Settling Accounts: Violence, Justice, and Accountability In

SETTLING ACCOUNTS EDITORS Sherry B. Ortner, Nicholas B. Dirks, Geoff Eley PRINCETON STUDIES IN CULTURE / POWER / HISTORY SETTLING ACCOUNTS VIOLENCE, JUSTICE, AND ACCOUNTABILITY IN POSTSOCIALIST EUROPE JOHN BORNEMAN PRINCETON UNIVERSITY PRESS PRINCETON, NEW JERSEY Copyright 1997 by Princeton University Press Published by Princeton University Press, 41 William Street, Princeton, New Jersey 08540 In the United Kingdom: Princeton University Press, Chichester, West Sussex All Rights Reserved Library of Congress Cataloging-in-Publication Data Borneman, John, 1952– Settling accounts : violence, justice, and accountability in postsocialist Europe / John Borneman. p. cm. — (Princeton studies in culture/power/history) Includes bibliographical references and index. eISBN 1-4008-0081-1 1. Post-communism—Europe, Eastern. 2. Rule of law—Europe, Eastern. 3. Reparation—Europe, Eastern. 4. Political crimes and offenses—Europe, Eastern. 5. Retribution. 6. Social justice—Europe, Eastern. 7. Europe, Eastern—Social policy. 8. Europe, Eastern—Politics and government—1989– I. Title. II. Series. HN380.7.A8B67 1997 306.2′0947—dc21 97-12041 CIP This book has been composed in Palatino http://pup.princeton.edu Contents Prefacevii Acknowledgmentsxiii PARTONE:FRAMING,COMPARING,HISTORICIZING1 Chapter 1 FramingtheRuleofLawinEast-CentralEurope3 AccountabilityandRetributiveJustice3 ComparisonofRegimeTransformations8 JusticeandPoliticalTheory10 TheStudyofLegalReformandAnthropology16 Violence,Accountability,Dignity20 Chapter 2 Comparing:Decommunization—Recommunization—Reform?26 DecommunizationandRecommunization26 SkepticalDescriptionsofReform28 Coda39 Chapter 3 HistoricizingtheRuleofLaw40 TheWesternLegalTradition41 ComparisonofNationalTraditions:England,France,Germany45 ArchitecturalSymbolismofJusticeinBerlin47 TheTwoGermanysduringtheColdWar50 PARTTWO:ETHNOGRAPHYOFCRIMINALITY57 Chapter 4 The Invocation of the Rechtsstaat in East Germany: GovernmentalandUnificationCriminality59 TheInvocation59 Creation of Criminal Categories and Investigation of Crime: ZERV1—UnificationCriminality63 Creation of Criminal Categories and Investigation of Crime: ZERV2—GovernmentalCriminality66 TheInvestigation71 Transforming Misfortune into Injustice: The Role of ArchivesandEvidence72 vi CONTENTS ReckoningwiththeCriminalPast:ZERVandthe Gauck-Authority 75 Preliminary Proceedings (Zwischenverfahren) 78 TheTrial(Hauptverfahren) 78 Chapter 5 AccountabilityonTrial 80 Extortion:ProfessorDr.Vogel81 The Indictment 84 The Right to Leave and Cold War Order 86 Zapff’s Cottage 90 Postscript 94 PARTTHREE:ETHNOGRAPHYOFVINDICATION97 Chapter 6 Democratic Accountability: Results, Evaluations, Ramifications 99 Chapter 7 Justice and Dignity: Victims, Vindication, and Accountability 111 DignityandRestitutiveJustice111 History of Vindication after 1989 113 The Commission of Vindication for Radio and Television 118 Case Study of Vindication Commission Proceedings 121 Evaluations of the Vindication Commission 128 Conclusion 133 PARTFOUR:LEGITIMACY137 Chapter 8 The Rule of Law and the State: Violence, Justice, and Legitimacy 139 Type1:SomeRetributiveJustice145 Type 2: Little Retributive Justice 155 Type 3: Extensive Retributive Justice 160 Conclusion 165 Notes167 Bibliography177 Index187 NameIndex195 Preface I BEGAN the research for Settling Accounts on a trip to Berlin in March 1990. Funded by the German Marshall Fund, I went as an anthropol- ogist to observe the first free, multiparty elections in East Germany since 1946. I had just finished a study of everyday life during the Cold War in the divided Berlin, and I was a few months away from com- pleting a book about Germany’s first steps toward national unification. In my search for the key issues in the radical transformations of culture, society, and politics, I was struck by public demands, often bordering on hysteria, for justice. These demands ranged from requests for reha- bilitation of one’s name or reputation to calls for the prosecution of members of the old elite. Initially they had little to do with fights over the return or redistribution of property, which has since occupied the attention of so many intellectuals. Much public attention was focused on what legal theorists call “moral injuries”—deeds, like attempted murder, that did not result in actual harm but were nonetheless wrong. People seemed united that the “actually existing socialist” regimes were illegitimate and that their elites had behaved unethically, if not criminally. In this transformative moment, the burning issues in public discourse, not only in East Germany but throughout much of East- Central Europe, became: how and for what should people be held ac- countable, and how could past wrongs be set right? It appeared that the immediate legitimacy of the new postsocialist