The Narrow Definition of Genocide & Its Role in Investigating and Prosecuting Charges of Genocide in Romania

ABSTRACT

The definition of genocide employed by the United Nations is criticized for failing to protect certain groups from abuses conducted by state entities. Drawing from the case study of Romania, this article explores how the narrow definition of genocide impacts the assessment and prosecution of charges of genocide during the process of transition from communism to democracy. Furthermore, drawing on Axel Honneth’s theory of recognition, the research explores how this restrictive interpretation of genocide undermines victims’ claims to justice and recognition, revealing that the strict interpretation of genocide hinders transitional justice efforts and erodes trust in state institutions.

Introduction

The Convention on the Prevention and Punishment of the Crime of Genocide stands as a foundational international law instrument, establishing genocide as a fundamental violation of human rights. This instrument provides the most widely acknowledged definition of genocide; in short, the Convention characterizes genocide as the physical destruction of national, ethnic, racial, or religious groups (UN General Assembly 1948).

Despite its widespread acceptance, a longstanding debate on which groups should be safeguarded under the genocide definition has persisted since the adoption of the Convention. This topic is said to have created the most serious disagreement between states during the drafting process. Notably, the United States of America strongly advocated for the inclusion of political groups within the protected categories. In contrast, the Soviet Union, having been itself engaged in purges of the political opposition when the convention was being discussed, vehemently opposed this inclusion. Ultimately, political groups were excluded from the definition during the drafting process, to encourage more states to become parties to the Convention (LeBlanc 1988).

More recent debates show that scholars still differ in their perspectives on this topic, with some advocating for a narrow interpretation of the term, limiting its use to its original intent of referring solely to the Shoah, while others are in favor of expanding and softening this concept (Dubiel and Motzkin 2004; Roth 2005). Some of the most prominent critics argue that the definition employed by the United Nations (UN) might impede governments from being punished for persecuting groups that are not protected under the Convention, as is the case, for instance, with social and political groups (e.g., Nersessian 2010; Uzonyi 2020). Thus, even though the notion of genocide was created to define the “crime of all crimes” (International Criminal Tribunal for Rwanda (ICTR) 2001), implying the greatest degree of harm that can be inflicted upon a group of people, attacks of the same destructive nature, but targeted against groups that are not covered by the official definition of genocide, cannot be prosecuted as such.

Consequently, as shown in the rulings concerning the Khmer Rouge in Cambodia (Van Schaack 2017), or the Janjaweed and the government of Sudan in Darfur (Nersessian 2010), the courts resort to the usage of the term “crimes against humanity” during the investigation and prosecution of these crimes. Unlike genocide, crimes against humanity lack the prerequisite of intent to fully exterminate the targeted group, encompassing more general and widespread attacks on civilian populations (International Criminal Court 1998). Importantly, the Genocide Convention uniquely imposes a legal obligation on its parties to prevent and punish genocide, granting them explicit authority to intervene in countries accused of committing genocide (Global Centre for the Responsibility to Protect (GCR2P) 2020). Therefore, even though the United Nations (n.d.) upholds the idea that crimes of international law do not have a hierarchy of gravity, there is a deep dissatisfaction expressed in both academic and non-academic fields in relation to this rather unrealistic view.

As such, there have been many efforts to create adequate denominations for crimes that do not fall under the UN definition of genocide, in order to compensate for the lack of legal terminology present in international law. Most notably, Harff and Gurr (1988, 360) have used the term “politicide” to refer to the targeted killing of groups due to “their hierarchical position or political opposition to the regime and dominant groups,” and R. J. Rummel (1997) introduced the term “democide” to refer to genocide and government mass murder. Nevertheless, these terms did not manage to fully transcend the academic realm. However, some states, mostly from developing areas in Asia, Eastern Europe, and South America, did not, at least in the first decades of the Convention’s existence, fully adopt the definition that the UN prescribed. Instead, they took the liberty to broaden the category of groups considered to require protection in the framework of their national legislation. Yet, this practice is only applied infrequently and is currently not in accordance with UN expectations (Nersessian 2010). Notwithstanding, the clarification of the definition of genocide is of paramount importance as it underpins the foundation of effective legal responses and accountability. A precise and universally accepted understanding of genocide not only ensures clarity in legal frameworks but also facilitates the prosecution of perpetrators, ultimately contributing to the pursuit of justice and the prevention of such heinous crimes on a global scale.

The Issue of Genocide in Post-Communism: A Case Study of Romania

In contrast to the expectations of the UN, the term genocide has also been frequently employed to describe the extensive atrocities that transpired in Central and Eastern Europe under the communist regimes, even though the majority of these crimes did not specifically target any of the protected groups outlined in the Genocide Convention (Nersessian 2010).

One interesting, albeit under-researched example is that of Romania, which had one of the strictest communist regimes in the Eastern Bloc (Deletant 1995). The relevance of the notion of genocide in Romania surfaced in the aftermath of the Revolution of December 1989, which brought the communist regime to a swift and violent end. The transition from communism to democracy demanded systemic reforms and accountability for those responsible for oppressing the population (Deletant 1995). Thus, the beginning of the year 1990 was marked by a series of charges of genocide brought against various individuals responsible for the atrocities that happened during the regime and the Revolution (Stan 2009). However, none of these charges could be proven to fit in the definition of genocide outlined in the Genocide Convention, and the suspects were, if at all, charged only decades later with crimes against humanity. Yet, the term genocide, as in many other former communist nations, has maintained its presence in the Romanian public discourse as a reference to the crimes committed before the dissolution of the communist regime (CommunistCrimes 2018).

As such, this article aims to address the following research question: How does the narrow definition of genocide impact the pursuit of justice for victims affected by the individuals accused of genocide in the process of transition from communism to democracy in Romania? Prior efforts have primarily focused on the legal aspects of genocide in Romanian jurisprudence (Constantinescu-Mărunțel 2020) or consisted of investigative reports attempting to establish genocide occurrences (Boldur-Lăţescu 2004; Trebici 1991). However, many cases still lack adequate resolution. Therefore, this article seeks to explore the legal dimensions and implications of the term genocide, while also examining the social and political ramifications of its narrow interpretation in the context of political groups targeted in Romania before and during the Revolution. The article will commence with an extensive literature review, encompassing both Romanian and international sources that address the narrow approach taken in interpreting the notion of genocide. Next, the article will provide a comprehensive contextual background of the historical and legal circumstances that precipitated the genocide charges presented before national courts after the Revolution. The article will then address the legal challenges associated with the interpretation of the notion of genocide, emphasizing the imperative need for a legal framework that effectively addresses societal needs. The central argument posited is that, without a nuanced reflection of social needs in the legal framework, the law becomes non-representative and, consequently, contributes to the denial of human suffering. Within the framework of Axel Honneth’s (1996) theory of recognition, the article explores the repercussions of this denial, contending that the narrow interpretation of genocide leads to disrespect for vulnerable populations, perpetuating their suffering in the guise of legal formalism. Overall, this article seeks to unravel the intricate interplay between legal interpretations, social realities, and the profound consequences that ensue from the narrow interpretation of genocide, ultimately advocating for a more inclusive and responsive legal framework.

