Truth Revelation Procedures as a Rights-based Alternative to the Politics of (Non-)Memory

1. Introduction

The field of memory studies in Poland offers an appropriate space within which to take up the problem of the juridification³ or institutionalization of collective memory in Central and Eastern Europe. This article seeks to contribute to present debates by considering the implementation of a subset of transitional justice practices in light of evolving normative standards. The article begins by outlining the research problem for investigation and by presenting the chosen theoretical framework, data and methods of analysis. Constraints on transitional justice that shaped frames of remembering⁴ within the central case study are presented in the second section. The third section presents the right to know/(the) truth as an emerging socio-legal norm at the international level. The subsequent section presents, in regional perspective, three types of truth-oriented transitional justice procedures. The concluding section draws together the findings and offers conclusions regarding the restorative potential of acknowledging demands for legally authoritative accounts of the past.

1.1. Law, public discourse and memory

While legal instruments, legal discourse, and legally mandated institutions play a major and sometimes controversial role in shaping collective memory, the relationship between law and memory is complex and under-theorized. This article reflects on the question of whether a post-authoritarian newly democratic state has any legal obligation to shape social or collective memory of the past regime, and if so, in what form.

One need not look far to recognize the practical relevance of this research problem. Viewed in comparative perspective, Poland’s political transformations in 1989 and the years of institution-building that followed, raise the problem of how a society should come to terms with its own recent history, including through processes of institutionalized remembering – or forgetting. The role of law in this process is a specific one and remains a major area of scholarly debate⁵ and controversy⁶. Law is rarely examined specifically as a vehicle of memory; moreover its role has been construed as that of “increasing the expressive weight of some version of history, irrespective of that version’s substantive weight”⁷. In response to such challenges, this paper aims to offer a reflective and objective appraisal of law’s role in preserving and communicating collective memory rooted in knowledge about the past. Law is inextricably linked to the past⁸. As Adam Czarnota⁹ notes, experiences from the past and redressing wrongs of the past form the essence of law: legal norms and institutions provide a mechanism for systematic remembrance and forgetting of past wrongs. The Western legal tradition has developed specific techniques, maxims, and safeguards in this regard: statutes of limitations, principles of non-retroactivity, nullum crimen, nulla poena sine lege. The authority of law plays a significant role in strategies for dealing with the past¹⁰. While procedural and evidentiary techniques within the law are typically tied to individual rather than collective memory¹¹, law is concerned with the past to the extent that the past helps to regulate present and future social relations¹². The role of law is particularly significant in relation to sustaining or changing group identity through the regulation of collective memory¹³ and as a principal element in the process of societal learning. Nevertheless, the relation between collective memory and the law has not been studied in any systematic way. The above observations fail to define how the law might or should contribute to or regulate social memory, or how memory shapes or takes up the form of law itself. While public discourse, analysed through the frame of memory studies, constitutes the primary “matrix within which facts and norms relevant to the past are expressed”¹⁴ – a matrix dominated by the politics of memory – this article discusses aspects of postcommunist Poland’s “dealing with the past” through the lens of transitional justice. While moral and cultural battles over the past illustrate what Jürgen Habermas described as the public use of history¹⁵, the socio-legal field of transitional justice is grounded in

a discourse that assumes depoliticization to be an intrinsic value¹⁶. Nevertheless, the spheres of law and public discourse are inextricably linked. Czarnota suggests that it is collective memory, through the medium of a historical public narrative, that grants law its legitimacy and guarantees its normative coherence¹⁷. The extent to which this relationship works both ways deserves further exploration.

