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From Prague to Baghdad: Lustration Systems and their Political Effects1

Published online by Cambridge University Press:  28 March 2014

Roman David
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Abstract

This article provides a preliminary evaluation of the de-Baathification policy that has been adopted by the occupying forces in Iraq. In order to do this evaluation, the article examines the logic behind major lustration laws approved in East European countries between 1990 and 2003 and assesses their political effects. It introduces the concept of ‘lustration systems’ and provides their classification into either ‘exclusive’, ‘inclusive’, ‘reconciliatory’ or ‘mixed’ systems. It recommends a ‘reconciliatory’ system for the new Iraqi administration as an alternative to the ‘mixed’ system previously pursued by the Coalition authorities in Iraq.

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Articles
Information
Government and Opposition , Volume 41 , Issue 3 , 2006 , pp. 347 - 372
Copyright
Copyright © Government and Opposition Ltd 2006

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Footnotes

1

The article was first presented at the East–West Talks in the Hong Kong Baptist University on 13 November 2003. It was submitted to the journal in December 2003 and accepted in September 2004. I thank Susanne Choi and two anonymous reviewers for their comments.

References

2 Václav Havel, ‘Vyroci okupace Ceskoslovenska vojsky Varsavskeho paktu’ (Anniversary of the Occupation of Czechoslovakia by the Warsaw Pact Armies), speech, 21 August 1990, available at http://old.hrad.cz/president/Havel/speeches/.Google Scholar

3 Slovakia had officially abandoned the Czechoslovak lustration law by the end of 1996. However, the law had not been enforced in Slovakia since the split of the Federation in 1992.Google Scholar

4 For the literature on lustrations published in the last decade, see, e.g. N. J. Kritz (ed.), Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Washington, USIP, 1995; Los, M., ‘Lustration and Truth Claims: Unfinished Revolutions in Central Europe’, Law and Social Inquiry, 20: 1 (1995), pp. 117–62;CrossRefGoogle Scholar M. Los and A. Zybertowicz, Privatizing the Police State: The Case of Poland, New York, St Martin's Press, 2000; R. G. Teitel, Transitional Justice, Oxford, Oxford University Press, 2000; N. Letki, ‘Lustration and Democratisation in East-Central Europe’, Europe-Asia Studies, 54: 4 (2002), pp. 529–52; Szczerbiak, A., ‘Dealing with the Communist Past or the Politics of the Present? Lustration in Post-Communist Poland’, Europe-Asia Studies, 54: 4 (2002), pp. 553–72CrossRefGoogle Scholar; Stan, L., ‘Moral Cleansing Romanian Style’, Problems of Post-Communism, 49: 4 (July/August 2002), pp. 52–62CrossRefGoogle Scholar; David, R., ‘Lustration Laws in Action: The Motives and Evaluation of Lustration Policies in the Czech Republic and Poland’, Law and Social Inquiry, 28: 2 (2003), pp. 387–439 Google Scholar; David, R., ‘Transitional Injustice? Lustration and the Right to Expression’, Europe-Asia Studies, 56: 6 (2004), pp. 789–812 CrossRefGoogle Scholar; Williams, K., Szczerbiak, A. and Fowler, B., ‘Explaining Lustration in Eastern Europe: a “Post-Communist Politics” Approach’, Democratization, 12: 1 (2005), pp. 22–43 CrossRefGoogle Scholar. See also the literature quoted below.

5 See, e.g. Helsinki Watch, International Helsinki Federation for Human Rights and Project on Justice in Times of Transition, ‘Memorandum on the Applicability of International Agreements to the Screening Law’ (1992), reprinted in Kritz, Transitional Justice, Vol. 3, p. 335; ‘Report of the Committee Set up to Examine the Representations Made by the Trade Union Association of Bohemia, Moravia, and Slovakia and by the Czech and Slovak Confederation of Trade Unions under Article 24 of the ILO Constitution alleging Non-Observance by CSFR of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), LXXV ILO’, Official Bulletin, Supp. 1, Ser. B (1992); Parliamentary Assembly of the Council Europe, Resolution on measures to dismantle the heritage of former Communist totalitarian systems, Doc. No. 1096 (1996).Google Scholar

