Jüri Luik calls for the establishment of a commission for the investigation of Communist crimes in Europe 26.11.2008
We often pay more attention to the rights we have as members of the international community than we do to our obligations. There are now many countries in the world, and in Europe in particular, who have thrown off the Communist yoke and are enjoying the fruits of a market economy. Yet, somewhere on the vast Siberian plains, there are graves without headstones, where our kinsfolk lie, many of whom died in the prime of their lives. "The Black Book of Communism", the most authoritative work on Communist crimes, states that 100 million people fell victim to those crimes.
Such a number cannot be ignored simply because the Soviet Union collapsed 17 years ago. On the contrary, the Central and East European countries (CEECs) have established their own post-Communist era state institutions and obtained sufficient resources by now to be able to demonstrate their attitude towards Communist crimes and to ensure that such crimes are never repeated. It is our duty, as we are one of the victimised nations.
After the enactment of the Constitution of the Republic of Estonia and the assertion of human rights as the centrepiece of the document, our legislation has been supplemented by laws that stipulate the accountability of those who commit crimes against humanity, irrespective of the date of their commission - be it before or after the adoption of those laws. This marks our return to the normal Western legal tradition, according to which there are no statutes of limitation for the gravest crimes, i.e. acts of violence targeted against human society. While the philosophical and legal bases for the condemnation of Nazi crimes and the respective punishments are clearly defined in the Western legal sphere, the issue of the penalties imposed for Communist crimes has mostly been viewed as an internal matter for the CEECs. Here, Estonia has stood out, as we have brought to justice some of the perpetrators personally responsible for such crimes. Now we belong to the European judicial system and several convicted offenders have filed appeals to the European Court of Human Rights, bringing this problem to the attention of those Europeans who have not personally suffered under Communist rule. However, these are isolated cases which have no wider impact on Europe.
The topic of guilt is discussed at length in "The Black Book of Communism". Its authors conclude that Communist crimes could be classified and punished similarly to those of the Fascists. Let us remind ourselves that after the war the Nazis were accused of the following three classes of crime to which no statutes of limitation apply: crimes against peace (initiation of a war of aggression), war crimes (including crimes committed during occupation) and crimes against humanity. Even without being a lawyer, it is blindingly obvious that what happened to the Estonian people could be very easily categorised under the same classes of crime. Still, such an approach has not been adopted, despite the fact that international law has always allowed it.
The Nuremburg Principles, which were confirmed by the General Assembly of the United Nations already in 1946 and offer a comprehensive definition of all crimes to which no statutes of limitation apply, do not mention a single country by name. These principles are universal and lay the foundation for laws adopted later, for example, by the International Criminal Court (ICC), which is also supposed to be universal. Consequently, the reason for the inadequate investigation of Communist crimes must lie in the lack of political freedom and, after the disintegration of the Soviet Union, of political will.
Today, memories of Communism are beginning to fade. The Communist regime has become surrounded by an aura of tempting romanticism and young people have no problem wearing Che Guevera T-shirts or jackets with CCCP printed on them. These youngsters do not comprehend that every one of them probably had a close relative killed by this regime. And if the relative was really lucky and actually managed to stay alive, he still could not live his life the way he wanted. Under the Soviet regime, you could not express yourself and you had to live in constant fear and humiliation. After all, as the poet Juhan Viiding said, you only live once, just for a few dozens of thousands of days, not for billions.
This kind of naive inexperience fuels the resurrection of Communism. More and more signs of this are showing through in Latin-America, for example in Venezuela. We are, naturally, more worried about signs of the reanimation of Communism that are appearing in Russia, which used to be the biggest Communist country in the whole world, and Belarus, where the practice of Communism has not even temporarily been abandoned.
It is a well-known fact that Jewish communities all over the world have been very successful in building an international anti-Fascist consensus. We have much to learn from them if we desire to achieve a similar consensus on Communist crimes. During the years I lived in the USA, I explored with fascination the work done by the US Jewish community in order to create such a consensus.
The suggestion that the whole process went very smoothly is quite misleading. It has involved the efforts of thousands of enthusiasts and the building of museums, establishing of university chairs and even the tracking down of war criminals. It is based on the enthusiasm of the participants, but they often get paid for what they do. Research grants are awarded to those interested in Holocaust studies and doctoral theses are written on this topic. In short, it is not just a hobby for enthusiasts.
