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State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past

Published online by Cambridge University Press:  27 December 2018

Stanley Cohen
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Abstract

The policy of lustration is set in the context of responses to abuses of power by previous regimes. Using examples from three recent forms of social reconstruction (in Latin America, the former communist states, and South Africa), the author reviews the “justice in transition” debate. How do societies going through democratization confront the human rights violations committed by the previous regime? Five aspects of this debate are reviewed: (1) truth: establishing and confronting the knowledge of what happened in the past; (2) justice: making offenders accountable for their past violations through three possible methods: punishment through the criminal law, compensation and restitution, and mass disqualification such as lustration; (3) impunity: giving amnesty to previous offenders; (4) expiation; and (5) reconciliation and reconstruction. A concluding discussion raises the implications of the subject for the study of time and social control.

Type
Symposium: Law and Lustration: Righting the Wrongs of the Past
Information
Law & Social Inquiry , Volume 20 , Issue 1 , Winter 1995 , pp. 7 - 50
Copyright
Copyright © American Bar Foundation, 1995 

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References

1 These three sets of transitions have been explicitly linked in the work of the New York-based Project on Justice in Times of Transition. The lessons from the Eastern European and Latin American cases for South Africa were the subject of a conference “Justice in Transition: Dealing with the Past,” held in Cape Town in February 1994. I am grateful to the organizers, IDASA (Institute for Democracy in South Africa), for their invitation to participate. The edited discussion of this conference is an excellent introduction to all the themes of my paper. See Alex Boraine et al., eds., Dealing with the Past: Truth and Reconciliation in South Africa (Cape Town: IDASA, 1994) (“Boraine, Dedng”). Google Scholar

2 For speculation on how this revisionist literature might be relevant to societies under transition, see Stanley Cohen, “Social Control and the Politics of Reconstruction,” in D. Nelken, ed., The Futures of Criminology (London: Sage, 1994)Google Scholar

3 There is some inconsistency in the terminology. Sometimes “accountability” is used as a broad term to cover all modes of dealing with the past. Thus “truth” and “justice” are forms of accountability. Sometimes, “accountability” is used only in the narrower legal sense as synonymous with justice. My typology is based on this second, more restricted, notion.Google Scholar

4 In our context, this is what may be called the “Kurt Waldheim Syndrome.” There are two symptoms: (1) “At the time, I didn't know what was happening,” and/or (2) “I might have known at the time, but afterwards I forgot it all.” The syndrome appeared in the March 1994 Versailles trial of the French wartime collaborator, Paul Touvier. Asked whether he was aware of the Vichy government's anti-Jewish decrees, he replied, “No, I missed that.” Did he know of the mass deportations to Germany?“We didn't have television then. I didn't know about it” or “I don't remember. It was all too complicated for me.” Andrew Gumbel, “Touvier Retreats into Forgetfulness,”Gumdian, March 3, 1994.Google Scholar

5 For introductions to this literature, see Richard G. Hovanissian, “The Armenian Genocide,” in Israel Chamy, ed., l Genocide: A Critical Bibliographic Review (London: Mansell, 1988), and Roger W. Smith, “Denial of the Armenian Genocide,” in Israel Chamy, ed., 2 Genocide: A Critical Bibliographic Review (London: Mansell, 1991) (“Chamy, Genocide”).Google Scholar

6 Much attention was given to the astonishing finding of an April 1993 Roper Poll that some 22% of a US. public opinion sample thought it was possible that the Holocaust never happened and a further 12% did not know whether it had. Later critics have shown that the questions were badly worded (through a double negative) and grossly overestimated the extent of actual denial. A later 1993 Gallup Poll found that 83% thought that the Holocaust definitely happened, 13% that it probably happened, and 4% that it did not or had no opinion. A March 1994 Roper Poll found that 1.1% of the population thought it was possible that it never happened, with 7.7% not knowing. Any denial seemed more a result of ignorance than an ideological commitment to the denial movement. On these data and interpretations, see Deborah Lipstadt's “Preface to the Paperback Edition” of her Denying the Holocawt: The Growing Assault on Truth and Memory (New York: Penguin, 1994), and “New Poll Shows only 1.1% of Americans Doubt Holocaust,”Jewish Bull., 15 July 1994.Google Scholar

