain. Eventually, the UN Committee urged the government to revise the law, but without success.Footnote ⁴⁶² Garzón himself saw these disputes also as a test case for whether the Spanish judiciary had indeed learned from the past and had become part of a modern legal regime based on international law and the rule of law, a test which Spain has not passed.

The issue was not so much about the content of the investigations that Garzón had started, since enough evidence of the 110,000-plus disappearances was already available and anybody could have brought it to court (and many other lawyers did so as well). Instead, it was about him as a test case for how resilient the Spanish judiciary was to political influence and the legacy of the past. Apparently, it was not very resilient. After Garzón’s suspension and during an open talk in 2011, he emphasised that the investigations he started, as well as ‘his personal case’, had the overall effect of shedding light on the level of (legal) corruption in Spain; a light that was necessary for the functioning of democracy (para que la democracia funciona).Footnote ⁴⁶³ This sentence was reminiscent of the one uttered by attorney Fritz Bauer the day before the Auschwitz trials in 1963. The Spanish Supreme Court, the majority of whose judges supported the PP (some with strong family ties to the Falange), had its chance to prove its independence by taking up the criminal charges brought by Garzón, but failed to do so. It argued instead that the amnesty laws prohibited retroactive investigations of whatever kind, according to Article 9 of the Spanish Constitution – regardless what international customary criminal law says. Although it is true that Article 9 contains such a prohibition, Garzón claimed that according to international human rights standards such a provision could not apply to crimes against humanity.Footnote ⁴⁶⁴ With the final judgment of the Supreme Court in February 2012, Garzón was suspended for life from practising law in Spain. This had the appearance of an act of cleansing even in a consolidated democratic regime. He was legally convicted for violating Spanish law and the constitution. The judgment also entailed that he could no longer practise as a lawyer and he later started working as a consultant in the TJ and peace process in Colombia, where his initiatives have brought many cases of crimes committed under dictatorships to light. While the court’s decision was not an imminent threat to democracy in Spain, it showed how difficult it has been to attribute responsibility for past crimes and, at the same time, build a Spanish rule of law and democratic culture.Footnote ⁴⁶⁵

In 2009 and parallel to these developments, a dramatic change in government took place in the Basque Country, almost bringing an end to ETA. The first PSOE-led government in the Basque Country reversed nearly 30 years of PNV nationalist and anti-TJ memory policies. Textbook reforms, historical awareness raising and new language regulations changed the Basque social consciousness. In the same year the citizen-driven NGO, called the Basque Memory (Euskal Memoria) was founded by people who used to be active supporters of ETA and separatist claims, but later withdrew from these positions. They chose other means to deal with the past and looked to common Spanish and Basque history. They collected data and testimonials from victims of terror, those who had been affected by ETA terror and by the violence, torture and disappearances caused by the Guardia Civil in police custody.Footnote ⁴⁶⁶ When one of the many ETA ceasefires was declared in 2011, it was seen as a sign that the time was ripe to reconcile under terms acceptable to both the central government and the Autonomous Communities. Since then, ETA has not re-emerged significantly and because the ceasefire remains active one can presume that ETA is about to dissolve itself.

In 2012, the PNV returned to power in the Basque Country, but the new government was more moderate than the previous one. In 2013, the Basque prime minister, a member of the PNV but in a coalition with the PSOE, announced a new plan on peace and human rights. This was a novelty in the Basque country, because it aimed to also look at crimes after 1975, such as the killings by ETA. Citizen demands and massive protests calling for an end to ETA terror and radical separatism put pressure on the prime minister to respond. Many citizens called for normalising the situation and demanded that ETA prisoners be treated according to international standards. As a result of these pressures, the prime minister developed a new policy, together with the Institute of Memory and Coexistence, and many prisoners were moved to prisons closer to home where they could receive family visits.

Around this time, a public debate broke out about the destiny of the Valle de los Caidos and how to finally turn it into a memorial and museum for all victims of the Civil War. Santiago Carrillo, a major leader of the communist and later leftist movement prior to and during transition, argued that this discussion only became possible because people were no longer afraid to ask questions and confront the past, but unfortunately this took a generation and a few political shifts in government.Footnote ⁴⁶⁷ In the following years, political tensions relating to the past became less extreme, because they became also more public and thus the past had been publicly demystified. Thus, calls for the TJ reforms from civil society continued heavily and led to a significant but late delegitimisation of the Franco regime.Footnote ⁴⁶⁸

Meanwhile publications about the Civil War continued to pile up on bookshelves and more films were launched. War veterans, victims of the war, observers and analysts on all sides shared their long-concealed experiences and beliefs. Many of these were very controversial, but had long been needed. Films, publications, novels and media coverage unblocking memories skyrocketed.Footnote ⁴⁶⁹ Authors like Pio Moa justified Franco’s brutal war against his own compatriots, while others, like Paul Preston, called the massacres on civilians the ‘Spanish Holocaust’. Regardless of whether these opinions were based on evidence, the fact that extreme views on all sides were possible without resulting in major repercussions was a sign of the growing confidence in the regime – or rather the varied character of democratic civil society, as Merkel and Puhle stated in their observations on regime consolidation.Footnote ⁴⁷⁰

Preston’s use of the term the ‘Spanish Holocaust’ serves as a superlative to demand the missing justice and atonement and to overcome the amnesty laws from 1977. Similarly, Ulrike Jureit and Christian Schneider claim that the term ‘Holocaust’ is today used as a ‘universal container’ for societies and countries to describe atrocities and events that have not been acknowledged or brought to justice. When this term is used, people expect some institutional response and acknowledgement that is in accordance with international human rights law.Footnote ⁴⁷¹ Hence, in the following years, TJ measures were no longer disputed, although the government carefully controlled any TJ manoeuvre mainly by issuing only limited financial support for it, if any at all.Footnote ⁴⁷² Nevertheless, the demand to finally bring Spanish perpetrators to justice, even if only symbolically, continues.Footnote ⁴⁷³ And so does international pressure.

In September 2013, the UN Working Group on Enforced or Involuntary Disappearance (established in 1980) visited Spain for the first time. It was unusual for a UN working group to visit a consolidated democratic country in Europe that claimed to have all legal, forensic and political means to deal with mass graves and the legal implications exhumations might have. The UN working group’s visit was a reaction to serious claims by victims and CSOs concerning the failure of the Spanish government to investigate the hundreds of thousands still-disappeared victims of the Civil War and beyond in an open, transparent and overall unbiased way. For the Spanish opposition, international institutions (in particular those in Europe) had always been a welcome supporter of TJ in Spain, and the fact that this UN visit took place revealed the magnitude of the Spanish authorities’ inability to deal with these issues, despite massive domestic pressure. The UN experts eventually questioned government officials on the government’s willingness to ensure truth, justice, reparation and commemoration for the victims of enforced disappearances. The Working Group came to the conclusion that the government had not taken sufficient measures to deal with the estimated 100,000 disappeared and 30,000 abducted children during the dictatorship despite the law of 2007. They recommended more training of forensic personnel, authorities and judges on how to deal with these crimes of the past. Among other recommendations, they requested the government not to leave TJ in the hands of private initiatives, lawyers and NGOs alone. These initiatives need government support, for example to establish systematic databases that are protected and to arrange criminal prosecution. They concluded that the state must finally take the lead in the TJ process, otherwise the process would have no (positive) effect.Footnote ⁴⁷⁴

The answers to questions of responsibility and the level of democratic institutions’ accountability are undoubtedly the most difficult and consequential parts of regime consolidation. A careful historical and legal preparation is necessary before accusations are made. Its effects on social reconciliation, the democratic culture and social peace cannot be underestimated.Footnote ⁴⁷⁵ The financial crisis and the high unemployment rate in Spain dominated public debates towards the end of this decade and was the main reason for the significant decrease in the level of trust in government and public institutions. The way in which public institutions deal with and respond to any type of national crisis indicates levels of institutional quality. But the TJ laws, the European and UN pressure, also challenged the lack of transparency and accountability in Spanish democracy and showed its flaws that are usually visible in times of national crisis. But at the same time, the fact that civil society tirelessly pressured policy makers to respond to their needs for TJ measures – paired with pressure from the UN, the EU and the CoE – fuelled and catalysed the consolidation process furthermore. These initiatives fuelled the consolidation process even more and closed some of the unconsolidated pockets, such as in Catalonia and in the Basque Country, where it became more difficult for nationalist and radical groups to mobilise people with the simple fact that all governments avoid dealing with the past and therefore separation and independence is necessary from Spain. Although that alone has not ended the separatist movement in Catalonia claiming independence from Spain, it has changed the rhetoric and framework of arguments for independence. And as a result of this, by 2013 the fear of terrorism – which was once high in the opinion polls – has declined over the years, to zero per cent. This is the lowest rate ever in Spanish history and is also thanks to massive reconciliation projects and TJ measures towards the end of the fourth decade.Footnote ⁴⁷⁶

Brief Summary of Spain

The case of TJ in Spain illustrates that the mutually reinforcing effect between sub regimes such as an active civil society and political institutions can lead to more democratic consolidation by lowering the level of radical movements and even terrorism.Footnote ⁴⁷⁷ The main challenge to regime consolidation in Spain was the irreversible amnesty laws of 1976 and 1977 that hampered any delegitimisation process of the dictatorial regime and which eventually cost many people’s lives, because ETA and GRAPO justified their killings with the statement that ‘Franco is still running the country’ through his successors and there was no justice for those who suffered his suppressive regime. The notorious lack of open dialogue about the past and the subsequent terror led to a rather weak and fearful civil society that only dared to demand TJ 25 years after Franco’s death with a new regime in charge.

Regime change and consolidation in Spain was slow and always showed major flaws and unconsolidated pockets. TJ measures were firstly only slowly implemented and were mainly used to garnish electoral support or when following international pressure. Due to the specific situation of the Spanish transition in 1975 and the strong divide into ‘red’ and ‘white’, ‘left’ and ‘right’ caused by the Spanish Civil War, political actors could only grant very modest and almost ‘silent’ TJ measures, such as amnesties and pensions in the first two decades. These were granted as a tactical concession to win over Franco supporters to prevent them from revolting against democratic reforms (which they eventually did anyhow). Fear and mistrust dominated the first two decades of transition, preventing the hundreds of thousands of victimised citizens from demanding reparations, let alone trials or vetting. In the same way, after 1982 and throughout the second decade of transition until the 1990s, TJ measures were used in a haphazard and sporadic way, in a way that resembled the haphazard and sporadic regime consolidation. ETA terror, the GAL’s illegal activities and the attempted coup of 1981 were signs of the regime’s upward and downward spiral switchbacks throughout the first two decades of regime development (see Figure 2.1). This was all related to the fact that TJ measures were never used as systematic catalytic tools to delegitimise the Franco past and legitimise the new regime – as would be the case with other policies of, for example, economics, education or infrastructure to consolidate a country’s regime.

Nevertheless, the cumulative causations between the independent TJ and dependent variable of the consolidation process started in 1977 with the amnesty laws and massive political reforms after the 1978 constitutional referendum. Around the year 2000, large protests were held in Madrid and elsewhere, civil organisations mushroomed and urged the government to fulfil its moral obligation as a democratic government to acknowledge the past. Responding to these demands with TJ was not only strategic, it also contributed to a deeper pluralistic civic culture, which caused the previously slow upward spiral effect between the two variables to increase its speed.

TJ measures and ‘dealing with the past’ now took place to enhance citizen participation, democratic culture, governmental response, public dialogue and last but not least to slowly reconcile the country and set new political spectra which elections in 2015 have shown. The societal and political divide of the country into left and right is no longer obvious and a much more diverse set of CSOs and political parties contribute to the political agenda.

Without doubt, radical movements and terror on all sides has always slowed down the true behavioural and citizen-driven consolidation process, but once the causes of the Falange and ETA terror were demystified – thanks to public dialogue, forensics, films, novels, media and memorials – the country as a whole became more reconciled with its past and present. Separatism is still high on the political agenda in Spain, and has succeeded in referenda in 2015 in Catalonia to opt for separation, without being executed.

Spain is a case that shows that consolidation can occur even without large-scale vetting or lustration, without trials or commissions of inquiry, and with the lowest level of atonement thinkable, namely by way of amnesty laws, reparations and memorials. However, this low level of TJ often coincides with low-level regime performance and led to many haunting unconsolidated pockets in Spain which have cost many people’s lives and hampered vivid participation by society in building a stronger trust in institutions. The fact that up to present times the political parties have difficulties dealing with crises, building coalitions and governing by consent, has its roots in the radical divide of the country and the lack of TJ. In 2016 the country was without an effective government for almost a year because of the incapability to build coalitions after the elections, which in return shed light on an insufficient mature political culture in times of crisis.

The Haunting Coup D’états

To better understand Turkey’s non-consolidation process, the successful and unsuccessful coups are landmarks in this process. They are irreversible landmarks for TJ efforts, too. The military coup d’état in May 1960 led not only to the regaining of secular powers, but also to a change in the constitution. The military opposed the re-election of the DP and imposed new elections, which Atatürk’s Republican People’s Party won, signifying a shift in politics. The Turkish Armed Forces (TAF) often imposed death sentences after military coup d’états. One example is Adnan Menderes, who had served as prime minister and was later hanged on 17 September 1961 for treason following the coup d’état, along with two other cabinet members, Fatin Rüştü Zorlu and Hasan Polatkan.

