Divergent responses to a common past: Transitional justice in the Czech Republic and Slovakia NADYA NEDELSKY Macalester College Abstract. This article addresses the question of why, despite having shared a commu- nist regime and a revolution against it, the Czechs and Slovaks have dealt di¡erently with that regime’s former high o⁄cials and secret police agents, ¢les, and collaborators. I argue that this divergence challenges theories of transitional justice put forward by such scholars as Samuel Huntington and John P. Moran, who respectively identify transition type and levels of regime repression as the key factors shaping a new regime’s response to its predecessor. I propose that a stronger in£uencing factor is the level of the preceding regime’s legitimacy, as indicated during the communist period by levels of societal cooptation, opposition, or internal exile, and during the post-communist period by levels of elite re-legitimization and public interest in ‘‘decommunization.’’ In drawing this link between past and more recent developments, I also argue that struggles over transitional justice issues should not be considered exclusively as the ‘‘politics of the present.’’ Finally, I examine the cases of Poland, Hungary, and Romania to assess the broader applicability and limits of my theory. Although the Czechs and Slovaks shared a communist regime from 1948 until 1989, the two nations have responded to the darker elements of this common past in strikingly di¡erent ways. They did initially conceive a common strategy: in 1991, the Czech and Slovak Federative Republic was the ¢rst post-communist state to pass ‘‘lustration’’ legislation, which sought to exclude the previous regime’s high political o⁄cials and secret police personnel and collaborators from a range of public o⁄ces during the early years of democratization. After the law’s passage, however, the Czech and Slovak responses to the previous regime diverged. The Czech Republic continued to pursue lustration after the breakup of the common state in 1993, extending the law’s period of enforcement twice. The Czechs have also set up a frame- work for the investigation and prosecution of crimes committed under the communist regime and allowed progressively broader public access to the ¢les kept by the secret police. Slovakia’s political leadership has, by contrast, shown little interest in such ‘‘cleansing’’ of the public Theory and Society 33: 65^115, 2004. ß 2004 Kluwer Academic Publishers. Printed in the Netherlands. 66 sphere. The lustration law was never seriously enforced in Slovakia and quietly expired in 1996. Few e¡orts have been made to prosecute former o⁄cials, and Slovakia was the last post-communist state in Central Europe to grant its citizens access to communist-era secret police ¢les. The contrast between the two cases raises the question of why the Czechs and Slovaks have dealt so di¡erently with the former regime’s leaders and its secret police personnel, collaborators, and ¢les. This is a question that poses some challenge to the theories of post-commu- nist ‘‘transitional justice’’ that evolved alongside early developments in the region. An important work dealing with this topic appeared in 1991, less than two years after the Eastern European revolutions, when Samuel Huntington published The Third Wave: Democratization in the Late Twentieth Century. In this study, Huntington uses his observa- tions of the ‘‘third wave’’ of democratization, which he follows from its start in 1974 until 1990, to propose a theory of why leaders of new states respond to the injustices of preceding regimes in particular ways.1 This study has proved very in£uential to the subsequent liter- ature on transitional justice. During the years after its publication, however, developments in Eastern Europe prompted a number of scholars to raise questions about Huntington’s theory, including the reasons why Huntington’s analysis of the Czechoslovak case did not anticipate anything like the lustration law. Though these studies o¡er a compelling account of the reasons why the state’s leaders chose this strategy, none fully confronts another important development: the Czechs implemented (and have continued to implement) the law and the Slovaks did not. The lack of focus on early treatments of this issue appears to re£ect the tendency ^ following Huntington ^ to consider Czechoslovakia as a single case study, rather than studying its constit- uent nations comparatively. Nor has this divergence been the subject of wider scholarly interest: since the ‘‘Velvet Divorce,’’ attention has followed the progress of transitional justice in the Czech Republic to the virtual exclusion of the (admittedly largely inactive) Slovak case. Thus, the related questions of the di¡erences between