1.2. Theoretical framework

Given that truth revelation, as a primordial goal of transitional justice¹⁸, is intimately linked to the question of memory, the article takes up the above research problem by considering the indirect impact on memory construction of a subset of transitional justice mechanisms, namely, truth revelation procedures¹⁹. The effectiveness of these procedures depends upon, but is not guaranteed by, the authority of law²⁰ and emerging legal norms. The complex nature of state obligations for shaping societal memory may be conceptualized through deployment of a central theoretical category: the right to truth. Considered from the perspective of its normative potential, recognition (or denial) of such a right may vindicate (or deny) broader individual and collective rights through processes aimed at preserving and making accessible knowledge about former political regimes and systemic aspects of past oppression. The field in which this theoretical claim is explored is that of transitional justice in East and Central Europe – with a focus on Poland in the first two decades following the democratic transition. While there are many possible ways for consolidating democracy through enacting political reconciliation in the context of such a transition, the practices considered in this study are those that are directly oriented to preserving or revealing knowledge or truth about past events. While bringing to light truths about injustice that were previously suppressed is a form of acknowledgment that addresses specific wounds and brings about various forms of primary restoration²¹, such processes are also likely to effect secondary restora- tions at the individual and collective level, including increases in legitimacy and trust, and other forms of social capital²². The restorative contribution of truth revelation procedures underpins their potentially critical role in the development of rights-based models for dealing with the past.

1.3. Methodology

The study adopts a case-study methodology to explore the theoretical claim regard ing the right to truth as a possible category against which to evaluate the impact

of law on collective memory in a transitional context. By narrowing the study to the field of transitional justice, and exploring the implementation of three types of procedure with particular reference to the chosen case study (Poland), considered from a comparative perspective, the article contrasts an emerging international norm with particular application of that norm within a unique historical context in which it has not featured prominently within formalist legal reasoning. Data analysed includes judgments of regional and domestic courts and commissions as well as documents produced by international bodies of legal experts, including those operating under the United Nations Charter. The central theoretical category is also explored with refer ence to expert discussions of normative developments in the field covering the initial decades following political transitions to democracy. Following purposive sampling identifying the most authoritative judgments and texts²³, content analysis (including coding) and legal interpretation have been used to identify ways in which the norm under investigation has been applied and interpreted by various legally mandated bodies, thereby shaping normative developments. Empirical data regarding the central case study and its regional context is taken from early expert reports as well as published empirical and theoretical studies on legal approaches to dealing with the past in the region. By contrasting normative accounts outlining state obligations to secure the right to (the) truth, with empirical accounts of locally implemented practices, the study facilitates an assessment of the extent to which truth revelation procedures may aid a given society in the development of a rights-based legal model for societal remembering. Such goals reflect the overall goals of transitional justice as a field and provide a counterpoint to politically oriented models of memory reconstruction that have become apparent in recent years²⁴.

1.4. Characteristics of the chosen case study

In Central and Eastern Europe, life under externally imposed communist rule was marked by censorship, surveillance, and suppression of fundamental freedoms by the state authorities and security police. In Poland, the largest of CEE countries, levels of surveillance increased in the 1980s prior to the collapse of the system. Effective investigations into political crimes – including disappearances – were circumvented with the help of political control mechanisms over the procuracy and judiciary²⁵. Once the political system changed following the celebrated Roundtable Talks of 1989, the challenge facing the successor governments was that of dealing with past human rights abuses – and the memory of these abuses – within a framework that would be politically viable and harmonious with the goals of democratic consolidation and the rule of law²⁶. It is in this context that the research problem is investigated below.

The proliferation of legal and political norms characterizing the third wave of democracy took the shape of demand for systemic reform in Poland, which, following strikes and workers’ rights movements of the 1970s gathered momentum with the mass mobilization of the Solidarity (Solidarność) trade union movement in the summer of 1980. Although this civic momentum was quashed with the declaration of Martial Law in December 1981, the need for systemic reform became increasingly apparent through the catastrophic economic situation in the second half of the 1980s²⁷. As the frequency and intensity of social unrest grew, the centrally planned economic system dominated by the nomenklatura began to adapt from within. With time, certain communist leaders judged that they had sufficiently strong incentives to enter into dialogue with members of the democratic opposition. Exit strategies for the ruling elite were devised as part of the 1989 Roundtable Talks between Solidarność representatives and communist party rulers²⁸. The democratic opposition in Poland worked successfully to accommodate the outgoing leaders’ demands in order to secure the possibility of free elections²⁹, simultaneously facilitating a “soft landing” for representatives of the ancien régime in the context of the democratic transformation³⁰ and preserving the conciliatory spirit of the Roundtable³¹. The main protagonists of democratic reforms in Poland in 198932 chose to draw a line³³ on the past. The particular constraints imposed by a negotiated transition³⁴ played a major role in shaping the choice, design and perception of potential transitional processes in Poland and the reluctance of successor governments to focus on exposure of and accountability for systemic injustices of the former regime. Observers claimed that, at the level of state power, little attempt was made to deconstruct the complex reality of the former system³⁵. In failing to preserve the integrity of state-security archival records during the initial months of transformation, and by arguing against attempts to expose the social networks of intimidation and collaboration³⁶ that had sustained the ancien régime, the first generation of political reformers passed up opportunities to preserve an institutionalized memory of a system that had for decades conditioned their daily life. Furthermore, by failing to implement legal procedures to revisit, document,