A second coup d’état occurred a decade later, on 12 March 1971. The government under president Demirel was forced to resign after the commanders of the TAF issued an ultimatum to the president. Turkey’s military leaders asserted the urgent need for a ‘strong and capable government’ that could redress the ‘anarchical situation’ in the country and demanded a new government. Refusing to accept this demand, they warned, would result in the armed forces taking over the administration of the country. The decision by the military high command to impose its will on the government followed three years of political violence and growing economic problems.

The years that followed were seen as a period of ‘guided democracy’, meaning that democratic powers could only move within the boundaries set by the TAF and the military aristocratic elites of the country. It turned into what was known as the ‘deep state’. In the year after the coup, many alleged leftists, in particular students and intellectuals, such as the student leaders Deniz Gezmiş, Hüseyin İnan and Yusuf Aslan, were indicted, sentenced to death and hanged.Footnote ⁴⁸⁸

Another aspect of Turkey’s past that it has not adequately dealt with is its relationship with Greece and the possible reunification of Greek and Turkish Cyprus. The Turkish military invaded Cyprus in 1974 (upon provocation by the Cypriot Patriarch and the Greek government against the ethnic Turkish minority in Cyprus), forcefully dividing the island into its current split state. Forced evictions, the slaughter of men and many other severe crimes and atrocities were conducted by both parties during the war. For mainland Turkey it meant that the years that followed were dominated by state terror and violence and there is little clarity about the crimes committed by the TAF or police inside Turkish territory, such as the massacre of labour unionists in Istanbul on 1 May 1977; the imprisonment and killing of young leftist students in 1978; the massacres of the Alevi towns Maras, Corum and Sivas; and many other unresolved state murders during the 1970s. Those who rebelled and demanded more liberty and democracy were seen as a threat to the Turkish nation state and were accused of being socialist radicals. As a result, TAF martial law took over almost every ten years.Footnote ⁴⁸⁹

The third major coup d’état took place on 12 September 1980, with amnesty laws following for those generals and military officials who committed it. This was without doubt another victory for impunity. Between 1980 and 1984, a total of 50 people including 27 political prisoners were executed in Turkey, all of them alleged leftist and socialists. The date of 12 September 1980 has become one of the most traumatic in the common Turkish narrative.Footnote ⁴⁹⁰ Similarly to the attempted coup in Spain in 1981, this coup d’état showed the Turkish people the fragility of the regime and the strength of the military. Citizens had hoped for more democratic reforms in the 1980s, triggered by the changes and democratisation processes in their neighbouring countries in southern Europe and other parts of the world. They soon realised that this hope was in vain as many democratic reforms came to a standstill until Turkey’s official application to the EC in 1987. The year of 1987 and subsequently 1989, when the application was accepted, are recognised as milestone years for regime consolidation.Footnote ⁴⁹¹

The country had to do more than just show willingness to reform its government; it also had to implement reforms and seek international acknowledgement. Turkey’s unatoned for past haunted all regime change and consolidation efforts and often led to the return to an even more authoritarian regime, and maintained this character for most of its existence, as has been described by O’Donnell and Schmitter.Footnote ⁴⁹²

Nevertheless, in the late 1980s, parallel to the emerging regime changes in Eastern Europe and South America, the Turkish government showed some indications of major reforms. Internal and external pressure from the Council of Europe has made Turkey refrain from executing any prisoners since October 1984. But only in 2004 did Turkey reluctantly abolish the death penalty to fulfil the EU Copenhagen criteria prior to EU accession talks.Footnote ⁴⁹³

Nevertheless, and parallel to these signs of goodwill, in the years since 1984 the Turkish army has increased its presence in eastern Anatolia and has intensified its suppression of the Kurds, thus showing strong authoritarian tendencies. Allegations of disappearances, ill-treatment, torture, and arbitrary imprisonment, killings, bombing of Kurdish villages, and severe suppression and even deprivation of citizenship rights in the Kurdish enclave, still remain unaddressed. Hundreds of thousands of Kurds have been displaced or have fled the country, forming a strong Kurdish diaspora coalition in western Europe, particularly in Germany and Sweden. Eventually, this coalition came to exert significant pressure on the Turkish government. It soon became evident that ‘guided democracy’ would only fuel the vicious circle of violence, suppression and a low-intensity war against the Kurdish population. This approach was far from even triggering a serious transition to democracy. Since then, over 45,000 deaths on all sides have been reported and the government has had to change its approach.

But interestingly enough, the internal and external claims that pressured the governments into responding to Kurdish interests and demands have opened the door to regime consolidation. As Lauren McLaren has argued, in the case of Turkey, like in Spain, there is a low level of civil engagement in politics. While this might speed up consolidation because consensus has to be achieved among fewer groups,Footnote ⁴⁹⁴ the question is how solid the consensual grounds can be if they fail to include all citizens and, in particular, the new young intellectual elite such as students.

In Turkey, as in the other case studies, politicians primarily use TJ measures for strategic and tactical purposes. In 1986, a Greek-Turkish initiative for reconciliation was founded, and later in 1999 Greece sent humanitarian aid for the earthquake victims in Turkey as a sign of its willingness to reconcile.Footnote ⁴⁹⁵ It was positively received throughout the country and was a welcome first step towards reconciliation after decades of hostility and mistrust. Prior to the founding of the Turkish Republic, both countries had been at war with each other since Greece started its battle for independence from the Ottoman Empire in 1830. The culminating point was the Greco-Turkish War from 1919 to 1922. Both sides committed a large number of atrocities, ethnic cleansings and war crimes. By 1923, more than 1.5 million Greeks left Turkish territory in exchange for over half a million ethnic Turks leaving Greece. This was confirmed in an official agreement on resettlement between the two countries and was meant to be a legal solution. Ever since, ongoing disputes regarding this territory and the Aegean Sea have affected diplomatic ties and relationships. Nevertheless, it has been a priority for both governments to normalise their relations. In 1941, Turkey sent humanitarian aid to relieve the great famine in Athens, but pogroms against the Greek minority in Turkey continued until the 1960s. The most severe one took place in 1955 in Istanbul, when houses belonging to non-Muslims were destroyed. It was organised by a semi-legal and ultra-nationalist Special Warfare Command, which had earlier spread the incorrect message that Atatürk’s native house in Thessaloniki in Greece had been attacked. With the semi-divine status that he enjoys in Turkey, it was easy to mobilise hundreds of volunteers who looted and killed non-Muslims, mainly Greeks as an act of revenge.Footnote ⁴⁹⁶ But as an act of TJ on both sides, today Atatürk’s birthplace is a museum that attracts thousands of Turkish tourists every year and is supported by Greek authorities as an act of reconciliation between the two countries.

In recent years, Turkey’s democratic experiment faced many challenges, and by 2015 the country is only ranked 69th out of 113 countries in terms of quality of democracy, accountability, transparency and participation of its citizens, fair and free elections, freedom of the press and NGOs.Footnote ⁴⁹⁷ And in July 2016, after decades of political improvements, there was another alleged coup attempt by the Turkish military – once more presuming to be the guardian of secularism and security in the country. President Erdogan responded to the coup with massive restrictions of freedom rights, mass imprisonment of political opponents and accusations of a conspiracy by the Fethullah Gülen movement and in particular the Kurdish parties. The rule of law, free election and freedom of media and press, plus the war in Syria on the Turkish border, make it almost impossible for TJ activists, let alone Kurdish victim groups, to act freely and in cooperation with political institutions to strengthen the consolidation process.Footnote ⁴⁹⁸

The Long Way to Democracy

Since 1989, Turkey has undertaken constitutional and legislative reforms and after the political shift to the AKP in 2001 and further elections in 2002, 2008 and 2010, many of these democratic reforms were partly or fully restricted again. They have introduced recognition of minority rights and religious freedom, and later paved the way for fairer trials and the ability to bring claims against perpetrators without suffering immediate repercussions by state forces. In the 2010 referendum on the constitution, the protection and quasi-amnesty for coup leaders was abolished, which opened up the way to trials against the military. The first round of trials, also known as the Ergenekon trials, ended in 2013 and there was another round in 2014 under dubious circumstances.Footnote ⁴⁹⁹ More trials against political enemies of Erdogan’s AKP continued in 2016.

The mysterious Ergenekon group allegedly consists of over 100 generals, lawyers, National Security Council (MGK) members, party members and members of the gendarmerie’s secret anti-terrorist organisation (Jandarma İstihbarat ve Terörle Mücadele, JITEM). The AKP government has driven these trials, while intellectuals and journalists who have tried to investigate the Ergenekon group and its trials were put in custody and convicted to long sentences in 2013. The group was accused of planning a coup d’état in 2007, also known as the sledgehammer (Balyoz) plan, which according to the allegations had been carefully planned since the AKP and Prime Minister Erdogan took office in 2002. The members of this group allegedly resumed the activities of the ‘deep state’. Some of its members have been held responsible for killings of non-Muslim groups, such as Christian missionaries in Malatya, Turkey, in 2007 or the Armenian journalist Hrant Dink in 2007. Others, such as members of the secret service JITEM, have been indicted for operating as counter-guerrilla forces against the state whenever nationalist interests are at stake, such as cooperating with the Turkish Resistance Organisation in Northern Cyprus or acting against Alevi Kurds and Muslim Kurds in eastern Anatolia. Close ties to the Sursuluk case in 1996 and earlier coup d’états in 1971, 1980 and 1997 were investigated but with few sentences. The trials against the Ergenekon group have been called ‘century trials’, and in a way it was an exclusive TJ effort to deal with the past – followed by political repressions and persecutions. The trials were not based on the rule of law, let alone on international human rights standards. Instead, they were entirely politically motivated and thus a sign of autocratic consolidation in recent years.Footnote ⁵⁰⁰ Many observers classified them as political trials during which Erdogan ‘cleansed himself’ of military, secular and political opponents, instead of the other way round. This has led to heavy public protest of the use of this particular judicial TJ tool which was misused to purge Erdogan’s political opponents and thus undermine democracyFootnote ⁵⁰¹, and thus lead to the claim that as long as the rule of law cannot be halfway guaranteed, trials might not be the best of all TJ measures to install.

The constitutional referendum in 2010 was only the beginning of more constitutional and penal reforms but not democratic consolidation. On the one hand, the government argued that it had to make reforms to comply with EU norms, while on the other hand it faced pressure from domestic political opposition and pressure groups to undertake the necessary reforms.

Turkey’s long process to regime consolidation is not exceptional, and therefore serves as an ideal test case in comparison to Germany and Spain. In Turkey, the executive, legislature and judiciary only respond to civil society’s expectations of TJ if doing so serves a strategic political objective just as it did in Germany and Spain in the earlier years of transition. The governing AKP, which has been in power for over a decade since 2002, knows that EU integration can strengthen the country’s geopolitical leadership role in the region and can make Turkey a legitimate and stronger partner for other allies such as NATO, IMF or the EU, but at the same time active and full membership in these organisations and overall in the EU are reciprocal. Later it would mean that Erdogan could not go on with his autocratic governance style, turning the country back into a dictatorship.

But first, for reasons of domestic stability and EU membership talks, the AKP government was always ready to respond to TJ claims to show its commitment to the ongoing reforms – however half-hearted or strategic they may have been. This reform increased the number of private enterprises and thus provided access to political resources by citizens who had been excluded from the political process for generations, such as the Kurdish minority. It created new social elites that later exerted pressure in favour of maintaining ties with the EU and speeding up democratic reforms. However, despite these legal, political and economic reforms, the government knew that it had to settle the disputes with its neighbouring countries as well as within and among its own citizens. In fact, bearing in mind that some forms of protest and demands were only possible after 1989, the citizen-driven and externally pushed TJ process has gone rather rapidly.

