This chapter considers the criminal prosecution of Communist crimes in Poland. It specifically focuses on one of the most contentious issues in this area, namely cases concerning the maladministration of justice by judicial officials during Communist rule (1944-1989). The maladministration of justice refers to the misuse of the legal system in a manner that results in wrongful convictions, or miscarriages of justice. In other words, it concerns those who have been arrested on criminal charges, who have either pleaded guilty to the charges or have been found guilty, and who, notwithstanding their guilty plea or verdict, are actually innocent. This is sometimes discussed as judicial murder or court crime. The present assessment adds a much-needed dimension to the area of transitional criminal justice, in which the judiciary is an oft-neglected area. The discussion begins by outlining the theoretical framework into which key questions can be set. It then provides an overview of two periods, the Stalinist era (1944-1956) and martial law (1981-1983). These two periods are excellent examples of times in which judicial officials were involved in the maladministration of justice and have been the focus of relevant legislation seeking to redress documented injustices. My investigation identifies common themes with similar and opposite aims in which the judiciary was manipulated and controlled by the Polish authorities during the selected periods. The chapter concludes by critically analysing the measures undertaken in post-Communist Poland in order to redress such injustices.

THEORETICAL FRAMEWORK

As noted in the Introduction to this volume, within the context of transitional criminal justice, prosecution and punishment are seen as necessary and desirable mainly for moral, legal and institutional reasons. According to Skaar:

Skaar goes on to identify four reasons for focusing on courts in transitional justice cases. First, the court is the ideal forum for hearing cases of human rights violations, in terms of its venue (open and impartial) and its goal of ensuring rights’ protection. Secondly, we can identify the key legal and political actors involved in the process.

This chapter explores the role of public debates in explaining the success of transitional justice after Communism. Our analysis of Albania and Poland allows a variety of both explanatory factors and results. The two cases feature different political actors who have picked up the issue of transitional justice and made it a part of the political contest, but they have also opted for dissimilar models and had various degrees of success in dealing with the past. The comparison of the two states follows a similar structure, proceeding from the actors involved and the unfolding debates, to the analysis of the models adopted, and the process of implementation in each of our cases. Our analysis suggests that both cases of transitional justice have succumbed to the weight of political interests of groups and individuals with sufficient power to negotiate new rules in the post-Communist polity. Yet the existence of a varied and concentrated public contestation among various actors proved important in restraining particular political strategies and usage of transitional justice at the service of narrow political agendas in Poland. The debate in Albania was, by contrast, monopolised by few anti-Communist forces, which proved able to push forward the issue when it was deemed beneficial for their own political agendas.

INTRODUCTION

Societies coming out of Communist repression have experienced a broad quest to ensure transitional justice for the crimes of the past. The rationale and aims of transitional justice have revolved around both normative demands to reveal the truth and get justice for Communist wrongs, but also more the pragmatic concerns of getting rid of former Communist legacies and founding a new democratic order free of remnants of the past. The urge for justice was arguably proportional to the degree of past abuses - countries that experienced harsher regimes demand a severe line of justice, whereas those under liberalised forms of Communism are be more inclined to tolerate former abuses and embrace moderate models. Dominant explanations that capitalise on the role of historical factors, be it the type of Communist regime or timely liberalisation, can often fail to explain the variety of models and results of pursuing transitional justice across the post-Communist world.

This volume critically considers the manner in which post-dictatorial and post-conflict states are addressing past human rights violations through judicial accountability. The book's main objectives concern a fresh, contemporary, and critical analysis of transitional criminal justice as a concept and its related measures, beginning with the initiatives that have been put in place with the fall of the Communist regimes in Europe in 1989. By transitional criminal justice we understand mechanisms of judicial accountability carried out in post-dictatorial or post-conflict states in order to address past human rights abuses. In addition to trials, the concept also refers to cases where criminal law mediates other measures of accountability. The project argues for rethinking and revisiting filters that scholars use to interpret key issues of transitional criminal justice, such as: (1) the relationship between judicial accountability, democratisation and politics in transitional societies; (2) the role of successor trials in rewriting history; (3) the interaction between domestic and international actors and norms in shaping transitional justice; and (4) the paradox of time in enhancing accountability. In order to accomplish this, the volume considers cases of domestic accountability in the post-1989 era, from different geographical areas, such as Europe, Asia and Africa, in relation to key events from various periods of time. In this way the approach, which investigates space and time-lines in key examples, also takes into account a longitudinal study of transitional criminal justice itself.

