Transitional justice in Ukraine: What if the war was over?

Shell-pocked housing estate in Donetsk. Photo: Roberto Maldeno (cc) flickr.com

In July 2019, a united coalition of human rights organizations and experts, Human Rights Agenda, presented 13 steps for the new parliament to protect human rights in Ukraine. The list of challenges, unfulfilled by the previous government, includes an abstract on “the national model of Transitional Justice” (TJ). A rather new concept in Ukraine, TJ is set of judicial and non-judicial mechanisms to redress human rights abuses in a post-conflict society. It includes prosecution of the guilty, truth-seeking, reparations for victims, and institutional reforms. Although the Russia-provoked war in the Donbas is ongoing, human rights experts assure that it is high time to address conflict-related problems that have arisen in Ukraine.

Other than the four pillars, there is no universal approach to restore justice. Based on a state’s cultural, historical, ethnic, political specifics, and even financial resources, it has to define its own model to tackle the problems and prioritise certain issues in all of TJ elements, Oleg Martynenko, Head of the Analytical Department of the Ukrainian Helsinki Human Rights Union, comments to UkraineWorld. He and other human rights experts started this process a few years ago. In January 2018, they introduced a bill On the Principles of State Policy on Human Rights Protection in the Context of Overcoming the Effects of the Armed Conflict. The draft law, prepared by UHHR jointly with Ukraine’s officials and partner NGOs on the initiative of Ukraine’s then human rights commissioner Valeria Lutkovska, was revised and approved in December 2018. However, Martynenko recalls to UkraineWorld, there was no clear answer from the new Commissioner on Human Rights in Ukraine, Liudmyla Denysova on the matter. Even though its authors lost two years, the expert adds, the bill has now “more chances to pass” in the new parliament. As soon as the latter starts its work, the draft law is ready to be registered. Meanwhile, precise steps on the implementation of TJ in Ukraine are still subject to deliberation.

In Ukraine’s future TJ process, demilitarisation of the occupied territories is the crux of the matter. Oleg Martynenko says, today Ukraine’s “priority is to improve the investigative and judicial practice”. While back in May, the expert was also sceptical on the legal protection of victims, in June, a crucial step was made in this direction when Ukrainian parliament adopted the long-awaited bill No. 9438.

The so-called law on war criminals harmonises the Criminal Code of Ukraine with international legal norms. Since there were no provisions on war crimes in the Ukrainian legislation, grave human rights violations were qualified as general criminal offences. “Such crimes do not reflect the true nature of what [the perpetrators] actually did”, Oleksandra Matviychuk, Head of the Board at the Centre for Civil Liberties, shares to UkraineWorld. Forasmuch as investigations into the events depend on the national investigative authorities and the courts, the new act allows to effectively prosecute individuals who committed war crimes or crimes against humanity under international law. Matviychuk hopes this will put an end to impunity. Besides criminal liability for torture, forced disappearances, and murders on the occupied territories of Ukraine, the law includes a subsection on rape and other sexual crimes that might help address the gender dimension of TJ in the future. The latter was also among the recommendations from a western expert in TJ (who preferred not to comment on the matter) which Head of the Analytical Department of UHHRU shared to UkraineWorld.

Amnesty is another pivotal issue and a daunting challenge within Ukraine’s future justice process. On this matter, Ukrainian experts also seek solutions in cases of the world practice, from Europe to Latin America. Despite major differences in the nature of the conflict, some find Colombian experience of great use for Ukraine.

The civil war between FARC and Colombian government, that lasted for 52 years, has been one of the biggest conflicts recently resolved. In July 2018, the former Minister of Internal Affairs of Colombia, Juan Fernando Cristo, shared his experience on TJ with Ukraine’s human rights activists and parliamentarians. In Colombia, perpetrators of serious crimes were brought to justice from both sides. On the other hand, amnesty was granted to those gang members who did not commit war crimes or crimes against humanity.  

While this can be a controversial issue in the Ukrainian context today, Colombian example is important for Ukraine’s future reintegration processes, Iryna Herashchenko, First Deputy Head of the Verkhovna Rada, said after the meeting with Cristo. She noted the importance of pleading guilty: “People who are subject to amnesty should not only lay down their weapons, but give assurances that they will never again take up arms”. Due to the TJ process in Colombia, those pleaded guilty got 4-8 years of restrained liberty in specially designated areas instead of 20-30 years in prison, ordered to execute community or social work. Moreover, they had to pay reparations to the victims. Oleg Martynenko (UHHRU) agrees there should be alternative punishments for persons who acted as combatants in line with the Geneva Conventions. If Ukraine decides to jail all the authorities from the so-called “Donetsk People’s Republic” and “Luhansk People’s Republic” in prisons, it will be impossible to do so because there are simply not enough prisons, he notes. 