Yet attempts to reckon with the past and with disappearances can be penalised under obscure and politically motivated articles in the penal code, particularly if the attempts can be framed as threatening Turkish unity. Access to justice, fair and independent trials and judges are not guaranteed in Turkey. Under the notorious Article 301 of the Turkish Criminal Code (effective since 2005), anyone who questions the Turkish nation and Turkishness can be punished. Merely calling the atrocities against the Armenian population ‘genocide’ is a crime under this article. A number of other provisions in the Criminal Code restrict freedom of expression, particularly in respect of offences against dignity (for example Articles 125–131). There was also a self-imposed prohibition by authorities on questioning the role of the military or pressuring them to take any responsibility for the country’s past. These articles have intimidated many citizens over the decades, preventing them from questioning past or present wrongdoings. International organisations and observers have long demanded the abolishment of these articles.Footnote ⁵⁰²

Democracy has thus always been weak if not absent in Turkey. Reauthorisation of the regime has taken place since around 2010 and the following years, culminating in the 2015 and 2016 presidential reforms, elections and alleged coup. According to the Bertelsmann Transformation Index (BTI), the country has since its first initial efforts around 2002 again declined over subsequent years. Out of all the 128 transition countries ranked in the BTI (not including any consolidated democracies), Turkey is number 20, with fairly solid democratic institutions scoring 8.0 out of 10.0 in 2012 but declining dramatically thereafter. Milestones in transition are the political reforms of 1999, the elections in 2002, the EU accession talks in 2005 and the subsequent democratic reforms that first increased the civil liberties and the number of CSOs – which then were massively restricted around 2015 due to anti-terror laws and the war in Syria. Thus, 20 years after its commitment to democracy, there is some evidence of an emerging democratic culture, similar to what the situation was in Germany and Spain 20 years after regime change. Yet Turkey’s unconsolidated pockets of terrorist, separatist or other excluded groups are larger and more severe than the ones either Germany or Spain had to deal with. They mainly lie in eastern Anatolia and have to do with the unatoned past atrocities against the Kurdish minority. Therefore, Islamists, liberalists and ultra-nationalists oppose each other, sometimes with illegal means.Footnote ⁵⁰³ Nevertheless, citizens’ movements and CSOs enjoy high levels of support and have succeeded in bringing about legislative changes, such as reforms concerning the Kurdish minorities, but there is still considerable resistance.Footnote ⁵⁰⁴ Similar to the BTI, the Polity IV Project Index ranks Turkey as a stable but not consolidated democratic regime because of its major democratic flaws, corruption, violence and re-emergence of a low-intensity war in the eastern part of the country since 2015. This index also confirms that the years since 1989 have been a major turning point in democratisation and regime change, but not for democratic consolidation. This provides justification for starting this assessment around 1989.Footnote ⁵⁰⁵ Because the regime is in its third decade of transformation and thus passed the 20+ generation – and not surprisingly faced major challenges between new and old elites – it lacks legitimacy and scores rather low in terms of effectiveness and responsiveness.Footnote ⁵⁰⁶

First Decade 1990–1999

Turkey’s first official accession application to the EC in 1985 was followed by an initial deferral, but the EC Member States continued to encourage Turkey with its efforts to meet European standards and – interestingly enough – to settle matters with Armenia, Greece and Cyprus.Footnote ⁵⁰⁷ In 1989, the EC accepted Turkey’s revised application from 1987 under the condition of re-establishing diplomatic ties with its neighbouring countries and slowly introducing TJ measures. The year 1989 was not only a turning point for central European history and regime change in the east, but also for Turkey. Turkey’s path to regime consolidation cannot be seen independently from the developments in the rest of Europe or the Middle East. In the same year, the first private TV channel was allowed to broadcast in Turkey and Turgut Özal became the first non-military president of the republic. As Krem Öktem has noted, a period of proactive foreign policies finally began, which was fundamentally important for the process of regime consolidation.Footnote ⁵⁰⁸ These new policies would soon encourage various stakeholders and civil society actors to pressure for more TJ. The reasons for this pressure were multiple: first, the EC did not want to accept a country that was still in a ‘war-like’ situation with other member countries, such as Greece and later Greek Cyprus (which joined the EU in 2004), or with a country that had closed its borders and kept no diplomatic ties with a neighbouring country, such as Armenia. Second, Turkey’s tense relationship with Armenia was due to unsettled accounts from the so-called ‘events of 1915’ (1915 olaylari), the Turkish government’s official name for the Armenian Genocide. Turkey’s official position was that these ‘events’ arose from inter-communal strife during World War I and it was not a genocide and therefore was not to be atoned for. Whereas Turkey counted an approximate 300,000 deaths, disappeared, exiled or wounded Armenians, the Armenian version is that 1.5 million people were killed in a planned genocide. Since the 1980s, the Turkish government has been searching for a way to defend and explain the atrocities of World War I to internal and external audiences, and in particular to the United States, the country that has exerted the most pressure on Turkey. The right hand of the TAF-led government, the military National Security Council (MGK), designed the official ‘no-genocide’ doctrine and governmental position on ‘the events of 1915’. The MGK held that Armenians had always been treated well in the Ottoman Empire and in Turkey, but because some of them had collaborated with the Russian enemy during World War I, they were expelled and evacuated from their homes and lands to the Syrian dessert, where around 300,000 of them ‘unfortunately’ perished.Footnote ⁵⁰⁹ This has become the official doctrine and the answer to all TJ demands by Armenia and has caused ongoing tension between the two governments and citizens.

But eventually, the correlating and cumulative causal effect between TJ and regime consolidations took off in the 1990s.Footnote ⁵¹⁰ In debates in the European Parliament, delegates recommended that Turkey acknowledge the Armenian Genocide and suggested making it a formal criterion for Turkey’s EC candidacy, thus bringing TJ and democratic reforms on the agenda.Footnote ⁵¹¹ Although initially an official governmental commitment to democracy and human rights norms was enough to pursue the accession talks in the years to come.Footnote ⁵¹² But despite the official doctrine and politics, soft internal and external pressure showed consequences. Even though the Turkish government denied any involvement in genocide it did make concessions. In the following years it ratified more human rights treaties, which in turn led to more activism by human rights and NGOs, particularly Kurdish ones, demanding not only better treatment and justice but also TJ measures in general.Footnote ⁵¹³

In 1992, shortly after the government’s official commitment to carefully reconsider its doctrine on past atrocities, the first government-certified book on the ‘Armenian issue’ was published in Turkish. This book addressed a wide public and attempted to justify the official governmental position on the events of 1915 – largely denying, of course, that the evacuation of Armenians between 1915 and 1918 came anything close to a systematic organised genocide.Footnote ⁵¹⁴ It pre-emptively addressed the expected demands from Armenians and others to deal with the ‘G’ word (genocide). At that time, it was forbidden to refer to the Armenian issue using that word. The government realised that if it was to use violence as a means to silence issues of the past, it had to act proactively against the idea that the atrocities of the past qualified as genocide.

In the early period of regime change, Ankara only reacted to these demands by denying them. And despite the political reforms violence and suppression against opposition continued and so did the war against the Kurds. Because the peace attempts by the government to come to an accord with the PKK did not succeed at that time, an alleged coup attempt – along with mysterious killings and massacres – took place in 1993, launched by the military with the aim of pressuring the government to find solutions to the problem. But instead of using TJ measures to partly respond to the claims by the Kurdish community and CSOs, denial about past and present atrocities and war crimes was the official doctrine at the time. As a consequence, another issue from the past made it onto the political agenda that served to pressure the government to reconsider its harsh position: the Cyprus issue. In 1995, the ECtHR ruled against Turkey for the first time on cases of ill-treatment and property issues in Cyprus. In the subsequent years, a total of several thousand cases were lodged against Turkey. Since then, the ECtHR has ruled on between 100 and 300 cases per year relating to Turkey’s human rights policy. The government responded to this by highlighting the importance of human rights, such as the right to freedom of assembly or freedom of expression. At the same time the government used TJ measures to respond when the ECtHR ordered compensation for torture victims or when dealing with property rights in Cyprus and of other minorities in Turkey. Turkey saw itself as a rising geopolitical player in the region, taking on responsibility in NATO and other international organisations such as the OSCE. Turkey reacted to external pressure when the country achieved a tactical or strategic advantage in its geopolitical activities. At the same time, internal pressure grew slowly but steadily.Footnote ⁵¹⁵

Also in 1995, the ECtHR ruled against Turkey in matters of property rights and compensations, and the European Parliament awarded the EU’s human rights Sakharov Prize to Leyla Zana, a Kurdish human rights activist and politician who has continuously suffered imprisonment and intimidation from the government. In choosing this recipient for the prize, the European Parliament sent a clear message to Turkey to address its past. In response, the Turkish parliament launched a study on the disappearances and victims of the war in eastern Anatolia – although rather than going public, it was instead intended to please the EU delegations at that time. Due to fear that it would lead to more claims for redress, this did not result in further consequences or public debate.Footnote ⁵¹⁶ The Turkish parliament’s response served the sole purpose of placating the international community.

During the further pre-accession talks with the EC in the mid-1990s, the number of domestic trials on torture and state violence increased, although the trials regularly failed to result in convictions.Footnote ⁵¹⁷ The EC/EU and the Council of Europe supported media reforms in Turkey, which led to an increase in publications by governmental think tanks, parliamentary commissions and other official sources on unsettled past issues such as the Armenian Genocide, although these publications were controlled by the state. The government had one objective: disseminating its own version of what happened in the past which left little room for different opinions or independent research. Independent academic or historical research was not welcome and archives and records were only opened to a selective number of researchers loyal to the government.Footnote ⁵¹⁸ The government realised that in this period debates on the past were mainly held at an intellectual and elite level, often only outside the country in international forums. Therefore, the Turkish government counteracted any allegations of past injustices with state-friendly publications that were often intentionally translated into English in order to target the international critical audience. Not surprisingly, the government could not stop independent research and dialogue, but the government was hoping to at least delay the process of free and open debates. It was, however, unsuccessful and the evidence of massacres, deportations, torture and killings inside the country was so prevalent that the government’s efforts in this respect stopped at some stage. Millions of victims wanted to talk.

On 3 November 1996, government officials and members of the JITEM were involved in an arranged car accident in Susurluk – killing government officials and an ultra-right-wing businessman, most of whom were involved in the drugs trade. The subsequent trial against government and military officials supposedly responsible for the crash brought to light how closely the military, business and political elite were linked, and confirmed the idea of the ‘deep state’.Footnote ⁵¹⁹ For many Turks, the town of Susurluk thus stands for the ‘deep state’. The subsequent first free and open trials in Turkish political history also revealed that JITEM – similar to GAL in Spain – used illegal and violent measures to kill members of the Kurdish liberation movements, communists, and other opposition members. Many of the victims of the illegal killings were members of the PKK. JITEM acted under the direct order of the TAF, which itself could not be held accountable by any democratic institution, including the judiciary, due to the impunity that the military enjoyed in Turkey. Yet, the founder of JITEM was involved in the car accident and had to testify in court on charges of membership in the Ergenekon, a mythical group that appeared to control the entire political fate of Turkey and received international attention during the trials until 2013.Footnote ⁵²⁰

It is no surprise that the military planned another coup after the Sursuluk case in 1996 because it lost power. Yet, this time, the military was confronted by the fact that Turkey was in the process of EU accession and that the wider public was closely watching every step the country took. Turkey’s strongest international ally, NATO, had clearly indicated that it would no longer tolerate TAF’s interventions within the country against its own citizens. Regardless, the military planned a coup in 1997, but because of the warnings from abroad and the fear of a major uprising within the country, it shifted to ‘only’ issuing a threatening memorandum to the government, expressing the military’s concerns about Prime Minister’s Erbakan’s inability to govern the country. To avoid violence, the prime minister resigned and therefore the 1997 coup attempt was the first in Turkey’s history to be carried out without major bloodshed. It was nevertheless a victory for the nationalists against the Muslim-orientated government and another victory for the ‘deep state’.

Meanwhile, under the watchful eye of the EU and the Council of Europe, the government continued its modest civil and security sector reforms, even though with heavy concessions to the armed forces. At the same time, a human rights movement continued to rise from the Kurdish community. Groups of lawyers, victims and family members of the disappeared started to organise themselves politically. They started bringing court cases against governmental authorities and the military, while also bringing attention to the fact that the Kurds, as the largest minority group in Turkey, were not adequately represented in Turkish politics.

In the years that followed, the government made concessions and sought reconciliation in an attempt to preserve national unity. However, the government also had to accommodate the military. In 1999, the legislature decided that those charged with ill-treatment and even torture would benefit from automatic suspension of trial proceedings. This illustrated that the government, while committed to democratic regime consolidation, always had to ‘negotiate’ and balance the interests of the ‘shadow-government’: the military and paramilitary forces. Although the government did respond to the victims of human rights violations by means of individual compensation, thereby acknowledging the ECtHR judgments, this alone was not enough to appease the country. Thus, towards the end of the decade, the government slowly started to use TJ measures such as the ECtHR decisions on compensation, measures of acknowledgement, public debates and exhumations to safeguard peace in the country, except for establishing a vivid, non-violent and free plural society.

Once the government made concessions to the Kurdish demands, the cry for more TJ became louder – and the mutual reinforcing spiral effect took off. Since the Kurds comprised 10 per cent of the Turkish population, they were an important constituency not only in elections but also for general peace and stability in the country. These demands were fuelled by the growing revelations about the past massacres against them. In 1990, Ismail Besikci published a book in Turkish on the massacres in the Kurdish Alevi town of Dersim (today Tunceli) between 1937 and 1938, which remained unknown until 1990. The government and the secret police were outraged about this ‘discovery’. Besikci discovered that the Turkish military had killed most of the town’s inhabitants – men, women and children alike – because the inhabitants had demanded language and religious rights, and Kurdish claims for TJ arose again. The book was denounced for its anti-Turkishness and was banned. In addition the author was convicted and spent more than ten years in prison, which was not an unusual political response at that time to anyone who revealed past atrocities. This was only one of many bans on Turkish writers, historians or journalists who aimed to shed light on past wrongdoings. And governmental responses aimed to intimidate the rest of the population.Footnote ⁵²¹ The fact that the Turkish authorities feared a book that did not even mention present human rights abuses, but atrocities from more than 50 years earlier, showed how sensitive the issues of the past were and also how threatening public debate on the past and TJ measures were in the eyes of the public authorities.