acknowledge, condemn, and compensate for past wrongs, the reformers continued the politics of non-memory. Such choices, while explained by the circumstances, risked undermining the legitimacy of reforms and successive governments³⁷. The emergence of new challenges imposed by economic liberalization, and the related problems of corruption, reprivatization and rising social inequalities, further reduced the likelihood of public acknowledgment of human rights abuses and patterns of repression induced or committed by state officials and their agents. Against this background, decades of suppressed memories on the individual and collective level awaited recognition in the new political context³⁸. Compounding the silent trauma left by World War II and the Shoah, the memory of minorities or events that could not easily be accommodated into the Soviet-imposed regime’s ideological framework was relegated from public discourse. As Claus Offe and Ulrike Poppe observed, the state socialist regimes generated a huge demand for specialists devoted to silencing truth: they were “paranoic about dissent, treason, manifest acts of disloyalty, and internal enemies”, and spent “enormous resources and efforts on surveillance, control, indoctrination, and the sanctioning of any challenges to the canonized self-portrayal and its allergy to nonpartisan observation”³⁹. In the context of transformation, there was no clear strategy for dealing with the millions of files that had been collected by various branches of the socialist states and secret services throughout Central and Eastern Europe⁴⁰. Communist crimes committed in Poland between 1956 and 1989 were routinely left unprosecuted in the first decade following the Roundtable Talks. On the state level, almost a decade passed before the Polish legislature enacted the law establishing the Institute of National Remembrance (Polish: Instytut Pamięci Narodowej, IPN) that began its operations in 2000.

3. The right to know the truth: emergence of a socio-legal norm

While a conciliatory approach underpinned concessions and approaches to dealing (or not dealing) with the past in the context of Poland’s democratic transformation, the evolution of distinct normative standards at the international level has led to recognition of a state obligation “to ensure the inalienable right to know the truth about violations”⁴¹ committed by functionaries of former regimes. Truth commissions, commissions of enquiry, and trials of representatives of military dictatorships reveal a distinct normative dimension – that of truth revelation – in legal processes directed toward reckoning with the past. In the Inter-American region in particular⁴², the concept of a right to truth⁴³

began to crystallize in line with individual, group and societal demands for truth and accountability in the aftermath of crimes committed under autocratic regimes⁴⁴. The right to truth as an emerging socio-legal norm can be traced back to longstanding and legally binding provisions of international law of armed conflict articulated in the Geneva Conventions. It is an internationally recognized element of the obligation of states to combat impunity⁴⁵, to investigate effectively violations of human rights and to uphold a right to effective remedy and reparations. As a synonym of the right to know, its substance conforms to that of the right to information and expectations of transparency in the public sphere. While it may be conceived of as a conglomerate of existing legallyrecognized rights, according to the United Nations, “the right to the truth about gross human rights violations and serious violations of human rights law is an inalienable and autonomous right… and should be considered as a non-derogable right and not be subject to limitations”⁴⁶. In the international and Inter-American human rights systems, denial of the right to truth has been associated with the violation of the prohibition of cruel, inhuman and degrading treatment⁴⁷. Politically implemented mechanisms of truth telling have also been considered a form of reparation for victims of injustice⁴⁸: respect for the right to truth denotes “an important means of reparation” and guides legal interpretations of state obligations with regard to both the scope of investigations and the form of public communication of findings, public acknowledgements, and memorialization of past injustices⁴⁹. Responding to societal demand for historical clarification⁵⁰ in the aftermath of the military dictatorships of the 1970s and 1980s, both the Inter-American Commission on Human Rights and the Inter-American Court on Human Rights (IACtHR) have interpreted the 1969 American Convention on Human Rights⁵¹ (ACHR) to imply that victims of human rights abuses and their relatives have an individual right to know the truth about crimes committed under a preceding regime⁵². This “individual dimension” of the right to truth derives from the right to humane treatment (Article 5 of the ACHR) and the right to a remedy under Articles 8 (right to a fair trial) and/or 25 of the ACHR (right to judicial protection), taken together with Article 1 (state obligation to respect rights)⁵³. Court judgments imply that the state has an obligation to conduct thorough investigations to name perpetrators and to reveal the conditions in which gross violations

