The new government emerging in Kyiv is facing an old problem: What to do about those who worked for and supported the former government, which is now considered criminally corrupt and thoroughly infiltrated by Russian agents?
Ukraine's parliament on April 8 adopted a controversial law on lustration for judges and three other similar bills are under consideration. Lustration is the practice of a new government vetting officials from a previous government for possible crimes against the people or the country. It is derived from the term for an ancient Roman purification ceremony.
The Ukrainian measures would bar individuals who fail to pass a lustration commission review from holding public office for up to 20 years.
Such lustration was a key demand of the mass Euromaidan protests that swept President Viktor Yanukovych from power. But the process is fraught with danger, especially for countries like Ukraine that are deeply divided and lack a clear consensus backing the new authorities.
The international nongovernmental organization Human Rights Watch has issued a statement urging acting Ukrainian President Oleksandr Turchynov not to sign the bill that has already been passed and calling on legislators to rethink the ones under consideration.
"All three drafts are overly broad and vague and may set the stage for unlawful mass arbitrary political exclusion," the statement says.
Exclusionary Or Inclusionary?
Lustration is a perilous undertaking. U.S. political-science professor Eric Brahm has called it "a very blunt instrument of transitional justice."
Roman David is a professor of sociology at Lingnan University in Hong Kong and an expert on lustration and transitional justice
. He is currently in Kyiv advising the government on its lustration process.
David says transitional-justice processes differ from country to country and time to time, but can be roughly divided into exclusive and inclusive processes. Exclusionary processes -- those that bar individuals from public life if they are found to have committed crimes -- have worked fairly well in countries like Estonia and Poland, where the great mass of society favored the new government.
On the other hand, an inclusive approach -- which would include a grace period for officials to come forward about their past actions followed by possible perjury charges or other sanctions against those who lie or conceal information -- does less to solidify support for the new government and takes more time. An inclusive approach helps cope with the moral dilemma of lustration -- that people are being punished retroactively in many cases for doing things that were perfectly legal and even obligatory at the time.
Such processes, David says, often have greater international legitimacy and, over the long term, often expose more wrongdoing in more detail than exclusionary ones. South Africa's Truth and Reconciliation Commission is widely regarded as the gold standard for this type of system.
Ukraine, so far, seems inclined to an exclusionary process that has the advantage of solidifying support among those who already support the authorities -- but the dangerous disadvantage of alienating other important groups.
Such a lustration process can send a message to some segments of society that they don't belong to the new country. "And the experience of Croatia is one of those bad experiences -- [as is] Serbia [and] Iraq. In all those countries, these messages of exclusion led to, effectively, civil conflict," David says.
David warns that the parallel with Iraq's disastrous de-Ba'athification process should be taken seriously as Kyiv embarks on a lustration process that is basically targeted at a political party, the Party of Regions.
If a particular social group feels alienated, David says, "the dismissal of a particular person may trigger much broader social issues."
Another problem with exclusionary lustration is that it can cripple a state, leaving it bereft of qualified financial, legal, security, or other experts. Exclusionary lustration in Libya after Muammar Qaddafi's ouster has resulted in dangerous security lapses that make the country virtually a failed state.
"They push [away] those who would be willing to work with the new democracy, who would be willing to collaborate, this kind of whole army of people who have a servant mentality and who would be able to effectively collaborate with any regime whether it is from heaven or hell," David says.
A Political Choice
Essentially the decision of which way to go in lustration is a political one. The authorities in Ukraine may be more driven by a need to satisfy the demands of their Maidan supporters than by a desire to create a less divisive, but more long-term approach.
In any lustration process, there is a clear danger of it being co-opted for nakedly political ends.
In Czechoslovakia in the 1990s, some who felt official lustration was not going far enough began "exposing" alleged crimes on their own. Some lustration processes have been used as a way to ban political opponents without a formal trial. In Poland and other postcommunist countries, records have been found to have been falsified in an attempt to pursue political vendettas.
But a successful lustration process can be a major driver in a country's development. Following World War II, Germany underwent a complex, decades-long program of "Vergangenheitsbewaltigung" that included major roles for the state, schools, churches, and the arts.
On the contrary, countries such as Russia, Belarus, and others have resisted lustration efforts and, many scholars argue, this has hampered political and social development.