The Challenge of Defining and Interpreting Genocide

The justifications offered for the narrow approach to interpreting genocide are subjects of debate both in Romania and internationally. In Romania, the legal academic field appears to have reached a consensus in supporting the decision of the legislators to interpret the notion of genocide narrowly (Constantinescu-Mărunțel 2020; Grosescu and Ursachi 2009). However, there are not too many sources to conduct an in-depth legal analysis of the way in which international criminal law has been implemented in Romania. Most prominently, Cătălin-Nicolae Constantinescu-Mărunțel (2020) argues that there should be a symmetrical implementation of international law within domestic jurisdictions. His study outlines the major legal changes related to international criminal law in Romanian legislation and argues that the best approach to interpreting and applying international criminal law is to have universally applicable standards to which all the states adhere. This, he argues, is essential to prevent inconsistencies in a field with global implications.

Nationally, while recognizing the complexities of interpreting genocide, available sources, for the most part, refrain from criticizing the Tribunals and legislators for adopting a narrow perspective on genocide (Constantinescu-Mărunțel 2020; Stan 2013a). An exception is the Tismăneanu Report, commissioned by the president in 2006 to investigate the communist regime and prepare a report that would allow for the condemnation of the regime as “illegitimate and criminal” (Smith 2006). This report remains one of the most significant official works related to the investigation of the former communist regime in Romania and, contrary to the narrative outlined in the jurisprudence, it has an entire chapter dedicated to the “Communist genocide in Romania” (Tismăneanu Report 2006). This implies that the government chose to accept the use of the word “genocide” when referring to the crimes that resulted from the oppression that occurred during the communist regime. However, Lavinia Stan (2013a), for instance, criticizes the Tismăneanu Commission for not including a lawyer in its preparation, as it ended up using the term genocide indiscriminately. Nevertheless, it is noteworthy that the report did not have any major practical effect, remaining more of a symbolic gesture aimed at creating good publicity a few weeks before Romania joined the European Union (Stan 2013b). Internationally, the majority of legal scholars also support the narrowness of the concept, based on fears of trivializing the horrors of the Shoah (Nersessian 2010; Wohlfahrt 2004), and considering that membership in social or political groups does not provide the same type of stable identity that the protected ethnic, national, or religious groups provide (Nersessian 2010).

The literature that goes beyond the legal sphere tends to be more indulgent with the use of the term genocide. Historians, journalists, and victims are the three main categories that advocate for the use of the term genocide (see Procesele Comunismului n.d.; Ciuncan 2016; Boldur-Lăţescu 2004; etc.). Procesele Comunismului (n.d.), for instance, provides an in-depth analysis of the arguments brought in favor of narrowing down the concept of genocide and dismantles most major premises that stand behind the decision to adopt a narrow interpretation. Succinctly, it provides a historical analysis of the circumstances surrounding the ratification of the Genocide Convention, presents Romania’s rather broad stance in the international debate, and argues on grounds of logic, grammar, sociology, and legal analysis that genocide charges were a legitimate legal tool to be used against the alleged perpetrators. Internationally, the opinions are rather more diverse. As previously introduced, there are many attempts to either redefine genocide or to create new suitable terminology for the crimes committed against political or social groups (Harff and Gurr 1988; Rummel 1997). Steven Aschheim (2004, 77–78), among others, claims that genocide has become an extremely Westernized concept, being usually associated with Nazism’s sophisticated attempt to exterminate the Jewish population merely because “communism and its outrages retain a more or less distant Asian and Third World character.” This happens mostly because Russia, and implicitly the USSR, has been perceived “as significantly remote from (western) Europe’s geographical and spiritual core, a still not fully civilized force,” unlike Germany at that time (Aschheim 2004, 77–78). David Nersessian (2010, 222) devotes an entire volume to advocating for the inclusion of political genocide as a stand-alone crime, claiming that the status quo leaves us “unable to condemn directly the physical and biological destruction of the right to collective political identity.”

To this day, the debate as to whether or not to expand the definition of genocide to include political groups has not been solved. Although some states took advantage of the margin of appreciation that they had in expanding the term, statistics show that this is not a significant enough movement to consider it as proof of state practice as envisaged by international law. Moreover, the very strict rulings of international courts in this regard attach a sense of impracticability to the current definition. This leaves the world, then, in a situation in which many victims’ suffering is still not adequately recognized by the legal system (Nersessian 2010). In light of the debates about the nature and characteristics of the protected groups that have taken place ever since the creation of the term genocide,¹ Nersessian (2010) argues that both political and social groups can adequately be identified within a society, having as clear a delimitation as ethnic, national, racial, or religious groups. Raimond Gaita (2005) argues that the stability of these groups, although not as immovable as that of the heretofore protected groups, is granted by the equal importance that individuals usually place on their social or political identities. Considering the fact that the main purpose of prosecutions shall not be to punish those guilty but to protect the victims and redress the harms that have occurred through the violation of their rights, Beth Van Schaack (2017) argues that not offering protection to social and political groups under the framework offered by the Genocide Convention represents a form of arbitrary and disparate injustice, leaving those groups vulnerable to perpetual abuse. In summary, the ongoing discourse surrounding the interpretation and application of the term genocide persists as a significant point of contention, at both the national and international levels. This underscores the inherent challenges in precisely defining and acknowledging the suffering of various groups within the legal framework. Yet, the critical concern lies in the potential failure of these debates to translate into tangible action. Without practical implementations, victims are ultimately deprived of the necessary safeguards and avenues for redress.

From Stalinist Terror to Ceaușescu’s Cult: A History of Communist Abuses in Romania

A comprehensive grasp of the emergence of the charges of genocide in Romania relies on an in-depth understanding of the historical context in which these charges emerged. During the 42 years of the communist regime, the elimination of any form of political opposition was one of the primary objectives of the state. This was essential for the survival of the regime, as the Communist Party illegitimately seized power in 1945 through a Soviet-supported coup d’état. The beginning of the communist rule in Romania, under its first secretary general, Gheorghe-Gheorghiu Dej, mirrored the beginning of Stalin’s regime, attempting to eliminate groups including the national peasants, liberals, social democrats, and all other anti-communist organizations that emerged after the coup (Boldur-Lăţescu 2004). Other targets consisted of former landowners, persons with a record of political crimes, former political leaders, as well as the descendants of all these categories (Deletant 1995).

In order to coerce the population into compliance with the new regime, the state created the Securitate – a repressive apparatus of surveillance, investigation, and punishment (Deletant 1995). Moreover, to contain the opposition, former prisons were repurposed as political detention centers, which were known for conducting reeducation experiments involving torturous practices. The most notorious ones were Pitești, Aiud, Gherla, Râmnicu Sărat, and Jilava. Additionally, for the same purpose, forced labor camps were instated in multiple places in the country. Many of the political detainees were arrested without a warrant and, if trials were conducted, they were very superficial (Boldur-Lăţescu 2004). The majority of the charges brought against the political detainees were unsubstantiated, with the prosecution generically accusing them of “hostile attitudes” and “high treason” (Rusan n.d.). Many of these political opponents were secretly kidnapped and murdered before they even reached the prisons. Those imprisoned were routinely subjected to inhuman treatment and torture and eventually died on the prison premises, and those who survived the treatment in the prisons often died shortly after being released (Boldur-Latescu 2002). By the time of the fall of the regime, there were only very few survivors among those detained for political reasons (Stan 2009).

Soviet troops left Romania in 1958. Nevertheless, Dej continued to closely follow the directives of the USSR up until his death in 1965. Following Dej’s death, Nicolae Ceaușescu took over the role of secretary general, and maintained his power until the fall of the regime in December 1989. The transition to Ceaușescu’s rule initially saw liberalization efforts. Most of the political prisons were discontinued, having many of the political detainees amnestied. There was also a significant strengthening of ties with the West and a discontinuation of Soviet practices in politics, law, and society. Yet, following a series of visits to North Korea, Vietnam, and China in the early 1970s, Ceaușescu developed a strong cult of personality and ultranationalism, placing himself and his wife Elena in the center of attention.

