Judging the Past in Unified Germany

Vol. 15 No.12 (December 2005), pp.1049-1053

JUDGING THE PAST IN UNIFIED GERMANY, by A. James McAdams. Cambridge: Cambridge University Press, 2001. 264pp. Cloth £40.00/$53.00. ISBN: 0-521-80208-3. Paper £14.99/$21.99. ISBN: 0-521-00139-0.

Reviewed by Ernesto Verdeja, Department of Government, Wesleyan University. Email: everdeja[at]Wesleyan.edu.

Over the past twenty years, a number of countries have undergone transitions from authoritarianism or civil war to democracy. A major challenge for successor elites has been how to address legacies of human rights violations. Although the appropriate normative objectives may seem clear when presented abstractly – accountability for rights violators; truthful account of the past; symbolic recognition and material reparations for victims of the previous regime; societal reconciliation; and establishment of the rule of law – elites’ responses are constrained by the particularities of the transition, and it is rarely if ever the case that they can pursue all of their goals without resistance or challenge.

Context certainly matters. In the Latin American transitions of the eighties and early nineties there remained a significant threat that armed forces would overthrow democratic leaders pursuing prosecutions, so many of those nations sought truth-telling combined with amnesties as acceptable alternatives. Only relatively recently have some of these governments actively pushed for prosecutions, as earlier constraints have loosened and greater possibilities to deal with the past have developed. Similarly, South Africa’s transition emphasized truth-telling, selected amnesties and only a handful of prosecutions to deal with the history of apartheid.

A particularly interesting example of transitional justice is found in the case of the Federal Republic of Germany (FRG, or West Germany), a nation that found itself in an enviably stronger position than many of its cohorts around the world as it dealt with the legacy of violations in the German Democratic Republic (GDR, or East Germany) during unification. Unlike the Latin American countries or South Africa, the FRG did not face the threat of military coup or constitutional crisis as it addressed these legacies. Indeed, the FRG was significantly more powerful than its eastern counterpart, and most scholars have pointed to the German case as one exhibiting little prior constraint on the actions of the new regime.

James McAdams’ excellent book, JUDGING THE PAST IN UNIFIED GERMANY, clearly identifies and analyzes the ways in which Helmut Kohl’s government decided to address the past. McAdams shows that while the government undoubtedly enjoyed wider latitude than other nations, its leaders were still constrained in what they could do. He provocatively shows how Bonn faced restrictions on the policies it could pursue due to the prior actions of the East German elites and, more generally, [*1050] the effects of decades of communist rule. The book focuses on four of the most important forms of retrospective justice used by West German leaders: criminal justice, characterized by prosecutions of GDR officials and guards; disqualifying justice, which relied on the massive collection of files assembled by the East German Ministry of State Security (the Stasi) to purge former Eastern civil servants suspected of collaboration; moral justice, exemplified by a commission assembled to assess the ‘moral’ responsibility borne by certain sectors of society and the population as a whole in maintaining communism; and, corrective justice, the effort at returning private property to those from whom it had been wrongfully taken by GDR.

The first issue, criminal justice, is especially interesting. East German border guards were prosecuted for murdering civilians attempting to cross to the West; however, prosecutors faced a difficult ex post facto challenge in holding guards responsible for what was, technically speaking, a legally sanctioned preventive action of escape. The old debates about the relative weight of positive and normative law emerged in public discourse over these cases. More interesting, however, was the fact that the trial of the former East German leader Erich Honecker and his associates for abuses of power actually began in East Germany before unification – it was largely an effort by his successor, Egon Krenz, to shore up legitimacy for what was clearly a regime in its last throes. Although the ruling Socialist Unity Party, or SED, was unable to stay in power, its self-serving prosecutorial strategy had important implications for the future. After unification in October 1990, the proceedings were transferred to a new prosecutor’s office where prosecutors effectively had little choice but to continue with a program that had significant popular support. McAdams shows that even though many West German officials had little interest in pursuing criminal prosecutions because of their disruptive and unpredictable nature, public pressure pushed them to continue with the trials.

Officials also had few options for dealing with the millions of secret files collected by the Stasi. The Stasi had begun collecting information on East German citizens in 1950, and over the following decades had amassed a formidable archive through the work of its agents and collaborators. By the time of unification, heated public debate over the files effectively limited the scope of action available to the government. Some major public voices argued that the files should be destroyed, for making them public could lead to a cycle of vengeance and recrimination that would be difficult to break. Others argued that the files should be open to those who were spied on or otherwise targeted by the GDR. McAdams traces the complex process by which the German parliament, the Bundestag, finally decided to give access to the files to citizens after more than a year of public rancor, showing how the options available to political leaders were determined largely by public discourse surrounding this contentious issue.

A related debate emerged over whether the files should be used to vet civil servants. Should those whose files indicated they were Stasi collaborators be allowed to retain their jobs? Part of the difficulty was that the files often contained erroneous, incomplete or even [*1051] deliberately false information, so dismissal due to an accusation of collaboration, which could destroy a person’s reputation as well as leave him or her unemployed, became a problematic response to a very real problem. The policy of vetting was essentially set by the GDR more than a year before unification, when important dissidents were accused of having been collaborators. During that period, pressure developed to use the files to investigate the full scope of collaboration. When the two Germanys united, Bonn effectively found itself in a situation where it had to continue with the vetting process.

