Is it too early to speak about justice in Donbas?

Photo: ВО «Свобода» (cc) commons.wikimedia.org

A simple reconstruction of the pre-conflict circumstances is insufficient (the conflict emerged in these circumstances) and impossible (in the complex social reality, events are irreversible). Furthermore, as Gary J. Bass rightly emphasises, “the aftermath of war is crucial to the justice of war itself”. This is to say, the pursuit of justice should become an integral part of any peacebuilding strategy for the Donbas conflict.

Post-conflict justice

The concept of jus post bellum generally refers to strategies of establishing justice at the final phases of war. These strategies may raise issues such as reconciliation, addressing victims’ needs, accountability for atrocities and crimes committed as well as the establishment of the rule of law in post-conflict societies. Modalities of post-conflict justice are normally established within certain legal, geographical and political contexts. Usually, they are associated with conflicts within states, not so much with conflicts involving more than one state.

This is not to say that post-conflict justice is exclusively local, devoid of any cosmopolitan imperatives. In practice, establishment of post-conflict strategies is often framed by international bodies, including the United Nations, as well as by different branches of international law. Furthermore, two regional bodies, the European Union and the African Union, have made considerable progress towards institutional commitments towards post-conflict justice. Indeed, some would argue that in the case of Europe, transitional justice strategies such as responses to war, genocide, civil war, democratisation efforts, reconstruction and reunification in the aftermath of the Cold War, form the underlying normative drivers of integration and peace.

The specific contexts in which any post-conflict justice strategies are being established, dictate the need to find a proper balance between three important issues: truth, justice and sequencing. An important but contentious aspect of jus post bellum is the question of inclusive or collective memory and the concomitant need for public discourse on past events, history, the present situation and the way forward. “Active forgetting” may very well be the best post-war strategy of all, and there should be at least the option of forgetting. Such view is, however, not popularly accepted. Instead, truth commissions are typically presented as appropriate means to facilitate and record processes on collective memory as well as individual narratives about past atrocities.

The concept of truth is in itself a contentious notion. One interesting approach in the context of post-conflict situations is the one proposed by Albie Sachs, a former South African Constitutional Court justice. He articulated four categories of truth which he presented on the occasion of the inaugural National Archives Lecture in London in 2005. The first category, “microscopic truth” entails the narrowing of a problem or a field to a certain frame from which all variables can be excluded. Lawyers do this on a daily basis in court, where a legal question is posed and then answered with respect to a defined field (for instance: “did the accused possess the necessary criminal capacity at the time of the commission of the offence”). The question is about the capacity of a person to distinguish between right and wrong (psychological responsibility); the defined field is the general principles of criminal law, and more particularly the principles relating to criminal capacity, which can be answered with reference to well-established principles of law and psychology. 

The second category of truth, according to Sachs, is “logical truth”. Again, this is something that lawyers do on a daily basis: conclusions reached by deductive and inferential processes. Language is employed to reflect what is typical in nature and as experienced by humanity. Indeed, legal reasoning to a large extent can be described as an attempt to find connections between microscopic truth and logical truth. The third category is described by Sachs as “experiential truth”, a concept that Sachs encountered in the works of Mahatma Gandhi. Experiential truth (or “lived truth”) is, essentially, storytelling. It is also reflective, in the sense that one needs to analyse one’s experience of a phenomenon in which one has participated.  Whether we realise it or not, this category of truth is what guides us in our lives: “We act on our experience of life and we infer things from that.” 

Finally, the fourth category, “dialogical truth”, can best be described as amorphous. It does not end. There is no final outcome or final answer. It is a mix of evidential, testimonial, and experiential truths; the truths of many people being interpreted in many ways. This latter category seems to be especially valuable in cases when harder edges of objective truth need to be softened. Dialogical truth is particularly helpful in transitional contexts.

