Victims on transitional justice: Lessons from the reparation of human rights abuses in the Czech Republic

Human Rights Quarterly

Volumn 27, Issue 2, 2005, Pages 392-435

  David, Roman ^a   Yuk Ping, Susanne Choi ^b  

^a UNIVERSITY OF THE WITWATERSRAND   (South Africa)

^b CHINESE UNIVERSITY OF HONG KONG   (Hong Kong)

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS; SOCIAL JUSTICE;

CENTRAL EUROPE; CZECH REPUBLIC; EASTERN HEMISPHERE; EURASIA; EUROPE; WORLD;

EID: 20044385999     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2005.0016     Document Type: Review

References (163)

1. Interview with Antonin Huvar, Priest, former political prisoner, Velka Bystrice (Nov. 1999).
2. Theo van Boven, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, excerpted in Transitional Justice Vol. I: How Emerging Democracies Reckon with Former Regimes 505, 511, 548 (Neil J. Kritz ed., 1995). This article uses the term "victims," which, in sources quoted, is more common than "survivors." The present study only concerns direct victims. It does not cover the immediate family or dependents of victims, as stipulated by van Boven. I b i d. at 514-15.
3. Revised Set of Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law Prepared by Mr. Theo van Boven Pursuant to Sub-Commission Decision 1995/117, U.N. ESCOR, Sub-Comm'n on Hum. Rts., 48th Sess., E/CN.4/Sub.2/1996/17 (1996);
4. The Right to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms, C.H.R. Res. No. 2003/34, U.N. ESCOR, Comm'n on Hum. Rts., 57th Sess., U.N. Doc. E/CN.4/2000/62 (2003).
5. See also Priscilla Hayner, Unspeakable Truths: Confronting State Terror and Atrocity 171 (2001) (adopting the same definition);
6. Wendy Orr, Reparation Delayed is Healing Retarded, in Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission in South Africa 239, 241 (Charles Villa-Vicencio & Wilhelm Verword eds., 2000) (Orr, one of the TRC's commissioners, recalls "Our initial working definition of reparation was dubbed 'the five Rs': redress, restitution, rehabilitation, restoration and reassurance of non-recurrence.").
7. Cf. Ruti G. Teitel, Transitional Justice 119 (2000) ("The vocabulary of 'reparatory justice' illustrates its multiple dimensions, comprehending numerous diverse forms: reparations, damages, remedies, redress, restitution, compensation, rehabilitation, tribute.").
8. According to van Boven's principles, as revised by M. Cherif Bassiouni in van Boven, Study Concerning the Right to Restitution, supra note 2, restitution should restore the victim to the original situation before the violations of international human rights or humanitarian law occurred, such as restoration of liberty, legal rights, social status, family life and citizenship, restoration of employment and return of property. Compensation should be provided for any economically assessable damage, such as physical or mental harm, and lost opportunities including: education, material damages and loss of earnings and earning potential, harm to reputation or dignity, and costs required for legal assistance and medical, psychological and social services. Rehabilitation should include medical and psychological care as well as legal and social services. Satisfaction and guarantees of nonrepetition should include cessation of continuing violations, verification of the facts and full and public disclosure of the truth, the search for the bodies of those killed or disappeared, an official declaration or a judicial decision restoring the dignity and rights of the victim and of persons closely connected with the victim, apology (including public acknowledgment of the facts and acceptance of responsibility), judicial or administrative sanctions against persons responsible for the violations, commemorations and tributes to the victims, and preventing the recurrence of violations.
9. Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence 103 (1998) ("[M]oney remains incommensurable with what was lost.... [R]eparations fall short of repairing victims or social relationships after violence. This inevitable shortfall makes me wonder about the assumption that the most obvious need of victims is for compensation.");
10. See also Laurel E. Fletcher & Harvey M. Weinstein, Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation , 24 Hum. Rts. Q. 573, 603 (2002) ("[T]he emphasis on criminal trials as the primary international response to mass violence does not respond to the needs of many for social repair.").
11. See van Boven, Study Concerning the Right to Restitution, supra note 2, at 548 ("Reparation should respond to the needs and wishes of victims."). "Victims' needs" are sometimes used to justify criminal trials or promote a truth commission.
12. See infra notes 49, 55.
13. On the other hand, some warn that victims' claims, however morally justified, may threaten the transition. See Jaime Malamud-Goti, Game without End: State Terror and the Politics of Justice 13 (1996) (stating that the claims of the Mothers from Plaza de Mayo to try all perpetrators would lead to "political and logistic disaster.").
14. Cf. Bert van Roermund, Rubbing Off and Rubbing On: The Grammar of Reconciliation, in Lethe's Law: Justice, Law and Ethics in Reconciliation 175, 184-86 (Emilios Christodoulidis & Scott Veitch eds., 2001) (van Roermund criticizes the tendency of survivors of oppression to speak on behalf of victims: '"We iwant to forgive."' They tend to "picture themselves as 'the good people': the ones who, from now on, will have the absolute right to command because they were absolutely right in the way they suffered.")