Talking about the international practice to UkraineWorld, Martynenko prefers case studies of Croatia and Bosnia and Herzegovina where the international community played a pivotal role pushing the governments to take all necessary steps. As the UN peacekeeper in Bosnia and Herzegovina, he saw the situation on the ground. “UN peacekeeping missions served as freezers of the conflict, stabilisers of security for the peaceful population, and the initiators of the positive changes for governmental bodies,” Martynenko comments. As a result, various aspects of TJ have been gradually implemented there, including compensation for victims and memory heritage.

Although in Ukraine’s case, Russia is the perpetrator, in terms of victims reparations, it all comes down to Ukraine’s national legislation. On 10 July 2019, the Ukrainian government finally set up a mechanism of monetary compensation “for owners of residential buildings (apartments) that were destroyed as a result of the armed aggression of the Russian Federation in the East of Ukraine”. However, as Kateryna Koba, the Coordinator of the Civic Interaction Project has recently commented, changes to the existing norms remained dubious, leaving space for manipulations and lacking details, for example, on financial sources for these compensations. According to the recent report by the CivilM+platform, as for the beginning of 2019, on both sides of the contact line, around 40 thousand houses have had to be urgently repaired after damage from the combat actions. Around 9 thousand of them are on the territories under Ukrainian control. 

Whereas it seems as there is no need to seek the truth due to a variety of sources, establishing facts regardless the interests can be decisive in the whole success of TJ. Considering the role of propaganda and disinformation in Russia’s war against Ukraine (from both sides), adopted perceptions cannot be taken at face value and serve as a balanced ground for criminal investigations in Ukraine. Oleg Martynenko comments to UkraineWorld, to avoid manipulations “further process of opening archives remains actual”, and “the maximum possible information about combat actions in the Donbas and Crimea” should be estimated. After that, he adds, experts will think whether to set regional truth commissions or an international one with independent experts.

As reconciliation is often mentioned as the fourth pillar of TJ, for Ukraine, this is rather “a very remote strategic goal”, Martynenko (UHHRU) notes. While all the above-mentioned tasks of TJ are intertwined, reconciliation should be an ideal result. In international practice, some states try to achieve it through the mediation process. For many, however, reconciliation has remained an aspiration. Take the divided city of Mitrovica in Kosovo. “If the state steps in, we do not talk about reconciliation. Firstly, it may not happen at all. Secondly, for different people it would mean different things.The minimum we can all agree on, is existence without war.” Instead, the accent should be put on institutional reforms. Given the ongoing war, Oleg Martynenko from UHHRU believes, the security reform is crucial, but “nothing will move further without reforming the judiciary system”, he says to UkraineWorld. The last decree on the legal reform commission by President Volodymyr Zelenskyy is a glimmer of hope that longed-for steps on reorganisation of the judiciary and justice, as well as reintegration of the temporary occupied territories, might happen.

All of the mentioned tasks are unlikely to be realised as a comprehensive TJ process without external support to Ukraine. Except it demands human resources, for instance, investigators which Ukraine desperately lacks, Transitional Justice is rather expensive, as Oleg Martynenko warns. Until now, he tells UkraineWorld, international governments and organizations have backed separate initiatives and helped Ukraine to respond to its pragmatic tasks such as providing aid to IDPs. Inasmuch as it is important, in the long run, the expert emphasises, it is not enough.

Even with the war still raging, “too much preparation work has to be done now”, the Head of the Analytical Department at UHHRU tells UkraineWorld. Today, many questions, such as on potential lustration of authorities from the so-called “Donetsk People’s Republic” and “Luhansk People’s Republic”, remain open. “If we return the occupied territories and dismiss separatists from their functional responsibilities”, Martynenko assumes, “we should think of who could replace those 30 000 people in the liberated cities and towns now”. 

While the relevant bill is pending the vote, Ukraine has to think on practical measures that would make its transition from the conflict- to a post-conflict society less painful and, generally, possible. Martynenko concludes: “Considering the bitter experience of other countries, if we can do anything during the conflict, it is better to do it now.”

This article was first published by BalkanInsight

Iryna Matviyishyn is a journalist at UkraineWorld.

Transitional justice, Ukraine, Ukraine conflict