Holocaust studies, heritage conservation and other similar activities gathered momentum only in the 1960s, when people's priorities differed from those of the end of the 1940s and 1950s. After the war, people wanted to start a new life, get on their feet and leave all the horrors behind. When they had set themselves up and younger generations began to ask questions, they were ready to re-examine their painful memories. The whole process was not as self-evident as it might seem today. Nobel laureate Elie Wiesel, who had survived in concentration camps and who founded the huge Holocaust museum in Washington, has described the difficulties he had when raising funds for the museum. Many rich Jewish entrepreneurs, even those whose parents were the victims of the Holocaust, did not want to get involved. Instead, they urged him to look forward, live for tomorrow, and so on.
Today, the condemnation of the Holocaust forms an integral part of the cultural pattern of the West. However, Communist crimes have not been subjected to a similar process. The CEECs, who suffered the most, have not pursued it. The only significant monument commemorating the victims of Communism has been erected in Washington by the Americans, admittedly with the help of expatriates of the CEECs. This monument is important for the USA, as it was inaugurated by President Bush in the presence of influential Congressional leaders. Now, the opening of a museum of Communist crimes is planned in Washington. It would be sad and undignified if the Americans did all the work in this field.
The peoples of the CEECs should make a start on reaching a new international consensus, which, similarly to the condemnation of Nazism, would involve actual, not merely verbal condemnation of Communist crimes. We need a legal foundation to build on. In the case of Fascism, the sinister Nuremburg Tribunal constituted such a foundation. However, too much time has passed to bring the perpetrators to justice. It could upset the delicate political balance achieved in several countries.
In short, prosecution would not be in the public interest or practically feasible. Instead, we need an international and authoritative commission to conduct the respective investigations. I am not pushing for an intellectual Nuremberg, rather for 'honest self-examination'. All the events should be investigated without enforcing personal accountability. The commission should have no authority to initiate court proceedings. The Estonian International Commission for the Investigation of Crimes Against Humanity ( the so-called Jakobson's commission) is the best model there is, although the proposed commission should have a higher profile and its activities should be international and public. The commission could also follow the example of US congressional hearings.
The CEECs should join their efforts and establish the Commission for the Investigation of Communist Crimes in Europe. The respective decision should be adopted by a group of the CEECs which should be as large as possible. At the same time, the commission's statutes and charter (preferably in the form of an international treaty) should be drawn up in order to define its objectives and organisation of work. The membership of the commission should incorporate one prominent public figure, possibly a historian or a politician or both (e.g. Adam Michnik or Vaclav Havel) from every country. The most important selection criteria should be the impeccable reputation and moral integrity of the members, preferably combined with some international prominence.
The commission should evaluate all the events on the basis of legislation governing the condemnation of crimes against humanity, from Nuremberg to the ICC. The conceptual framework should be outlined in the charter of the commission. Let me remind you that the Charter of the Nuremburg Tribunal is still the most comprehensive basic document for the assessment of crimes against humanity committed under Fascist rule. This charter contains various principles which, subject to some minor changes, could be followed by the Commission for the Investigation of Communist Crimes.
The statutes of the commission should define its principles of action in practical terms. Every larger mass murder should be treated as a separate case, in relation to which the commission would publish its materials and conclusions, as Jakobson's commission did. The commission should focus its attention mainly on bigger cases that affect large sections of society and public opinion, for example the Ukrainian famine induced by the Communists, the fate of the Polish officers, the deportation of the Baltic peoples, the setting up of the Gulag system of slave labour camps in order to boost the economy, the exploitation of psychiatric hospitals as repressive instruments, mass executions (which have taken place in several European countries at different times) and environmental catastrophes intentionally brought about.
How should the commission carry out its work? It will take up a specific case, for example the fate of the Polish officers, and conduct public hearings. The investigators appointed by the commission will introduce their research results and pictorial images, if there are any. Witnesses will be questioned. After that, the materials and minutes of the hearings of the commission will be published in printed form as an official document.
The published document will include the conclusions and judgements of the commission with regard to the condemnation of the respective crimes. The whole project should be adequately financed in order to enable the commission to hire investigators and to undertake research into relevant materials; otherwise it would be just somebody's hobby. National research teams should also play an important role in the work of the commission, for example the Institute of Memory, the establishment of which President Ilves proposed, could provide added value.
