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Transitional Justice: some thoughts

The case of Ukraine suggests that the post-conflict tensions have not been alleviated after numerous political fractures, moreover, they were aggravated by the absence of concerted measures aimed at general and specific features of this post-totalitarian country. As a result, the perpetration of further crimes could not be deterred after gaining independence. The absence of adequate Transitional Justice solutions to the post-1991 problematique brought about extra incentives for perpetrators both in Ukraine (e.g. authoritarian rule of Kuchma and Yanukovych) and Russia (e.g. aggression and ethnic cleansing), who continued human rights violations and undermined democratic order and institutional legitimacy.

Apart from declaring independence in 1991, Ukraine went through a number of “Revolutions”, in 1990, 2004 and 2014, which nevertheless didn’t seem to had changed the ruling elite, its ruling methods and policies. So, a critical assessment of multiple injustices and genocides, suffered by the people of Ukraine failed, as the elites were kept busy by further wealth accumulation and the affected population was not properly represented by adequate change makers. As a result of procrastination of both Soviet-era and post-independence crime punishment, the massacre of 2014 in the context of the “Revolution of Dignity” took place, with some 600 people missing or killed.

In the absence of adequate rulership and indeed statehood, it was followed by Russia´s aggression on Crimea and in Donbass in early 2014. As a result, Ukraine lost some 7 % of its territory and received some 1,8 mio. displaced and refugees. Over 10.000 both military and civilians are estimated to have been killed since.

There is wide support in Ukraine for the accountability for committed war crimes. But due to low trust in national judicial institutions, the population turn their hopes to international justice mechanisms such as the International Criminal Court (ICC). According to a 2015 survey, 73 percent of Ukrainian citizens support the involvement of the ICC in investigations of the war crimes committed in Donbass. Most Ukrainians do not trust the judiciary, prosecutor’s office and the police and consider the anti-corruption reform and reforms of these institutions to be the main priority.

In 2015 the Ukrainian government granted the ICC ad hoc jurisdiction over all international crimes that had taken place on Ukrainian territory since February 20, 2014. Still the Ukrainian government adheres to a contingent acceptance of international justice and opportunistic use of ICC’s ad hoc jurisdiction, i.e. only when the government assesses the involvement of the tribunal as reasonable, fearing that the ICC could open investigations against the Ukrainian military.

Due to the lack of experience of Ukrainian national courts in prosecuting international crimes and lack of confidence in the judiciary, the ICC may be an important transitional justice mechanism in Ukraine.

Recently, Ukraine passed a lustration bill purging Ukraine’s government and institutions of former members of the Yanukovych regime, corrupt judges, and former KGB agents. Also, a package of four Decommunization Laws, addressing its Soviet history and designed to dismantle Ukraine’s totalitarian heritage, were adopted:

·         ‘On the condemnation of the communist and national socialist (Nazi) totalitarian regimes in Ukraine, and the prohibition of propaganda of their symbols’ (the ‘Law Condemning Totalitarian Regimes’)

·         ‘On the legal status and commemoration of fighters for Ukraine’s independence in the 20thCentury’ (the ‘Law Commemorating Independence Fighters’)

·         ‘On remembering the victory over Nazism in the Second World War’

·         ‘On access to the archives of the repressive agencies of the communist totalitarian regime of 1917-1991’ (collectively, the ‘Decommunization Laws’)

These seem to be only incremental, patchy and half-hearted policies, failing to address injustice and provide remedies in more concrete and personalized, down-to-citizen terms.

Generally, the central idea of transitional justice is that of reconciliation. It involves a set of legal and non-judicial mechanisms. These mechanisms are designed to evaluate the past, which contributed to the massive violation of human rights and humanitarian law. It can be guaranteed by following these policies:

·         Implementing measures to prevent violations of human rights and humanitarian law;

·         Carrying out serious investigations of the committed acts that contain all the elements of the crimes, inhumane acts;

·         Identifying persons and entities, responsible for committing these acts, which contain all the features of inhumane acts, and ensure their necessary consequences;

·         Identifying possible victims of crime and restoring their rights and freedoms by humanitarian law.

Also, the conditions of transitional justice implementation are the institutional reforms in the security sector, law enforcement and public governance. More concrete mechanisms of transitional justice in Ukraine should include:

·         Implementing criminal justice in full;

·         Implementing truth-telling measures;

·         Compensating for damages in full;

·         Implementing institutional reforms.

In Ukraine´s current political, legal and socio-economic conflict and post-conflict situation we can see the failure of effective mechanisms to ensure justice. At the same time there is an urgent need to implement unique, and sometimes, to develop fundamentally new mechanisms of transitional justice. This is important not only for the restoration of the rights, freedoms, and interests of affected people, but also in order to preserve the sovereignty and restore territorial integrity.

 

ALEXANDER   SVETLOV

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