of human rights were committed – even in cases in which the triggering event took place prior to the adoption of the relevant regional human rights convention on which the Court’s jurisdiction is based⁵⁴. The Inter-American Commission has gone further by recognizing the “societal dimension” of this right, expressly recognizing that entire societies have the right to know the truth about mechanisms used to suppress human rights under a former regime. The Inter-American Court started to “require states both to find and to make known the truth, not only to victims and families in the case at hand, but to society as well”⁵⁵. In the words of the former President of the Court, Judge Sergio García Ramírez, later cited by domestic courts in the region,

the so-called right to truth covers a legitimate demand of society to know what has hap pened, generically or specifically, during a certain period of collective history, usually a stage dominated by authoritarianism, when the channels of knowledge, information and reaction characteristic of democracy are not operating adequately or sufficiently⁵⁶.

By 2007, the Inter-American Court had acknowledged that,

the positive obligations inherent in the right to truth demand the adoption of institutional structures that permit this right to be fulfilled in the most suitable, participatory, and complete way. These structures should not impose legal or practical obstacles that make them illusory. The Court emphasizes that the satisfaction of the collective dimension of the right to truth requires a legal analysis of the most complete historical record possible. This determination must include a description of the patterns of joint action and should identify all those who participated in various ways in the violations and their corresponding responsibilities. Moreover, the investigation must be undertaken by the State as its own legal obligation⁵⁷.

The recognition of the right to truth has been bolstered by further regional case law: legally authoritative interpretations of the right have coupled it to the right to personal integrity of the next of kin; the right to accesses justice and an effective remedy; and the right to seek and receive information under Article 13 of the ACHR⁵⁸. Likewise, the requirements of the right have been made more explicit through evolving interpretation at the domestic and international level of the nature of the state obligation to combat impunity⁵⁹. Indeed, official United Nations guidelines to assist states in developing effective measures for combating impunity (UN Impunity Principles) devote the first five of thirty-eight principles to obligations that include at their core the right to know the truth about violations.

In addition to criminal trials, transitional justice mechanisms denoted as truth revelation procedures (or truth-seeking mechanisms⁶⁰) can play a particular role in the early stages of political transition to preserve a record of past violations and the endur ing personnel networks that enabled the system to operate as it did. Monika Nalepa and Marek Kaminski identify three types of truth revelation procedures: 1) lustration, 2) truth commissions, and 3) laws regulating the opening of secret files. Their shared objective is said to be “the reconciliation between members of the society who held opposing views of the past regime”⁶¹. The approach to these mechanisms is an important indicator of the weight given to truth revelation as a value⁶² to be pursued through legal means in the context of political reconciliation and democratic consolidation. In the transitional justice or international human rights framework, truth is typically understood in the classical sense: as accurate information or knowledge about the past (what really happened). For a legislature concerned with securing the rule of law and democratic governance, truth revelation procedures – if designed appropriately – may provide a rights-based and victim-oriented alternative to the “art of forgetting”⁶³ or non-memory⁶⁴. Such procedures are, in this sense, a legally grounded alternative to memory policies oriented toward polity legitimacy⁶⁵ and nation-building; their restorative goals reach significantly beyond the generation of moral capital for society and political capital for its new elites. International guidelines on the state’s duty to preserve memory⁶⁶ and respect the right to truth provide a useful standard against which to assess such mechanisms.