During his term, Ceaușescu initiated extensive infrastructure projects that led to substantial indebtedness to international entities. In a bid to alleviate the burden of these debts and secure the country’s autonomy from external influences, Ceaușescu implemented drastic economic measures aimed at curbing resource consumption among the population while maximizing profits. These measures came at the cost of numerous lives, having created inhumane living conditions for the majority of the population, which was, more often than not, forced into extreme poverty. To maintain his power, and in light of the increasing dissatisfaction in the population, he strengthened the Securitate forces, creating an unparalleled repression apparatus in Eastern Europe (Deletant 1995), with an estimated total of one million collaborators and informants among the population (Turcu 2004). The regime fell to a violent revolution in December 1989 (Deletant 1995); its desperate attempts to quell the revolutionary movements that emerged all over the country resulted in 1,104 deaths, and 3,552 injured persons (Stan 2009, 272).

The death toll that resulted from the repression that occurred during communism is yet unapprehended. Many of the files of the first years of the regime had been destroyed once the Soviet troops left Romania in 1958 (Deletant 1995). After the Revolution, due to the general instability created by the fall of the regime, the former members of the Securitate who were secretly integrated into the Romanian Intelligence Agency had an opportunity to destroy a significant number of documents that would attest to the atrocities that had occurred during the 42 years of communist rule, having profound implications for historical documentation and for the assessment of the full extent of human rights abuses (Ruchinschi, Cașcaval, and Zoltan 2005; Turcu 2004). Estimates show that the total number of political prisoners amounted to approximately two million; more than half are estimated to have died either in the prisons or immediately after being released from detention. These estimates, while very rough, were included in the Tismăneanu Report (2006, 215), serving as an official narrative of the post-communist era in Romania (Smith 2006).

More than thirty years after the fall of communism, many of the victims and the perpetrators are too old to stand trial, having been left at the mercy of an underperforming judicial system. Romania, despite an opportunity to combat impunity, chose to merely dismiss charges of genocide, without conducting a proper investigation into the allegations that initially led to the charges. Nonetheless, the extent to which the impacts of this decision affected the survivors of the regime remains to be researched. The solution to this problem would be to have an open discussion among all sides involved in and affected by communism. This would involve a process of acknowledging that everyone’s losses and identities are important and finding a commonly agreed-upon solution that does not disregard the suffering of millions (Shafir 2012; Wohlfahrt 2004).

Why Genocide?

In the aftermath of the Revolution, the legal landscape in the country posed significant challenges for prosecuting crimes that occurred before and during the Revolution. In the wake of an amnesty decree issued by Ceaușescu in 1988, only the crimes committed after January 1988 could be prosecuted, with the exception of homicides and imprescriptible crimes, such as genocide. The National Salvation Front, which assumed power immediately after the Revolution, issued another amnesty decree in January 1990, pardoning all minor offenses that would have implied a sentence of up to three years inclusive or a fine. Thus, most crimes that had occurred since the communist regime was installed could not legally be addressed by the post-communist judicial system. Moreover, even though the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity was ratified in 1969, there were significant inconsistencies in the implementation of this convention in domestic law. Notably, crimes against humanity were not listed in the Criminal Code until 2000 (Grosescu and Ursachi 2009). Thus, faced with limited options, the primary available venue for legally addressing the crimes that were committed before and during the Revolution remained to classify the crimes as genocide, and this resulted in a surge of cases in 1990, which, nevertheless, stopped nine months after the first charge was launched (Constantinescu-Mărunțel 2020).

The Charges of Genocide

The first charge of genocide was brought at the trial of the Ceaușescu dictatorial couple. On December 22, 1989, during the Romanian Revolution, Nicolae and Elena Ceaușescu fled the Central Committee building in Bucharest by helicopter, eventually landing near Târgoviște, where soldiers from a local army garrison later arrested them. On December 25, 1989, they were tried by an Exceptional Military Tribunal (Burakovski 2011). In the final speech of the prosecutor, it was mentioned that the Ceaușescu couple was accused of “criminal offenses that they have committed during the 25 years [of the regime] and admit [sic] to the genocide, not only in Timișoara and Bucharest but primarily also to the criminal offenses committed during the past 25 years,” which led to 60,000 deaths (Livezeanu n.d.). The criminal offenses referred to in the judgment had largely been perpetrated from the beginning of the 1970s and up until the Revolution. The dictatorial couple was executed shortly after their trial, although the 60,000 deaths have never been confirmed (Constantinescu-Mărunțel 2020).

Following this pivotal moment, several other charges of genocide emerged in 1990, targeting individuals who held positions of power during the regime. The first trials were held for the so-called “lot of the four,” consisting of the four highest-ranking members of the Executive Political Committee (CPEx). They were charged with genocide by the Territorial Military Tribunal of Bucharest for the orders they gave during the Revolution, as well as for the disastrous economic decisions they took during their years in power (Constantinescu-Mărunțel 2020). The trials lasted for one month, and their charges were eventually changed to aggravated murder, as the legislative framework did not provide another suitable option for classifying the crimes they committed. Three of them were sentenced to life imprisonment, but following appeals, or due to health reasons, the three spent only a few years in prison (Arun 2019). The fourth received a lower sentence and publicly apologized for his behavior. He was the only one not to appeal the decision of the Tribunal and was released from prison after five years and three months (Pârvu 2019). In the same year, Nicu Ceaușescu, the son of the dictatorial couple, was also initially charged with genocide, aggravated murder, and the undermining of the national economy for the actions he conducted prior to and during the Revolution. He was, however, only sentenced to five years in prison for illegal possession of weapons, and was released on medical grounds shortly after the conviction (Constantinescu-Mărunțel 2020).

There were only two charges of genocide launched against individuals who were active in the pre-Ceaușescu era, even though there were many more individuals who have been identified as responsible for crimes of a similar nature (Institutul de Investigare a Crimelor Comunismului și Memoria Exilului Românesc (IICCMER) 2013). Alexandru Vișinescu, who served as the commander of the Râmnicu Sărat penitentiary from 1956 to 1963, was accused of orchestrating the deaths of 12 detainees during his term. Similarly, Ion Ficior, the commander of the Periprava Labor Colony from 1960 to 1963, was accused of being responsible for 103 deaths in the forced labor camp (Andrei 2021). It was not until several years later that Vișinescu and Ficior received a final sentence, in 2016 and 2017, respectively, each receiving a 20-year prison term for crimes against humanity. Both Vișinescu and Ficior died of old age in 2018 (Digi24 2018).

Genocide in Light of the Romanian Criminal Code

Navigating the intricate legal path of genocide charges in Romania unveils a pivotal moment in the country’s legal history. Romania ratified the Genocide Convention in 1950 and the term “genocide” was first included in Article 357 of the 1969 Criminal Code of the Socialist Republic of Romania, which remained in force until 2014. The definition in Article 357 included the term “collectivity” in addition to the universally acknowledged protected groups (Criminal Code of the Republic of Romania 1969).² The term “collectivity” did not have a clear definition outlined in the Criminal Code, and it is argued that this term would have broadened the definition of genocide indefinitely and would have allowed for the domestic investigation and prosecution of charges of genocide beyond the scope of the UN Genocide Convention (Constantinescu-Mărunțel 2020).

