Do Trials Work?

To the Editors:

It is always a pleasure to read Timothy Garton Ash. He is obviously the ideal choice to review Tina Rosenberg’s excellent book, The Haunted Land: Facing Europe’s Ghosts After Communism [NYR, July 13]. Yet I believe Mr. Garton Ash dealt too summarily with the methods that may be available to confront the abuses of the past. He writes that “Trials rarely work”; “Administrative screening and purges are almost invariably unjust”; dissemination of information, or “truth,” is most effective, but “invariably constrained by political considerations”; and “Best of all …is giving citizens the opportunity to confront, preferably in private, their own pasts.”

The most important element that is missing here is any recognition that the appropriateness of a particular method of confronting the past depends in large part on the nature of the abuses that were committed. Take truth commissions. It is widely recognized that these performed a valuable service in certain Latin American countries: particularly in Argentina and El Salvador, and to a lesser extent in Chile (because the truth commission in that country did not name the authors of the abuses it investigated). Argentina was the model. Its truth commission was launched by President Raul Alfonsin a few days after he took office in December 1983 to establish the truth of what had happened to the disappeared during seven years of military rule. The appropriateness of such an inquiry was directly related to the abuse that was its concern.

“Disappearances,” as practiced in Argentina and a number of other countries, were abductions by heavily armed men traveling in unmarked vehicles. The victims were taken to secret locations, tortured to get them to disclose the names of others, murdered, and then their bodies were disposed of clandestinely. Thereafter, the state denied knowledge of their where-abouts.

In Argentina, family members of the disappeared—the “Mothers of the Plaza de Mayo”—organized to demand the truth of what had happened to their relatives. Every element of the crime they protested had been designed to deceive and, thereby, to permit the military government to deny its culpability. The protests by the mothers were ultimately a factor in the downfall of that regime.

In such circumstances, establishing the truth about disappearances was crucial. On the other hand, a truth commission would be far less capable of addressing the abuses that characterized Czechoslovakia, Poland and East Germany, the countries on which Tina Rosenberg’s book focuses. Though repression in these countries was also characterized by deception, the system was designed to limit individual responsibility. Thereby, it had the effect of making vast numbers of people culpable in some measure in repression. It is sometimes difficult when looking back at abuses in those countries to distinguish between victims and victimizers. For example, those who informed on others at some point in their lives often did so in ways that allowed them to persuade themselves that they were doing no harm. At other times, those same persons may have behaved bravely by resisting pressures to inform.

A truth commission could not possibly probe a large number of complex cases of this variety in enough depth to permit it to issue a report that would comprehensively and fairly identify the victims, describe the manner in which they were made to suffer, and name their persecutors. Yet that is what would be required to produce a counterpart to Nunca Mas, the report of the Argentine truth commission.

A truth commission would be even less relevant to abuses such as those in Bosnia or Rwanda. What is it that a commission could tell us about the indiscriminate bombardment of Sarajevo or the radio-incited genocide in Rwanda that would assist in confronting such a past? Only trials of those most responsible would address crimes against humanity committed so brazenly and on so vast a scale.

Garton Ash is not quite right in contending that trials rarely work. He would have been closer to the mark had he pointed out that trials rarely take place. When trials are held, as happened in Greece when the colonels’ regime fell from power, they often work very well. They even worked well in Argentina after the military regime there fell; that is, the trials of the nine members of the first three military juntas that ruled Argentina after the 1976 coup were scrupulously fair and were conducted in a manner that added greatly to the work of the truth commission in informing Argentines about the abuses of the past. What went wrong in Argentina was not the trials themselves but the fact that President Alfonsin, under military pressure, halted them; and that his successor, President Carlos Saul Menem, pardoned those who had been convicted and freed them from prison.

Confronting the abuses of the past is a crucial question in many countries. It is impossible to devise a single approach. Nor do I believe that it is possible to rank approaches in a manner that is useful in dealing with widely varying circumstances. Rather, I suggest, the approach that is employed in each country should be designed to deal with the particular character of repression in that country, taking into account in each case the need to demonstrate respect for the victims and for the suffering they endured; the importance of dealing fairly with those accused of causing their suffering; and the crucial significance of acting in a manner that promotes the rule of law.

Aryeh Neier
President
Open Society Institute
New York City

Timothy Garton Ash replies:

It is always a pleasure to hear from Aryeh Neier. However, in summarizing my argument he has elided two points which should be kept separate. I did not argue that all dissemination of information is invariably constrained by political considerations. I argued that one specific form of dissemination of information, the public, official inquiry or hearing, is so constrained. Even so, I don’t agree that something analogous to a truth commission is inappropriate to probing the particularly complex nature of Communist repression. As I said in the review, I think the Enquete Kommission of the German Bundestag has made a pretty good stab at doing just that. The model just has to be adapted to the specific circumstances, as Aryeh Neier himself suggests in his last paragraph.
Were it to be taken as a global generalization, my statement that “trials rarely work” would clearly be open to question. But it was not a global generalization. So far as post-Communist Europe is concerned, Neier’s alternative generalization, that “trials rarely take place,” is questionable. Actually, there have been quite a few trials, especially in Germany. But of the three main approaches to past-beating—the discovery and dissemination of information, administrative purges, trials—the trials have been the least effective.

There may be examples, following other kinds of repressive regime, where trials have worked better, but I do note that of Aryeh Neier’s two positive examples, one—Argentina—could be argued to demonstrate the opposite. If the political/military pressures are such that trials are halted, and those already found guilty pardoned and released, then the trials can hardly be said to have worked well. However, I repeat that a global generalization was not intended. The point about post-Communist Europe stands.