4.1. Lustration

Lustration is a screening method that typically depends on the content of party and secret police files – sometimes, as in Poland, in conjunction with an assessment of the veracity

of candidates’ lustration declarations – to determine previous collaboration with the state security apparatus and to judge eligibility for public office or state privileges. Lustration has been implemented in a variety of ways in Central and Eastern Europe as a mechanism for protecting the rule of law and democratic values after the political transformations of 1989. While Germany, Czech Republic and the Baltic states implemented early lustration, granted access to files and facilitated trials, equivalent measures in Poland and Hungary were delayed and relatively mild. Romanian and Bulgarian measures were weak or partial67, whereas Slovakia, Slovenia, Albania and most former Soviet Union states opted not to implement cleansing or justice measures throughout the first decade68. Several countries attempted a new or expanded version of lustration, disclosure or vetting after 200469. Much has been written about the deficiencies of particular lustration efforts70 and their potential impact on human rights, due process, and rule of law guarantees. Numerous constitutional court judgements⁷¹, as well as case law and documents at the Council of Europe level reflect these legislative complexities and provide guidance on appropriate procedural safeguards⁷². Beyond these rule of law concerns, opposition to lustration has somewhat resembled debates over amnesty laws in other regions, where the desire for peace and reconciliation was set against the (apparently “vindictive”) pursuit of justice and accountability⁷³. Empirical research suggests that lustration may, even if delayed, play a positive role in rebuilding political trust and consolidating democracy⁷⁴. However, with the passing of

67 However, a late form of informal or silent lustration was taken up by Romania and Bulgaria from 2006 to 2008, when repository agencies of secret police files started to review the files of tens of thousands of public employees and publicly disclose the findings. See: C. Horne, “Silent Lustration”: Public Disclosures as Informal Lustration Mechanisms in Bulgaria and Romania, “Problems of Post-Communism” 2015/3, pp. 131–144. 68 See: L. Stan (ed.), Transitional Justice… 69 See: C. Horne, Building Trust and Democracy: Transitional Justice in Post-Communist Countries, Oxford 2017. 70 See: A. Opalińska, Lustracja w Polsce i w Niemczech [Eng. Lustration in Poland and Germany], Wrocław 2012; A. Paczkowski, Fenomen lustracji [Eng. The Lustration Phenomenon], in: A. Paczkowski, B. Różycki, Ł. Jasiński, P. Machcewicz, Rozliczanie totalitarnej przeszłości: karanie i upamiętnianie zbrodni [Eng. Accounting for the Totalitarian Past: Punishment and Commemoration of Crimes], Warszawa 2018, pp. 173–253.

time, lustration may have more of a symbolic than practical impact: in Poland the sheer backlog of compulsory lustration declarations remaining to be verified suggests that the practice is more formal and symbolic than substantive. Overall, the impact of lustration on memory construction has been marginal due to its targeted and largely private nature. In Poland, the content of lustration declarations is not made public; cases in which candidates for public election have admitted collaboration form an exception, but even in such cases, specific details regarding the nature of collaboration are withheld. Experts have observed that in the years immediately following political transformation, CEE societies experienced a deficit of public debate about the past. In place of serious societal discussion, lustration and decommunization efforts served to limit the discourse by offering a formal response to public demand for screening⁷⁵ while in fact focusing attention on a limited number of scapegoats⁷⁶. With time, recurring debates around lustration legislation have contributed more to the development of a rule of law culture in post-communist societies⁷⁷ than to the development of collective memory.

4.2. Truth Commissions

The term truth commissions refers to “official, temporary, non-judicial fact-finding bodies that investigate a pattern of abuses of human rights or humanitarian law, usually committed over a number of years”⁷⁸. Such bodies “contribute to the construction and preservation of the historical memory, the clarification of the facts, and the determination of institutional, social and political responsibilities during certain historical periods of a society”⁷⁹. With the exception of the 1992–1994 Enquete-Kommission of the German Bundestag⁸⁰ established to examine human rights violations under communist rule in East Germany from 1949 to 1989, Central and Eastern European states did not establish temporary truth commissions with the explicit aim of facilitating public discussion and truth telling after 1989. The 1992–1994 Enquete Commission held seventy-six sessions, facilitated forty-four public hearings throughout the eastern states and at the seat of the parliament in Bonn⁸¹, heard a variety of testimonies, commissioned expert analyses, initiated two plenary debates in the Bundestag and produced 18 volumes (15,187 pages) of witness statements, documents and evaluations detailing inter alia the power structures of the old regime and the role of the state apparatus. However, attention to these published findings was short-lived⁸².