The external pressure from European institutions soon had its own spillover effect and transformed into internal citizen-driven pressure, especially among the Kurds. Minorities and opposition groups soon took ownership of the possibilities that NGOs, the ECtHR and other external forces had provided them with, including TJ measures. The Turkish diaspora, which counted several million individuals around the world who had close ties to their families back in Turkey, started to influence political thinking in the country. These people also influenced the intellectual circles within the country and the new, internationally trained 20+ generation soon founded pressure groups and CSOs that acted internally and externally. More freedom rights allowed for more citizen participation and even though this window of freedom was soon to be closed again, it gave many CSOs a chance to form themselves and raise their demands for TJ. One of the strongest actors in the field was the independent Turkish Human Rights Association (İnsan HaklariDerneği, IHD), which has existed (mainly underground) since 1986. Even though its members have been in and out of prison and exile ever since, the IHD has remained a steady voice pushing for human rights, democracy, and later TJ in Turkey. Other victim groups soon arose, encouraged by the pressure from the EU, the ECtHR and the Sursuluk trials in 1996. Examples of such organisations are the Association for Solidarity and Support of Relatives of Disappeared People (Yakınlarını Kaybeden Ailelerle Yardımlaşma ve Dayanışma Derneği, Yakay-Der) and the Kurdish Mothers of Peace, also called the Crying Saturday Mothers because they protest every Saturday in main cities in Turkey to represent those who disappeared in the 1980s and 1990s. The Crying Saturday Mothers started to protest in 1995 and were at first largely rejected by the public in Istanbul and elsewhere outside the Kurdish territory.Footnote ⁵²² However, unlike in earlier decades, the police did not interfere with these protests. Between ten and 30 mothers and relatives of those who have disappeared demonstrate every Saturday near Taksim Square in Istanbul. Until recently, the Yakay-Der and the Crying Saturday Mothers have met regularly, launched petitions, initiated trials and protested peacefully. Since the mid-1990s, it had been Yakay-Der, together with IHD and the International Committee Against Disappearances (ICAD), that have organised a series of special events to reckon with the past, drawing inspiration from other countries on means and substance.Footnote ⁵²³ They protested and lobbied for their cause during the international UN Week of Disappeared People (every last week of May of each year) and have become the loudest voice demanding TJ measures in Turkey ever since. Towards the end of the first decade in 1999, the scattered groups and events soon became more coherent and public and also became an issue in the Turkish parliament. The parliament responded by changing the law to give these civil rights movements more space and freedom, but later restricted them again. But at that time, the fact that members of CSOs or NGOs were less frequently imprisoned, for shorter periods, was also an indication that the government and the judiciary aimed to appease them, if not to reconcile with them.

Another consequence of the political reform was that NGOs soon started to spring up and thus pressure the government from below. Diversification within and among NGOs was inevitable and hundreds were soon established. The government in return responded to these new citizen-driven demands by installing formal governmental advisory committees on human rights in the following years.Footnote ⁵²⁴ Although imprisonments, disappearances, torture and intimidation of citizens and their initiatives was still a daily reality, improvements and changes soon became evident. The state responded to demands with promises of formal commissions of inquiry and by launching investigations of allegations of killings and disappearances. These actions were never meant to be a public statement; they were only the government’s first attempts to respond to citizens’ demands for TJ. It was clear the government would continue operating in a traditional authoritarian way and would want to be in control of ‘citizen initiatives’ and TJ processes. However, it soon became evident that it would be impossible for the government to keep up with all the new citizen-driven initiatives since the regime change started. CSOs from below relied on the external demands from Europe, whilst pressuring the government in Ankara to make more concessions towards TJ and a stronger constitutional, representative and institutional consolidation in the years to come.

The decade ended with the Turkish National Intelligence Agency’s capture of the number one enemy of the state, Abdullah Öcalan. Öcalan was one of the founders of the Kurdish PKK who had been living in exile in Kenya at the time of his capture. His capture in February 1999 and his subsequent imprisonment and trial became a test for whether Turkey would move from an authoritarian to a democratic regime, and for whether the rule of law or the ‘deep state’ would prevail in the coming years. The fact that Öcalan was not sentenced to death but life imprisonment instead and the subsequent abolishment of the death penalty, was a sign of concession towards the Kurdish community and a way to start a TJ process.

Second Decade 2000–2009

In the year of Öcalan’s capture and trial, the EU finally recognised Turkey’s candidacy for membership. This decade marked the period of constitutional consolidation and started with good signs to move towards representative and behavioural consolidationFootnote ⁵²⁵, because decisions were taken mostly in a transparent and accountable way, trials were public, parliamentarian debates increased and Kurdish political parties became more visible on the political agenda, gaining more and more seats in parliament. This triggered more victim groups, and Kurdish demands for truth, justice and political acknowledgement. Domestic civil actors and elites and external stakeholders used the Kurdish and Cypriot demands and the anniversary of the Armenian Genocide to push for domestic reforms. The EU Copenhagen accession criteria explicitly demanded the implementation of human rights norms and minority rights into domestic law – and one way of complying with these norms was with investigations of past crimes, acknowledgement and compensation. The Kurdish population benefited from these developments. The state of emergency in southeast Anatolia was lifted and the MGK was transformed into a purely advisory body. It became evident that the external pressure from the ECtHR and the EU accession criteria provided a major incentive to domestic pressure groups to seek further TJ measures and reforms, but it was just one element of many.Footnote ⁵²⁶

Nevertheless, the Council of Europe only saw an indirect link between the decisions of the ECtHR and TJ in Member States. It was only in 2008 that the Council of Europe’s High Commissioner for Human Rights, Thomas Hammerberg, stated that, without coming to terms with the past, a culture of impunity would prevail and impair regime consolidation anywhere, and particularly in Turkey.Footnote ⁵²⁷ In the first five years before and after the EU accession talks in 2005, official publications on the Armenian Genocide doubled, indicating the mental shift, and the regime shift, in Ankara and throughout the country.

Between 2000 and 2005 alone, close to the 90th anniversary and worldwide commemoration of the Armenian Genocide, hundreds of writers, journalists, artists and academics competed with government think tanks, state and military archives and ministries, in publishing about issues of the past. Government-supported agencies published around 45 official documents, studies and books to support the official governmental version of the events of 1915 in Armenia. This shows the immense pressure the government was under to counteract the international and domestic pressure and internal publications and broadcasting on the past.Footnote ⁵²⁸ In the year of the EU accession talks, which coincided with the 90th anniversary of the Armenian Genocide, the US Congress and later the French National Congress passed a resolution to condemn the Armenian Genocide and to urge the Turkish government to investigate these allegations and come to terms with their past by employing TJ measures.

In 2000 the prize-winning novelist and poet Kemal Yalcin aimed to publish a popular book titled You Rejoice My Heart, telling the hidden journey of Armenians in Turkey. Although his Turkish publisher had already printed the book, the publisher was ordered to destroy all samples prior to distribution in 2001, due to the heavy contestation of the ‘historical narrative’ and truth about the past. The book aimed to be one of the first published in Turkey that dealt with the question of the genocide, calling it the ‘Turkish shame’. The book was later translated into German, English and Armenian, and received international recognition, going into several editions. But like Ylacin, who later moved to Germany in exile, dozens of authors and novelists have been convicted under Article 301 for writing about the Armenian Genocide in Turkish. As Ilter Turan has emphasised, Turkey’s democratisation process has often taken one step backward for every two steps forward as seen during the first decade of regime change.Footnote ⁵²⁹ But due to immense pressure, the government had to deal with its past and thus launched a number of ‘EU Harmonisation Packages’, which distanced the government from the past, thus also delegitimising the past. Starting in 2000, these packages gradually introduced more liberties into national legislation.Footnote ⁵³⁰ The decade did not only start with a government response contributing a bit to the upward spiral, it also responded to the civil pressure from below that increased dramatically. Domestic victim groups like the Kurdish Crying Saturday Mothers, the Turkish BAR association, and intellectual elites like writers, journalists (many of whom had to pay with their lives or imprisonment), artists and academics claimed more freedom and now directly demanded an acknowledgement of past wrongdoings. Some of them referred directly to the ECtHR’s decisions or the European Parliament’s resolutions urging the Turkish government to change legislation and start investigating the past. Meanwhile, popular cultural life moved on and some academics and intellectuals thought that the time had come to openly debate the past.

Within Turkey, incrementally the internal and external pressure continuously pressured for a governmental response for TJ and political reforms, which indicates the cumulative causalities between TJ and consolidation in the long run. In 2001, the parliament introduced further political reforms granting more domestic, cultural and linguistic rights to the Kurds and giving room for political representation. In the same year, future prime minister Erdogan founded the AKP, which had a distinct open policy towards the Kurds and which would take major steps towards recognition of the past. In the 2002 elections the AKP received a large number of seats in parliament, partially due to Kurdish voters, and Erdogan became prime minister.Footnote ⁵³¹ The party’s policy would determine the pace of democratic progress and TJ measures over the next ten years, eventually ending around 2015. But at first, Erdogan made a clear commitment to democracy, although not one necessarily based on consensual democracy but rather on majoritarian democracy, which was established in the constitutional changes of 1982. At first, the AKP clearly favoured EU accession but also the unification of the country around Islamic values. With the AKP in government, an Ottoman revival took place in Turkey, highlighting the achievements of past sultans and the greatness of Muslim culture – all of which had been banned under Atatürk’s secular policies and by the military.Footnote ⁵³² Reconciliation efforts with Armenia or the Kurdish minority did not serve this ideological trend of Erdogan’s AKP. But since suppression, intimidation, expulsion and violence no longer worked to guarantee state unity, Erdogan had to use other tools, such as the Ottoman revival and later, as we will see, even some TJ tools – also only in a strategic and tactical manner, if they served the purpose of national unity.

Much has been written about the rise and change of the AKP over the past decade, and thus will not be revisited here.Footnote ⁵³³ I will briefly summarise the main conclusions concerning the party’s impact on regime consolidation swinging between democracy and authoritarianism. Since the AKP obtained executive and legislative power, TJ measures were widely used as strategic tools to purge the AKP of political opponents such as the military. AKP leaders held some military responsible for thousands of crimes and atrocities in eastern Anatolia. These were show trials for the wider public; TJ measures such as trials and commissions were misused to purge political opponents by Erdogan’s power politics throughout his governance either as prime minister or later as president. On the other hand, Erdogan used TJ tools in a smart tactical and strategic way, for electoral purposes and to win Kurdish votes and the backing of intellectuals who sought an alternative to the existing parties. The AKP was not an Islamic party that embraced Sharia law or any other radical Islamic laws; rather, it saw itself in the tradition of many other European conservative parties that base their party programme on Christian values, such as the CDU in Germany or the PP in Spain. But, regardless of its self-definition, the reach of the AKP and its grip on the country has led to many more restrictive laws concerning freedom of information, expression and assembly. What is striking is that Erdogan has clearly identified the unconsolidated pockets in the country, namely the Kurds, and used all possible means and measures to win them for his party at that time.

Due to an electoral rule that mandated that parties could only enter parliament if they won more than 10 per cent of the vote, religious and minority parties were not able to enter parliament, although some splinter groups have received up to 25 per cent of the seats in total, but did not build a coalition. Yet in 2002, with the AKP in power, many of these parties were allowed to take their seats, which appeased these groups for a time.Footnote ⁵³⁴ The exclusion of minority or religious parties from the decision-making process had paralysed Turkish economic and political progress. Erdogan was determined to end this and in doing so also aimed to dismantle the TAF and the JITMR, the most powerful opponents to his government. He started this process by openly stating that arbitrary killings and disappearances as well as terrorist acts on both sides (by the Turkish military and the PKK) had been going on for far too long. Erdogan justified trials against his opponents by referring to unsettled accounts of the past and thus claimed the trials to be part of an overall TJ process of the country, albeit often exclusive and biased.

In the following years, TJ measures for Turkey’s ethnic and religious minorities were based on two national interests: first, preserving the country’s integrity and unity and, second, fighting a number of rebel Kurdish groups, in particular the continuously active PKK, which largely followed its leader, Abdullah Öcalan. Erdogan made more concessions and even allowed radical members of the PKK to become involved in parliament, so long as they refrained from violence. After its victory in 2002, the AKP also abolished the martial law and state of emergency that had governed the Kurdish region in Turkey since 1978. Due to the fact that Öcalan had been openly tried and his death penalty had been commuted to life in prison, the violence and protests in the territory calmed down and political participation increased, allowing more Kurdish parties to participate in elections. Turkey had passed its first test for upward spiral democratic regime consolidation. After legal reforms, more Kurdish interest and victim groups, intellectuals and journalists emerged. This also had to do with the fact that many of the TJ measures, such as the exhumation and memorialisation of victims, delegitimised the military arm of the government, which was also in the interest of the AKP. The government made concessions to Kurdish terrorist and separatist fighters and their political branches. The Kurdish language was allowed and the Kurds were also allowed to have their own television station in their language.Footnote ⁵³⁵

Even more concessions were made on the eve of the EU accession talks in 2004, a period that is considered the all-time peak of the TJ process in Turkey. In 2002, the UN Special Rapporteur for Disappearances, Francis Deng, was finally allowed to enter the country after a number of rejections by the government, which denied that there had been any cases of disappearances in eastern Anatolia. Deng’s report about the hundreds of thousands of cases of disappearances fuelled the pressure exerted by the EU, provoked strong reactions in Ankara, and eventually caused a shift in Turkish policies towards more democratic reforms and overall to TJ. Interestingly enough, at that same time, opinion polls conducted by Eurobarometer showed that civic trust in the Turkish government increased dramatically. Eighty per cent of those polled reported trust in the government and only 17 per cent tended not to trust it.Footnote ⁵³⁶ Yet, these figures shifted dramatically later in the decade. In the following years, when it became apparent that many of the promised reforms never took place and the regime would move back into more authoritarian practice, trust in government dropped to only 4 per cent.