GENERAL OVERVIEW

Judicial accountability for human rights violations was at the core of transitional justice debates in the first two decades that followed the end of WWII. The Nuremberg and Tokyo trials, as well as the activity of domestic courts in charge with the conviction of crimes against humanity and war crimes committed by the Axis countries, have been the subject of an impressive amount of scholarship. In the aftermath of WWII, criminal trials appeared to be for many researchers the most efficient instrument of transitional justice. However, with the democratisation processes that followed in the 1970s, 1980s and 1990s in Southern Europe, Latin America and Eastern Europe, truth or historical commissions, lustration or disclosure of former political police agents took the lead as instruments of reckoning with the dictatorial past. Criminal trials continued to play a certain role in transitional justice, but in many cases their scope was narrower than the scope of administrative justice, at least as regards domestic accountability.

There have been few instances of transitional justice in Asia, with the exceptions of the hybrid criminal tribunals in Cambodia and Timor-Leste and truth and reconciliation commissions established in South Korea and Timor-Leste. Adding to this nascent trends are proposals for accountability in Nepal. This chapter examines transitional justice commitments in Nepal following its Comprehensive Peace Agreement in 2006. It specifically scrutinises the suitability and viability of prosecutions as a transitional justice strategy in Nepal. It concludes that despite progressive decisions of the Nepalese Supreme Court incorporating international human rights law, the prospect for viable prosecutions remains negligible. In particular, this chapter argues the following three points. First, the present legal framework disables the pursuit of criminal accountability for gross violations of human rights, in particular torture and enforced disappearances in Nepal, Secondly, efforts at criminal accountability and criminal law reform are hindered by the absence of political accountability and interference in the legal sector. And, finally, in the short and medium terms, alternative and softer forms of accountability may be more profitably pursued in Nepal while consolidating support, expertise and information for future prosecution strategies.

HISTORICAL CONTEXT: NEPAL's CONFLICT AND TRANSITION TO PEACE

Before we examine these assertions, it may be useful to provide some context of the Nepal and its legal system. A hereditary monarchy has ruled Nepal as a largely closed state for most of its history. In 1951, the first claim was made for a Nepalese constituent assembly to broaden the nature of politics and governance. The 1959 Constitution vested political power in the King and the Prime Minister alone, with cursory and diluted powers given to the legislature. The 1962 Constitution replaced this concentration of power with the ‘Panchayat’ system, which effectively excluded a legislature and ensured that the Prime Minister was beholden to the King. This system gave rise to significant public criticism, generating the need for concessionary constitutional reforms in 1980, devolving some powers to a national legislature and ensuring the appointment of the Prime Minister and his cabinet from the said legislature. The new system was often criticised for being unrepresentative, corrupt, and generating massive inequality between urban and rural areas and for concentrating power in urban state agencies. Challenges to this system emerged in the People's Movement of 1990, in which tens of thousands of protestors from across the political spectrum demonstrated in Kathmandu.

As many as 130,000 people are estimated to have been summarily executed in Slovenia in the months following the end of WWII on 8 May 1945. This chapter first outlines the factual background of the crimes committed in the Slovenian territory after WWII. It then goes on to discuss the decisions of the Slovenian District and High Courts in the case against former officials of the dictatorial regime. The chapter thereafter analyses the decisions from the perspective of international criminal law and transitional justice, in an attempt to draw out lessons concerning the understanding of current ideological divisions in Slovenia. Equipped with this knowledge, the chapter argues that there exist strong legal and moral grounds for prosecuting crimes against humanity committed in Slovenia after WWII. Though the present situation may appear grim, consensus appears to be growing for meaningful and continued reform, which would settle the question of post-war killings and the secret mass graves of victims, in a manner that will respect victims’ right to a name and a grave, and enhance the current state of democracy in Slovenia.