15. In addition to van Boven's studies, there are a number of victim studies that inspire us. See, e.g., David Becker et al., Therapy with Victims of Political Repression in Chile: The Challenge of Social Reparation, 46 J. Soc. Issues 133 (1990), excerpted in Transitional Justice Vol. I, supra note 2, at 583;
16. excerpted in Transitional Justice Vol. I, supra note 2, at 583;
17. Yael Danieli, Preliminary Reflections from Psychological Perspective, excerpted in Transitional Justice Vol. I, supra note 2, at 572;
18. Ivan Gadourek & Jiri Nehnevajsa, Zalarovani, pronasledovani a zneuznani: Svedectvi jeste zijicich obeti stalinismu v ceskych zemich [Incarcerated, Persecute, and Forgotten: A Testimony of the Still Living Victims of Stalinism in the Czech Countries) (1997) (A survey with historical objectives among political victims in the Czech Rep.).
19. See also Brandon Hamber, Repairing the Irreparable, 5 Ethnicity & Health 215 (2000), available at www.csvr.org.za /papers/ paprepbh.htm;
20. Sarah Cullinan, Redress, Torture Survivors' Perceptions of Reparation 9, 49 (2001), available at www.redress.org/publications/TSPR.pdf (based on a review of the literature on reparation and interviews with those who work with victims, she highlights the need for empirical research that would go beyond the psychological level and assess the impact of restoration of dignity, acknowledgment, etc.). The majority of the literature focuses on victims' perception of their reparation and adopts a psychological approach. The present study adopts sociological methods to assess factors associated with reparation of victims of human rights abuses in the context of transitional justice and democratization.
21. As Neil Kritz lamented Truth commissions have become almost routine.... You have a transition and everybody immediately says we have to have a truth commission without any clear understanding as to why or what they are about. Except for some of the preliminary and good quality work ... there is a real dearth of any serious empirical research on exactly what impact truth commissions actually have in any place, impact on victims, on perpetrators, on society as a whole.... Victoria Baxter, American Association for the Advancement of Science, Conference Report: Empirical Research Methodologies of Transitional Justice Mechanisms 1 (18-20 Nov. 2002), available at shr.aaas.org/transitionaljustice/ mtjm/stellenbosch.pdf. Similarly, Fletcher & Weinstein, supra note 5, at 585, noted that "A primary weakness of writings on transitional justice is the paucity of empirical evidence to substantiate claims about how well criminal trials achieve goals ascribed to them."
22. In 1990, the Czechoslovak Socialist Republic was renamed the Czech and Slovak Federative Republic, which was divided in 1993 into two independent states: the Czech Republic and the Slovak Republic, This article uses "Czechoslovakia" or "Czech Republic" [depending on which is considered more accurate for the time.]
23. See generally Roman David, Lustration Laws in Action: The Motives and Evaluation of Lustration Policy in the Czech Republic and Poland (1989-2001), 28 L. & Soc. Inq. 387, 388 ("Lustration law is a special public employment law that regulates the process of examining whether a person holding certain higher public positions worked or collaborated with the repressive apparatus of the Communist regime.2:).
24. See also Maria Los, Lustration and Truth Claims: Unfinished Revolutions in Central Europe, 20 L. & Soc. Inq. 117 (1995);
25. Natalia Letki, Lustration and Democratisation in East-Central Europe , 54 Eur.-Asia Stud. 529 (2002);
26. Aleks Szczerbiak, Dealing with the Communist Past or the Politics of the Present? Lustration in Post-Communist Poland, 54 Eur.-Asia Stud. 553 (2002);
27. Roman David, Transitional Injustice? Criteria for Conformity of Lustration to the Right to Political Expression, 56 Eur.-Asia Stud. 789 (2004).
28. There is consensus among scholars that the distribution of power during regime change crucially affects the policy of dealing with the past. See, e.g., David Pion-Berlin, To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone, 16 Hum. Rts. Q. 105 (1994).
29. See also Jose Zalaquett, Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations, 43 Hastings L. J. 1425 (1992);
30. Helga A. Welsh, Dealing with the communist past: Central and East European experiences after 1990, 48 Eur.-Asia Stud. 413 (1996);
31. Samuel Huntington, The Third Wave: Democratization in Late Twentieth Century (1991), excerpted in Tansitional Justice Vol. I, supra note 2, at 65. Using Huntington's classification of regime changes, Czechoslovakia belongs to "replacements," which signify government collapse, rather than "transplacements," which indicate negotiated changes, such as in Poland, or "transformations," signifying changes initiated by the old elite, such as in Hungary. Although some communists were nominated to the 1989-1990 transitional government, they were mostly selected by the Civic Forum (OF), not by the Communist Party (KSC). Shortly after their appointment, they switched their allegiance to the Forum (Komarek, Dlouhy) or their office was (made) redundant and cancelled.
32. excerpted in Tansitional Justice Vol. I, supra note 2, at 65. Using Huntington's classification of regime changes, Czechoslovakia belongs to "replacements," which signify government collapse, rather than "transplacements," which indicate negotiated changes, such as in Poland, or "transformations," signifying changes initiated by the old elite, such as in Hungary. Although some communists were nominated to the 1989-1990 transitional government, they were mostly selected by the Civic Forum (OF), not by the Communist Party (KSC). Shortly after their appointment, they switched their allegiance to the Forum (Komarek, Dlouhy) or their office was (made) redundant and cancelled.