7 Rene Lamarchand, “Burundi,” in Helen Fein, ed., Genocide Watch (New Haven, Conn.: Yale University Press, 1992).Google Scholar

8 See Israel Chamy, “The Psychology of Denial of Known Genocide,” in Chamey, 2 Genocide. Google Scholar

9 “Moderate physical pressure” is the term used in Israeli legal discourse to deny the use of torture against Palestinian political detainees; see Stanley Cohen, “Talking about Torture in Israel,” 6 Tikkun, Nov. 1991, at 23–30.Google Scholar

10 An unforgettable example of this process is depicted in Michael Verhoven's 1990 film Nasty Girl, which is based on a true story of a girl, Anna Rosmus, who relentlessly digs up the Nazi links of prominent citizens in her small German town, Passau.Google Scholar

11 Theodora Lurie, “Making Rights Real,” Ford Foundation Report, Summer 1993.Google Scholar

12 The story is dramatically told by Lawrence Weschler in A Miracle, a Universe: Settling Accounts with Torturers (New York: Penguin, 1990) (“Weschler, Miracle”).Google Scholar

13 “Truth and Partial Justice in Argentina: An Update,”Americas Watch Regost, New York, April 1991.Google Scholar

14 The two-volume English version has now been published, an essential document in the chronicles of state crime: Report of the Chilean National Commission on Truth and Reconciliation (South Bend, Ind.: University of Notre Dame Press, 1993) (“Report of the Chilean Commission”). Note the “Introduction” by Jose Zalaquett, a member of the commission and a central figure in the human rights debate about justice in transition.Google Scholar

15 The entire story of the El Mozote massacre—how it happened, how exactly it was covered up by the Salvadoran and U.S. governments and how it became uncovered—is recounted by Mark Danner, “The Truth of El Mozote,”New Yorker, 6 Dec. 1993. Danner takes the whole episode as a parable of the Cold War. See also “El Salvador: The Massacre at El Mozote: The Need to Remember,”Americas Watch Newsletter, 4 March 1992.Google Scholar

16 As of this writing (August 1994) it is still too early to know the exact terms of reference of the proposed Truth Commission in South Africa. The likelihood is that there will be a full investigation into patterns of serious abuse but that indemnity will be given to all perpetrators who disclose and admit crimes committed in apartheid's name.Google Scholar

17 Weschler, Miracle at 4.Google Scholar

18 State Crimes: Punishment or Pardon? (Papers & Report of Conference organized by Justice and Society Program of Aspen Institute (Wye Center, Colo.: Aspen Institute, 1989) (“Aspen Institute, Sate Crimes”).Google Scholar

19 Ariel Dorfman, “Political Code and Literary Code: The Testimonial Genre in Chile Today,” in Some Write to the Future 141 (Durham, N.C.: Duke University Press, 1991).Google Scholar

20 Although there is agreement among those who work with victims of torture on the therapeutic value of testimony—the need to let survivors tell their story fully and without disbelief—there is less agreement about whether this should be done in the purely therapeutic setting or in public inquiries or through the judicial process. For a summary of the victims' perspective in dealing with past state crimes, see Ronald D. Crelinsten, “After the Fall: Prosecuting Perpetrators of Gross Human Rights Violations,” PIOOM Report, Summer 1993, at 4–7. See also such practical handbooks as G. R. Randall & E. Lutz, Sewing Survivors of Torture: A Practical Manual for Health Professionals and Other Service Providers (Washington, D.C.: American Association for the Advancement of Science, 1991).Google Scholar

21 On the legal obligations of governments to investigate and prosecute human rights violations, see Naomi Roht-Arriaza, “State Responsibility to Investigate and Prosecute Human Rights Violations in International Law,” 78 Cal. L. Reu. 449 (1990), and Jose Zalaquett, “Confronting Human Rights Violations Committed by Previous Governments,” 13 Hamline L. Reu. 623 (1990).CrossRefGoogle Scholar