INTRODUCTION

As many as 130,000 people are estimated to have been summarily executed in Slovenia in the months following the end of WWII on 8 May 1945. It is further estimated that around 15,000 of those executed were of Slovenian nationality, while others included Croats, Serbs and Germans. The victims were mostly civilians but also members of the Slovenian Home Guards and other political opponents of the resistance movement led by the Slovenian Communist Party (SCP). These crimes, carried out by members of the Slovenian section of the Yugoslav Secret Police, were committed mostly in the form of systematic summary executions at hidden locations across Slovenia, predominantly in unpopulated rural areas and in forests. They were part of a systematic plan of the SCP to eliminate their political opponents and their families, civilian or otherwise. It is still unclear whether the orders originated from the head of the former Yugoslav Security Police in Belgrade or the Slovenian branch in Ljubljana. The Commission for the Settlement of Hidden Mass Gravesites of the Government of the Republic of Slovenia (CSHMGGRS) has indicated that so far almost 600 hidden mass graves have been found in Slovenia far. Its long-term goal is the exhumation and reburial of all victims killed on Slovenian territory.

This chapter deals with the legal qualification of the crimes committed by the totalitarian Communist regimes, which has recently become a topic of wide discussion within the European Union. I focus on the opinions expressed by various European institutions and on the Lithuanian case study as an example of how those crimes are dealt with. I argue that in general those crimes can be qualified as war crimes and crimes against humanity, and in some instances even as genocide.

The specific feature of the Baltic States is that the Communist crimes were committed under foreign occupation. I analyse the following characteristics of the legal treatment of those crimes in Lithuania: first, Lithuanian laws are based on the universality of the Nuremberg principles; second, Lithuania adheres to a broader definition of genocide that also covers acts directed against social and political groups. The chapter concludes that, apart from criminal investigations and trials, and compensation to the victims, the emphasis should also be made on the general condemnation of the Communist crimes and prosecution for public condoning, denial and gross trivialisation of those crimes.

INTRODUCTION

The crimes committed by totalitarian Communist regimes is a topic that has only recently become a theme of Europe-wide debate, though has quite a long time (from between two and eight decades, depending on the country and on concrete crimes) passed since the commission of these crimes. One can point to several reasons why this debate came onto the European agenda relatively recently. First of all, it could happen only with the accession to the European Union of a number of post-Communist and formerly USSR occupied countries from Central and Eastern Europe. Unlike the older EU members, these countries had suffered from not only the Nazi (national-socialist), but also even longer from the Soviet (Communist) totalitarian regimes. Secondly, the debate on the crimes committed by the Communist totalitarian regime was inspired largely by the initiative to adopt the 2008 EU Council Framework Decision on combating racism and xenophobia by means of criminal law. It included criminalisation of public condoning, denial and gross trivialisation of crimes committed by the Nazi totalitarian regime, or of the crimes of genocide, crimes against humanity and war crimes directed against groups of persons defined by reference to race, colour, religion, descent or national or ethnic origin.

This chapter examines the similarities and differences of the legal discourses on the prohibition of retroactive laws within the European human rights framework. It also considers the significance of the notion of retrospective justice in the post-dictatorial period (post-1989) in Europe, and more specifically in Germany and Poland. It begins by setting out key legal definitions in national and regional legal frameworks in order to determine what underpins the prohibition on retroactive laws. An examination of key German, Polish and European jurisprudence reveals that the legal narratives on retrospective justice run parallel and in opposite directions, revealing cracks in consensual histories that bring historical sensibility and issues into sharp relief. Retrospective justice in post-Communist Europe contributes a defined set of problems to the field of transitional justice, beginning with the challenges posed by statutes of limitations and ending with unfinished narratives on select chapters of Communist histories.

RESEARCH QUESTION

This chapter examines the similarities and differences in the legal discourses on the prohibition of retroactive laws within the European human rights framework. It also considers the significance of the notion of retrospective justice in the post-dictatorial period (post-1989) in Europe, and more specifically in Germany and Poland. From a common law perspective, for example, the idea of punishing people for an act that was not a crime at the time of commission is regarded as loathsome.