Elsewhere in the region, historical commissions and commissions of remembrance were established in pursuit of a similar range of transitional justice goals. In Poland, an extraordinary parliamentary commission⁸³ was established in August 1989 to investigate politically motivated crimes of the 1980s – including 93 fatalities that had been identified by the Helsinki Committee as raising suspicion of security apparatus involvement. However, as a result of various constraints, the commission’s final report⁸⁴ failed to make significant legal, political or social impact; impunity for perpetrators persisted, and findings on secret operations targeting inter alia the Catholic Church were classified by the Minister of Internal Affairs in 1991. Poland’s IPN was established by a legislative act of 1998, extending the work of its predecessor investigative commission dealing with Nazi German crimes committed against Polish citizens during World War II, and integrating its mandate into a memory institute with a wide range of functions. Controversies over the IPN’s statutory mandate, activities and personnel illustrate the challenge of shielding truth revelation procedures from short-term political instrumentalization. In addition to preserving security service archives and (since 2007) facilitating lustration (vetting), the IPN is tasked with researching, investigating, prosecuting, commemorating and educating about past wrongs. Conflicts over the IPN⁸⁵ have illustrated the battles over les cadres sociaux de la mémoire and the role of law and legally mandated institutions in rehabilitating victims through event commemoration and preservation or dissemination of authoritative accounts of the past.

4.3. Laws regulating the opening of secret files

The question about the appropriate role for law in guaranteeing the preservation of a memory repository in the form of files and archives was an important one for the Central and Eastern European political transitions⁸⁶. State archives contained details of many crimes committed with impunity against citizens during the Nazi German and Stalinist occupations. Moreover, the extensive nature of archives of the security apparatus of the communist party-states posed particular challenges. In contrast to regimes elsewhere in the world where there was a clearer division between oppressors and oppressed, instruments of political terror in these states were often more psychological than physical⁸⁷, and the mechanism deployed to recruit collaborators and invigilate dissenters resulted in the erosion of social trust within communities at all levels⁸⁸. While the perceived lack of political alternatives constituted the most important sustaining feature of the regime in countries under the Soviet tutelage⁸⁹, the targeted recruitment and active collaboration of informers as well as passive complicity amongst the general

population⁹⁰ facilitated the penetration of the secret police in certain societies and within targeted groups. The new governments of Central and Eastern Europe after 1989 faced the challenge of designing file access procedures to address this legacy. Taking into account sources of error – including incentives for secret informers to embellish or fabricate reports, but also methods used by the security services to check the reliability of agents and informers – secret police files needed to be understood not as a crude depositary of objective truth from which individual accountability should be deduced, but rather for the light they shed on the mechanisms of the prior regime⁹¹. While some experts advocated for a principle of transparency and individual response to the content of secret police files, according to which victims and collaborators would be allowed to add a personal statement to their own files, others suggested that more attention should be focused not on individual collaborators but on the dossiers of high-level party officials and party files in order better to understand how and why a given society developed into “society of systematic denunciation”⁹². Finally, archives containing secret files are also relevant cross-nationally in processes aimed at infusing and upholding new norms within the new legal and security order. As John Ciorciari and Jesse Franzblau note, “law seldom requires third countries to share their secret files, and voluntary disclosure remains relatively rare. This constitutes an important weak link in the international human rights regime”⁹³. The European Court of Human Rights proceedings initiated by Polish families of Katyń massacre victims provides a poignant illustration of this point⁹⁴. Furthermore, the cross-border security rele vance of secret files was highlighted during accession processes to the North Atlantic Treaty Organization – as Western NATO members were concerned over former secret police gaining access to sensitive data, and to the European Union – whose members were concerned over the prospect of communist officials taking up office in Brussels⁹⁵. Comparing the truth revelation procedures presented above in reference to the chosen case-study, it seems that those oriented toward the preservation and opening of the secret archives had the greatest untapped potential to deepen societal understanding and memory not only of the circumstances of the most egregious crimes, but also of the networks that made up the former social system – with its socially embedded lines of intimidation, collaboration, dependency, control and command. Moreover, expert discussions on the content of secret files illustrate that the memoryshaping role of secret archives can be understood with reference to both subjective and objective conceptions of truth⁹⁶; those who have worked with such records acknowledge