33. The parliament abrogated the leading role of the Party in November 1989. See Act Changing Const. Act No. 100/1960, The Constitution of the CSSR, Const. Act No. 135/1989 Sb. In 1989-1990, it revoked those provisions of the penal code that criminalized the exercise of human rights. The Party property was confiscated a few months after the first democratic elections. See Act On the Return of Property of the Communist Party of Czechoslovakia to the People of the Czech and Slovak Federative Republic, Const. Act No. 496/1990 Sb.
34. The number of fatalities under the communist rule in Czechoslovakia was close to that of Chile under Pinochet, while the ratio of political prisoners to the civil population was almost the same as in Uruguay, 1:50. In Czechoslovakia, between 1948 and 1989, about 234 people were judicially executed for political reasons and more than 4,000 political prisoners died under unclear circumstances, for example, as a consequence of torture. Hundreds died while crossing the border and about 262,500 people were jailed for political reasons. See Karel Pacner, Stovky zmarených lidských zivotu, statisíce rozbitých rodin [Hundreds of Lost Lives, Hundreds of Thousands Destroyed Families], MF Dnes, 25 Feb. 2000.
35. See also Interview with Otto Stehlík, Director of the Archive of the KPV, Prague (18 Jan. 2000). During the 1950s and 1960s, many political prisoners were held not only in prisons but also in eighteen concentration camps, the so called "remedy-labor camps," where they were subjected to an extraordinarily hard regime and gross violations of human rights including torture, slave labor in uranium mines (without any protection from radioactivity), reduction of daily food allotment, and extra punishments.
36. See Interview with Frantisek Zahrádka, Director of the Museum of the Third Resistance, Pribram (13 Jan. 2000). About 100,000 victims in the camps of forced labor were not prisoners in the then legal terms but quasi-judicial ly persecuted "class enemies". About 60,000 men were forced to serve in the so called "Auxiliary Technical Battalions" (PTP) and more than 6,300 monks and nuns were sent to assembly camps in 1950. Thousands of people were evicted from cities, hundreds of thousands lost their jobs in purges that followed the years 1948 and 1968, and private property was almost entirely nationalized.
37. See Karel Kaplan, Political Persecution in Czechoslovakia 1948-1972, 11-31 (1983);
38. Jiri Bílek & Karel Kaplan, Pomocné Technicke Prapory 1950-1954 & Tábory nucené práce v Ceskoslovensku 1948-1954 [Auxiliary Technical Battalions 1950-54 & Camps of the Forced Labor in Czechoslovakia 1948-54] (1992).
39. For a bibliography and filmography on the topic, see Karel Bartosek, Cesky vezen: Svedectvi politickych vezenkyn a veznu let padesatych, sedesatych a sedmdesatych [A Czech Prisoner: Testimonies of Political Prisoners of the 1950s, 1960S and 1970s] 307, 311 (2001).
40. Unlike other undemocratic regimes, socialist Czechoslovakia ratified various international human rights treaties that postulate the right to remedy human rights violations. See, e.g., the International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, arts. 2 and 9, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force 3 Jan. 1976). This covenant grants the right to effective remedy and the right to compensation, respectively. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment states "the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible." Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec. 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, 14, U.N. Doc. A/39/51 (1985) (entered into force 26 June 1987), reprinted in 23 I.L.M. 1027 (1984), substantive changes noted in 24 I.L.M. 535 (1985). However, more than these documents, the then Czechoslovak representatives, who sought to distinguish themselves from their predecessors, felt obliged by the Universal Declaration of Human Rights, which postulates the right to an effective remedy. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), U.N. GAOR, 3d Sess. (Resolutions, pt. 1), at 71, art. 8, U.N. Doc. A/810 (1948), reprinted in 43 Am. J. Int'll. 127 (Supp. 1949). They also desired to integrate the country into the Western community and anticipated the approval of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed 4 Nov. 1950, art. 5, 213 U.N.T.S. 222 (entered into force 3 Sept. 1953), which grants an enforceable right to compensation.
41. Act No. 119/1990 Sb., §§ 1-6. This act was approved on 23 April 1990, a few weeks before the first democratic elections.
42. The judicial rehabilitation concerned at least 257,864 people condemned by the Czechoslovak communist judiciary between 25 February 1948 and 1 January 1990. Of these, 195,642 people were from the territory of the Czech Republic. Frantisek Koudelka et al., Soudní perzekuce politické povahy v Ceskoslovensku 1948-1989: Statistický prehled [The Judicial Persecutions of a Political Character in Czechoslovakia 1948-1989: Statistic Overview] 57-68 (1993).
43. The author of this statistic concludes that the number may increase by 2 percent. However, Stehlik rejected the accuracy of these figures and considered these numbers as partial. In his view, the number could have been about 50,000 higher because many victims had already died and their relatives, if any, did not apply for thier r rehabilition. See Interview with Otton Stehlik, Directors of the Archive of the KPV, Prague (18 Jan. 2000). The number rehabilitated does not necessarily equal the number imprisonded: Some people were condemned for thier emigration, others were condemned but their sentence was suspended, while others were jailed more than once.
