Home Law United States law and policy on transitional justice : principles, politics, and pragmatics
A second option for state leaders taking action to address atrocities is lustration. Transitional justice expert Neil Kritz defines lustration, or epuration, as the noncriminal sanction of “purging from the public sector those who served the repressive regime.”29 Lustration was employed in post-WWII France and Germany, and, after the fall of the USSR, in Germany, the Czech Republic, Bulgaria, Latvia, and Estonia. More recently, the USG implemented lustration to purge members and associates of the Ba’ath Party from the Iraqi government and other domestic institutions.30 Essentially a collective, extrajudicial punishment of excluding certain individuals from government service because they are presumed guilty of atrocities by political association, lustration is often viewed by proponents as a quick and relatively easy method of dealing with a large number of suspected atrocity perpetrators and their accomplices. Besides punishment, lustration may be motivated by a desire to eliminate supposed impediments to the post-atrocity transition. The effect of lustration is to remove individuals from, or block them from obtaining, political office.31 The same outcome may also follow at least four other transitional justice options—exile, lethal force, prosecution, and indefinite detention—by effectively eliminating exiled, targeted, convicted, or otherwise imprisoned individuals from government service.
Some argue, however, that lustration violates laws prohibiting discrimination based on political association. Specifically, lustration may run afoul of international law (e.g., the Fourth Geneva Convention and the International Covenant on Civil and Political Rights) and domestic law (e.g., the First Amendment to the U.S. Constitution). Like inaction and amnesty, lustration is also morally and legally problematic, because elimination from government may not be considered a sufficient punishment for heinous crimes.
Lustration also can be counterproductive. The process may not be narrowly tailored enough to effectively target those individuals (1) who committed atrocities or who were truly loyal to suspected atrocity perpetrators, and (2) who remained a threat to an intervening force and the process of (re) building a peaceful, just, democratic, and stable post-atrocity society. Instead, administrators of the lustration may be grossly indiscriminate in their purging of individuals from positions of authority, excluding from civil service and possibly leaving jobless many well-trained and experienced professionals who are vital to post-conflict reconstruction and management. The purged may include teachers, engineers, doctors, police officers, judges, soldiers, and bureaucrats. Because purged individuals may be left unemployed and feeling stung from unfair discrimination, lustration may generate resentment among citizens toward the intervening authority. Thus, lustration may convert many potential allies into fervent enemies of the intervening force. Those who might have contributed to a peaceful, efficient post-conflict transitional period may become dedicated, perhaps violently so, to thwarting the intervening force’s efforts, even if those efforts are in the best interests of their compatriots. Lustration may ultimately generate ill will that foments insurgency and crime in the post-atrocity society.
Part of the problem is that lustration implicitly assumes much about the targeted group. By hastily and, therefore, inadequately screening a large number of people for their past affiliations and actions, lustration may elide the subtleties of those people’s circumstances. The truth is that many individuals join political parties that ultimately become responsible for atrocities (e.g., the Nazi Party, the Ba’ath Party) not for ideological but for instrumental reasons: they wanted to obtain or keep a job; to receive other social, political, or economic benefits flowing from membership; or simply to help guarantee survival for themselves, their families, and their friends. A quick and broad lustration may be efficiently designed but flawed in implementation, and it runs the risk of creating a security vacuum, removing professionals with manpower and skills necessary to facilitate the post-atrocity transition, forcing some groups (e.g., ethnic or religious communities) to shoulder a disproportionate amount of hardship, and enraging large segments of the post-atrocity population.
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