22 See International Human Rights Law Group, Maximizing Deniability: The Justice System and Human Rights in Guatemala (Washington, D.C., July 1989), and Americas Watch & Physicians for Human Rights, Guatemala: Getting Away with Murder (New York, August 1991).Google Scholar

23 Julian Barnes's satirical version of the trial of “Stoyo Petkanov”(The Porcupine (London: Picador, 1992)) (based loosely on Todor Zhivkov, the former ruler of Bulgaria) is a fine account of the ambiguities of the “truth” revealed by trials in the former communist states.Google Scholar

24 Alain Finkielkraut, Remembering in Vain: The Klaus Burbie Trial and Crimes against Humanity (New York: Columbia University Press, 1992) (“Finkielkraut, Remembering in Vain”). For a more eccentric critique of the Barbie trial, see Guyora Bindner, “Representing Nazism: Advocacy and Identity at the Trial of Klaus Barbie,” 98 Yale L. j. 1321 (1989).Google Scholar

25 For a recent fascinating study of the iconography of monuments—how we remember the past, for what reasons, to what ends, in whose name—see James E. Young, The Texture of Memory: Holocaust Memorials and Meanings (New Haven, Conn.: Yale University Press, 1993) (“Young, Texture of Memory”).Google Scholar

26 Jose Zalaquett, “Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints,” in Aspen Institute, State Crimes 23–70 (cited in note 18) (“Zalaquett, ‘Confronting Human Rights Violations’”).Google Scholar

27 This criterion was also often cited to judge the new Clinton administration's foreign policy. See, e.g., Human Rights Watch World Report 1993 (New York: Human Rights Watch, 1993).Google Scholar

28 The Greek, Spanish, and Portuguese experiences are less often cited. So, too, are the useful studies of how countries in Nazi-occupied Europe implemented various forms of accountability for collaboration. The Scandinavian histories are particularly interesting on the question of “degrees” of collaboration and how much collaborators knew about the special fate that awaited Jews whose deportation they aided. On Norway, see Per Ole Johansen, “Norway and the Holocaust,” and on Denmark, Ditliv Tamm, “The Trial of Collaborators in Denmark after the Second World War,” in H. Takala & H. Tham, eds., 10 Scandinavian Studies in Criminology (Oslo: Norwegian University Press, 1989).Google Scholar

29 For a useful summary of victim compensation methods available for both regular and state crimes, see Joanna Shapland, Guide for Practitioners Regarding the Implementation of the Declaration of Basic Principles of Justice for Victim of Crime and Abuses of Power (United Nations, A/Conf. 144/20 June 1990).Google Scholar

30 Many Western observers were introduced to the lustration issue by Lawrence Weschler's article on the Jan Kavan case: “The Velvet Purge: The Trials of Jan Kavan,”New York, 19 Oct. 1992, at 66–96. See also Jerri Laber, “Witch Hunt in Prague,”N.Y. Rev. Bks., 23 April 1992, at 5–8. My account of the Czech story is a paraphrase of these sources.Google Scholar

31 “Czechoslovakia: ‘Decommunization’ Measures Violate Freedom of Expression and Due Process Standards,”News from Helsinki Watch, April 1992. While the standard critique of lustration is that too many people are being swept into its net, the problem with denazification in postwar Germany was that too few people were made accountable: “What had begun as a rather foolish incrimination of the entire population turned into wholesale exemptions and finally wholesale exoneration. Denazification in the end meant not purge but rehabilitation.” John H. Herz, “An Historical Perspective,” in Aspen Institute, State Crimes 18 (cited in note 18).Google Scholar