44. Act on Judicial Rehabilitation, Act No. 119/1990 Sb., §§ 23-28. In addition, the Act on Extra-Judicial Rehabilitation, Act No. 87 /1991 Sb., concerned the restitution of confiscated properties in the possession of the State, municipalities, and cooperatives, to their original owners or their heirs.
45. Act No. 198/1993 Sb., § 8 [hereinafter Act on the Illegitimacy of the Communist Regime]. The compensation was implemented by a government directive in 1997. Payment of the One-time Compensation to Mitigate Some Injustices Caused by the Communist Regime, Government Directive No. 165/1997 Sb. See also infra note 106.
46. For example, in 1994, the organization received a subsidy of CZK 1,75 million that contributed to 85 percent of such expenses for about 600 of its members. Zpravodaj KPV [Newsletter of the Confederation of Political Prisoners] Vol. 1.4, 1994, at 5.
47. If a policeman with a salary of CZK 10,000 was dismissed after twenty years of service, he was entitled to a compensation of CZK 80,000 plus CZK 3,800 monthly income paid until his retirement. Jaroslav Spurný, Odskodné pro estébáky [Compensation for Spooks], Respekt, 8 June 1992, at 4;
48. Rebeka Krizanová & Martin Bartunek, Dobre zaplacený civil [Well Paid Dismissals], Respekt, 23 Nov. 1992, at 5.
49. See Access to Files Created by Activity of the Former State Security, Act No. 140/199 Sb., §§ 5-6.
50. See] Police of the Czech Republic, Office of the Documentation and the Investigation of the Crimes of Communism, 1, available at www.mvcr.cz/policie/udv/english/index.html (stating the objectives of the office). The Office of the Documentation and the Investigation of the Crimes of Communism (ODICC) meets some of Hayner's criteria of a truth commission: it focuses on the past, it investigates the patterns of abuses over a period of time rather than a specific event, it is authorized by the state, and it is established as a part of the political transition. However, it is not a temporary body, which would be expected to submit a report (although it regularly publishes memorial volumes and other materials, organizes lectures, and informs about the status of cases under investigation).
51. See Hayne, supra note 3, at 14, 17
52. Act No. 198/1993 Sb., §§ 3-4.
53. Many of these symbolic measures, however, also generated reverse effects, for example, past political records of other awarded persons were questioned. See] David, supra note 10, at 420 n. 78. Additionally, many political prisoners could not forgive President Havel for canceling the meeting with them due to an illness caused by an earlier outdoor celebration of an Olympic gold medal with the ice hockey players in 1998.
54. Act No. 198/1993 Sb., § 5.
55. See Judgment of the Const. Ct. of the Czech Rep., concerning the petition of 41 deputies seeking the annulment of act No. 198/1993 on the Illegitimacy of the Communist Regime and on the Resistance against lt, Pl. ÚS 19/93 (21 Dec. 1993).
56. See Police of the Czech Republic, supra note 22, available at www.mvcr.cz/policie/udv/english/pripady/index.html. The number of launched prosecutions has recently risen.
57. This mentality is indicated by political submissiveness and an inability to make independent decisions. See, e.g., Vojtech Cepl & Mark Gillis, Making Amends after Communism, 7 J. Democracy 118, 123 (1996).
58. There are numerous examples of this mentality yet to be researched, such as the case of Grebenicek, whose judge has not been able to bring to justice his alleged torturer for six years. See Grebenicka u soudu omluvil fax [Grebenicek Apologizes for his Absence at Court by Fax], iDnes, 12 May 2003.
59. "We are not like them" was a slogan that was initially addressed by the leaders of the democratic opposition to the people who protested against the Communist regime in 1989. Later, however, it became a symbol of the failure to deal with the past. Vaclav Havel, the author of this slogan, later tried to clarify: "the error happened later, in the early months of 1990, when all of us underestimated our former opponents' extraordinary artfulness and ability to adapt to the new conditions. To remedy this error will probably be a long and difficult process, but remedied it must be - in a cultured, legal and civilized manner. 'We are not like them,' I said once on Wenceslas Square, but if we do not want to be like "them," we must not be blinded by fanaticism, hatred and the desire for bloodthirsty revenge. This does not mean, however, that we can tolerate whatever 'they' do, or that we should not prosecute those who committed criminal offenses." Vaclav Havel, New Year's Address to the Nation, Prague (1 Jan. 1992).
60. The issue of banning the Communist Party was often raised in discussions during the first months of transition. In the interviews conducted for this study, many political prisoners, who continued to advocate the ban, based their arguments on past experiences with Nazi parties and organizations after World War II.
61. Act 451/1991 Sb., that prescribes certain prerequisites for the exercise of certain positions filled by election, appointment, or assignment in State organs and organizations of CSFR, CR and SR (hereinafter lustration law) For a recent evaluation of the lustration policy in the Czech Republic, see David, supra note 10.