states of the former East bloc rested largely on formulating adequate responses to what all agreed were intractable problems of rectifying perceived injustice un- der the old regimes. Most of this book is devoted to evaluating the performance of these new states in reckoning with their criminal pasts in the first five years after the revolutionary change of regimes. This reckoning has involved an attempt to invoke the principles of the rule of law. Now, as I close this study, the relevance of the initial topic that inter- ested me is no longer limited to the losers of the Cold War, to the former socialist regimes of East and Central Europe. From Western Eu- rope to Latin America to Asia, even the regimes of the capitalist victors and their allies have been unsettled by demands for accountability and justice. An extraordinary anti-Mafia campaign continues to shake the foundations of postwar Italian political culture; Chilean and Argentin- ian officers responsible for terrorizing and killing political opponents have been tried and imprisoned; two past presidents of South Korea viii PREFACE were recently convicted on charges of ordering a massacre. Although it is unlikely that many of these campaigns will result in convictions or imprisonment (or that general amnesties will be declared, as has al- ready happened in Chile and Argentina), the performative effect of the state’s effort should not be ignored. What began quite narrowly as a study of the transformation of East bloc socialist regimes now appears relevant outside the European context. Indeed, it is perhaps the begin- ning of a particular kind of History. We are witnessing a world move- ment for retributive justice: the conviction of wrongdoers and the resto- ration of the dignity of victims. Unlike distributive justice, which is concerned with giving each his/ her proper share, or corrective justice, which is intent on rectifying harms, retributive justice deals primarily with moral injuries, wrongs that frequently do not result in material injury or harm. In current us- age, retribution has come to be associated solely with punishment for offenses, yet etymologically the meaning of the word includes reward- ing for good deeds. Only in the course of the twentieth century has the meaning of retribution been reduced to a manifestation of revenge mo- tives. Up until the late-nineteenth century, it has always been part of a settling of accounts that necessarily both punishes evil and rewards good. The relevance of retributive justice in the contemporary context goes far beyond the fate of individual criminals and victims; its increasing importance is part of a global ritual purification of the center of political regimes that seek democratic legitimacy. Not all states, of course, seek democratic legitimacy, and those which fail, despite positive inten- tions, to achieve democratic political form will likely turn to dictatorial means of assuring their domination. For them, retributive justice will likely not be justice at all. But for those that do seek democratic legitimacy, only with this purification can the “rule of law” be successfully invoked. Only with an appeal to principles embodied in public “rule by law” instead of in personal “rule by men” can these new states in East- Central Europe establish democratic legitimacy. The invocation of the rule of law is not a one-shot injection of justice into former state socialist settings, a return of errant governments to political normality; re- gime purification is necessarily a periodic process. To invoke the rule of law has always meant different things to different people. Some analysts see it as a set of procedures to protect individuals from arbitrary rule, while others view it as the progressive march of reason and rationality. The former tend to focus on human rights and political liberties, the latter on contract and property rights. Historically the two perspectives have been difficult to disentangle the- oretically and empirically, partly because private property rights and PREFACE ix political liberties coexist everywhere in a sometimes complementary, sometimes antagonistic relationship. The distinctive claims and inter- connectedness of the two perspectives was illustrated again in 1989 in Tiananmen Square by Chinese demonstrators, who took the rule of law to mean political liberties and freedoms—whereas Deng Xiaoping and other members of the political elite saw it as the importation of foreign, Western individualism. Subsequently many of these demonstrators have reportedly become capitalists, joining the political elite in its pro- growth economic goals. Yet in order to reach these economic goals, Western banks and lending institutions have forced the elite to enact, if only formally, contract law—hence

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