32 Jerri Laber, N.Y. Rev. Bks., 23 April 1992, at 7.Google Scholar

33 Cited in News from Helsinki Watch, April 1992, at 7.Google Scholar

34 Described in detail by Weschler, Miracle 83–236 (cited in note 12).Google Scholar

35 See “Truth and Partial Justice in Argentina” (cited in note 13). On the different forces impinging on the political and legal systems, see Mark Osiel, “The Making of Human Rights Policy in Argentina,” 18 J. Latin Am. Stud. 235 (1986).Google Scholar

36 Kathryn Lee Crawford, “Due Obedience and the Rights of Victims: Argentina's Transition to Democracy,” 12 Hum. Rts. Q. 17 (1990).CrossRefGoogle Scholar

37 Various sides of this debate are well presented by Juan Mendez, Aryeh Neier, and Jose Zalaquett in Boraine, Dealing 35–40 (cited in note 1).Google Scholar

38 Note Zalaquett's typology of how different forms of transition determine the political constraints on current human rights policy: (1) the defeated forces have lost legitimacy but retained armed power; (2) there is a gradual transition and popular forgiveness; (3) the new government represents a realignment of political forces in a situation of unresolved armed conflict, etc. Zalaquett, “Confronting Human Rights Violations,” at 45–47 (cited in note 26).Google Scholar

39 This is well explained in regard to African cases such as Uganda by Richard Carver, “Called to Account: How African Governments Investigate Human Rights Violations,”Africa Watch (New York, 1991).Google Scholar

40 Herbert C. Kelman & V. Lee Hamilton, Crimes of Obedience: Toward a Social Psychology of Authority and Responsibility (New Haven, Conn.: Yale University Press, 1989).Google Scholar

41 Finkielkraut, Remembering in Vain (cited in note 24).Google Scholar

42 Mary Burton, in Boraine, Dealing 122 (cited in note 1).Google Scholar

43 Aryeh Neier, “What Should be Done about the Guilty?”N.Y. Rev. Bks., 1 Feb. 1990, at 34.Google Scholar

44 For a study of how the first stage of indemnity was actually implemented and particularly on the tricky question of how to define a “political prisoner,” see Raylene Keightley, “Political Offences and Indemnity in South Africa,” 9 S. Afr. J. Hum. Rts. 334 (1993).CrossRefGoogle Scholar

45 Zalaquett, “Confronting Human Rights Violations,” at 38 (cited in note 26).Google Scholar

46 John Braithwaite, Crime, Shame and Reintegration (Cambridge: Cambridge University Press, 1989).CrossRefGoogle Scholar

47 Nadezhda Mandelstam, Hope Abandoned 572 (New York: Athenaeum, 1972).Google Scholar

48 Neier, N.Y. Rev. Bks, 1 Feb. 1990, at 43.Google Scholar

49 As Amos Elon notes, the subject of dealing with the recent past in East Germany is referred to as Aufarbeitung—a term derived from psychoanalysis and meaning coping or coming to terms with. Amos Elon, “East Germany: Crime and Punishment,”N.Y. Reu. Bks., 14 May 1992, at 6.Google Scholar

50 Cited in Weschler, New Yorker, 19 Oct. 1992, at 82 (cited in note 30).Google Scholar

51 Kadar Asmal, “Victims, Survivors and Citizens—Human Rights, Reparations and Reconciliation,” Inaugural Lecture, University of the Western Cape (University of the Western Cape, Pub. Series A, No. 64) (“Asmal, ‘Victims’”).Google Scholar

52 Reprinted in N.Y. Times, 10 Oct. 1991.Google Scholar

53 Erving Goffman, Relations in Public 113 (London: Allen Lane, 1971). I am grateful to Tom Scheff for drawing my attention to the ways in which rituals of apology appear in political conflicts as forms of acknowledgment. Some of these ideas appear in Thomas J. Scheff, Bloody Revenge: Nationalism, Emotion and War (Boulder, (Colo.: Westview Press, 1993).Google Scholar

54 Albie Sachs, “Personal Accounts,” in Boraine, Dealing 20–25 (cited in note 1).Google Scholar

55 Response by a woman being counseled by a priest in Uruguay about the disappearance of her child: quoted in braine, Dealing 121.Google Scholar