One of the main reasons why the quality of Turkey’s democracy had not improved for so long was the past governments’ and legislatures’ unwillingness or incapacity to control extremists with consensus-based rules and coalitions.Footnote ⁵³⁷ The main reason for the AKP’s popularity in 2004 was exactly because it was able to make concessions. It introduced liberal reforms and was in favour of the EU. Some of the concessions made by the AKP qualify as TJ measures, such as the various compensation laws for the Kurdish victims. In the same year as the EU talks, the Turkish parliament issued a compensation law for victims of disappearances, which included the establishment of a commission to implement and monitor the law. The law compensated bodily harm, loss of property and loss of earnings and agriculture. Although this compensation commission was not independent from government influence, the law as such was remarkable. It aimed to compensate mostly Kurdish victims and descendants of those who had disappeared and been forcefully evicted since the 1980s, which totalled approximately one million people. No official figures exist, and while the government claims that the figure should be 950,000 people, Kurdish CSOs estimate around three million people have been killed, tortured and disappeared or have fled into exile.Footnote ⁵³⁸ With the compensation law, the AKP tried to respond to the pressure exerted by the EU – and to some extent to the UN – and by the many pending cases (around 1,500 at that time) filed by Kurdish victim groups and diaspora NGOs to the ECtHR to uncover the truth about the remains of their relatives. Notwithstanding, this was also the era in which worldwide TJ measures flourished.

The new law also responded to the growing civil society community inside the country and civil pressure by adhering to international norms and standards. This illustrates how external pressure or ‘carrot and stick’ incentives can be effective if combined with domestic politics and interests. In this case, the EU played a significant role in unifying divided elites, such as nationalists, Muslims, Kurds and human rights organisations, all of which were in favour of EU membership. This odd coalition helped to push through reforms, which again correlated with the effective and thus high-quality performance of democratic institutions.Footnote ⁵³⁹ The law accommodated many stakeholders and after it was issued the ECtHR stopped all further investigations and seemed satisfied. Yet, the law did not include a truth or justice perspective, nor did it arrange for those responsible for crimes to be held accountable under the criminal law. However, overall, it triggered a bottom-up and citizen-driven approach to regime consolidation that often used TJ tools to demand shifts and changes beyond mere compensation and acknowledgement.

Although the Kurdish branch of the IDH and the Istanbul BAR Association encouraged file claims and pressured the government, the changed laws did not always find favour among Kurdish victims. This was because the law also compensated members of the TAF who had been injured or killed while combating members of the PKK. The law recognised all victims of the conflict and, in this way, the law was similar to the amnesty or ‘rehabilitation’ laws in other countries, such as Spain. It was the government’s compromise to acknowledge victims of the past era, regardless of whether they were Kurds or member of the TAF. Yet, the law was not completely neutral, let alone inclusive, in its approach if a victim – or their family members – could provide documentation proving the violation. Of course, many Kurdish villagers from eastern Anatolia did not possess such documents, whereas military officials tended to have ready documentation about their own people being killed or injured by the PKK because they had issued it themselves. This ad hoc and rather sporadic TJ measure created a new constituency of those who criticised the law. Like we saw in Spain, both amnesty and memorial laws often have a biased character and lack transparency. To be open to all sides, as Gibson had often claimed, was far from being the reality in Turkey.

In 2005, Erdogan almost apologised when addressing Kurds in Diyabakir, admitting that the ‘state has done wrong in the past’. Additionally, he backed the state prosecutor to start a trial against a colonel responsible for arbitrary killings in the region who, again, was one of his opponents. Erdogan used this trial – which could be claimed to be a TJ measure – to cleanse himself of those who opposed him. On the other hand, the compensation law was a concession on which NGOs, parliamentarians and the EU could build upon. It not only eased the way for further talks with the EU, it also finally gave the UN bodies and others a chance to investigate cases of severe human rights abuses and disappearances in the country. By the end of 2010, the government had settled more than 133,000 applications for compensation, worth one billion euros and dealt with over 300,000 claims nationwide. However, no trials or truth commissions on the role of the security services or military were implemented, nor were plans made to do so.Footnote ⁵⁴⁰

Meanwhile, dealing with the Armenian Genocide was not the Turkish government’s primary concern at any time of its regime consolidation efforts. Erdogan’s cost-benefit analysis did not weigh in favour of dealing with it. The Turkish government also wanted to avoid the billions of euros in compensation that post-war Germany had to pay for its genocide, in addition to trials, reparations and other TJ measures. These financial concerns also informed the government’s decision not to recognise the events of 1915 as genocide. In addition, Armenia was not a major trade partner and the Azerbaijan-Armenia dispute about Nagorno-Karabakh, in which Turkey clearly sided with Azerbaijan, gave Turkey an additional reason to deny the genocide.

Despite the Turkish government’s interests in denying the Armenian Genocide, the debate about these events, instigated by external stakeholders, has nevertheless been an important stimulus for talks about TJ and about democracy in Turkey in general. As indicated earlier, a more intense attempt to open the debate about the ‘events of 1915’ took place around 2005, the year of the 90th anniversary of the Armenian Genocide and also the year of Turkey’s accession talks with the EU. This year was commemorated by Armenia and the Armenian Diaspora around the world and was internationally recognised. Pressure on Ankara increased and the government responded to both the international community (especially the EU) and to internal pressure. In light of the anniversary events coming up around the world (where Armenian diaspora lives) the AKP supported an NGO-driven attempt to establish a Turkish-Armenian Reconciliation Commission (TARC) between 2001 and 2004 with meetings in Geneva and Moscow, although it produced no results with consequences for the bilateral relationship. The TARC was mainly financed by US governmental and Armenian non-governmental agencies and discontinued its work with no further cooperation on either side. It was not an independent commission. Its main role was to bring Turkish and Armenian historians and experts to the table and facilitate discussions as a type of history commission, but it produced no lasting results. In 2002, the TARC asked the ICTJ in New York to facilitate a memorandum on the applicability of the UN Convention on the Prevention and Punishment of the Crime of Genocide of 1948 to the Armenian Genocide. The Turkish government, however, held its traditional position. At the same time, the Armenian Institute in Washington DC conducted another analysis, which concluded that the primary focus in dealing with the past should be establishing individual responsibility, and not the collective punishment of Turks. Although this analysis was published and triggered debate, it received no further governmental follow-up in Ankara.Footnote ⁵⁴¹ But all this did not remain completely unnoticed by Turkish society and the condemnations of the genocide by the EU Parliament and the US Senate also led to some political reactions in Ankara.

The ‘open door’ atmosphere eventually triggered more citizen-driven approaches. In 2005, professors at the private Bilgi University in Istanbul launched the first ever public conference on the Armenian Genocide, entitled ‘Ottoman Armenians During the Decline of the Empire: Issues of Scientific Responsibility and Democracy’. The conference was covered internationally, but far less so domestically. Neither the content of the debate nor the conclusion about the ‘events of 1915’ was new, but they stated that the Armenian Genocide was not only a matter of victims but also of victimisers and the successor state to the Ottoman Empire. On that occasion, Kurdish NGOs and civil society activists also raised their voices, making it clear that the deportations and exterminations of 1915 were not only targeted against Armenians, but against all minorities, including Assyrians, Kurds and Greeks. As such, the Armenian Genocide might be more appropriately called the Turkish Genocide, because the Armenians killed at that time were of Turkish citizenship and since hundreds of thousands of Turkish nationals with different ethnic and religious backgrounds (although at that time subjects of the Ottoman Empire) became victims of this genocide.Footnote ⁵⁴²

Parallel to these events, between 2005 and 2007, a debate was waged about the restoration and inauguration of the Armenian Church. In response to the Council of Europe’s recognition of the Armenian Genocide already in 2001 and the French parliament’s recognition in 2006, the government in Ankara promised to restore and reopen Armenian memorials. Needless to say, the AKP wanted to keep ownership over the narrative and thus actively engaged in the debate, assured that it had justice on its side. In 2006 the Parliamentary Assembly of the European Parliament called on Ankara to finally recognise the events of 1915 as genocide.Footnote ⁵⁴³ This call followed an earlier attempt in 2001, by the European Parliamentarian Assembly of the Council of Europe, which was mainly ignored by the Turkish government.

But prior to, during and shortly after the accession talks, Turkey received positive international acknowledgement for the modest restoration efforts of Christian and Armenian churches in Turkey in the second post-transition period. One such example of Turkey’s efforts to restore these churches was the Ministry of Culture’s restoration of the Armenian Church on Akhtamar as a museum, which was inaugurated as an act to underline ‘Turkish tolerance’ towards its minorities in 2007. However, this whole project backfired on the government because of its biased and exclusive character and can be interpreted as a failure – or rather an abuse – of top-down TJ measures. The government had thus far only allowed for a top-down, strategically and tactically measured TJ process, controlling the narrative, the memorials, trials and reparations for the sole purpose of maintaining domestic stability under control of the AKP. CSO activities were low and strictly controlled in the case of the Armenian Genocide. The Turkish Nobel Prize Laureate for Literature, Orhan Pamuk, openly addressed this story and the half-hearted efforts at reconciliation and the shame the ‘events of 1915’ placed on all Turks because of the still non-existent acknowledgement of the Armenian Genocide. Following Pamuk’s campaign against governmental abuse of TJ tools, he was convicted under Article 301 and received death threats. International protests followed and the accusations against him came to a halt, but he later went into exile in New York. He has been a symbolic figure for many activists and citizen-driven initiatives, signalling that it is time for the country to take moral responsibility for its past, a responsibility that goes beyond measures of restorative justice.Footnote ⁵⁴⁴

In 2007, Prime Minister Erdogan called the whole restoration of the Armenian Church a ‘retaliation against the Genocide claims’ in an attempt to counteract the ‘aggressive attacks against Turkishness’ from the Armenian and European governments and diaspora, and to show instead how tolerant and modern Turkey was.Footnote ⁵⁴⁵ Erdogan did not see the restoration as an act of reconciliation for Armenia and Turkey, or for the divided Turkish society, but rather as a useful political instrument to silence Turkey’s critics abroad. Erdogan emphasised that ‘the history of the country is clean and no massacres and genocides have ever occurred’.Footnote ⁵⁴⁶ He saw no political, economic or diplomatic benefit from any reconciliation between Armenia and Turkey.

This case and the verbal battles between Erdogan and the international community also triggered long-awaited internal debates and discussions about whether regime change, let alone democratic consolidation in Turkey, had ever taken place. Pandora’s box had been opened, and all efforts to close it through restrictive politics have failed or led to some sort of violent response on all sides. It was at this point that many other gruesome issues of the past started being openly debated, for example the massacres of Kurds in the 1920s. According to Ishak Alaton, a Turkish-Jewish businessman, people’s engagement with the state had become stronger.Footnote ⁵⁴⁷ Among other things, this led to public debates, despite the existence of Article 301, but also to the imprisonment of many writers, journalists and academics.

One of the many outspoken intellectuals and civil actors at that time was the Turkish-Armenian journalist Hrant Dink. In January 2007, shortly before the inauguration of the restored Armenian Church, Dink – like Pamuk – commented on the different shades of the debate and on the political intentions behind it.Footnote ⁵⁴⁸ But unlike Pamuk, Dink paid for this with his life. He had noted that this TJ measure was only being used for tactical purposes and did not allow for public participation, and that therefore a moral feeling of responsibility for the past was still missing. Shortly after his comments, a fanatic nationalist murdered him in broad daylight, in front of his office in Istanbul. His murder became an international affair and a dramatic sign that despite all efforts to atone for the past in 2005 and 2006, Turkish society was not yet ready for general acceptance of, let alone moral responsibility for, the past. The nationalist-motivated homicide of a journalist was a signal to those who aimed to change this. It led to large protests and alignment between victims and many non-Armenians in Turkey. These protests went beyond the usual narrow elite group who had always criticised Turkish nationalism – mainly from exile abroad. In response to this murder, 100,000 people demonstrated on the streets in Istanbul in the largest protest in Turkish history. The protesters demanded transparency and accountability of those who were responsible for the killing.Footnote ⁵⁴⁹

Almost immediately after the murder, the PACE pushed the government in Ankara – to no avail – to abolish Article 301 of the penal code in order to deal with the consequences of the murder and to eventually try the person who had committed it.Footnote ⁵⁵⁰ Hundreds of people attended Dink’s funeral, using the slogan ‘We are all Armenians’, and meaning that they were all victims of Turkish nationalism.