62. For an overview of the democratic development in the country, see Jiri Pehe, Reports on Eastern Europe, available at www.pehe.cz/E.html;
63. E. Eur. Const. Rev. (1992-2002) (quarterly country reports).
64. Theo van Boven et al., Seminar on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms: Summary and Conclusions, excerpted in Transitional Justce Vol. 1, supra note 2, at 500, 502-03.
65. For a comparative analysis of reparation demands, see Michael L. Bazyler, The Holocaust Restitution Movement in Comparative Perspective, 20 Berkeley J. Int'l L. 11 (2002);
66. John Torpey, "Making Whole What Has Been Smashed": Reflections on Reparations, 73 J. Mod. Hist. 333 (2001).
67. See, e.g., Malamud-Goti, supra note 6, at 13.
68. Ellen L. Lutz, After the Elections: Compensating Victims of Human Rights Abuses, in New Directions in Human Rights (Ellen L. Lutz et al. eds., 1989), excerpted in Transitional Justice Vol. 1, supra note 2, at 551, 553. A new government faced with severe economic problems may consider an expensive compensation program to be of considerably lower national priority than the revitalization of the economy or the repayment of foreign debt. Where individuals responsible for past violations of human rights... retain politically powerful positions, establishing mechanisms for compensating former victims may involve serious political risks.... [F]ormer victims may feel stigmatized by their need to seek redress and may fear that the procedures for claiming compensation will be degrading or will require them to relive painful past experiences.
69. excerpted in Transitional Justice Vol. 1, supra note 2, at 551, 553.
70. I b i d. at 552-53.
71. See Charles Krauthammer, Reducing the Holocaust to Mere Dollars and Cents, L.A. Times, 11 Dec. 1998, at 26, quoted in Bazyler, supra note 34, at 39.
72. The rest of society may have little sympathy for former victims "either because they are members of racial, religious, or national minorities, or because they hold unpopular beliefs." Lutz, supra note 36, at 552.
73. See, e.g., Bazyler, supra note 34, at 40-41 (Their worries may not be unwarranted. A critical account of the restitution movement with a "provocative" title, The Holocaust Industry, written by Norman Finkelstein, a son of Holocaust survivors, in 2000, became a best-seller in Germany and Switzerland).
74. Minow, supra note 5, at 110.
75. I b i d. at 103.
76. The enormous potential of the TRC as a model that employs the meaning of truth and reconciliation in the reparation process and the initial preference for symbolic reparation among its commissioners have created an image of the TRC as a purely spiritual enterprise. In fact, the TRC has recommended financial compensation followed by other forms of (symbolic) reparations. See Truth & Reconciliation Commission of South Africa, Truth & Reconciliation Commission of South Africa Report V, at 175-95, 312-13 (1998).
77. See also Hamber, supra note 7.
78. Natan Sznaider, Money and Justice: Toward a Social Analysis of Reparations, 3 Hum. Rts. Rev. 104, 109 (2002).
79. As Israel Singer, a leader of the World Jewish Congress, explains: "I don't want to enter the next millennium as the victim of history....," quoted in Bazyler, supra note 34, at 41.
80. I b i d. ("[N]ot seeking financial compensation, in the face of documented proof that financial giants worldwide are sitting on billions of dollars in funds made on the backs of World War II victims... amounts to an injustice that cannot be ignored.")
81. Reparation is defined here and in all other hypotheses, as a process to relieve the suffering of and afford justice to victims by removing or redressing the consequences of past wrongful acts and by preventing future violations. See, e.g., supra notes 2-4. It is theorized to incorporate two dimensions, one sociopolitical and one internal. See infra section 111.
82. See Truth v. Justice: The Morality of Truth Commissions (Robert I. Rotberg & Dennis Thompson eds., 2000);
83. Minow, supra note 5;
84. Pion-Berlin, supra note 11.
85. However, David A. Crocker argues that the dilemma must be avoided because "both truth commissions and trials have distinctive and mutually supplementary roles in achieving the multiple goals of transitional justice." David A. Crocker, Truth Commissions, Transitional Justice, and Civil Society, in Truth v. Justive, id. at 99, 105. There are numerous reasons why trials or truth commission may not be feasible or desirable: Do we need to risk consequences of trying the military if victims do not have retributive desires? Do we need to set up a truth commission if public truth-telling does not heal victims?
86. See Fletcher & Weinstein, supra note 5, at 592-95 (a critical overview of the role of trials as a response to the needs of victims).
87. See also Naomi Roht-Arriaza, Punishment, Redress, and Pardon: Theoretical and Psychological Approaches, in Impunity and Human Rights in International Law and Practice 13, 19-21 (Naomi Roht-Arriaza ed., 1995) (finding judicial process and punishment as an answer to the question of what kind of process would lead to redress).
88. Some authors consider victims' needs as one of the several justifications of trials. See Jaime Malamud-Goti, Transitional Governments in the Breach, 12 Hum. Rts. Q. 1, 13 (1990);
89. Huntington, supra note 11, at 68-69;
90. M. Cherif Bassiouni, Searching for Peace and Achieving Justice: The Need for Accountability, 59 Law & Contemp. Probs. 9, 26 (1996);
91. Neil J. Kritz, Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights 59 Law & Contepm. Probs. 127, 128 (1996).
92. On top of satisfying the needs of victims directly, trials are also argued to have important roles in affecting the process of democratic transition, thus having a positive impact on victims. Trials symbolize condemnation of the past regime, the restoration of equality before the law, and the creation of the rule of law, which facilitate normative transformation and help to consolidate a new democratic culture. Finally, trials send anti-impunity signals to society and deter future recurrence of violations. Thus, trials represent one of the means to realize van Boven's principles. See supra note 4.