This chapter explores the relationship between transitional criminal justice and history writing in post-Communist Romania. It analyses the trials held concerning the repression of the December 1989 popular uprising, focusing on the narratives they have produced about the fall of the Ceauşescu regime and the responsibility for state-perpetrated violence. On the one hand, we evaluate the various interpretations that trials have given the events of December 1989, the symbolic founding moment of a new political order, as well as the political legitimacies constructed around these narratives. On the other hand, the chapter contributes to the general debate on the role of transitional criminal justice in building a common historical understanding of a former dictatorial regime. We will show that in Romania, in spite of important contributions of these trials to a gradual normalisation of the historical discourse about December 1989, their epistemic function was compromised by the interference of politics in the working of justice, and by the lack of predictability in judicial procedures.

INTRODUCTION

Various transitional justice scholars argue that trials held against former leaders of dictatorial regimes are not only forms of making justice, but also important processes of narrative construction, understood as ‘storytelling’ (mise en recit) about the repressive past. Besides performing the classic functions of criminal justice (punishing the guilty, preventing similar deeds in the future and reinforcing respect for the law), transitional trials may also play an epistemic role in societies in transition. According to Osiel, Niño or Teitel, the trial's verdict, with its legal and historical contextualisation and outcomes represents an ‘official and normative’ version of events that forges a common historical memory of the recent past. Transitional trials are seen as ‘monumental spectacles’ that affirm the contrast between the dictatorial past and the democratic present. They can also be viewed as ‘constitutional moments’ which provide narratives of history and simultaneously of morality, tales of what went wrong and how the future should be. By giving a voice to victims and perpetrators, by selecting what it is to be judged and remembered, and in which way, and by deciding on guilt and innocence, trials are forms of remembrance and history writing. The Nuremberg trials or Adolf Eichmann's conviction in Jerusalem are examples of the way in which criminal proceedings have modelled public awareness of mass murder.

This chapter is an attempt at reconstituting the emergence of the international mechanisms of criminal justice after the Cold War. It takes as its starting point the articulation between the fundamental norm of the modern system of states -sovereignty - and the corpus of human rights that addresses the regime formation of international criminal justice. This chapter focuses on the political, rather than the legal, aspects of this process. While it is difficult enough to conceptualise and to theoretically justify the link between sovereignty and the possibility for individuals to become subjects of international law, a further obstacle to the emergence of international criminal justice is the overcoming of the strategic interests of particular states, especially great powers, in establishing such a jurisdiction. International law is to a large extent politically negotiable: this is why this chapter looks into the political context that allowed for the creation of the ICC and at the same time to the transformation of the meaning of sovereignty in order to include obligations of the state.

INTRODUCTION

If a change of political regime often entails a re-evaluation of the recent historical past of a nation, there are cases in which this re-evaluation is brought about from the outside. Thus, transitional justice gains an international dimension. This dimension can occur either if the crimes perpetrated by a political regime affect nationals of other states, or if the successor regime lacks the will or capacity to bring such cases before justice, because ‘ideally, all crimes would be prosecuted by domestic courts’. Looking back, the Nuremberg trials are the first instances of this sort (although they might also be interpreted as ‘victors’ justice’). The political stakes surrounding the Cold War prevented the development of international criminal justice until the fall of the USSR, but during the 1990s, it gained a new impetus that led to the creation of the International Criminal Court (ICC) in 1999.

However, discussing international criminal justice compels us to take a number of precautions concerning the terminology itself, as well as its content. I would like, from the beginning, to point to the awkward sonority of the word ‘international’ in this context, since it generally refers to relations between the governments of states.

What is and what should be the purpose of punishing international crimes? How can criminal sanctions pursue these goals? How should mass atrocities be punished? Should they be addressed differently from ordinary crimes and from context to context? The limited engagement of both scholarly literature and case law of national and international bodies with these topics to a large extent has left these issues unresolved. This frustrates the efforts carried out by national and international actors to set up mechanisms aimed at preventing, repressing and punishing international crimes. In recent years scholars have paid a greater attention to the mentioned paradoxes, by contributing to the development of a criminology, penology and victimology of mass atrocities. The aim of this chapter is twofold and involves shedding light on such efforts, while simultaneously critically testing the consistency of the proclaimed goals of institutions delivering international criminal justice with their sentencing practice. The analysis is based in particular upon the sentencing of national, international and ‘neo-traditional’ institutions set up to provide post-genocide justice in Rwanda. Finally, the chapter argues that punishment of mass atrocities should be both culture- and context-sensitive in order to take into account the root causes of fratricidal violence.

