This comparative analysis of policies of dealing with the past is based on ten cases of transition to democracy: Belgium, France, (West-)Germany, and the Netherlands after WWII; Greece, Portugal, and Spain in the 1970s; and Germany, Hungary, and Poland in the post-1989 era (Hungary and Poland after WWII experienced the rise of a dictatorial regime which puts these cases outside the current transitional justice paradigm. They are for the greater part left out of the comparison).

This chapter first compares policies through the description of a number of recurring turning-points in transitional justice decision-making. All countries that are part of the book have gone through episodes where crucial decisions had to be taken in extremely intricate matters. The challenges were common, but did the answers vary? Five such crossroad issues and the multiplicity of responses they generated are discussed. The second section then presents four contextual factors that have shaped both homogeneity and heterogeneity in policy making and implementation. The third section argues that similarities in content and form of policies are more prominent than has oft en been thought.

SAME CHALLENGES, BUT DIFFERENT ANSWERS?

Since the 1990s, practice and scholarship have led to the conclusion that almost all cases of justice after transition are unique. This section tests the alleged diversity through the discussion of a number of recurring turning-points in European transitional justice decision-making. The primary choice bears upon the question of accountability: to punish or close the books. If a policy of prosecutions is developed, new options arrive. Dealing with the perpetrators of state crimes, of collaboration with an occupying army, or with the repressive order requires a choice between two logics: the first leads to their exclusion, the other to inclusion and/or reintegration. That is the second issue. Criminal justice after transition differs from ordinary justice because it addresses simultaneously a political and a legal agenda. Blending the two is a third challenge. Then, there is the question of who should receive privileged attention in tackling the pain of the past: those who are responsible for the sorrow, or the victims. Finally, finding an acceptable balance between forgetting and remembering is a fifth critical challenge.