93. For an overview of the role of trials generally, see Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, excerpted in Transitional Justive Vol. 1, supra note 2, at 375, 376-78;
94. Teitel, supra note 2, at 28-30.
95. Based on a review of the psychological literature, Cullinan argues that the absence of sanctions against perpetrators can function as "a second injury," causing additional anxiety, creating "a life of repetition of the trauma," and prolonging psychopathological consequences of repression. See Cullinan, supra note 7, at 27.
96. One of the founders of the victim's Khulumani Support Group, South Africa, testifying at the TRC lamented that: [I]t seems to me that victims have been asked to make sacrifices once again for the greater good of the Nation, that we must give up our expectations of justice, we must give up our rights to civil claims against perpetrators, and we must talk about our grief in this public forum and I'm afraid we're going to be asked to then accept symbolic reparation, or community reparation and I think that this is simply not fair. Testimony of M. Friedman to the Committee for Human Rights of the TRC (3 May 1996).
97. See also Nkosinathi Biko, Amnesty and Denial, in Looking Back, Reaching Forward, supra note 3, at 193 (explaining the motives of victims' families to challenge the amnesty provisions of the TRC Act at the South African Constitutional Court).
98. See Kader Asmal et al., Reconciliation Through Truth: A Reckoning of Apartheid's Criminal Governance 19 (1997).
99. See also Desmond M. Tutu, No Future without Forgiveness 24-31 (1999) (Explaining why trials were not a viable option for South Africa.). Tutu also referred to some high-profile cases, pragmatically arguing that if the options of trials were available, they would have placed an intolerable burden on the already strained judicial system and much needed resources. I b i d. The argument about the trade off between stability and trials has been widely acknowledged. See, e.g note 11.
100. See, e.g., Hayner, supra note 3, at 28, 133-53. (However, she also warns against the danger of retraumatization at the truth commission's hearings.) Tutu, supra note 51, at 128. D. Tutu, No Future without Forgiveness 24-31 (199) (Explaining why trials were not a viable option for South Africa.); (We "had not been expecting that those who approached the Commission would often find healing and a closure in the process of recounting their often devastating stories.").
101. Contra Biko, supra note 50, at 197 ("[T]he experience [of testifying at the TRC] was traumatic for many victims, yet few were given adequate access to psychological services.")
102. See, e.g., Elizabeth Kiss, Moral Ambition Within and Beyond Political Constraints: Reflections on Restorative Justice, in Truth v. Justice, supra note 47, at 83 ("To pursue restorative justice in the face of a legacy of oppression and violence means seeking to restore dignity and voice to victims of injustice, holding perpetrators of injustice accountable..., and adopting as an overriding goal the creation of conditions in which all are treated with respect.");
103. Minow, supra note 5;
104. Truth & Reconciliation Commission of South Africa Report 1, at 125-31;
105. Johnny de Lange, The Historical Contexts, Legal Origins and Philosophical Foundation of the South African TRC, in Looking Back, Reaching Forward, supra note 3, at 14;
106. Jodi Halpern & Harvey M. Weinstein, Rehumanizing the Other: Empathy and Reconciliation, 26 Hum. Rts. Q. 561 (2004).
107. Const. Rep. S. Afr., Act. No. 200 (1993)
108. Danieli, supra note 7, at 575.
109. See Becker, supra note 7, at 590.
110. Judith L. Herman, Trauma and Recovery: From Domestic Abuse to Political Terror 214-17 (Rev. ed. 1997).
111. See Danieli, supra note 7, at 573.
112. van Boven et al., Seminar on the Right to Restitution, supra note 33, at 502.
113. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34, adopted 29 Nov. 1985, U.N. GAOR, 40th Sess., Annex, U.N. Doc. A/Res/40/34/Annex (1985).
114. War rape is another example of a political crime that differs from an ordinary crime, an "ordinary" rape: "[W]omen are facing twice as many rapists with twice as many excuses, two layers of men on top of them rather than one, and two layers of impunity serving to justify the rapes." Catharine A. MacKinnon, Crimes of War, Crimes of Peace, 8 UCLA Women's L. J. 59, 65 (1993).
115. International Criminal Tribunal for Rwanda, Rules of Procedure and Evidence, U.N. Doc. ITR/3/REV.1 (1995), entered into force 29 June 1995, Rule 106.
116. Rome Statute of the International Criminal Court, Art. No. 75, U.N. Doc. A/CONF.183/9 (1998) (entered into force 1 July 2002).
117. See Becker, supra note 7, at 590.
118. See also Cullinan, supra note 7, at 24 (discussing the goal of reparation, she states that "[t]he end, or aimed-for situation has been variously described as 'healing', 'closure', 'rehabilitation', or 'mastery' (terms connected with a therapy ideal), and as '(re)integration' or restoration to the original state (which are connected with more political approach).").