INTRODUCTION

In order to provide a response to the chain of mass atrocities which have marked the twentieth century, new categories of crimes have been elaborated. The necessity to include within the realm of legal precepts criminal conducts which ‘exploded the limits of the law’ is testified by the development of legal language. International lawmakers in the twentieth century have fought to curb extreme evil through legal norms. Consequently, the progressive development of international criminal law, coupled with the blossoming of national, hybrid and international tribunals charged with prosecuting mass atrocities, has attracted the attention of scholars and human rights practitioners. Surprisingly, however, as stressed by Drumbl, the reflection addressing criminology, victimology and penology of international crimes is embryonic. Research devoted to how and why gross human rights violations have to be repressed and punished, remains relatively underdeveloped compared to other fields.

The chapter analyses whether, and if so to what extent, the policy of positive complementarity promoted by the Office of the Prosecutor of the ICC has the potential to enhance and refine the capacity of national systems to respond to massive violations of human rights. To this effect, the chapter firstly provides a comprehensive reading of complementarity. In this context, it assesses how alternative forms of justice are reconciled with the functioning and authority of the ICC. Subsequently, the chapter critically evaluates the performance of the permanent Court vis-à-vis the situation in the Democratic Republic of Congo, Uganda and Kenya insofar as these countries presented proposals, and/or undertook efforts arguably intended to maintain jurisdiction that were not exhaustively considered by the ICC Prosecutor. Concluding, the chapter highlights the potential of positive complementarity to uphold the transitional justice discourse were the Office of the Prosecutor to reconsider its approach, in the effort of consolidating the ICC system and avoiding frictions that may fragment the international criminal law order.

UNDERSTANDING POSITIVE COMPLEMENTARITY

‘Transitional justice’ is a chapeau concept that refers to a range of approaches, mechanisms and comprehensive strategies that are used in post-dictatorial and post-conflict societies, in order to address gross human rights violations. It includes judicial and non-judicial solutions. In keeping with this view, the question this chapter aims to respond to is whether positive complementarity enhances and promotes the capabilities of national systems to effectively respond to massive atrocities. But what does an ‘effective domestic system’ mean in this context? It is often argued that when massive crimes are at stake, an effective response is not necessarily one that involves criminal investigation, prosecution and punishment. While this might be true in general, the Statute of Rome is undoubtedly concerned with criminal justice. National reconciliation, peace and security, and the historical truth may be incidental - and certainly desirable - effects of criminal proceedings but they are not integral to the ICC's mandate nor do they weigh the most as far as the decision-making of the Court's organs is concerned.

By bringing together scholars working in different fields and cases talking about countries in different regions marred by different dictatorial pasts that were eventually overcome by different types of regime changes and addressed within different post-dictatorial political contexts, this volume's editors offer us a collection that is important not only for the rich theoretical and empirical material it carefully presents, but also for the new and promising avenues it generously opens for future research. Although a number of recent publications have focused on the important role of courts in redressing the legacy of recent human rights violations, as the Introduction rightly points out, few of these fine studies have directed their theoretical lens systematically toward the contribution of domestic courts. This is precisely what the present volume seeks to accomplish.

The studies included here survey a wide array of countries and cases. Much of the material focuses on countries in the former Soviet bloc, which have had to deal with a number of competing criminal pasts after the collapse of the Communist regime. These past histories of transgression include the Nazi occupation regime of World War II in Eastern Europe and the Baltic region, the crimes perpetrated by the Yugoslav Communists and their loyal secret political police forces on the Slovenian territory, the Soviet occupation regime that obliterated the independence of formerly independent Baltic republics like Lithuania, the home-grown sultanist-cum-totalitarian dictatorship of Nicolae Ceauşescu and Enver Hoxha in Romania and Albania respectively, the martial law imposed by General Wojciech Jaruzelski in Poland, as well as the bloody revolution of December 1989 that affected several major Romanian towns and the country's capital. Chapters on Albania, Germany, Lithuania, Poland, Romania and Slovenia, which consider these countries by themselves or in comparison to each other, are supplemented by chapters detailing the transitional justice added value of courts in Nepal and Rwanda, which show not only that regular courts can work in addressing a wide range of dictatorial pasts, but also that in specific contexts revamped traditional courts can successfully complement and even substitute themselves for regular courts.