The case of Nicu Ceaușescu is the first clear illustration that the judges had a difficult time interpreting the term “collectivity.” Considering the remarks present in the “Theoretical Explanations of the Romanian Criminal Code,” the term collectivity is supposed to represent an entirely different group from the ethnic, national, and religious ones. This collectivity would have to be defined based on a geographically, socially, and historically established existence for it to be protected under the framework of genocide (Dongoroz 1972). The judgment of Nicu Ceaușescu shows that the judges ultimately dismissed the charges of genocide, considering that the protestors that became victims during the Revolution could not be considered to have a geographically, socially, and historically independent existence, and therefore could not constitute a collectivity within the meaning of the Criminal Code (Diaconescu 1991). As the term “collectivity” was perceived as vague and non-compliant with the aims of the UN Genocide Convention, all the rest of the cases ignored its potential interpretations. Most academic debates regarding the purpose of the term “collectivity” concluded that, although the term existed in the legislation, the Romanian state, oppressive as it was, would not have reasonably provided this loophole which could be used against itself, especially as, at the time of the ratification of the Convention, it was actively abusing political detainees in its process of transitioning to communism (Constantinescu-Mărunțel 2020).

In a critical shift in 2014, the new Romanian Criminal Code eliminated the term “collectivity” from the article on genocide, aligning its definition with the universally accepted one (Constantinescu-Mărunțel 2020). This modification, while seemingly bringing clarity, dismissed all possibilities to engage with the notion of genocide for the cases that were still being tried in that year, leading to an immediate change in the classification of the remaining charges to crimes against humanity. Prosecutors briefly justified this change by asserting that such a classification is designed to encompass political groups, offering a necessary framework for understanding these cases (Dobrin and Varban 2014). However, the legality of this modification and the imperative to explicitly address the concept of genocide in relation to the crimes linked to the communist era were never thoroughly examined or clarified. The research question of this article, thus, revolves around examining the repercussions of the assessment and prosecution of the charges of genocide in the process of transitioning from communism to democracy in Romania. At the same time, it aims to scrutinize the window of opportunity to include political groups within the interpretation of the 1969 Criminal Code created by the inclusion of the term “collectivity.”

Analyzing Genocide through the Lens of Responsive Law

Traditionally, the legal field takes a doctrinal approach to research. This type of approach is meant to examine legal texts with an analytical focus on their operationalization within the legal system. Although it is a well-established methodology for conducting legal analysis, it has often been criticized for being overly formalistic and rigid (McConville and Chui 2017). Nevertheless, the main criticism of this method has focused on the lack of explanatory power this approach offers to the so-called “hard cases” (Hart 2017; Huhn 2002). Hard cases can be generally understood as those cases in which the law lacks clarity. This can be either due to reasons of ambiguity, meaning that the terms used to formulate the legal texts are up to interpretation, or due to the logical validity of the law itself (Huhn 2002).³ As such, these nonstandard cases have to be left to the margin of appreciation of the judges, allowing them to fill the existing jurisprudential gaps (Hart 2017).

The Good Reasons Approach

In Romania, all charges of genocide that came after the execution of the Ceaușescu couple were hastily dismissed based mainly on the fact that the notion of genocide was not meant to include political groups (Constantinescu-Mărunțel 2020). The explanations offered for taking this interpretation are disputable in light of the above-explored controversies surrounding the term “collectivity,” as well as on grounds of concrete international practice (Nersessian 2010). The consequence of this decision is that many victims were left without an adequate response to their needs for justice (Boldur-Lăţescu 2004). Hence, the methodology that is required by this case needs to go beyond the doctrinal approach. This means taking into account an interdisciplinary approach that regards the needs of society in relation to the legislative efforts conducted after the fall of communism. To fulfill this purpose to the best extent possible, this article will employ Stephen Toulmin’s (2003) good reasons approach. This reasoning method allows for assessing the practical impacts that law has on society without being concerned with matters of logical validity. Thus, instead of using deductive logic, this method allows for conclusions that hold defeasibly, which means that given a set of conditions, the conclusions drawn will hold if no contingencies that defeat that certain premise materialize. In simple terms, this method implies a fight between what Toulmin (2003) calls “good reasons,” putting the burden of proof for the persuasiveness of the argumentation on the quality of the arguments, and not on the rigid logical validity, leaving space for discussion, improvement, and self-correction.

By employing this reasoning method to construct arguments addressing the imperative of legal transformation for greater responsiveness to victims, this article endeavors to illustrate that the hesitation to include political groups in the genocide definition, as evident in Romanian jurisprudence, represents a denial of recognition of human suffering, as elucidated by Honneth (1996). Thus, the following sections will delve into why genocide warrants consideration as a hard case, underscored by the pressing need for establishing a more responsive legal framework. Leveraging Honneth’s theory of recognition, the article will scrutinize the reluctance of Romanian judicial and legislative bodies to embrace a broader definition of genocide and assess the consequential impact on victims of crimes inadequately interpreted in jurisprudence, thereby fortifying the case for the implementation of responsive law.

Dealing with Hard Cases: The Case for Implementing Responsive Law

Nonet and Selznick (2017) identify three forms of legal ordering: repressive, autonomous, and responsive law – which may or may not simultaneously exist in the same system. Taking as a foundation the inevitable relation between political power and the legal system, the authors identify repressive law as the type of law that is subordinated to power politics, with the rule of law shaped according to the interests of the politically powerful. This type of repressive law can be identified domestically when one considers the ongoing debates on issues such as rights of minorities, abortion, or taxes. Even more drastically, the influence of politics is visible in matters of international law, where powerful states represent the main decisional actor in matters relevant to the whole world.⁴ In contrast, autonomous law is the type of law that aims to be independent of political will. This typology is usually associated with the concept of “blind justice,”⁵ which offers law the regularity and predictability necessary for a stable system through a strict following of legal codes.

The last category, responsive law, goes beyond the formalism of autonomous law, envisioning “a partial ‘taming of politics’ through legally structured participation and deliberation about law and public policy, guided by rational social inquiry and legal values” (Nonet and Selznick 2017, xxiv). This type of law has, unlike the autonomous type, a potential for self-correction based on how well it responds to the needs of society. Thereby, judges are given more freedom in interpreting and applying the law in a problem-centered manner, leaving room for learning and developing new strategies of implementation, while not damaging the aspects of legality and continuity that the autonomous law stands for (Nonet and Selznick 2017). While not perfect, this solution is much more practical in filling the gaps that autonomous law cannot fill. In the case of genocide, Romania, as in many other examples from Eastern Europe and beyond, shows that the literal interpretation of the notion of genocide, characteristic for the autonomous type of law, impedes the delivery of justice to the victims of the communist regime. Therefore, the next section explains the need to treat genocide as a hard case, requiring, thus, a much more flexible interpretation of this term as prescribed by the notion of responsive law.