6 See generally Letki, ‘Lustration and Democratisation in East Central Europe’.Google Scholar

7 ‘Iraqi Opposition Report on the Transition to Democracy in Iraq’, Journal of Democracy, 14: 3 (2003), pp. 14–29, 26.CrossRefGoogle Scholar

8 See generally ‘Constitutional Watch’, in East European Constitutional Review (quarterly country reports, 1992–2003); Kritz, Transitional Justice, Vol. 3 (English translation of major reports and rulings).Google Scholar

9 T. C. Lewis and C. Short, A Latin Dictionary, Oxford, Clarendon Press, 1879.Google Scholar

10 David, ‘Lustration Laws in Action’, pp. 388–9.Google Scholar

11 Some countries, e.g. Poland, Hungary and Lithuania, extended lustrations to elected positions. The logic behind this extension is the right of voters to information that would enable them to make a qualified decision on candidates. As it will be clear from the forthcoming text, lustration of candidates is possible only within a particular lustration system. The major motivation behind most lustration systems is the establishment of impartial and trustworthy state apparatus and security services and this is also the interest of this paper.Google Scholar

12 Although lustration laws merely concern public employment, many critics create an impression of their criminal nature, which brings them to conclusions that they do not meet standards of criminal law. Another group of critics tend to label lustration as a retributive legislation. The post-war retributive legislation in France, Belgium, Denmark, Czechoslovakia and other countries was primarily backward looking, attaching certain sanctions to collaboration (e.g. imprisonment, confiscation of property, banishment, etc.). Lustration laws are primarily forward looking, attaching ‘sanctions’ to the collaboration only if the collaborator seeks to hold certain public posts. Finally, suggestions that ‘lustrations’ are ‘ritual sacrifices’ belong to a political science fiction. However, it is not the purpose of this article to ridicule some of the early scholarship on lustration.Google Scholar

13 Authors writing on the Polish lustration law, which does not include members of the former Communist Party (PZPR), tend to classify lustration laws on the basis of what posts of the past repressive apparatus are included in the law. Thus, they distinguish between lustration, which they relate to former security apparatus, and de-Communization. See, e.g. Szczerbiak, ‘Dealing with the Communist Past or the Politics of the Present?’, pp. 553–4.Google Scholar

14 See ‘Czech-Chile-President’, Radio Prague, 19 March 1999 (‘Here in Prague, the visiting Chilean President Eduardo Frei stressed the need to thoroughly cleanse state and government institutions of people implicated with former totalitarian regimes. The Chilean president … took a lively interest in the Czech legislation that requires mandatory screening of state officials.’).Google Scholar

15 R. G. Teitel, Transitional Justice, Oxford, Oxford University Press, 2000, p. 149.Google Scholar

16 For the texts of the laws, see Kritz, Transitional Justice, Vol. 3.Google Scholar

17 Accountability for Human Rights Violations Act, Official Gazette of the RS, No. 58/2003.Google Scholar

18 David, ‘Lustration Laws in Action’, p. 419. The names are available at the server of the Czech Interior Ministry, .Google Scholar

19 See note 5.Google Scholar

20 See Kritz, Transitional Justice, Vol. 2 (Country Studies), Vol. 3 (Laws, Rulings, and Reports).Google Scholar

21 See Albania articles excerpted in Kritz, Transitional Justice, Vol. 2 (Country Studies).Google Scholar

22 See Decision of the Constitutional Court of CSFR, Pl. ÚS 1/92 (26 November 1992).Google Scholar

23 See generally, e.g. Tucker, ‘Paranoids May be Persecuted’; Los and Zybertowicz, Privatizing the Police-State.Google Scholar

24 G. Halmai and K. L. Scheppele, ‘Living Well is Best Revenge’, in A. J. McAdams (ed.), Transitional Justice and the Rules of Law in New Democracies, Notre Dame, University of Notre Dame Press, 1997, p. 156.Google Scholar