The work of the commission should be public, interactive, accessible through the Internet and possibly broadcast on cable television. The public should be given the opportunity to present their own materials and testify as witnesses. Case files could thus be supplemented, as people would know an address in Tallinn, Warsaw or Prague to where they could send all the information they have about the Communist crimes currently under discussion. People would have something to hold on to: their painful memories would have an impact on the international community.
There is also the question of concentrating the focus of the commission only on Europe. Is such a focus justified? Yes, as it is the primary duty of European countries. Without overindulging in the provision of parallels, let me just point out that the Nuremburg Tribunal, as we know it, considered only the crimes committed in Europe (up to the eastern frontier of the German offensive). Europe should investigate the Communist crimes perpetrated in Europe (or, perhaps, in the region covered by the OSCE), because it constitutes a sufficiently wide, but still manageable area. Even though the initiative should come from the CEECs, all the members of the OSCE and the Council of Europe should be definitely asked to join it. Moreover, I am convinced that many CIS member countries would also like to participate in the process.
Of course, the first difficulties will arise already during international negotiations. The engagement of international and non-governmental organisations will also be complicated.
Even the legal process of the establishment of the commission would have a significant political impact on the achievement of a new international consensus. It is possible that certain countries would not join in or would even obstruct the investigations by denying access to their archives, etc. That would be sad indeed, but a wide range of archive materials is luckily already available in the free world and, no doubt, accessible to investigators. Those countries who did not participate in the process would, however, define themselves as objectors to the investigation of Communist crimes and have to explain the reasons for this to their own people and the international community.
The commission would have an important role in the examination and analysis of facts, but its most important result would be symbolic: it would send a signal to the international public that crimes, which many hoped are forgotten, are still remembered several generations later. History will remember them the way they were committed: they were but crimes, nothing more.
The work of the commission would provide a counterpoint to other research, which would contribute to the academic discipline of Communist studies. The next sensible and appropriate step would involve the establishment of university chairs in Communist studies in order to investigate the causes of Communist crimes and, more importantly, to integrate the knowledge acquired into the education system and record it in history books. Young people would then become more aware of the whole issue. Scientific research could explain how mass crimes were committed in specific terms. We could get some answers to much debated questions regarding the authorisation limits of Soviet republics or the nature of the relationship between the KGB and the Communist party during the implementation of repressions. Up to now, the overwhelming majority of the studies concerning Communist crimes have been published in the West, for example Richard Pipes's Communism and The Unknown Lenin, Anne Applebaum's Gulag and Robert Service's recent book Comrades!.
To sum up, we have much to learn from the people who have studied and kept alive the memory of the Holocaust. We have to do a lot of work, seek an international consensus and engage multiple political forces. That is how an international consensus is forged, even though some columnists might still claim that we are trying to undermine international consensus and creating our own parallel universe.
I call for the establishment of a commission for the investigation of Communist crimes, because I am concerned that as long as such crimes are not thoroughly examined, there will be dark areas in the collective psyche of ex-Communist countries. These societies will start to function normally only if their pain is brought into the open, analysed and universally accepted. In addition, we should not underestimate the vitality of Communist ideology: societies who are experiencing difficulties might be easily deluded by a dream of an ideal society. Only the achievement of a new international consensus will enable us to rule out such risks.
The aim of this article is not to put the blame on hundreds of thousands of ordinary members of the Communist party. I am not quite convinced that the former membership status is, indeed, a source of pride, but I am sure that there is no reason to accuse all the members of the only mass party of those times. Many apologists for Communism have hidden among the masses for too long, justifying everything the Communist party did from their sheltered position. Such attempts are rather laughable in their transparency.
Furthermore, this article does not urge Estonia to publicly take a leading role in this process. Estonia should be one of the initiators and negotiators at the international level. This initiative can only be successful if it is supported not by one or two, but, for example, ten countries. The participation of larger CEECs who have more political clout is extremely important. The initiative would also benefit from the engagement of those Western countries who did not literally suffer under Communist rule. We, the victimised countries, have to take a stand to perpetuate the memory of the people whose lives were taken or destroyed by the Soviet regime. This is our duty.
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