Why Genocide Is a Hard Case

The formalism present in the interpretation of the universal definition of genocide, characteristic of the autonomous type of law, generally impedes the purpose of the law as the provider of protection for human vulnerability. This is shown both by the incredibly small number of cases that have officially been considered genocide according to the conception of the UN,⁶ as well as by the refusal to include political groups in the official definition. The definition of genocide in the Genocide Convention (UN General Assembly 1948)⁷ implies two major aspects: actus reus, namely the conduct that is the constituent element of a crime, and dolus specialis, namely the intent to destroy a certain protected group in whole or in part. While actus reus does not usually impose difficulties in its interpretation, the term dolus specialis can be categorized as ambiguous. This results in extreme difficulties for the courts in establishing whether a particular event can be classified as genocide or not. The International Court of Justice (ICJ) has stated that this intent can be indicated through policies of the state or patterns of conduct. Still, it did not define the extent or nature of any of these acts, leaving the decision up to the judges of each specific case (Library of Congress n.d.). This ambiguity, in and of itself, proves that genocide is a hard case that cannot be adequately analyzed through traditional means.⁸

Additionally, as can be observed in many of the cases tried in international courts, one of the other major problems that are encountered when dealing with genocide cases is the assessment of the type of groups that are included in the definition of genocide. This difficulty could be observed most recently in the trials of the Khmer Rouge in which those who were still alive and convicted of genocide appealed the decisions of the court, which led, in all cases, to a dismissal of the charges. This decision created a strong feeling of injustice and disappointment in the surviving populations (Hunt 2022). In Romania, this complication is reflected in the reluctance to interpret the term “collectivity” as present in the Romanian Criminal Code of 1969 (Constantinescu-Mărunțel 2020). Although international law can be flexibly implemented in domestic law, according to the circumstances of each state, it is undesirable, as outlined above, to have an inconsistent interpretation of the term genocide. Generally, law is supposed to be comprehensive, clear, and have a predictable application; international criminal law even more so, as violations thereof are meant to be relevant to the entirety of the human population, and not limited to the states in which the violations occur, shocking the conscience of humanity (DeGuzman 2020). An inconsistent international legal practice, thus, threatens the integrity of the purported ubiquitous apprehension that is instilled by the existence of these crimes in the world, leading to conflicting assessments and prosecutions of crimes that are supposed to have a universal nature. However, as John R. Sutton (2001, 7) points out in a discussion on the social perception of law, “when an obsession with procedural technicalities appears to overwhelm the search for justice, the foundation of the institution itself may begin to erode.” In Romania, the judges aligned themselves with this strict view on international law (Constantinescu-Mărunțel 2020), overlooking the extent of the crimes of the communist regimes. Therefore, recognizing the perpetuation of injustice that occurs by excluding social and political groups from the definition of genocide is a unique and necessary perspective that remains underemphasized in the existing analyses. Thus, Honneth’s (1996) theory of recognition can provide a lens through which to understand the effects of this exclusion.

Responsive Law & Honneth’s Theory of Recognition

Axel Honneth is a prominent figure within the school of critical theorists in sociology. In his work, he argues that social transgressions, manifesting as violations of physical, social, or moral integrity, are unavoidable in contemporary society. In his theory of recognition, he argues that one way to assess and include the needs of the victims of social transgressions within the legal system is through social dialogue, which can only happen once social recognition of their suffering is provided (Honneth 1996). As such, he introduces three avenues for recognition: love, recognition of rights, and solidarity. Love relationships, according to Honneth (1996) are those of human interdependence, in which humans reciprocally recognize and fulfill one another’s needs. The second form of recognition explored by Honneth is that of recognizing the rights of individuals. Only through recognizing civil, political, and social rights can one achieve a “full-fledged membership in a political community” (Honneth 1996, 116). Solidarity is the last type of social recognition identified by the author. Solidarity is understood as “an interactive relationship in which subjects mutually sympathize with their various ways of life” (Honneth 1996, 128). The inability to provide recognition to victims of social transgressions is what he calls “disrespect.” This can have grave consequences for individuals’ self-confidence, self-respect, and position in society (Honneth 1996). Threats to physical integrity, such as rape and physical abuse, represent the most egregious form of disrespect, while denigration or insults pose the greatest threat to solidarity. Denial of rights, and exclusion from those deserving of rights, threaten social integrity, constituting a form of disrespect that damages the self-respect, honor, and dignity of the victims, leading to the social devaluation of their suffering (Honneth 1996).

The theory of recognition contributes to comprehending societal responses to social transgressions, emphasizing the pivotal role of recognition and respect in justice and social cohesion. The denial of rights and resulting exclusion from society is encapsulated by the concept of “social death,” impacting the sense of individuality and belonging for groups experiencing any form of disrespect (Honneth 1996). The concept of social death has also been associated with the notion of genocide. Claudia Card (2005, 247) considers that “genocide is not simply unjust, it is also evil,” taking the form of “one-sided killing of defenseless civilians simply on the basis of their national, religious, ethnic, racial or other political identity.” Card (2005) identifies social death as an evil characteristic of genocide, harming the individuals’ social vitality, and removing all social connections for both the direct victims and the generations to come. Additionally, taking into consideration the physical, mental, and societal harm that genocide produces, it can be inferred that genocide and the responses to charges of this kind can affect all three forms of recognition.

The theory of recognition emerges, thus, as an invaluable conceptual framework for understanding the consequences of disrespect in relation to the victims of the communist regime in Romania. The concept of recognition has largely been applied to “group relations that arise in the experience of collective resistance to political oppression” (Honneth 1996, 128), which encompasses the majority of the victims relevant to this article. Moreover, as this theory stems from sociology, it has the potential to adequately address social needs, providing a level of comprehension necessary for the implementation of a responsive type of law. Therefore, this theory can provide insights into addressing issues related to the denial of rights, exclusion, and societal lack of recognition of the victims of the communist regime.

The Dynamics of Recognition in the Romanian Context

When examining the multifaceted dynamics of social injustice inflicted upon countless victims of communism in Romania, one can identify all aforementioned forms of disrespect. The physical abuses which took the form of beatings, tortures, and killings that occurred both in the communist prisons and in the public space, culminating in the violence conducted during the Revolution (Boldur-Lăţescu 2004), represent a clear form of disrespect against Honneth’s concept of love. Nevertheless, more pertinent for the purposes of this article are the effects of the legal considerations raised in light of the definition of genocide. The repercussions on the victims, resulting from the national-level decisions regarding the interpretation of genocide, become more evident when examined through the framework of Honneth’s concepts of denial of rights and denial of solidarity, as elaborated in the following sections.

Denial of Rights

Honneth (1996, 120) argues that “possessing rights means being able to raise socially accepted claims” ensuring that the ones demanding the rights have legitimacy in front of their interaction partners. Unfortunately, the situations in which groups manage to get their rights legally recognized are considered exceptional historical situations, although the effects of the denial of rights are acknowledged as “leading to a crippling feeling of social shame” (Honneth 1996, 121). Since the end of World War II, there have been many international movements to ensure that this denial of rights does not occur. Efforts conducted in this direction, particularly targeting the crimes in international law, have been summarized in the UN General Principles of States to Take Effective Action to Combat Impunity. Principle One thereof establishes a set of general obligations of states to take effective action to combat impunity: “Impunity arises from a failure by States to meet their obligations to investigate violations, and to take appropriate measures in respect of perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent the recurrence of violations” (United Nations 2005). Although this set of principles is not legally binding, it provides guidance to states that are faced with situations, usually of a transitional nature, in which these principles are considered desirable to be applied.

In post-communist Romania, as outlined above, due to the amnesty decree initiated by Ceaușescu, the only crimes that could still be effectively prosecuted were those committed after 1988. This left the prosecutors and the lawmakers with the legal incapacity to prosecute many of the crimes that were committed during the regime, leaving just the imprescriptible crimes up for investigation and prosecution (Grosescu and Ursachi 2009). This reluctance not only hindered full recognition of the rights of the victims but also facilitated the evasion of accountability by numerous perpetrators involved in crimes both before and during the Revolution. Four factors may have impacted the legal recognition and prosecution of crimes during the communist regime as genocide: the concern that labeling them as such could create unjust prejudice against Romania; the unwillingness of the first transitional governments who were previously involved in the communist regime to recognize communist-era crimes as genocide; the fear that a wide interpretation of genocide would distance Romania from the international legal framework; and the fear of not being well-integrated within the European institutions. Each factor unveils a layer of the intricate dynamics shaping the legal landscape during this critical period of transition.