Czech and Slovak policies on public access to the Czechoslovak secret police ¢les and the prosecution of former regime o⁄cials have also received little Western attention. Indeed, while the contrast has not gone entirely unnoticed, the question of why the Czechs and Slovaks have diverged so widely in their approach to the past is to this point largely unex- plored. It would nevertheless appear that a study of the reasons behind this divergence could contribute to theory-building on transitional 67 justice because the two cases shared both a preceding regime and the revolution against that regime. In this article, then, I trace the evolution of both Czech and Slovak transitional justice and the scholarly analysis of it, moving back and forth between developments on the ground and the theories o¡ered to account for them. I begin by laying out Huntington’s theoretical framework for analyzing transitional justice in the late twentieth century. In the second and third parts, I look at the development of lustration after the Czechoslovak Velvet Revolution and at how this development prompted challenges to Huntington’s analysis of Czecho- slovakia. In the fourth section, I trace the divergence of Czech and Slovak responses to their common past, and suggest an explanation of this divergence that draws on, but also moves somewhat beyond, preceding analyses, focusing on the role that the previous regime’s level of legitimacy plays in shaping approaches to transitional justice. I also explore evidence that the communist regime had di¡erent levels of legitimacy in the Czech and Slovak Republics and that this has had implications for developments in the post-communist period. Then, I examine recent debates in the Czech Republic and Slovakia over ¢le access, to show that commonalities as well as di¡erences exist between the two cases. Next, I assess my theory’s broader applicability by brie£y examining the Polish, Hungarian, and Romanian cases. In the ¢nal section, I present my conclusions. Huntington’s ‘‘torturer problem’’ According to Huntington, three main types of transition from author- itarian rule characterized the ‘‘third wave’’ of democratization.2 The ¢rst type is ‘‘transformation,’’ in which the leaders of an authoritarian regime play the primary role in ending that regime and democratizing the state. Among the pre-1989 transitions, Spain and Brazil are the clearest examples of transformations, and in Eastern Europe, Bulgaria and Hungary most closely ¢t this type. The second transition type is ‘‘replacement,’’ which occurs when the authoritarian regime is domi- nated by staunch opponents to democracy. In such cases, the transition takes place when opposition to the regime gains strength and the government weakens to the point that ‘‘the government collapses or is overthrown.’’3 Argentina and Greece are the best pre-1989 examples, and East Germany and Romania are the East European replacements. Finally, there are ‘‘transplacements,’’ in which neither the regime nor 68 the opposition is powerful enough to enforce its vision alone and so democracy is brought about through negotiations. Huntington classi- ¢es South Korea, Uruguay, and more recently, Poland and Czechoslo- vakia as transplacements. According to Huntington, the outcome of what he calls ‘‘the torturer problem’’ ^ i.e., whether to pursue a policy of ‘‘prosecute and punish or forgive and forget’’ with regard to the o⁄cials of the authoritarian regime who ‘‘blatantly violated human rights’’ ^ tends to be predicted by transition type. In essence, ‘‘[j]ustice was a function of political power. O⁄cials of strong authoritarian regimes that voluntarily ended themselves were not prosecuted; o⁄cials of weak authoritarian re- gimes that collapsed were punished if they were promptly prosecuted by the new democratic government.’’4 While o⁄cials of relatively strong regimes that transform themselves can declare amnesties, o⁄- cials in regimes that collapse and are replaced are not in a position to make demands. Replacements are therefore far more likely than trans- formations and transplacements to result in the prosecution and punishment of authoritarian o⁄cials. Indeed, Huntington observes that ‘‘[i]n Eastern Europe, apart from Romania and East Germany, the initial overall tendency was to forgive and forget’’ ^ a ¢nding consistent with his predictions based on transition type. He cautions, however, that favorable transition type is not in itself su⁄cient to secure justice, if that justice is not swift: Democratic justice cannot be summary justice of the sort meted out to the Ceausescus, but it also cannot be slow justice. The popular support and indignation necessary to make justice a political reality fade; the discredited groups associated with the authoritarian regime