25 For the discussion of ‘naming the guilty’ at truth commissions, see P. B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity, New York, Routledge, 2001, pp. 107–32.Google Scholar

26 See Lingens v. Austria, 8 July 1986, Application No. 9815/82 (European Court of Human Rights); Decision 60/1994 on background checks for those in public office (24 December 1994), translated in S. Laszlo and G. Brunner, Constitutional Judiciary in New Democracy: The Hungarian Constitutional Court, Ann Arbor, University of Michigan Press, 2000, p. 306.Google Scholar

27 E. Oltay, ‘Hungary's Screening Law’, RFE/RL Research Report, 3: 15 (15 April 1994), reprinted in Kritz, Transitional Justice, Vol. 2, pp. 662–7.Google Scholar

28 See ‘Constitutional Watch: Hungary’, East European Constitutional Review, 11: 3 (Summer 2002).Google Scholar

29 See ‘Hungary's Ex-Spook Politicians’, The Economist, 17 August 2002.Google Scholar

30 David, R., ‘In Exchange for Truth: Polish Lustrations and the South African Amnesty Process’, Politikon, 33: 1 (2006), pp. 81–99.CrossRefGoogle Scholar

31 David, ‘Lustration Laws in Action’, p. 412.Google Scholar

32 David, ‘In Exchange for Truth’.Google Scholar

33 M. Gravier, ‘East-Germans in the Post-Unification German Civil Service: The Role of Political Loyalty in a Transition to Democracy’, paper presented at the IPSA 19th World Congress, Durban, 29 June–4 July 2003.Google Scholar

34 McAdams, A. J., Judging the Past in United Germany, Cambridge, Cambridge University Press, 2001, pp. 55–87.Google Scholar

35 Ibid.Google Scholar

36 Ibid., pp. 75–6.Google Scholar

37 Naturally, a choice of a lustration system is largely determined by a particular political configuration that accompanies transition. However, we are interested in assessing the suitability of lustration systems to a particular social situation, rather than in making predictions about their evolution.Google Scholar

38 M. Vasarhelyi, ‘Airing the Dirty Laundry’, TOL WIRE: News, 2 April 2003.Google Scholar

39 Szczerbiak, ‘Dealing with the Communist Past’, p. 559; David, ‘Lustration Laws in Action’, p. 430.Google Scholar

40 Autorzy Rzeczpospolitej and Pracownia Badan Spolecznych, ‘Prezydent nie sklamal’, Rzeczpospolita, 11 August 2000.Google Scholar

41 The other rules are ‘Memorandum No. 1 on De-Baathification’ and ‘Order No. 5 on Establishment of the Iraqi De-Baathification Council’.Google Scholar

42 ‘Rebuilding Iraq: Amid the Bombs and the Rubble, the Country is Still Slowly on the Mend’, The Economist, 1 November 2003.Google Scholar

43 In 1990, former members of the Czechoslovak secret police were rewarded for their service more than their victims were compensated; David, ‘Transitional Injustice’, p. 809, n. 42. In Iraq, Paul Bremer's predecessor, Jay Garner, advocated paying members of the former Iraqi army as a way to keep their units intact for possible construction tasks and to prevent them from turning against Americans. See T. Shanker and E. Schmitt, ‘Some U.S. Officers Want to Reunite Iraqi Units to Build a New Army’, International Herald Tribune, 3 November 2003, p. 3.Google Scholar

44 Ibid. This approach later prevailed. CNN, ‘Rumsfeld: Officials Mull Recalling Iraqi Army Units,’ http://www.CNN.com", 25 November 2003.Google Scholar

45 ‘Iraqi Opposition Report on the Transition to Democracy’.Google Scholar

46 In this sense, their evolution may correspond with a particular dynamics of transition. I hypothesize that the origin of the four lustration systems reflects on four modes of exit of the authoritarian regime, as classified by Huntington – replacement, transformation, transplacement and intervention. However, exploring the link between the mode of exit and lustration system deserves a separate paper. S. P. Huntington, The Third Wave: Democratization in Late Twentieth Century, Oklahoma, University of Oklahoma Press, 1991.Google Scholar