The notion of justice, in turn, refers to different forms of punishment and reparations. Both can induce tensions and paradoxes in societies attempting to settle large-scale armed conflicts. Jus post bellum strategies can, and sometimes should, include criminal prosecutions of individuals responsible for serious human rights violations. However, an important principle of transitional justice is that the criminal justice response to atrocities, violence and strife, should really be the last resort.

The question of sequencing concerns the temporal element of post-conflict justice. This aspect refers to the best or most suitable moment to implement a particular aspect of the chosen post-conflict justice modality or modalities. This is important because the discussed strategies are rarely a single event or process. It often involves multiple (and sequenced) processes. In particular, one can turn to the three broad approaches regarding sequencing, as identified by scholars. These approaches are: truth first, justice later; trials first, truth later; and truth and justice in tandem.

Whenever decision-makers select a modality of jus post bellum applicable to a certain conflict, they should bear in mind that it should address a kind of two-level dilemma: the first (and most fundamental one) is the potential tension between peace and justice. The applied approach to jus post bellum should first of all prevent the recurrence of violence. Then, establishing justice in itself may require an even more sophisticated balancing between truth and justice (which is to say, the restorative and retributive functions of justice must be balanced).

Hybrid complications

The most significant feature of the Donbas conflict that potentially informs a suitable approach to establishing a jus post bellum modality is its “hybridness”. It is not our goal to analyse the notion of hybrid warfare in detail; some analysts argue that the use of the expression hybrid war may be counterproductive in terms of a proper understanding of the essence of modern conflicts. We understand hybridness primarily as a legal uncertainty regarding the status of the conflict, of the combatants and fighters taking part in it as well as of relevant political entities responsible for and able to conduct warfare and implementing peace agreements. In practical terms, symptoms of hybridness can be grouped into two categories. First, one can state without exaggeration that on an analytical level there is general consensus regarding Russia’s active role in the emergence of the para-states of the “peoples’ republics” of Donetsk and Luhansk. On the other hand, Russia is not de jure in a state of war with Ukraine. It participates in peace talks as an observer or mediator. At the same time, the existence of a measure of popular support for the self-proclaimed “republics” also cannot be denied. As a result, one can argue that the Donbas conflict contains elements of both international and internal conflict.

Second, although in political discourse the Ukrainian authorities widely refer to the conflict as inter-state war, martial law was never introduced in Ukraine nor was there ever an official declaration of war. All of the operations undertaken by Ukraine’s armed forces take place in the framework of a counter-terrorist operation. Nevertheless, a number of legal measures introduced by the Ukrainian authorities since March 2014 suggest that Ukraine is in a situation which is materially or de facto similar to a state of war. All things considered, the situation is complex and full of uncertainties and dilemmas, none of which have been solved three years since the beginning of the conflict. Peace is still elusive; not to mention post-war initiatives.

Thus far, Ukraine’s authorities have not elaborated a comprehensive strategy of establishing post-conflict justice. Any attempts in this field are constrained by the ongoing (although rather ineffective) peace process: both Minsk agreements emphasise – along with the obvious provisions on ceasefire – the need to conduct a “national dialogue” which would eventually lead to the transformation of Ukraine’s political process to guarantee a degree of autonomy (and thus more rights) to the rebellious territories. The agreements also foresee amnesty which would protect militants, collaborators and supporters of the “people’s republics” from criminal prosecutions. Available surveys expose the existence of tensions within the Ukrainian society in terms of expectations on how the conflict should be solved and whether justice should be a priority – the farther from the theatre of conflict, the more uncompromising is the position of respondents.

In these conditions, the Ukrainian authorities have seemed to undertake an uncertain balancing act between the goals of peace and justice. Achieving peace seems to be the priority. Some steps signal a readiness to discuss justice, including legislation that generally conforms with the requirements of the “people’s republics”, such as possible amnesty, a commitment to formulate an agreement on economic, social and cultural development and the creation of a special regime for business and investments in order to facilitate the quick reconstruction of the destroyed infrastructure. It also considers constitutional reforms containing “special status” for the “republics”. None of these initiatives, however, have entered into force due to their formal or informal conditioning that a complete and permanent ceasefire be in place. At the same time, problems related to the discussed conflict are being addressed within the framework of regular judicial procedures.