Moreover, the protests in 2007 signalled that the new 20+ generation after 1989 was about to politically mature and demand what had not been possible for the past seven decades, namely a civic culture. Dealing or rather not dealing with the Armenian genocide exemplified how authoritarian the government still was – and would remain. Twenty years after the first serious democratic reforms, TJ measures became seen as a tool to improve the rule of law in the country and to ease tensions. In addition to the efforts to atone for and commemorate the Armenian massacres in 2005 and 2007, the slow TJ efforts on the Kurdish issue were also sped up. The influence of the Armenian, Kurdish and Cypriot issues on each other is undeniable. Encouraged by the conference at Bilgi University in 2005, an academic-driven initiative organised the fifth International Conference against massive Kurdish Disappearances in May 2006 in Diyarbakir. Kurdish NGOs, politicians, mothers of the disappeared and the political branch of the PKK initiated sit-down strikes, a photo exhibition and panel discussions with the relatives of missing persons. They also filed a complaint with the public prosecutor and demanded the punishment of the officials responsible for the disappearance of the missing persons.Footnote ⁵⁵¹

The Turkish middle class was concerned that any radical nationalist could kill someone who they deemed not Turkish enough and that Article 301 would prevent the killer’s prosecution. They feared that any murderer who killed in the name of Turkishness would suffer no legal consequences, because he could claim to have acted in defence of Turkishness. This would of course mean a significant deterioration of the rule of law and undermine any democratic value, let alone the cry for justice, at the very least contributing to deep unconsolidated pockets in the system. The lawyers and judges at the responsible court in Istanbul had to react, for which many suffered repercussions. To some extent, Dink’s murder trial was one of the few exceptions in the context of TJ, simply because it happened and because it was a benchmark judgment condemning the murderer.Footnote ⁵⁵² Significant parts of society indicated that they would no longer accept censorship and prosecution when talking about the massacres of World War I or the persecution of Greeks, Kurds and other minorities. Another, wider public consequence of the dramatic shifts during this decade, and in particular between 2005 and 2007, was the fact that the government had to make concessions towards the new intellectual elite, middle class, NGOs and new generation.

These changes in policy and polity led to a number of official and unofficial meetings that contributed to TJ, such as the visit of the Turkish President Gül to an Armenian-Turkish football game in Yerevan in 2008. Surprisingly, two-thirds of the Turkish population supported this visit to Yerevan. In Armenia his visit was seen as a sign that Turkey was ready to finally discuss the genocide and deal with its past – which did not happen. According to Hasan Kanbolat, director of the Center for Middle Eastern Strategic Studies, it was all a matter of ‘timing’, not of preparation.Footnote ⁵⁵³ Until that time, the history taught in schools excluded many events of the past that remained strongly in the collective memory of the people. Therefore, there was a gap between individuals’ experience at home and within communities, and at school or through the media, which has always been strongly controlled by the state.Footnote ⁵⁵⁴

In May 2008 the government once again reformed the notorious Article 301, which led to a significant decrease of cases brought based on this article. As a result, in November of that year, 300 intellectuals sent President Abdullah Gül an open letter asserting that Turkey inherited the responsibility of the events of 1915 and that denying the Armenian Genocide unnecessarily prevented reconciliation with Armenia.Footnote ⁵⁵⁵ Following this letter, Gül issued an official statement in December 2008 saying that such a civil Armenian apology campaign is a sign of democracy because it exercises freedom of expression – which of course by no means would include a signature by a public official.Footnote ⁵⁵⁶ Although Erdogan later contradicted Gül’s statement, it encouraged more civil engagement. Subsequently, and in solidarity with the initiators due to the public debate, some 30,000 Turks signed an online letter addressed to Armenians across the world apologising for the massacres and genocide in 1915. Nevertheless, the fear of suffering repercussions never completely vanished. Ankara has retained its position towards Armenia, despite its slight change in the notorious legal instrument of Article 301.

Towards the end of this second post-authoritarian decade, everyone had easy access to information about the past, thanks to the Internet. However, most of the literature, essays and displays about the Armenian Genocide or Kurdish massacres have been in foreign languages and are still thus only accessible to a small minority in the country. Publishing in English also offers protection, because the Turkish Intelligence Authorities will less likely censor the work. In 2008, the Kurdish Democratic Society Party (DTP) launched a wide public debate to call on the Turkish parliament to officially apologise to the Armenians for the events of 1915 and, in doing so, used the Kurdish word for genocide during the parliamentary debate. The party also called for the official governmental version of World War I to be changed and for the government to change its policies on minorities in Turkey. This indicated how quickly post-nationalism movements were progressing and how different political and civil groups were joining forces and using TJ measures to trigger more democratic reforms.Footnote ⁵⁵⁷ With the amendment of Article 301, NGOs such as the IHD, the Crying Saturday Mothers and Yakay-Der became bolder and made open calls for official apologies for enforced disappearances.Footnote ⁵⁵⁸

In continuation to this, in 2009 the Turkish parliament commissioned (again) a memorial or statue for Turkish-Armenian reconciliation in Kars, a former Armenian town close to the Armenian border with Turkey, as a way to start talks between the two countries. The city of Kars has always been seen as symbol of commemoration and its development as an indicator for the level of Turkish-Armenian reconciliation and TJ.

But after the AKP’s second term in government had started, reforms began to stagnate and citizens’ claims were largely ignored, much to the disappointment of the Kurdish population. This was largely due to the missing ‘carrot’ and ‘stick’ of EU pressure. As a consequence, only 58 per cent trusted the government and 47 per cent tended not to trust the AKP anymore and remained divided in the following years.Footnote ⁵⁵⁹

Although at first the government remained rather quiet in response to the 20+ generation’s calls for more consolidation and more TJ, Erdogan was afraid that sooner or later these debates would lead to indictments and questions about his leadership. Thus again, he used TJ for his own political purpose; welcoming the claims for more accountability towards the TAF as he himself aimed to indict high-ranking members of the military to rid his government of its strongest opponents. He soon discovered that dealing with the past through trials and recognition of past crimes, such as those committed against the Kurdish community, could help him to free himself from his own opponents. Thus the Ergenekon trials were initiated, including anyone who somehow and somewhat opposed AKP politics. Although legally speaking, the TAF cannot be held directly responsible for the crimes and atrocities committed prior to 1923 under the Sultanate or any government prior to 1982, military officials were highly sensitive to accusations concerning the massacres, pogroms and persecution of Kurds and Greeks. The TAF’s fear was not so much personal indictments – many of them were already too old to go to jail – but the fear that the military would be disfranchised and demystified, and therefore no longer able to protect the unity of the country. The TAF’s concern was that the country would fall into the hands of Islam. This is why the AKP, from the beginning of the reforms onwards, aimed to embrace Islamic groups as much as possible without losing sight of the secular forces.

By the same time, the issue of the Armenian Genocide had entered the wider Turkish consciousness, although opinion polls from 2008 showed that the vast majority of Turks (over 60 per cent) did not believe that the events of 1915 had resulted in genocide. However, 70 per cent expressed openly that it was genocide – a novelty in opinion polls – and 13 per cent believed that Armenians had been severely mistreated in the past.Footnote ⁵⁶⁰ It was positive that people felt more comfortable expressing opinions about the Armenian Genocide, something that would have been impossible only a few years before due to Article 301.

Under international vigilance and pressure, citizens continued their efforts for TJ. They held meetings; street demonstrations and conferences, like the one on TJ and Enforced Disappearances together with the New York and Brussels-based ICTJ in 2009 in Istanbul. In the same year, Turkish CSOs began a campaign to urge the government to ratify the UN Convention for the Protection of All Persons from Enforced Disappearances. As a response to Kurdish pressure, the government allowed state television and more radio channels to be broadcast in Kurdish. Erdogan once again pulled out his strongest political tool, winning Kurdish votes and support through TJ measures. He responded to the increasing pressure from below when he announced his intention to launch a new initiative for a political solution to the conflict, before an audience of 400,000 Kurds in their regional capital of Diyarbakir. In 2010, the PKK announced a ceasefire, allowing a significant shift from a militant movement to political participation.

Third Decade 2010 and the Following Years

In 2010, the Turkish MetroPoll conducted a survey on whether or not citizens were aware that the US Congress and the Swedish Parliament had adopted a resolution on the Armenian Genocide to pressure the Turkish government to come to terms with it. Around 40 per cent of the population was aware of the fact that these foreign legislatures had done so, although it disapproved of these resolutions and instead agreed with the government’s official version of what had happened.Footnote ⁵⁶¹ Yet, this awareness indicated that people did follow international and national coverage of the Turkish past.

The issue reparations and restitution concerning the Kurdish and the Armenian issue was still high on the public agenda, and in 2011 Turkish writers and academics again sent an open letter on the Armenian Genocide and started a public campaign, which was followed by 11,000 signatures demanding an official apology for the genocide. The president and prime minister refused. However, this time Erdogan did respond directly to the demands, saying that there was no need for an apology because no genocide had taken place. The Turkish Republic, in his words, had no such problem.Footnote ⁵⁶²

Looking to the next elections that were to be held in February 2011, Prime Minister Erdogan met (for the first time) with the Kurdish Crying Saturday Mothers in Istanbul to show that he took their concerns seriously, although this meeting did not have any further consequences.Footnote ⁵⁶³ At that time, Kurdish lawyers, human rights organisations and interest groups had filed over 1,500 court cases, although most were rejected due to lack of jurisdiction or otherwise dismissed. CSOs and lawyers argued that the government’s first steps should be to stop harassing human rights defenders, start the exhumation and identification of the bodies in mass graves (especially in Kurdish provinces), establish a centralised database concerning forensic information of disappeared individuals and start prosecutions against those who handled the procedures regarding the enforced disappearances – namely the military, the secret police and the civilian police.Footnote ⁵⁶⁴ Over 80 mass graves, each containing between ten and 170 victims, had been found so far under the watchful eye of international organisations, lawyers, local initiatives and local municipalities.

Although the level of democracy and regime consolidation in Turkey was still many steps away from Linz and Stepan’s assessment of ‘the only game in town’, the 20+ generation initiatives indicated that this is where the new young political and civic elite was ready to go.Footnote ⁵⁶⁵ Thus, the government and military response was harsh and violent in the following years, because civil society was not strong enough to hold out against it. But it was exactly this rising civil society, and their claims – among others – for more TJ, that were soon suppressed and around 2015 civil society was so intimidated and under surveillance, that consolidation by behaviour and conviction through civil society engagement was no longer possible.

But the more time that passed following the accession talks, the more evident it became that the EU could not have Turkey and Greek Cyprus both as Member States until they settled their territorial conflict with peaceful agreements and payment of reparations for those expelled during the war in 1974. TJ thus was no longer an optional tool, but a prerequisite to enter the EU. Since the Turkish invasion of northern Cyprus in 1974 and the division of the island, diplomatic relationships have been tense. They were eased somewhat when Greece actively supported Turkey’s membership in the EU and when Greece and Turkey made an (unsuccessful) bid in 2002 to jointly host the 2008 UEFA Football Championship. These gestures did more for the reconciliation process than earlier diplomatic and economic ties had done altogether. Nevertheless, the EU-Turkey-Cyprus triangle remains a chief source of tension and conflict in the region. Greek and Turkish Cypriots have both used violence in their attempts to expel and expropriate each other. Addressing issues of reparation and restitution as well as the acknowledgement of atrocities, pogroms and other forms of discrimination are slowly taking place during the process of Turkey seeking membership in the EU. Greek Cypriots rejected the ‘Annan Plan’ (named after the former UN Secretary General Kofi Annan) for a unified membership in the EU in a 2004 referendum, and as a consequence Greek Cyprus joined the EU.Footnote ⁵⁶⁶ As a means of compensation for this political disaster, the EU promised Turkey full membership soon. But for the time being, the Turkish northern part of the island had to return to its isolation and dependence on the Turkish mainland and Ankara’s policies. Debates continue as to whether the northern part of Cyprus can join federally governed Cyprus on the basis of a single sovereignty and citizenship, meaning that Cyprus would have two federal states, one Greek and one Turkish. Today, an estimated 200,000 people are still displaced and thousands have disappeared since 1974. Many of the displaced people lost their property and houses during the intervention, a fact upon which most of the restitution claims against the other side are based. The need to reckon with these past crimes was slowly acknowledged when Greece, Cyprus and Turkey sought EU membership.Footnote ⁵⁶⁷ In this dispute and as an act of TJ, the ECtHR has ruled several times against both Cypriot sides (the Greek and the Turkish), ordering both sides to settle disputes over land and property.Footnote ⁵⁶⁸ In response to these judgments, the Turkish government established the Turkish Cypriot Immovable Property Commission (TRNC) in 2006 for compensation for occupied property, which was largely rejected by the Greek community.Footnote ⁵⁶⁹ Since then, the Commission has examined claims for restitution, compensation and exchange. By 2011, 974 applications had been lodged with the TRNC, with 151 of them concluded through friendly settlements and seven of them through formal hearings. Since then, many more restitution cases have been brought to the ECtHR and the court has repeatedly ruled against both Cypriot sides since the compensation measures for occupied property were largely rejected by the Greek community. Efforts to deal with this issue of the Turkish past continued into the third decade, and as of 2012 the ECtHR has rendered around 207 Cypriot judgments on cases originating from Turkey, with many more still pending.Footnote ⁵⁷⁰

Meanwhile, the UN, the Council of Europe, the European Commission and the European Parliament have emphasised the importance of settling these disputes and to acknowledge, name and prosecute those who have been responsible for grave injustices and expropriation throughout the past decades. Until 2009, Turkey had more trials brought before the ECtHR on protection of property than any other Council of Europe Member State. With 544 judgments concerning, in particular, property claims in Cyprus and eastern Anatolia between 1959 and 2009, Turkey’s record in this regard was way ahead of Russia’s, another notorious Member State of the Council of Europe that struggles with its past and that has had around 380 cases adjudicated by the ECtHR.

These ‘open wounds’ of the past have constantly haunted each election campaign and each outbreak of violence in the country. The government constantly made concessions to ease the tensions, but often took one step back for every two forward.Footnote ⁵⁷¹ For example, in 2006 in response to Turkish integration of minorities, the government abolished the mandate that ID cards were to state the holder’s religion, a move that benefited Greek Orthodox, Armenians and Sunni Muslims and thus the Kurdish population to some extent. However, many of these measures were purely tactical. Their effects were only seen in the third decade. One can argue that these concessions – made for whatever reasons – also opened the door to more TJ measures and to the possibility that the judiciary and the legislature would respond to claims in accordance with human rights. The spiral between institutional reforms, TJ measures and civic trust slowly moved upwards.