First, there is an assumption that the possibility of genocide was denied as it was considered to bring an unjust prejudice to Romania (Ciuncan 2016). This stands in line with a general aversion to charges of genocide brought up in transitional societies (Nersessian 2010). The reluctance to pursue genocide charges is part of a larger phenomenon linked to the stigma surrounding genocide, deeply entrenched in societal perceptions of historical atrocities. This stigma emanates from the gravity and intolerability attributed to the specific offense as defined in the Convention, with genocide commonly dubbed “the crime of crimes” due to its exceptionally heinous nature. It is crucial to recognize that this stigma is not solely a consequence of its legal definition but is significantly shaped by societal views and historical events. Moreover, the media and international discourse play pivotal roles in amplifying the significance of the term genocide, contributing further to the enduring stigma associated with this grave crime. This interplay between legal complexities and societal perceptions underscores the challenges in addressing historical injustices and emphasizes the importance of a nuanced approach moving forward (Peck 2020). Starting in 1990, Romania endeavored to chart a course toward European integration. However, it encountered substantial challenges, leading to its exclusion from the European Council until 1993. This exclusion was attributed to concerns that Romanian practices still retained remnants of the totalitarian past (Radu 2013). The additional burden of the stigma attached to the label of having committed genocide likely heightened the challenges in the integration process, a prospect that was undesirable at that time.

Second, there was a general unwillingness to accept that the crimes committed during communism amounted to genocide; or, if they did, they were considered to have occurred solely due to Ceaușescu (Stan 2013a). In Romania, the legal system that has been implemented in the post-communist period can be classified as repressive. As repeatedly displayed throughout the 1990s, the newly established system acted solely according to the interests of the political elite, which vouched for a type of selective impunity based on nepotistic and corrupt considerations (Stan 2009). In this sense, the difficulties posed by the narrowness of the definition of genocide merely aided the perpetration of disrespect for the victims of the alleged genocide. An adequate prosecution would have taken into consideration both the mental and the physical elements of genocide and would have conducted an investigation in line with these considerations (Palassis 2008). What happened, instead, is that the standards of investigation applied in these cases were lowered due to the inability or unwillingness to classify the crimes as genocide, and, until recently, even as crimes against humanity, as discussed above (Grosescu and Ursachi 2009). Thus, the efforts to uncover the truth behind these politically motivated murders were kept to a minimal level.

The result is that, in the year 2022, there were still unearthings of unmarked graves in obscure sites around the political prisons, leaving many of the victims that died in the penitentiaries, as well as in forests or other remote places, still undiscovered (Ţimonea 2022). Normally, thorough and appropriately funded investigations of genocide charges, as was the case for the investigations conducted by the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda (Schauer 2012), would have avoided this situation, allowing for a faster uncovering of the truth that was behind the crimes of communism. As this type of meticulous investigation did not occur in Romania, the victims were, therefore, faced with a denial of the right to truth and the right to justice, due to the inflexibility of the interpretation of the notion of genocide. The newly established political elite counted, instead, on fast trials, invoking the excuse that the rule of law cannot trump state security. This way, all the past opposition and threats to power were eliminated, and trials were only selectively employed to fit the will of the political system (Stan 2009).

Third, it was considered that a wide interpretation of genocide would distance Romania from the international legal framework (Constantinescu-Mărunțel 2020). The dismissal of charges of genocide happened primarily on grounds of a denial of recognition of political groups as protected under the notion of genocide, despite the existence of the term “collectivities” in the Criminal Code. The justification offered by the prosecutors who were assigned the cases of Vișinescu and Ficior clearly stated that the change of the legal classification of the genocide charges into crimes against humanity was motivated by the fact that, under the latter classification, one can assess crimes committed against political groups. The prosecutors also noted that the political motives for mass repression remained unchanged throughout the whole period of the communist regime, with all repressive acts being aimed against what the regime labeled as “hostile elements,” which could take the form of any type of open contestation or opposition (Prosecutors’ office attached to the High Court of Cassation and Justice (PHCCJ) 2019). Still, the term collectivities was considered to be too broad and non-compliant with international standards (Constantinescu-Mărunțel 2020; Procesele Comunismului n.d.). Nevertheless, in the broader context of international law, there are several cases in which domestic and regional courts have applied a broader conception of genocide during criminal trials, as, for instance, in Bangladesh, Cambodia, Equatorial Guinea, Lithuania, Ethiopia, and Spain, and even some proceedings at the Inter-American Court of Human Rights. Jurisprudence from cases such as these contributes to establishing relevant state practice on political genocide under customary international law, showcasing deviations from the conventional definition. This supports the argument for a more responsive legal approach, expanding the definition of genocide to encompass political and social groups, and recognizing the complexities of addressing historical injustices (Nersessian 2010).

The most relevant case for the matter at hand is that of Lithuania, in which the inclusion of political groups was declared as compliant with European norms despite the principle of non-retroactivity. In Lithuania, political groups were included in the notion of genocide after the fall of communism. This change was perceived as legitimate under the domestic need for prosecution, although it was not fully compliant with the UN definition (Žilinskas 2009). The case of Lithuania in particular emphasizes the need to extend the definition of the notion of genocide to political groups. As in most other former communist states, in Lithuania, too, domestic efforts to control and repress the population were specifically directed toward the elimination of political opposition in its entirety as a means of coercing the population into affording the communist regime the needed legitimacy (Nersessian 2010). In March 2019, the European Court of Human Rights issued a ruling in the Case of Drėlingas v. Lithuania, in which it recognized a so-called “ethno-political genocide” conducted in Lithuania by Soviet forces (Žilinskas 2019). Under these circumstances, Romania too would have had the legitimacy to take into consideration the notion of “collectivity” as present in its Criminal Code in assessing cases of genocide. The debate on non-retroactivity, which was the major challenge that Lithuania faced in its process of expanding the definition of genocide, could have easily been avoided, had the judicial system agreed upon a clear interpretation of the term “collectivity.” This matter has never been discussed since the amendments made to the Criminal Code in 2014.

Fourth, an external factor that might have influenced the reluctance to prosecute crimes from the communist era in post-communist Romania involves the role and influence of the European Union and the Council of Europe. During the first decades after the fall of communism, the EU exhibited ambivalence on labeling Soviet-style regimes as genocidal. Two contrasting interpretations of communism emerged in the European Parliament (EP) and the Parliamentary Assembly of the Council of Europe (PACE). The first historicized communism, distinguishing between differences in the degrees of violence that were present during the communist regimes and rejecting parallels with fascism and Nazism, emphasizing the uniqueness of the Shoah. The second view portrayed communism as inherently violent, drawing comparisons with genocidal acts and demanding equal treatment between the victims of Nazism and communism. The latter interpretation gained dominance in both the PACE and EP, leading to resolutions that rendered the crimes of Stalinism and Nazism equivalents (Laure 2019). However, several Eastern European states – Latvia, Lithuania, Bulgaria, Hungary, Romania, and the Czech Republic – made calls to the EU to introduce a double genocide law that would criminalize the denial of crimes perpetrated by the communist regimes in the same way as the denial of Holocaust is criminalized. This created a strong division among the EU states, particularly out of fear of a resurgence of antisemitism due to the trivialization of the notion of genocide, and therefore did not lead to any tangible results (Philipps 2010). While calls for legal action against the denial of communist crimes were unmet, a symbolic approach emerged through remembrance policies, commemorating victims of totalitarian regimes (Laure 2019).