Between March 2014 and the end of 2016, Ukrainian courts have issued around 1,200 verdicts in cases that concern the conflict to some degree. The Ukrainian authorities also took steps to engage the International Criminal Court regarding an investigation of events related to the Donbas conflict by accepting jurisdiction of the ICC over alleged war crimes on the territory of Ukraine starting from February 20th 2014. These steps can be regarded as signals that “active forgetting” is not an option.

What is missing from the presented puzzle is an element of truth, which, as existing knowledge suggests, plays a crucial role in establishing a long-lasting peace. The Ukrainian authorities focus on what is possible to achieve. The problem, however, is that such steps can hardly be a basis for reconciliation. It is simply a continuation of a precarious status quo.

Truth and peace

There is no clear post-conflict strategy for Donbas. This is to a significant extent caused by the hybridness of the conflict. It effectively prevents the engaged parties from achieving the fundamental goal of peace. As a result, any considerations regarding a proper modality of post-conflict justice remain rather theoretical. At the same time, the Ukrainian situation is a good opportunity to formulate some conclusions that may be useful from the perspective of other similar conflicts.

The Ukrainian authorities focus on efforts that are supposed to prevent the deterioration of social and economic conditions of those affected by the conflict, and criminal prosecutions (within the ordinary justice system) against those responsible for the onset of the conflict. Criminal prosecutions – under national law or at the ICC – are acceptable manifestations of jus post bellum, but current experience suggest that they are not enough. In particular, what is missing is the element of truth. In any given circumstance, it seems that the establishment of some basic truth about the conflict accepted by all sides is a sine qua non for establishing a measure of justice. However, this should not be seen as identical to the traditional “truth first and justice later” approach.

The main problem with hybridness is that it effectively conceals the international dimension of the conflict. One may debate whether the rebellious territories actually faced some form of discrimination (and if so, to what extent). These issues should be subjects for a separate analysis. What can be said for sure is that at the dawn of the conflict the ideas publicly expressed by political and military leaders of the self-proclaimed “DNR/LNR” did not occur in a void. They were supported by a significant part of the population. The third state – Russia – utilised it to achieve its own political aims.

It is thus natural that achieving peace will continue to be the top priority. Within the described circumstances it is hard to expect that any working agreement referring to justice can be achieved between Kyiv and the “DNR/LNR” without some basic agreement about what actually happened (and what continues to be happening). From this perspective, truth may appear crucial for achieving the fundamental goal of peace.

The problem, however, is that at least in the initial phase, truth-seeking efforts can be rather unilateral (conducted by Ukrainian authorities). It is thus important that the whole process should be transparent and also effectively communicated to the wider public. For example, ongoing criminal prosecutions can be a tool to present the microscopic/logical truths about the conflict from the perspective of the Ukrainian state; but such prosecutions can also be the first steps towards establishing dialogical truth. In turn, the wider the area of agreement, the better are the opportunities to calibrate properly the functioning of institutions (those already in existence as well as those eventually to be established) aimed at achieving justice. In the end, it is not sequencing, but rather a more flexible approach based on sequencing plus proper scaling between truth and justice which seems to be the basic formula of an effective post-war justice strategy.

The text is based on the chapter prepared by the authors for the forthcoming volume The Situation in Ukraine since 2014: jus ad bellum, jus in bello, jus post bellum, eds. S. Sayapin and E. Tsybulenko (T.M.C. Asser Press).

Gerhard Kemp is a law professor at Stellenbosch University in South Africa. He has published widely on South African and regional criminal justice, international criminal law, international humanitarian law, and transitional justice.

Igor Lyubashenko is an assistant professor at the University of Social Sciences and Humanities (SWPS) in Warsaw. His academic interests are different aspects of transition to democracy in post-communist states, in particular Poland and Ukraine.

Donbas, Transitional justice, Ukraine