56 “South Africa: Accounting for the Past,”Hum. Rts. Watch Africa (Newsletter), 23 Oct. 1992, at 2. Asmal (“Victims”) makes a comprehensive case for reconstruction based on accountability.Google Scholar

57 Ronald D. Crelinsten, “The World of Torture: A Constructed Reality” (presented at Workshop on the Crime of Torture, International Congress of Criminology, Budapest, Oct. 1993).Google Scholar

58 Id. at 19. On the notion of replacing physical pain with political dignity, see lnger Agger & Soren Buus Jensen, Trauma and Healing under State Terrorism: Human Rights and Mental Health in Chile during the Military Dictatorship (Report to Council for Developmental Research, Danish Ministry of Foreign Affairs, 1993).Google Scholar

59 Zalaquett, in Boraine, Dealing 11 (cited in note 18). Neier's position is set out in the same conference proceedings at 1–3 and 99–102.Google Scholar

60 Zalaquett, Introduction to English edition of Report of the Chilean Commission at xxx (cited in note 14).Google Scholar

61 Malcolm M. Feeley & Jonathan Simon, “The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications,” 30 Criminology 449 (1992).CrossRefGoogle Scholar

62 Steven Spitzer, “Policing the Past” (presented at Law & Society Association annual meeting, Amsterdam, June 1991) (“Spitzer, ‘Policing the Past’).Google Scholar

63 Martin Amis's novel Time's Arrow (New York: Vintage, 1991) is a original meditation on this subject: a escaped Nazi war criminal now in the United States lives his life backward till the moment he became an Auschwitz doctor.Google Scholar

64 Elsewhere, I apply Sykes and Matza's well-known theory of neutralization to analyzing government denials of complicity in state crimes: Stanley Cohen, “Human Rights and Crimes of the State: The Culture of Denial,” 26 Australian & New Zealand J. Criminology 97 (19931.CrossRefGoogle Scholar

65 Harold Rosenberg, “The Shadow of the Furies,”N.Y. Reu. Bh., 20 Jan. 1977, at 47.Google Scholar

66 id. at 48.Google Scholar

67 Note, though, that at the same time as events like the Holocaust recede in time and become unretrievable, so the contemporary landscape of commemoration become more dense. The result is a kitsch memorial industry being consumed by crowds of what James Young nicely calls “memory tourists.” See Young, Texture of Memory (cited in note 25).Google Scholar

68 Spitzer, “Policing the Past” at 3.Google Scholar

69 Many commentators on the current phase of unblocking the past in totalitarian societies have celebrated the failure of the original rewriting of history. As Havel notes: “It is truly astonishing to discover how, after decades of falsified history and ideological manipulation, nothing has been forgotten.” Vaclav Havel, “The Post-Communist Nightmare,”N.Y. Rev. Bk., 27 May 1993, at 10. Future students of political violence will have to explain how current recoveries and inventions of these “memories” are used to justify nationalist and ethnic hatred.Google Scholar

70 Thus in Romania, the trial and execution of the Ceausescus and the first trials of their henchmen were more reminiscent of Stalinist show trials than the Nuremberg precedent to which they appealed. Some have claimed that the death sentences were imposed on the day before the putative trial started and that variously edited videotapes of the trial were shown. Indeed, some cynical commentators have gone as far as to claim that the whole transition was faked. See Andrei Codrexo, The Hole in the Flag: Smoke and Mirrors in the Romanian Revolution (New York: Morrow Press, 1992).Google Scholar

71 Terence de Pres, “On Governing Narratives: The Turkish-Armenian Case,” 75 Yale Rev. 517 (1986), and Gregory F. Goekjian, “Genocide and Historical Desire,” 83 Semiotica 211 (1991).Google Scholar

72 “Doctors and Torture,” BBC 1, Broadcast, 1 Sept. 1990.Google Scholar

73 See Amnesty International, “Morocco: Tazmanant: Official Silence and Impunity” (London: Amnesty International, Nov. 1992).Google Scholar