Finally, a September 2019 Resolution condemned both totalitarian regimes and their manifestation within EU countries, admitting that both regimes “carried out mass murders, genocide, and deportations” (European Parliament 2019). This came after the European Court of Human Rights issued the ruling in the Case of Drėlingas v. Lithuania, outlined above. Nevertheless, it took until the end of 2022 to label the man-made Ukrainian Great Famine as a genocide (Dahm 2022), potentially for fear of irritating Moscow (France 24 2008). In the case of Romania, the debate regarding how to classify the crimes of communism remains unclear. Although there is no empirical evidence showing a link between Romania’s reluctance to legally address the communist genocide and the EU’s longstanding stance against recognizing the communist crimes as genocide, Romania’s inclination to align itself with international norms and standards (Constantinescu-Mărunțel 2020) and the absence of EU support in addressing its communist past suggest that Romania, as a new EU member, was unlikely to pursue ongoing genocide trials in defiance of the EU norm and agenda.

In conclusion, the reluctance to acknowledge and prosecute crimes during the communist regime as genocide, as outlined in the Romanian jurisprudence, reflects a denial of rights to the victim, leaving them as outsiders to the legal framework, as articulated by Honneth (1996). The legal landscape, shaped by factors such as the corruption of the transitional governments and the need for international integration, has hindered the full recognition and prosecution of crimes committed during the communist era. The denial of genocide charges against political and social groups, justified by a narrow interpretation of the term “collectivities” in the Criminal Code, has resulted in a selective approach to justice, leaving many victims without the recognition they deserve. This echoes Honneth’s argument that possessing rights entails the ability to assert socially accepted claims, emphasizing the importance of legal recognition for victims seeking justice. In navigating the rigidity of genocide definitions, the implementation of responsive law, meant to expand the definition of genocide to include political and social groups, emerges as a nuanced middle ground. This approach seeks to acknowledge the suffering of these groups while upholding the integrity of the genocide concept, emphasizing the ongoing importance of legal responsiveness to historical injustices. Assuming, though, that the need for a symmetrical implementation of international law is essential, the rigidity of the definition of genocide as applied by the majority of the states remains problematic for the just assessment of the domestic circumstances of states that did not particularly target the protected groups of the Genocide Convention. These individuals were subjected to the same intent to destroy the groups to which they belonged, and they deserved, at the very least, proper consideration and analysis of the terms “genocide” and “collectivities” as envisaged in the 1969 Criminal Code, as well as proper investigations of the abuses that they suffered. Under these circumstances, the implementation of the concept of responsive law through the expansion of the definition of genocide would unarguably allow for a recognition of the suffering of political and social groups, thereby addressing their rights to truth and adequate reparations, without compromising the integrity of the concept of genocide.

Denial of Solidarity

The last type of recognition that Honneth (1996) develops is called solidarity. This type of recognition implies a sympathetic recognition of other groups’ collective suffering. Insults and denigration represent a form of disrespect toward these groups. This form of disrespect then results in a decrease in the level of social esteem of the members of the group.

In Romania, the major problem that the victims of the communist atrocities faced was the lack of political recognition and support, which resulted from the confusing legal situation created in the process of interpreting international law. The post-Revolution ambitions to democratize the country and implement transitional justice mechanisms to bring about decommunization were consistently weakened: The newly established post-communist elite turned out to include many former high-ranking communist officials. The most notorious case is that of Ion Iliescu, who was elected as president twice, in spite of his known ties to the communist regime. Iliescu has positioned himself as opposing the demands for the lustration of the former members of the Communist Party from public positions of authority and has disputed the need for examining the crimes of communism, based on the assertion that socio-economic considerations should have primacy over judicial undertakings. He is also known to have portrayed the victims of communism as fascist and pre-communist bourgeoisie, thereby prolonging the harmful rhetoric of the communist regime. The next presidents did not manage to bring up any significant improvements in the official discourse related to the victims of communism.⁹ President Emil Constantinescu won the popular vote by promising to condemn the torturers of the communist prisons but did not manage to fulfill this promise during his term (Stan 2009). President Traian Băsescu, despite having mandated the Tismăneanu Commission, was exposed in 2022 as a former collaborator of the Securitate (Digi24 2022). Consequently, robust support for the implementation of effective victim-oriented measures never gained full traction, as it would have required an acknowledgment of guilt and complicity in genocide by those who had close ties to the regime. The denial of political recognition and support perpetuated the disrespect and societal shame experienced by the victims, further highlighting the need for a comprehensive reevaluation of transitional justice mechanisms to address the enduring consequences of communist rule.

Another issue that affected the public empathy for the victims of communism was the association of the victims with the former “legionaries,” a fascist movement that was harshly dehumanized and prosecuted by the communists (Ciobanu 2015). Despite historical records showing that nearly everyone opposing the communist regime was unfairly labeled as fascist during 45 years of propagandist indoctrination (Boldur-Lăţescu 2004), this false narrative persisted in the public consciousness. Moreover, a lack of political and legal education combined with hasty transitional justice attempts conducted by the government stalled the adoption of adequate transitional justice measures. The Institute for the Investigation of Communist Crimes and the Memory of the Romanian Exile (IICCMER), intended to offer a victim-centered analysis of the communist regime and its consequences, along with the Tismăneanu Report, faced considerable challenges to their legitimacy. These projects, which had been initiated by the government, lost crucial funding meant to support the truth-telling aspirations of post-communist society due to perceived bias and ineffectiveness in advocating for the prosecution of individuals known to have committed serious crimes while holding official positions in the communist regime (Mihaela 2015; Popovici 2021; Stan 2013a, etc.). The perceived shortcomings of these projects contributed to a broader lack of confidence in addressing the historical injustices of the communist era, amplifying the challenges faced by victims seeking acknowledgment and redress. These issues resulted in insufficient and even insulting reparations and compensations offered to the victims (Ciobanu 2014) – in 2020, most of the former political detainees received pensions three times lower than the prison commanders (Borcea 2020). Ultimately, the lack of interest in addressing the crimes of communism, compounded by years of improper or non-prosecution, led to widespread societal distrust in social institutions (Letki 2002), with Romania having one of the lowest rates of trust in state institutions in the former Eastern Bloc (Ciobanu 2014).

Despite the institutional failures outlined above, there were great efforts conducted in the community of surviving political detainees and formerly prosecuted individuals to shape the collective memory and bring justice to the victims. As Romulus Rusan (n.d.), one of the most prominent figures in this battle for justice put it, “when justice cannot be a form of memory, memory itself can be a form of justice.” The efforts conducted in the direction of providing an unconventional type of transitional justice range from private memorials constructed in the names of the victims of the regime, as is the case of the Sighet Memorial, founded by Ana Blandiana and Romulus Rusan (Memorialul Victimelor Comunismului şi al Rezistenţei n.d.), to academic literature (Boldur-Lăţescu 2004; Trebici 1991, etc.), films, paintings, and music that commemorate the victims of communism (Preda 2017). A brief mention of these efforts in one paragraph can certainly not do justice to the greatness of the work put into shaping a collective memory that the state was unwilling or sometimes unable to provide. Despite the internal solidarity that the victims offered to each other, the state remained largely unresponsive.¹⁰

Establishing a counterfactual scenario might be difficult under these circumstances, especially as many former communist states did not employ criminal punishment for the crimes of the repressive regimes (Malcontent 2016). Still, in light of Honneth’s theory of recognition, combined with studies on the effects of transitional justice mechanisms (e.g., Horne 2020), one can infer that conducting proper trials that adequately account for the suffering of the victims can increase the trust in the state institutions established after the fall of a dictatorship and bring justice to those that have suffered at the hands of the regime. As shown in other cases in which the seriousness of the implications of grave international crimes was acknowledged (i.e., Canada, Germany, South Africa, etc.), once the blame for the harms of the past is accepted by the state, programs of education and reconciliation can adequately be implemented (Malcontent 2016), providing the victims with an opportunity to have their suffering recognized. Thereby, states can initiate a much-needed dialogue meant to deal with all forms of social transgression, so that the “Never again!” promise can be fulfilled. This dialogue is yet to be created in Romania.