119. "Redress," one of the English synonyms for "reparation," in its earliest usage also underlines this sociopolitical meaning. "The stripping of the Egyptians and the "redressing" of the Israelites signifies more than a material settlement, it is a setting straight, a ceremonial re-dressing, a rehabilitation in the public eye." See Teitel, supra note 3, at 120.
120. For the discussion of the concept of healing, see Orr, supra note 3, at 240-41.
121. Both five point scale questions were condensed into a dichotomous variable with two categories: those who replied "definitely yes" and "yes" were coded 1, 0 otherwise.
122. In an interview that preceded the survey, one of the former prisoners recalls that "[t]he regional press, during the time when it was fashionable [shortly after 1989] willingly published our letters and articles. Later however, when [the topic] lost its attractiveness, the situation worsened." Interview with former political prisoner, Prostejov (16 Nov. 1999).
123. See supra section II.
124. Lee J. Cronbach, Coefficient Alpha and the Internal Structure of Tests, 16 Psychometrika 297 (1951).
125. The KPV associates the majority of former political prisoners. The SBPV has about 200 members. However, not all ex-prisoners are members of these organizations. The majority of members are victims from the Stalinist period of 1948-1968. There are a few reasons for this. First, political prisoners do not form a homogeneous group. One of the main differences originates in the period of imprisonment. Prisoners in the 1950s-1960s went through much tougher prison/camp conditions than those in the 1970s-1980s. The former call themselves "dissidents", while the latter call themselves "resistance". The difference between the two groups was exacerbated when many members of the latter group took public posts after 1989, while most from the former group were left behind. The eldest group perceived numerous political concessions and compromises, made by dissidents, as contravening fundamentals of the former anticommunist opposition. In addition, some former prisoners are not eligible to join. Some dissidents of the 1970s-1980s were former oppressors, ideologists or collaborators with the communist regime in the 1950s-1960s. Interview with Stanislav Stransky, head of the SBPV, Prague (Jan. 2000).
126. The estimation was between 4,500-5,500. The exact number is unknown because of various reasons. First, the organizations, according to their members, "are gradually dying out." Indeed, in 1968, the predecessor organization K231 associated more than 100,000 former political prisoners. In 1990, the number dropped to about 10,000. In 2000, the membership halved. Second, many of their members are old, suffer from serious diseases that prevent them from participating in activities of the organizations, or attending the annual meeting. Third, those imprisoned for less than one year are not entitled to free public transport, which inhibits their attendance at annual meetings, where the stamps for free transport are distributed. On the other hand, stamps for free transport motivate many others to attend the meeting.
127. Interview with Dr. Stanislav Drobny, head of the KPV, Brno (Jan. 2000) (based on the data from the Ministry of Labor and Social Affairs).
128. The Czech Republic is a welfare state. According to its constitutional Charter of Fundamental Rights and Basic Freedoms, Constitutional Act No. 2/1993, art. 31: "Everybody has the right to protection of his or her health. Citizens are entitled under public insurance to free medical care and to medical aids under conditions set by the law."
129. Correspondence interview with respondent No. 85 (Feb. 14, 2000) (on file with the authors).
130. Enclosure to the questionnaire, respondent No. 363 (on file with the authors).
131. The impacts on family included forced divorces, harassment and discrimination of family members in employment or study, and appalling living conditions: My wife, who was pregnant at that time [of my arrest] and looking after our 1.5 year-old baby, was dismissed from her employment, broke down, and had to be taken to a hospital. Afterwards she got a very badly paid job, which was not enough to sustain the family. She was constantly harassed by the secret police, including house searching, confiscation of personal property... they forced her to divorce me, which she refused. Correspondence interview with respondent No. 129 (Feb. 11, 2000) (on file with the authors). After my release, I returned to the destructed family as an alien, my children were scared of [me]. Letter from J.R. to Roman David (Feb. 15, 2000) (on file with the authors). [After my imprisonment], [m]y mother developed a psychological illness and never recovered. My husband had to change his vocation of a priest.... Luckily, I did not have children. Correspondence interview with respondent No. 56 (Feb. 2000) (on file with the authors).
132. Letter from J.K. to Roman David (Feb. 15, 2000) (on file with the authors).
133. Letter from H.R. to Roman David (Feb. 14, 2000) (on file with the authors).
134. As an official record of an annual meeting of a local branch of their organization states: "Year 2000 confirmed that we, though old and sick, are an obstacle for many people because we are still eye witnesses of cruelties and crimes committed by communists." Zapis vyrocni schuze KPV pobocky Semily-Trutnov [Transcript of the Annual Meeting of the KPV branch Semily-Trutnov], 19 Jan. 2001. The statement "we die out" stems from feelings of isolation and serves as a coping strategy to strengthen togetherness and deal with the aging and passing away of many members of their fellowship. I b i d.