The transition from the dictatorship of Francisco Franco to democratic rule (the so-called Spanish Transition) has been portrayed as a model of negotiated, reformist, non-rupturist, peaceful change. It is also an experience of silence, choice to forget, limited rehabilitation of victims and impunity for the perpetrators. Following the dictator's death in 1975, it has taken an additional twenty five years for the victims of the Civil War and the repression that followed, and their relatives to raise the veil of fear and put forward demands for justice and truth. It was not until a younger generation started to inquire about the fate of their grandparents that some mobilisation at the civil and institutional level allowed for a transitional justice debate to take place. Whilst the claims for truth and moral restoration found some echo in the approval of the ‘Historical Memory Law’ and other limited measures, the door for accountability for human rights violations has remained firmly closed. After forty years of dictatorship, followed by twenty-five more of silence along with the continued dissemination of a one-sided version of history, the challenge now is how to build a shared, negotiated and collective memory of Spain's violent past.

This chapter offers an overview of the human rights violations committed during the Spanish Civil War and the repression during Franco's dictatorship as well as the terms in which the political transition to democracy was carried out. This description is followed by an analysis of the limited rehabilitation and reparation measures adopted until today. The scattered and belated attempts for reparation have given priority to individual memory and the restoration of individual family stories. Public policies have not made truth sharing and building of collective memory, let alone accountability, a matter of state responsibility toward its citizens. We argue that by focusing on private memory the state fails to break the ‘official memory’ imposed during Franco's regime and the ‘pact of silence’ that followed during the transition.

THE SPANISH CIVIL WAR AND THE DICTATORSHIP: THE WINNERS’ ‘OFFICIAL MEMORY’

The Spanish Civil War broke out on 17 July 1936, after a military rebellion of a sector of the army against the legitimate and democratically-elected government of the Second Republic. It ended on 1 April 1939, with the victory of the rebels, which in turn led to the instauration of the dictatorial regime of General Francisco Franco, which lasted until his death in 1975.

Transitional justice mechanisms play a major role in promoting peace, justice and reconciliation in the aftermath of political violence. Such violence is defined broadly here to include: interstate and intrastate conflicts, genocide, despotic regimes, severe human rights abuses, and colonialism (hereinafter ‘conflicts’). Transitional justice includes various formal methods that are intended to promote justice and peace. Oftentimes these methods are judicial and political ones such as criminal justice, amnesties, lustrations policies, rule-of-law institutional reform, and reparations. In this chapter, I focus on another transitional justice method – the memory work of those with direct experience of political violence, even when the intention of these individuals is not primarily to promote peace and reconciliation. There is a growing realisation that the way the history of a conflict is remembered by the parties involved is crucial in assessing the impact on the development of a broader collective memory, the expression of which might either promote or inhibit sustainable peace, reconciliation, and safe transition to democracy.

To this end I use a case study approach, addressing the major historical event of the Israeli-Palestinian conflict: the 1948 Palestinian exodus known in Arabic as the Nakba. This exodus – of some 650,000 Palestinians – is a result of the 1948 War which the Palestinians fought, alongside several Arab countries, against the Jews/Israelis. It led to the creation of the Palestinian refugee problem which has great political and psychological importance for both Palestinians and Israeli-Jews (‘Israelis’). This chapter focuses on the contested narratives in Israel of the causes of the exodus. Specifically, I address the narratives of Israeli veterans of the 1948 War. I examine the memoirs, newspaper articles and interviews with scholars that reflect the direct memories of the exodus expressed by these veterans between 1949 and 2004. Did they present, for example, a Zionist narrative of the causes for the exodus (which claims that the Palestinians fled willingly) or a critical/post-Zionist narrative (willing flight combined with expulsion)? These narratives have significant political, historical and public importance to Israel and the Israeli–Palestinian conflict: they influence the psychological reactions of Israelis towards themselves, the Palestinians and the conflict, as well as Israel's image in the international community. Let us start with a review of some of the relevant literature.