Another strategic move was made between 2008 and 2013 with the initiation of the Ergenekon trials on past violence and with the trial of those allegedly responsible for the coup d’état in 1980 and other nationalist crimes. The way these trials were conducted over the course of five years has shed light on how regime consolidation had (not) progressed and thus the regime at its political and civil elites had not passed the test after 20-plus years to clear the next hurdle of democratic consolidation. When the trials finally came to an end in 2013 and 2014 it led to widespread political protest and outrage in the streets of Istanbul. At the same time, trust in political institutions, the prime minister, the government and parliament was decreasing dramatically. Before the trials started, governmental institutions enjoyed a confidence rating of 7.9 points out of 10.0. This rate dropped to 6.5 in 2009 and went even lower in 2013 when it became evident that the trials were conducted in a biased way and that the AKP only wanted to purge itself of its political opponents. Erdogan reacted with populist and nationalist speeches and tried to gain support from religious leaders.Footnote ⁵⁷² Islamisation of the party and Erdogan’s policies followed and led to increasing authorisation of the regime, by later installing a presidential leadership with strong powers for Erdogan.

Erdogan pursued his ‘zero problem policy of peace and cooperation’ with all of Turkey’s neighbours. Around EU accession talks in 2004 he launched his ‘step ahead’ policy for solving the Cyprus issue and also proposed normalising relations with the Kurdish minority. But by doing so, in 2010 he also indicated that the Cyprus issue would be resolved with the government in Athens, rather than the government in Nicosia (the capital of Cyprus), thus indicating that he would never accept Greek Cyprus as an independent federal state. As a result, he also stated that Northern Cyprus fell under Turkey’s hegemony and was not an independent state, as it claims itself to be.Footnote ⁵⁷³ Around 2010 and later Erdogan responded in his own peculiar way to an earlier call from the Council of Europe, which urged Ankara to reach a settlement on the Cyprus issue by increasing trade between the two parts of the island and by respecting the cultural heritage of the Greeks in the Turkish part.Footnote ⁵⁷⁴ Although at first this gave incentives to acknowledge the atrocities, to come to terms with the past, to rehabilitate, to provide restitution, to bring perpetrators to justice and to establish a history and reconciliation commission, the purpose was clear: Cyprus had to return to its homeland, Turkey.

At the same time in eastern Anatolia the successful claims of Kurdish and other groups in front of the Court depended largely on the political moves of the AKP, which the majority seemed to support in 2007 according to MetroPoll. Before Erdogan (evidently) turned into an autocratic leader around 2014, his support was quite high, despite the rapidly decreasing level of civic trust. In 2007, for example, 58 per cent of citizens living in the Kurdish territory approved of the AKP government’s policies, while only 30 per cent did not approve. The government’s policy and level of responsiveness seemed to be successful.Footnote ⁵⁷⁵

Baskin Oran, a writer and former professor of political science at Ankara University who has often been incarcerated, investigated and charged with high penalties for his critical expressions against the government, has pointed out that many of the violations of citizen rights and EU norms would have been prevented if TJ measures had been introduced at an earlier stage. He argued that the government would have initially lost trust if the ‘heroic’ past of the autocratic regime had been dismantled and demystified through acknowledgement of the Armenian Genocide or the pogroms against the Greeks in the 1950s and other religious minorities. However, if at least some TJ measures such as acknowledgement, debates, apologies or even trials had been implemented, Turkish society would have developed empathy with those suppressed and killed, which would have triggered reconciliation. In his view, this could have led to a much greater acceptance of current minorities and other ethnic groups. As a consequence, it could have (partly) prevented the mass killings and disappearances in eastern Anatolia in the 1980s and 1990s.Footnote ⁵⁷⁶

But one of the main indicators to see whether TJ and consolidation were somewhat interlinked was the level of participation of the 20+ generation. It was high, but strongly controlled and suppressed by the political elite at that time. They questioned and challenged the Erdogan regime using the claims to deal with the past and thus not only delegitimising and demystifying the Ottoman and military past but also Erdogan’s policies. Such is Leyla Neyzi’s project on oral history. Neyzi is a university professor from the private Sabanci University in Istanbul who resembles what the 20+ generation political aims are. She has no personal ties to Armenians, but as an academic researcher she wanted to investigate her own Turkish identity and history. When I interviewed her in 2009, she said that the time of fear and secrecy was over at that time. But the fear to speak openly about the violent past returned around 2012 and 2013 when Erdogan made a bid for more power. But during less fearful times in 2009 and together with her team of students, she started studying former Armenian villages in eastern Anatolia. Along with Armenian scholars and with support from German foundations and the German Ministry of Foreign Affairs, she interviewed descendants of survivors in Armenia as well as non-Armenians in the formerly inhabited Armenian villages in Turkey. She argued that even 100 years after the genocide, the history and story of the Armenian massacres are an open secret at the local level.Footnote ⁵⁷⁷ People remember, but have not dared to talk about these memories until now. Since the protests against Hrant Dink’s murder in 2007, a more open atmosphere has developed and people feel less afraid to talk. Slowly, a consensus has emerged that it is time to tackle this period of history. In 2012 she released her results in the form of an exhibit, but had to be selective with the chosen location. Through this exhibit, villagers tell their stories which were documented in Turkish, Armenian and English. The exhibit travelled through Turkey, Armenia and beyond, and was only accessible ‘upon demand’ and mostly virtually, but it clearly illustrated the atrocities and injustice inflicted upon the Turkish-Armenian population at that time. Nevertheless, it must be mentioned that many books about the Armenian Genocide, including Neyzi’s, were never available for purchase in Turkey and that exhibits like hers are shown in selective and non-public locations such as private foundations. These are private or academic initiatives, and by no means embraced by any government agencies or the Ministry of Education and, in the case of Turkey, they could hardly flourish. However, the little success and impact they have, these projects owe to the possibilities offered by the Internet, such as virtual memorials. Other such initiatives were those of the writer Murat Bardakci. He wrote one of the first books in Turkish with original documents from the time of the Armenian Genocide. It triggered wide debates and many questions. The author claimed that it would have been impossible to publish such a book ten years before. After the penal code reforms, the public protests and signed letters to the government, the publication of the book resulted in no serious repercussions, but was not widely read and was later censored.Footnote ⁵⁷⁸

The United States launched (unsuccessful) ‘normalisation protocols’ between Turkey and Armenia after Erdogan’s ‘opening policies’ in 2009 and 2010; his instalment of memorials and use of other TJ measures were part of a tactical concession the government in Ankara made to the international community and the United States in particular. This was the result of immense pressure exerted by members of the Armenian diaspora residing in the United States and France. In the protocols, both countries agreed to open crossing points between Armenia and Turkey on a border that had been closed since 1993.Footnote ⁵⁷⁹ Turkey had shown once again in only ten years its willingness to establish closer diplomatic ties with Armenia for tactical reasons. But the conditions were unacceptable to the Armenian government because it makes the acknowledgement of the genocide a precondition for serious talks and thus refrained from signing the protocols. The AKP argued that it was up to the Armenians to reach out to Turkey again to normalise the relationship between the two countries. This notwithstanding, the protocols were seen as a step towards EU accession for Turkey and have been confirmed by the Armenian Constitutional Court. But because of internal politics, a desire to please nationalist and Muslim forces and pressure from Azerbaijan, Erdogan pressured the Turkish parliament and his AKP to reject the protocols in 2010.

In 2009, the first Armenian-Turkish reconciliation memorial was erected in the already mentioned highly symbolic city of Kars. The Turkish artist Mehmet Aksoy called the 30 metre-high memorial the ‘Statue of Humanity’ (it depicted two persons reaching out to each other). However, it was taken down in 2011 after the protocols with Armenia failed and Erdogan called the statue ugly and a ‘freak’. Erdogan directly asked for it to be demolished and it was taken down in the following months. Mehmet Aksoy reacted, saying he was ‘really sorry, sorry on behalf of Turkey’ about this act of demolition and assured both Armenian and Turkish citizens that he regarded it as his obligation to restore it one day and asked for moral forgiveness.Footnote ⁵⁸⁰ The memorial and its destruction stand like no other TJ measure as a sample for the tactical approach of the Turkish government to all TJ measures and its failure to catalyse any democratic consolidation process. Even more so, since after its demolition the writer, artist and blogger Bedri Baykam, who had staunchly supported the memorial, became the victim of an assassination attempt. He survived, left the country and the attempted assassin was at least prosecuted.Footnote ⁵⁸¹

Although the memorial was a minor act for reconciliation and minimal TJ tool, Erdogan’s reactions and involvement illustrate the sensitive role that the past plays in politics and also the current state of democratic culture at that time, pushing away any further consolidation. Overall such TJ measures would question Turkish nationalism, which Erdogan needed to reinstall his autocratic regime. Thus over and over again, he expressed his discontent that the Armenian government would not accept his conditions for ‘normalisation’ between the two countries. This showed that the common narrative of the past remained in the hands of the government, rather than of society at large.

Nevertheless, the statue in Kars and the few exhibits about World War I in Turkish museums all show signs of how the government responded but also misused TJ to ease the pressure from the international community, CSOs and victims. In the Military Museum in Istanbul – the primary purpose of which is to glorify the Turkish army, wars and the military past – the first ever exhibit was opened in 2008 to address the Armenian Issue (with English subtitles), to satisfy visitors and pressure groups, both from outside and inside Turkey, by explaining the ‘true’ story of the Armenians and the threat they posed to the Ottoman Empire and now also to the Turkish Republic. Interestingly enough, the exhibit shows the same pictures of massacres and persecution, torture and deportation during the Armenian Genocide as the Armenian Genocide Museum in Yerevan, Armenia, yet with completely different titles and interpretation. In this memorial, the visitor learns that it is mainly Turks who were the victims of an Armenian (and Russian) violent and conspiratorial anti-Turkish movement, the sole objective of which was to harm Ottoman national unity.

It took Turkey more than two decades to establish a short window of opportunity of a fearless environment in which one could openly talk about the past prior and after 2005. But due to dramatic deconsolidation of the regime since Erdogan’s run for the presidency in 2014, this fear to tackle past injustices has returned among much of the elite. Unconsolidated pockets had reached a threshold that could not compensate the democratic movement and by 2016 the government had restricted so many freedom rights, trialled and imprisoned dissidents of the regime and caused many more the leave the country, that it had entered yet another phase of authoritarian governance. The majoritarian ‘winner takes it all’ mentality of Turkish politics is still dominant in decision making. The public interpretation and perception of democratic institutions have seriously jeopardised the consolidation process.Footnote ⁵⁸²

According to the polls, civic trust had risen to 43 per cent before Erdogan’s presidency, and declined heavily afterward. The AKP government has lost almost half of the trust that it once enjoyed when it gained power in 2001.Footnote ⁵⁸³ Since 2010, this has divided the country roughly down the middle again. Since Erdogan knew that in 2011 the majority of his constituency would be in eastern Anatolia, he openly addressed the Kurdish massacres of the 1930s, particularly focusing once again on those that occurred in Dersim.Footnote ⁵⁸⁴

Moreover, Erdogan promised to deal with these issues in what he called the ‘New Resolution Process’. This is one of many examples of the rise of a new (electorally relevant) young generation and the emergence of public debates, films and publications to seek acknowledgement and even trials up to 25 years after serious transition started. Of course, at the same time, the revised but still in force Article 301 can be applied at any time. In addition, Oran Pamuk’s exile is yet another indicator of the regime’s instability, which is not willing or able to ensure his safety. A survey conducted in 2013 indicated that a small majority of Turks (51 per cent) disapproved of ‘amnestied transitions’, like those that occurred in Spain and Germany; thus a large part of the population would have supported trials and other TJ measures at that time aiming not only to delegitimise the previous governments but more so to legitimise the new one, if they would have allowed for it.

Nevertheless, one of the reasons why half of all Turks disapprove of this process for their own country is because it would include talks with the imprisoned PKK leader Abdullah Öcalan and thus would mean for some elites facing parts of their own unpleasant past. Seventy-five per cent of the respondents indicated that members of the PKK should not receive any amnesty. Not surprisingly, supporters of the Kurdish Party show strong support for amnestied transitions (77 per cent).Footnote ⁵⁸⁵ A generation into the process of transition, it became clear that the Kurdish issue was key to dealing with past injustices. This was the connecting issue in the spiral effect towards regime consolidation. Thus any democratic consolidation process in the future would largely depend on how future governments deal with the Kurdish issue.

But one more attempt for an open and fair way of dealing with the past should be mentioned here. In 2011, Turkey’s largest television station began broadcasting a family soap in prime time that portrayed the Kurds in a positive light (Ayrılık Olmasaydı: ben-u sen). However, after seven weeks of broadcasting the show was stopped due to governmental interventions, and was only relaunched much later in 2012 and later cancelled. Intimidations and suppressions continued around that time and by 2015 President Erdogan had reissued military attacks against the alleged activities by the PKK in eastern Turkey with large destruction of Kurdish villages responding to violent provocations – a signal that any TJ process of any sort would be put on ice for the foreseeable future.

