De-totalitarianization entails destroying or transforming institutions and people. More often than not, however, de-totalitarianization is thwarted by the continuity of the very same institutions and people it seeks to eliminate, replace, or reform. In fact, any attempt at replacing the old with the new encounters similar problems. This pertains also to the judiciary.
A political act is driven by political will and is limited by the context: political, social, cultural, and economic. For example, a lack of political will among Poland’s Sovietized elites and the demobilization of the common people thwarted the attempt to destroy the Palace of Stalin in the middle of Warsaw in the aftermath of 1989. It is a pity: It would have been a stupendously symbolic act that would have rivaled, if not overshadowed, in its theatric magnitude the fall of the Berlin Wall. The same mechanisms apply to the de-totalitarianization at large.
However, let us not forget a third factor: pragmatism. For example, during the revolution, the Bolsheviks imposed work duty on all state officials. Whoever failed to comply was repressed, often executed. So-called bourgeois spetzy ran virtually all technocratic functions of the Red regime. Among them was not only my own great-grandfather, Witold Cieszewski, who was a railroad logistics and cargo expert, but also two generals and about a dozen colonels of the infamous Tsarist secret police, the Okhrana. The latter were pragmatically retained to train Communist terror apparatus operatives of the Cheka.
In the case of my great-grandfather, the deciding factor was that the Reds took his family hostage and threatened to shoot them in case of his defection. Luckily, all ended well because the Polish government exchanged the Cieszewskis and other Poles for Bolshevik POWs in 1921. As for the former Okhrana officers, aside from the family hostage factor, they believed themselves to be serving, once again, the Russian state. Ultimately, their new masters executed them by the end of the 1920s. But Lenin’s pragmatism allowed the Communists to take advantage of their expertise until they were no longer needed.
The Soviet dictator had a tougher time with the judiciary. He first sidelined and then dissolved the “bourgeois courts.” They were replaced by “people’s courts” to try “the enemies of the people.” But as Richard Pipes (The Russian Revolution (New York: Vintage Books, 1991); and Russia under the Bolshevik Regime (New York: Vintage Books, 1995) has shown, the “people’s courts” were anchored on the Soviets. The latter were dominated by non-Bolshevik Social Democrats. They were not sufficiently radical for the Communists. They refused to apply the rules of “revolutionary legality” and mass murder “the enemies of the people.” This forced Lenin to switch to administrative measures. Secret policemen and other Communist party appointed stooges worked much, much faster than “people’s courts.” The Soviet judiciary was either short-circuited by the bureaucrats or taught, eventually, to serve as a conveyer belt for party decrees. It took some time, though, for Stalin to perfect the system.
East and West
A similar dialectical pragmatism dictated the rhythm of the Sovietization of Central and Eastern Europe in the wake of the Second World War. The Reds initially retained pre-war and war-time “reactionary” and “bourgeois” experts. They would purge most of them in time, but some remained in their posts, serving faithfully the Soviet occupiers. The pragmatism of the new regimes was not limited to experts solely. According to Istvan Deak (Europe on Trial: The Story of Collaboration, Resistance, and Retribution During World War II (Boulder, CO: Westview Press, 2015), in Hungary they even encouraged so-called “little fascists” of working-class background to join the Communist party as socially friendly.
There is a certain resemblance between the initial personnel policies under the Soviet occupation in the East and under the Allied rule in the West. In liberated Western European countries, only a few blatant Nazi collaborators were purged, including in the judiciary. Aside from a limited number of spontaneous assassinations and even fewer court cases, continuity in personnel became the rule as Western Europeans strove to return to normalcy. Stability was the byword for it was indispensable to economic and social recuperation – rebuilding from the war. By 1950, all democratic state institutions, including the judiciary, proceeded as before the war. It was only at that point that the Soviets embarked on incrementally purging the state apparatus in the East.
Let us turn very briefly to three case studies of regime change and de-totalitarianization: Germany, Japan, and Iraq. They all share certain characteristics. From the point of view of mission objective, only Iraq was a success. Unlike in Japan and Germany, the United States carried out a virtually total de-Baathification. The neo-conservative idea was not to repeat the mistake committed in Poland and elsewhere in the Soviet Bloc, which – as an official American policy – provided the Communists with golden parachutes and ensconced them in nominally democratic power in the nations they formerly tyrannized.
In Iraq, some of the very people who had been behind the policy to prevent the de-Communization in former Warsaw Pact nations, resolved to make a clean sweep of the Saddam Hussein regime. And they did it with a singular lack of pragmatism. Virtually every single member of the Baath Party was fired. This proved to be a disaster. Dismissed soldiers joined the Islamist insurgency. Engineers were ordered to abandon their posts, for example, at the Haditha Dam which practically stopped functioning with calamitous results for Iraq’s agriculture and other sectors of the economy. Secular judges were fired en bloc clearing the way for the ascendancy of the Sharia to the gleeful delight of the imams, mullahs, and sheiks.