Conclusion

As explored above, Romania suffers from a severe lack of official recognition of the victims of the communist regime. Victims targeted solely based on their membership in the anti-communist opposition have only faced a delayed, disparate, and arbitrary application of justice. This stands in line with Van Schaack’s (2017) analysis of the impacts that the narrow definition of genocide can have. Even taking the most favorable scenario for the Romanian legislators, in which the UN definition of genocide is the sole viable option to be applied, the lack of recognition of grave physical abuses, massive deaths, and suffering is a denial of rights that transitional justice mechanisms can account for.

Romania, sadly, is not the sole example affected by a narrow interpretation of the notion of genocide. More than thirty years after the fall of most communist regimes in the world, there is still no answer found to the struggles of the victims targeted for their membership in political or social groups. In many cases, no justice could be delivered, and the generations that have directly experienced communist repression are inevitably getting older. Perhaps now, while there is still time, and based on the tremendous amounts of available information, a final recognition of the massive violations of human rights perpetrated by the communists can finally take place. Taking action toward changing the definition of genocide would confirm Honneth’s (1996) theory that only when the meaning of historical struggles becomes clear in the process of societal development can society truly acknowledge the moral importance of its recognition.

The inquiry on the inflexibility of interpretations becomes even more daunting at the level of international jurisprudence, as it comes not only at the cost of the legitimacy of the post-transitional state (Stan 2013a), but also at the cost of denial of human suffering. Ultimately, the formalistic approach taken toward interpreting the notion of genocide adds Romania to the list of countries where victims were denied the acknowledgment of the full extent of the harm that they faced, alongside, among others, Sudan, Cambodia, Ukraine, and Bosnia. However, the international situation does not currently seem very bright. More than seven decades after the term genocide was included in international jurisprudence, there is still no generally acknowledged practice for handling potential genocide cases and no agreement on how to establish whether certain acts amount to genocide. The interpretation of this notion remains very rigid. Most crucial decisions in this matter are taken at the level of the UN Security Council, which, at the moment, faces a severe level of discontent, particularly after Putin’s war of aggression on Ukraine (Security Council Report 2022). Therefore, as one can observe, the problems with the genocide definition extend over many fields, leaving many people helpless in the face of the so-called crime of all crimes. Still, as long as political considerations trump societal needs, there is only little chance for one to witness a transition toward responsive law, leaving the prospects for change in a very dim light. This article aims, nevertheless, to contribute to the literature that calls for a recognition of rights to physical integrity, justice, truth, and dignity in the context of transitions from totalitarianism to democracy. Despite the scarcity of legal analysis existing for the situation of genocide in Romania, and the lack of a dignifying official account for the crimes of communism, the hope is that this article manages to bring a humble contribution to the existing socio-legal analysis on the effects that a narrow interpretation of genocide can have. There are millions of victims out there whose stories the world can still hear, acknowledge, and solidarize with. While that cannot mend the wounds caused by the unimaginable abuses they went through, recognizing the indescribable misery that society failed to prevent can open, at last, a much-needed reconciliatory social dialogue as advocated by Honneth (1996).

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Notes

1. For a comprehensive account of the debates that took place in drafting the Genocide Convention see LeBlanc (1988).

2. Art. 357 (Criminal Code of the Republic of Romania 1969) defines genocide as:

… any of the following acts committed with intent to destroy, in whole or in part, a collectivity or a national, ethnical, racial or religious group, as such:

(a) Killing members of the collectivity or the group;

(b) Causing serious bodily or mental harm to members of the collectivity or the group;

(c) Deliberately inflicting on the collectivity or the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the collectivity or the group;

(e) Forcibly transferring children of the collectivity or of the group to another collectivity or group.

3. Wilson Huhn (2002) uses the example of the term “imminence” to illustrate the ambiguity that often arises in interpreting legal texts related to self-defense. The imminence of danger usually implies that the use of force in the particular case of self-defense is accepted, although the general understanding is that the use of force is broadly prohibited. Nonetheless, due to the vagueness of the term “imminence” and the lack of objective means of measurement of imminence, it is often up to judges to decide, based on the particular facts of the case, whether the danger was imminent and thus legitimizes self-defense as a justification for the use of force. H. L. A. Hart (1994) argues that this ambiguity is a result of unavoidable human shortcomings.

4. For instance, despite the recommendations of the UN Human Rights Council that “the Myanmar military should be investigated and prosecuted in an international criminal tribunal for genocide, crimes against humanity and war crimes” (UNHR Council 2018), the single most significant effort to address the problem was conducted by The Gambia, which launched a case against Myanmar in 2019. Normally, all parties to the Genocide Convention have the legal obligation to prevent and punish genocide. The least that the states can do is to issue public statements indicative of their condemnation of the alleged genocide. Aside from The Gambia, clear support for the efforts to protect the Rohingya community has been shown by The Netherlands, Canada, and the Republic of Maldives. Still, since Russia and China vetoed a draft resolution on Myanmar in 2007 on the grounds that the repression of the Rohingya community is not a threat to international peace and security, no intervention was initiated (Parnini 2013).

5. This is an expression often used to convey the impartiality of justice, meaning that it applies equally to everyone, disregarding their individual traits.

6. Only the Shoah, Rwanda, Srebrenica, and, to a certain extent, the Armenian Genocide have been officially recognized as fulfilling the criteria for genocide, leaving the mass killings of the Khmer Rouge in Cambodia or the Holodomor in Ukraine with an ambiguous status (BBC News 2022).

7. Article 2 of the Convention defines genocide as any of the following acts committed with intent to destroy [dolus specialis], in whole or in part, a national, ethnic, racial, or religious group, as such [actus reus is further elaborated on]:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

8. The cases of Bosnia v. Serbia and Croatia v. Serbia, judged at the ICJ, are illustrative of the struggles faced by courts when establishing intent. Therein, acts of massive, systematic killings ordered by governments could be identified, which fulfilled the requirement of actus reus for genocide. Nevertheless, aside from the Srebrenica Massacre, genocidal intent could not be proven on either side (Library of Congress n.d.; Palassis 2008).

9. Post-Communist presidents of Romania: Ion Iliescu (1989–1990: President of the Council of the National Salvation Front; 1990–1996 and 2000–2004: President of Romania); Emil Constantinescu (1996–2000); Traian Băsescu (2004–2014); Klaus Iohannis (2014–2024).

10. Alexandru Gussi (2017, 89–90) summarizes the lack of official solidarity: “The Ministry of Education never introduced as obligatory the textbook on the history of communism, which remained an optional subject in schools until 2012, when a Social Democrat minister removed it altogether. The Ministry of Culture never created a museum of communism. The Ministry of Interior never re-wrote its own history and kept on its website in 2012–2014 a portrait of communist minister Tudor Postelnicu, who has since been prosecuted for his involvement in the bloodshed of the 1989 Revolution. The Ministry is still in charge of the National Archives […]. Last but not least, since 2015 the Presidential Commission’s report has disappeared, for no discernible reason, from the website of the Romanian Presidency”.