This was a time when many academics, lawyers, judges and prosecutors – the last strongholds of democratic reforms – continued to suffer repercussions. In a way, this time might remind one of what happened with Fritz Bauer and Baltasar Garzón in their respective countries. These men were also perceived as a threat to the silence that covered the past. In Turkey, the former chief prosecutor, Cihan Kansız, suffered a similar fate. In April 2011 he was appointed head of the judiciary’s Ergenekon investigation. His appointment was sensational because he was best known for his work as a lawyer on the murder case of Hrant Dink.Footnote ⁵⁸⁶ In addition, he was a member of the Judges and Prosecutors’ Association, YARSAV, an organisation that had criticised the Ergenekon investigation on a number of occasions. At first, Erdogan thought Kansız’s nomination would ease the tension in society, but it had the opposite effect. Kansız wanted to shed more light on the cases and criticised the rule of law practice in Turkey. Unsurprisingly, he was removed from this position in 2012, only one year after his appointment, because his views were not in line with those of the AKP.

Olli Rehn, EU Commissioner for Enlargement, believed that the Ergenekon cases would be the key to Turkey’s democratisation, but these hopes turned out to be in vain.Footnote ⁵⁸⁷ In 2011, Erdogan visited the European Parliament and was again confronted with concerns about indictments of journalists and constraints on the freedom of the press. Erdogan defended the trials as a major achievement of rule of law and democracy but after the trials ended around 2013 it was evident that Erdogan had used this TJ tool to purge his political opponents.

But whilst the trials were ongoing, the constitutional referendum of 2010 took place which allowed the direct appointment of judges by the government (de facto by Erdogan himself) and thus weakened the independence of the Turkish judiciary. Ironically, two Turkish journalists, Mavioğlu and Ahmet Şık, who published a highly contested book about the Ergenekon case already in 2010,Footnote ⁵⁸⁸ were charged themselves in the Ergenekon trials. Even before these charges, no one had seriously thought that the trials would help Turkey face its past. Yet, due to greater participatory rights and citizen engagement (under international scrutiny), the path to democratic consolidation was not completely closed. International protesters together with Turkish academics, writers, journalists and human rights activists form a steadily growing voice in the country’s TJ and democratisation process. Several civil society groups and NGOs (in particular IHD, Amnesty International and the Collective Memory Platform, which is comprised of family members of Kurdish, Alevi and Armenian victims) have repeatedly requested the Turkish government acknowledge the atrocities, come to terms with the past, prosecute perpetrators, and rehabilitate victims and those discriminated against. One of them is Hafiza Markezi, an NGO based in Istanbul which aims to collect data on past atrocities over the past century in Turkey. It aims to collect victims’ personal narratives and to let the wider public know what has happened in eastern Anatolia throughout the century.Footnote ⁵⁸⁹ It also aims to bring perpetrators to justice and to establish history, truth or reconciliation commissions, although it operates mainly online and via Twitter. Its survival, however, depends largely on support and donations from abroad.

Meanwhile, Erdogan has tried to disrupt the old alliances of the deep state, in which nationalists, the military and organised crime together fought against separatists, Islamists and minorities. Yet, with the Ergenekon trials in his pockets, Erdogan went far beyond what is acceptable in a democracy. The Economist titled its report of the trials ‘Justice or Revenge?’ in 2013 because of the unusually high conviction rate. Of the more than 270 people indicted, around 250 were convicted and 19 received life sentences. Erdogan’s primary objective with these trials was to dismantle the TAF, intimidate its members and to remove them from leading administrative positions wherever possible.Footnote ⁵⁹⁰ The fact that Erdogan called himself ‘the chief prosecutor of Ergenekon’ indicated the lack of judicial independence and at the same time Erdogan’s use of the trials for his own political gain. The initial hope for some TJ soon declined.

Shortly before the trial ended, parliament amended the armed forces charter. Generals had often cited this charter in the past to justify coups. The TAF’s duty in the charter to ‘protect and watch over the republic’ was replaced with a more limited obligation to defend ‘the Turkish homeland against foreign threats’. This amendment dismantled the military’s power over internal affairs, which was now solely in the hands of the executive, the legislature and the judiciary. Such slow transformation of the military into an external defence-oriented organ was a successful way to reduce the risk of another coup.Footnote ⁵⁹¹

In the aftermath, the Ergenekon trials have become known as the country’s longest-lasting political trials against the military (and many others who opposed Erdogan). What began with indictments against former and retired generals of the TAF for a plot from 1980 turned into a marathon of prosecutions against any individual, organisation or journalist who questions the policies of the AKP. The number of people prosecuted and investigated has reached over 500. Those indicted and convicted include members of the army, journalists, academics, bloggers, lawyers and even prosecutors, teachers, members of NGOs and politicians. There was widespread protest against the trials, both within the country and throughout the world, from all sectors and societal groups. These protests ironically aligned those who radically opposed each other: defendants of democracy, victim groups and the military.

Some observers also blame the EU for the decline of democracy in Turkey. Özbudun and Türkmen state in their evaluation of Turkey’s democratic regime consolidation that the objections expressed by the EU Member States towards Turkey’s full membership, even in the long term, created a sense of hopelessness among the Turkish public.Footnote ⁵⁹² Similar opinion is expressed by Ilter Turan, who had earlier warned that if the EU withdraws its support for Turkey, this could bring about anti-democratic developments and a slide back to authoritarianism, which it eventually did in 2016.Footnote ⁵⁹³

At the same time, civil unrest, protests and international alliances against this downward spiral could not be held back – despite a strong 20+ generation and growing international support for TJ and democratic development. However, the spiral correlation between consolidation and TJ may pause for some time, as Rustow’s model illustrated in phase two and three, but can still arise again.Footnote ⁵⁹⁴

Some of the last freely organised CSOs protests and sit-ins in Gezi Park at Taksim Square started in 2013 and were sparked by the police’s violent reactions to demonstrators. These demonstrators were protesting against a plan to build a shopping mall in the park and marked not only the generational shift but also the time when the regime turned autocratic again with its massive repressions against the protesters. In 2013 MetroPoll confirmed a fast-growing dissatisfaction and distrust in democratic institutions among citizens. Trust decreased from 65 per cent in 2010 to 48 per cent in 2012 and finally to 38 per cent in 2013. This downward trend continued after Erdogan became president of the country in 2014, with the aim of concentrating even more power in his hands. Subsequently strikes and more protests broke out and today these regular (and violent) protests rally against restrictions of freedom of the press, assembly and the government’s encroachment on secularism. One of the major concerns for reformists is Islamisation of Turkey’s internal policy. These reformists have been imprisoned, tortured and prosecuted and the downward direction of the spiral continues.

Around the same time in 2014, 60 per cent of the population believed that the government suppressed open and fair investigations and trials. Trust was already at one of the lowest levels ever.Footnote ⁵⁹⁵ The lower the trust, the higher the radicalisation among Kurdish and other civil society groups in 2014 and 2015 when Erdogan launched military strikes on eastern Anatolia. Civil movements, such as Taksim Solidarity – formed mainly with members of the 20+ generation and other NGOs, with more than 400,000 supporters around the country – demanded massive democratic reforms and an end to Erdogan’s rule. Violence from left-wing opposition groups against the AKP, their offices and politicians increased and so did radical Islamist terrorist acts. In 2015, left-wing groups attacked AKP offices and held protests in all major Turkish cities on a weekly basis, while the police attacked Kurdish party offices and Islamists attacked Turkish facilities. The vicious cycle continued.

Those who believe that democracy is ‘the only game in town’ remain between 30 and 40 per cent and this crowd has not really increased significantly over the past few decades.Footnote ⁵⁹⁶ These are worrying indicators and Turkey is far from being a qualitatively high and thus stable and effective democracy, let alone a consolidated regime. The country remains divided. Despite March 2013 the leader of the PKK, Abdullah Öcalan, declared a ceasefire with his TAF opponents and asked the PKK followers to fight for their interests using political (that is democratic) means in parliament. The Kurdish party followed these instructions and was successful in the 2015 elections. However, at the same time, the events of 2015 and 2016 also led to the recurrence of violence between the TAF and PKK insurgents.

And in February 2014, after a controversial and violent 20-hour parliamentary debate, delegates of the AKP eventually passed a new law that gave Erdogan and his government sole authority over the judiciary. There was not enough civil society pressure to prevent it. After ‘successfully’ controlling the Ergenekon trails now, with this law Erdogan aimed to control the judiciary so that it would be possible to cover up his own cases of corruption and illegal activities among party members. Both the law and the judiciary were not in his hands and consequently any attempt to strive for more TJ. The AKP policy and the violent incidents after the earlier period of reform illustrate the low level of transparency and accountability.

Whilst radical movements and groups are prospering, another actor has come into the downward spiral game: the Fethullah Gülen movement. This is a Muslim movement that runs schools and higher education and keeps close ties with the business and science community.Footnote ⁵⁹⁷ But it is the movement’s head, Gülen, whom Erdogan made personally responsible for the failed coup attempt in 2016 and whom the president persistently persecutes and aims to put on trial in Turkey, if he can be extradited from his exile in the United States. What followed in the months after the coup attempt were arbitrary arrests, travel bans and persecutions of members of civil society, academics, writers, human rights activists, speakers of victim groups, journalists and members of opposition parties, which as we have seen in other TJ and democratisation processes is the core of any successful regime consolidation process.

Brief Summary of Turkey

Turkey surely proves to be a test case for regime consolidation in relation to TJ measures and the spiral model. A first upward and later downward spiral of democratic performance has been closely linked to the way TJ measures were used or abused by government for tactical reasons and by civil society.

Since 1989 the country has officially complied and adhered to all international duties, has issued major reforms, allowed civil society to grow and used TJ as tools for both. The EU accession talks in 2004 and 2005, the 90th anniversary of the Armenian Genocide in 2005, the rise of the AKP in 2002 and the emerging civil society powers in the Kurdish territories, first indicated a democratic regime consolidation between 2000 and 2005. Unfortunately, consolidation abruptly failed thereafter when international pressure decreased, civil society was intimidated, political trials emerged and emerging wars in the region could no longer restrain Erdogan’s power grab, which cumulated in 2016 following the major decline of level of democracy since 2005 and thus a generation after the initial reforms and the commitments to democracy and TJ in 1989.

Apart from this TJ measures were used mostly in an exclusionary and biased way during these periods and the different elites were not able to establish the legitimacy they needed to push the spiral upwards. As Merkel and Puhle have phrased it for similar country cases, there is a major gap between the rights and democracy guaranteed in the constitution and how these are adhered to in practice.Footnote ⁵⁹⁸ It is not surprising that radicalisation on all political sides re-emerged, to which the government responded with arbitrary vengeance already in 2009 (reintroducing autocratic governance), massive suppression of protests in 2013 and a launch of internal air strikes in 2015.

Thus, the re-radicalisation of left wing and right-wing religious/nationalist groups after 2013 is a consequence of the regime’s return to authoritarian tactics.Footnote ⁵⁹⁹ Yet, since the country’s turn to democracy in the 1990s, TJ measures have been able to effect some cumulative causation, for example contributing to the rise of civil society engagement and ownership, an effect that has been noted in EU accession talks. Even in the early stage of regime change, Turkey fulfilled most of its commitments to TJ and when it did so this contributed to an upward spiral effect and mutually cumulative causalities between the independent and dependent variable, for example in the government’s response to the Kurdish Crying Saturday Mothers, the establishment of Armenian memorials and in dealing with the Cypriot reconciliation process.

In 1989 democratic institutions and a willingness to comply with European norms were in place and governmental authorities responded to this with massive reforms over the course of the first decade. TJ measures such as commissions of inquiry, exhumations, trials and public debates were used (albeit in a very tactical and election-orientated manner) throughout the decades, although they remained almost exclusively under government control. Setbacks and restrictions in the first two to three decades are normal, since the feeling of moral responsibility to atone for past injustices only comes about with the 20+ generation, the generation that determines whether democratic consolidation succeeds or not. It takes at least one generation before civic trust can grow. In Turkey, this generation started to take the public stage between 2005 and 2015, with an increase in victim and citizen-driven organisations, but which were massively and censored to act freely. Last but not least the impact of the international community – mainly the Council of Europe, the EU, UN, the Armenian diaspora, and the Cypriot government – was a major driving force for regime change through TJ. Thus, we see that the patterns of regime change and TJ in Turkey are very similar to those of Germany and Spain during the first two decades, but very different after 20-plus years when a new generation appeared on the political and civil stage.

However, the firm grip that Turkey’s ruling AKP party and President Erdogan holds on the country, and Erdogan’s use of Islam to give him moral authority, challenges this transition and has widened the country’s unconsolidated pockets, posing a major threat to democratic consolidation.Footnote ⁶⁰⁰ TJ and democracy in Turkey are competing with many different narratives and belief systems and thus will always face challenges of re-authorisation of the regime. Yet, as Teitel has argued, the effect TJ has had globally cannot be ignored, even by the most authoritarian regimes, and thus it will most likely strike Turkish society sooner or later again as one of many tools to trigger regime change. In Teitel’s view this is because TJ measures are ‘changing [the] nature of rights protection, especially group conceptions of rights that may guide a way to deal meaningfully with the root cause of conflict and provide new parameters by which to identify and respond to political violence’.Footnote ⁶⁰¹ Thus, even if Erdogan seeks more power whilst dividing the society again, sooner or later claims for reconciliation and democracy will re-emerge, despite or because of autocratic regime consolidation.