A wave of violence engulfed Iraqi society. Sectarian tit-for-tat spiraled out of control when the long-oppressed Shia took revenge on the formerly dominant Sunni. In essence, the Iraqi state imploded and a multi-tribal system emerged to replace it. All hell broke loose. The success story of de-Baathification failed to benefit the people of Iraq in a grotesque logic of the law of unintended consequences.
In Japan, the US imposed a military occupation with military courts and judges. We tried major war criminals, but we treated minor perpetrators rather leniently. Civilian Japanese courts continued to function with the same judges and other personnel. Gradually, the scope of their jurisdiction increased.
To set up a democratic system, General Douglas MacArthur carried out a vast land reform which totally disenfranchised the Japanese aristocracy but enfranchised the peasant. Farmers became the mainstay of the system, which remains essentially the same until this day. The traditional elites, however, recuperated soon because the US failed to destroy the university system. Namely, the American Shogun allowed Tokyo Imperial University to continue to function as the prime and exclusive elite educational institution of Japan under an altered name: Tokyo University. Ultimately, America helped Japan to recover economically and rebuild its might with essentially the same native personnel as before the war.
In Germany, both the Soviets and Western Allies destroyed the Third Reich and its institutions, but not their personnel. In most cases, name changes occurred, including the courts and justice administration. The Soviets submerged their personnel in their own form of totalitarianism. The Americans, British, and French adapted them to suit a parliamentary democracy. All occupiers retained various native experts, including legal specialists to adjudicate various local and mundane issues. However, it was military courts that called the shots initially. In the Soviet zone, additionally, NKVD kangaroo panels routinely miscarried justice.
Within this context, Nuremberg should be seen as a joint effort to punish top Nazis through military justice. It was a symbol, which soon garnished criticism for meting out “victor’s justice.” No German law, after all, permitted to murder innocent civilians, whether Jew or Christian. So the perpetrators could have been tried by German judges. The problem was that virtually all the judges had been Nazi party members. Would they punish their own? How credible would they be in presiding over the trails of their own former Parteigenossen?
Of all the bad solutions, Nuremberg was perhaps the least nefarious, except the Soviets should have been on trial, too, as war (and peace) criminals. The owners (masters?) of the Gulag and perpetrators of the Katyn forest massacre were not fit to prosecute the proprietors of Auschwitz and murderers of the Palmiry forest. Communist judicial cynics thus amused the Nazi defendants, a point the Western Allies elected to overlook. As a matter of fact, that was the default position – to ignore routinely the post-Nazi reality of the Germans both east and west.
Nuremberg was a symbolic departure from the routine of pragmatism. Continuation was the rule. By 1950, state institutions in the eastern part of Germany were Sovietized and an eastern German state thus emerged. Former Nazi party members who embraced Communism faithfully were kept on, including in the judiciary. Meanwhile, in western Germany the de-Nazification also proved a failure. Old Nazis continued on as new democrats. All was forgiven, much was forgotten. This, hence, accounts for an abysmal record of pursuing Nazi criminals in the Federal Republic of Germany until the 21st century. The continuity of the investigative, prosecutorial, and judiciary personnel generated leniency for the perpetrators who shared the same organizational background, if not criminal record.
Ubiquity of Accommodation
The truth is that in Iraq, Japan, and Germany (as well as the USSR) the majority accommodated to totalitarianism. “I was not a Nazi,” served as the most ubiquitous excuse heard by the Americans, and it became the greatest joke in Germany in 1945 and thereafter. Technically, the joke was true. Most people who joined the NSDAP did so when the party was elected to power in 1933. They were usually opportunists. They made their choice to serve Hitler to better their lot in life. It was similar with Italy’s Fascist Party. Anyone who wanted a good government job, a good business connection, or any perks accruing from such associations had to join Mussolini’s party. The same went for the Communist Party of Lenin, Stalin, and their successors.
Once again, there was no compulsion to join. But those who failed to join suffered. Sometimes it was a lost opportunity or a denied scholarship. In extremis, the refusal, in particular an overt one, to identify openly with the ruling party brought repression, even death. After all, totalitarianism was all pervasive. It strove to ensnare virtually everyone, albeit to varying degrees.
Despite this, it is still possible to differentiate between perpetrators and victims of totalitarianism. Those who made a choice and collaborated consciously against their fellow men should pay the price. That is essentially the gist of de-totalitarianization. What makes the execution of a policy to get rid of Nazis, Fascists, or Communists so difficult is not just the ambiguity of the status of the opportunists, the party members and fellow travelers, but the question of political will, context, and pragmatism. In essence, it is a problem of how to make an aquarium back out of a bowl of fish soup.
Yet, I believe there is a way to de-totalitarianize. The mechanism is clear. Mete out justice to the high profile political leaders, including the secret police, first. The rest of the perpetrators can be dealt with incrementally. Keep the technical experts on until you train your own. Make sure no totalitarian is left in any political post. Curtail their economic power, gradually or not, depending on the circumstances. To know the pitfalls, such as in Iraq, should help in the process. Continuity can be interrupted. But first there must be political will, knowledge of the context, and a generous share of pragmatism.
Marek Jan Chodakiewicz
Warsaw, 23 August 2019