the need to verify records, corroborate them with other sources, interpret them and only then attempt on their basis to reconstruct past events⁹⁷. Special procedures should be in place at the national and international level to govern archive maintenance and access in accordance with international human rights standards as well as rule of law and security considerations. In addition to political, privacy and security considerations resulting from the declassification of sensitive documents, appropriate maintenance and access may be undermined by deficit in resources, expertise, legal enforcement, physical access or professional archive management. Archive procedures designed to reflect their role as truth revelation procedures enable these archives to perform memory-related functions⁹⁸ that reflect both the post-transitional context and international standards⁹⁹. In Poland, such procedures were deficient: many security archive files were destroyed in the 1980s and 1990s, and access to files was severely limited thereafter – initially even for historians working within the IPN¹⁰⁰.

5. Conclusions

The right to know the truth has acquired customary law status as a norm of interna tional humanitarian law¹⁰¹ and is considered to be a potential general principle of law¹⁰². The articulation of this and related rights within international, regional and domestic systems of law clarify the nature of state obligations to develop and preserve institutions and mechanisms that provide individuals, their next of kin, and entire societies with authoritative – publicly accessible – accounts of serious human rights violations of the past. The implementation of transitional justice mechanisms known as truth revelation procedures facilitates the fulfilment of these and related state obligations – including the duty to preserve memory against the threat of negation or revisionist narratives. In the challenging task of designing and evaluating such procedures, the right to truth provides a victim-oriented perspective that may help to orient public discourse and

legal reasoning in the direction of substantive protection of human rights while provid ing a conceptual bridge between law, state obligation, and the question of collective memory. Empirical studies show that the democratic transitions that began in 1989 to change forever the face of Central and Eastern Europe were subject to a number of transitional justice constraints. In the context of Poland’s negotiated political transformation, highlevel communist officials were initially allowed to retain positions of power and, as elsewhere in the region, many archival records were destroyed¹⁰³. The circumstances of the transformation in this particular country context conditioned the role played by law as a vehicle of memory. Judged against the human rights discourse on truth, justice and reparations, new norms and mechanisms capable of underpinning a new legal discourse, grounded in a new form of legal education¹⁰⁴, were lacking in Poland’s transformation¹⁰⁵. The contrast between the extensive normative standards and the limited state practice presented above illustrates that laws, processes and procedures that attempt to erase or to institutionalize memory in the form of authoritative accounts of the past need to be evaluated with respect to the goals and values underpinning the articulation of a right to truth. It is against the demands of this individual and collective right that attempts to control or institutionalize memory should be reconsidered and reframed. Restitution, as Lavinia Stan notes, “is not limited to the return of abusively confiscated property, but can materialize as acknowledgement of past sufferings, the restoration of honour and dignity to long-silenced victims, or public knowledge of the repression mechanisms kept secret by the old regime”¹⁰⁶. The reconstruction of public memory beyond this restorative context is more inclined toward the generation of political or moral capital and thus prone to instrumentalization and manipulation. The collation of testimonies and preservation of the integrity of secret records enables the reconstruction of individual and collective memories that enable people to come to terms with their own history and rebuild social and political trust¹⁰⁷. In Central and Eastern Europe, citizens of the former German Democratic Republic were offered a symbolic opportunity to undertake this process as a collectivity. Elsewhere in the region, processes aimed at deepening societal understanding of networks of repression and injustices of the past were very limited. Deeper public debate on the contents of accounts and records of the past may have empowered victims of violations and reduced the scope for instrumentalizing the content of archives for scapegoating, legitimizing, polarizing, populist¹⁰⁸,

purging or ritual¹⁰⁹ purposes in the decades that followed. Acknowledging the discursive limits on legal reasoning presented by legal formalism, a truth-oriented, victim-sensitive discourse about the past has the potential to provide an alternative to “mythologies of self-pity and self-idealization”¹¹⁰ and one-sided narratives within the politics of memory and non-memory. It is within this rights-based frame of remembering that truth procedures can be implemented in fulfilment of a state’s legal obligations towards individuals and societies.