In 1992, the Bundestag decided to investigate the “causes and consequences of the SED dictatorship” by assembling a committee of inquiry. Aside from its aim to achieve an accurate historical understanding, the committee also served a moral-didactic purpose, insofar as it sought to teach the population about the injustices and abuses of the communist dictatorship and their own role in supporting it. Pressure for such an initiative came from East German dissidents and others who were concerned that their compatriots had not learned the moral lessons of communist rule. They feared that without such a clear condemnation of the past, Easterners would romanticize, or at the very least remain ambivalent toward, communism. The committee, then, was meant to promote “moral justice.” In the end, its work was considered so successful that parliament voted for an additional round of investigations in 1995.

Perhaps the most divisive form of retrospective justice concerned property rights. The GDR had committed numerous property-related injustices by seizing homes, apartments, businesses and land without compensation. How could the new regime resolve such a complex issue? In the early years of unification, more than a million property restitution claims were filed on over two million pieces of property. Western leaders were confronted with the mammoth task of developing criteria for adjudicating rightful ownership claims that would satisfy East German popular demands and also be in accordance with their own precedents. Part of the difficulty stemmed from the GDR’s decision to allow for limited property restitution (for a small fee) only a few months before unification. Such a policy essentially forced Bonn to continue with the program after unification, but the challenges of dealing with multiple claims stemming from property seizures during the Soviet ‘reform’ policies of 1945-9, confiscations during the building of the Berlin Wall in 1961-2, and myriad other cases were significant. Furthermore, the FRG was constrained by its own past actions. Since the 1950s, successive governments had returned wrongfully seized property to Jewish citizens and other minorities. Millions of deutschmarks were paid in compensation as well. With such a history of reparation, and considering that the GDR had never carried out a similar policy toward its own citizens, the leaders of unified Germany had little choice but to provide some form of redress.

McAdams shows that in all of these situations, the West Germans were constrained by the actions of previous East German leaders as well as pressure from civil society. He stresses, of [*1052] course, that the FRG enjoyed superior economic and political power, but underscores how this was not enough to permit the unrestrained implementation of preferred policy. The book convincingly argues that even powerful successor elites work within a limited set of possibilities. And here lies the major contribution of the book. By giving us a detailed account of the political landscape of transitional Germany, McAdams challenges one of the key assumptions of transitional justice literature: that elites who successfully impose a new regime on defeated adversaries effectively begin with a tabula rasa. JUDGING THE PAST IN UNIFIED GERMANY undermines this through a nuanced and careful analysis of how the past continues to shape the possibilities and limitations of future policy on even the most powerful of successor regimes.

Many other thinkers have approached post-socialist transitions from explicitly normative perspectives. John Borneman (1997) has argued that prosecutions and property restitution further the rule of law, foster public trust in state institutions, and signal that the state is publicly committed to affirming the dignity of victims. Others, such as Bruce Ackerman (1992) have remained skeptical about retrospective justice because of the formidable conceptual challenges in a situation where much of the population can be seen as both a victim of communist authoritarianism and complicit in maintaining that system. Ackerman argues that the state should simply burn the files and provide some compensation to easily identifiable victims. Jon Elster (1992) has gone even further and argued that any attempt at retrospective justice is problematic, precisely because of both the challenges posed by the scope and type of violations characteristic of these regimes and the difficulty in measuring certain forms of wrongs. One can seek either complete justice or no justice, but any half measures carry their own injustices toward those whose claims have been ignored.

McAdams eschews making general normative claims about the value and utility of these different measures, and instead provides us with an excellent overview and critique of their strengths and shortcomings. Some readers may wish for a more explicit discussion of where he stands on these normative issues, since any analytical assessment of retrospective justice contains within it at least some implicit normative claims, but without elaboration these may remain partially hidden or otherwise unclear. Such a criticism would miss the point of the book. McAdams is clearly more interested in detailing the complexity of different retrospective strategies, and how they may work together or against one another within a particular set of transitional constraints. As he states: “Rather than weighing in on the morality of one or the other position, I take the pursuit of some form of retrospective justice as a given . . . and seek to articulate a means of evaluating success or failure” (p.xiii). JUDGING THE PAST IN UNIFIED GERMANY certainly achieves this goal, and signals a major contribution to our understanding of a fascinating case of transitional justice.

REFERENCES:

Ackerman, Bruce. 1992. THE FUTURE OF LIBERAL REVOLUTION. New Haven: Yale University Press. [*1053]

Borneman, John. 1997. SETTLING ACCOUNTS: VIOLENCE, JUSTICE, AND ACCOUNTABILITY IN POSTSOCIALIST EUROPE. Princeton: Princeton University Press.

Elster, Jon. 1992. “On Doing What One Can: An Argument Against Restitution And Retribution As A Means Of Overcoming The Communist Legacy.” 1 EAST EUROPEAN CONSTITUTIONAL REVIEW 15.

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