135. Correspondence interview with respondent No. 164 (Feb. 2000) (on file with the authors).
136. In addition to perpetrators, victims also compare themselves with their "rivals": high profile dissidents, Charter 77 signatories, and Prague Spring leaders who, as one interviewee put it, "got fame, return of property, high salaries, and especially power" after 1989. Letter from respondent No. 89 to Roman David (Dec. 19, 1999) (on file with the authors). Occasionally, they refer to members of the formerly communist-sponsored anti-Nazi "Association of Freedom Fighters" (SBS) who received wider social acknowledgment and more generous financial compensation, and to those who were compensated for their slave labor in Nazi Germany. Other reference groups are current politicians who claimed compensation for their defamation and former civil miners in uranium mines.
137. Letter from O.T. to Roman David (Feb. 7, 2000) (on file with the authors).
138. Correspondence interview with respondent No. 105 (Feb. 2000) (on file with the authors).
139. Letter from J.R. to Roman David (Feb. 15, 2000) (on file with the authors).
140. Correspondence interview with respondent No. 119 (Feb. 2000) (on file with the authors).
141. Correspondence interview with respondent No. 24 (Feb. 2000) (on file with the authors).
142. Letter from H.R. to Roman David (Feb. 14, 2000) (on file with the authors).
143. Enclosure to the questionnaire from respondent No. 148 (on file with the authors).
144. I b i d.
145. Although the media has revealed the horrific stories of victims' suffering after the fall of communism, many official documents, about the secret police and their collaborators remain secret.
146. "I seek to warn... from the danger that a new generation faces. As cunning as Satan is, Communists know how to seduce the young and trusting population by their demagogical promises." Letter from P.B. to Roman David (on file with authors). These warnings employ two mechanisms: some warn democrats against making mistakes that might be utilized by communists in regaining power while the most common warning, based on the widespread changes of party affiliations after 1989, is that communists have de facto never lost their power.
147. Comment to the Questionnaire, Respondent No. 231.
148. Comment to the Questionnaire, Respondent No. 826.
149. Enclosure to the questionnaire No. 84 (on file with authors). The unstable political and economic situation during the time of conducting the survey provided strong reasons for such concerns. On the influence of the past elite, see David, supra note 10, at 413-16.
150. See Gadourek & Nehnevajsa, supra note 7, at 47 (quoting a respondent who blamed the political system for being responsible for the death of a family member: "Nor concentration camps, nor government harmed her daughter who died of leukemia."). This perception stems from the nature of the totalitarian regime and its excessive intrusion into the private life.
151. Letter from respondent No. 89 to Roman David (Dec. 19, 1999) (on file with the authors). Conspiracy theories are used to explain the complexity of regime change. They reflect mistrust in cognitive features of political processes and fears that stemmed from the experience of severe persecution, infiltration, and omnipresent reporting during communism.
152. "Mukl" is an abbreviation of "muz urceny k likvidaci," a man designated for liquidation. "Mukl" was invented by the ruling Communists to denote political prisoners of the 1950s and 1960s. Paradoxically, this term is very frequently used in the slang of the prisoners group, perhaps to strengthen the group solidarity. Cf. supra note 87 and accompanying text.
153. Bernard Crick, In Defence of Politics (1962) (referring to R. Acton Butler's famous quotation).
154. See Fletcher & Weinstein, supra note 5, at 621-35.
155. In the light of the findings, the response of Madres from Plaza de Mayo could reflect the inconsistency between individual reparation and political development. Once the military puts pressure on the government to escape accountability, victims increase their pressure too.
156. Abraham Maslow, Motivation and Personlity 35-41 (1954),
157. quoted in Fletcher & Weinstein, supra note 5, at 624-25.
158. The South African TRC was not designed exactly in accordance with the gradualist approach. Its Reparation and Rehabilitation Committee only held mandate to make recommendations, effectively sidelining the primary needs of victims by promoting reconciliation with perpetrators. Cf. Amnesty International & Human Rights Watch, Truth and Justice: Unfinished Business in South Africa (2003), available at web.amnesty.org/library/Index/ENGAFR530012003?open&of=ENG-ZAF.
159. Herman, supra note 57, at 155-213.
160. We therefore support the recent move in the Czech Republic, whose Parliament decided to provide victims with further compensation in 2001. See Act Providing the Participants of the National Resistance, Political Prisoners, and Persons Placed to Military Labor Camps due to Racial or Religious Reasons with One-time Financial Amount, Act No. 261/ 2001 Sb. Those imprisoned for more than three months, but less than one year, were entitled to a compensation of CZK 60,000 (US $2,000). Those imprisoned for more than one year were entitled to CZK 120,000, with CZK 1,000 for each additional month of imprisonment.
161. In contemplating a reconciliation commission, inspiration is drawn from the amnesty committee of the South African TRC. Similarly, the proposal of a truth commission reflects the TRC's human rights violations committee. Individual level interventions, including financial compensation, psychological and medical interventions, and reinstatement to the previous profession may be facilitated by a reparation and rehabilitation committee in case the old networks retain influence over the implementation of reparation programs.
162. Cf. Hamber, supra note 7 ("[M]aking space for the complaints and opposition of survivors should be seen as an integral component of any reparations programme.");
163. Herman, supra note 57, at 133 (Survivor "must be the author and arbiter of her own recovery. Others may offer advice, support, assistance, affection, and care, but not cure.").