Ця стаття також доступна українською мовою тут.
(Editor’s note: This is the first of two parts exploring Ukraine’s effort of several years to establish a transitional justice process. Part 2 is available here.)
President Volodymyr Zelenskyy evoked Mariupol when he gave his May 8 address (video) to the nation marking the anniversary of the end of World War II and the attendant victory over Nazism. During two years of German occupation of Mariupol at the time, he said, the Nazis killed 10,000 civilians there, whereas just two months of Russia’s ongoing occupation of the city this year had already claimed 20,000 civilian lives. Still, he declared Ukraine’s resolve to achieve victory this time too — over the tyranny Russia is trying to impose, as expressed in the new term that plays off the word Nazism, Ruscism. One important facet from Mariupol’s life before the current Russian invasion that the President didn’t mention was a “Unity Forum” in the city that was held in 2019 to discuss ways to re-unify Ukraine in the face of the then-onslaught by Russia that had begun five years earlier. There, Zelenskyy had announced the development of Ukraine’s transitional justice policy. Though since interrupted, that plan still could be revived to guide responses to current atrocities.
The southeast port city of Mariupol has long been a strategic target for Russia, which made a failed play for it during its 2014 offensive. Russia’s capture of the city now allows the Kremlin to connect the Russia-controlled areas of Ukraine’s eastern Donbas region with occupied Crimea across southern Ukraine, potentially all the way to Moldova’s Russian-occupied Transnistria region.
In the weeks following Russia’s full-scale invasion of Ukraine on Feb. 24, Mariupol has become the setting for a range of international crimes: indiscriminate shelling; enforced disappearances and killings of civilians, followed by Russia’s attempts to conceal its crimes by means of mass graves and mobile crematoria; starvation; sexual violence; attacks on humanitarian corridors; initial refusal to allow the evacuation of ill or wounded Ukrainian fighters from the besieged Azovstal plant; unlawful detention and torture at the so-called filtration camps where Russian forces take captives for interrogation; as well as deportations to Russia, followed by a fast-track adoption procedure for Ukrainian children there. Similar atrocities have been uncovered elsewhere in Ukraine. While the current scale is unprecedented, the country has been wrestling with the results of war with Russia since 2014.
Ukraine’s Unfolding Transitional Justice Policy
Origins
The Kremlin’s aggression against Ukraine actually started in 2014, with Russia’s occupation of Ukraine’s Crimean peninsula and the covert (or not so much) advance into eastern Ukraine (Donbas). Since then, the government in Kyiv has referred different conflict-related legal issues to a spectrum of international and regional adjudication and arbitration platforms, including the International Court of Justice, the International Criminal Court (ICC), the European Court of Human Rights, and the Arbitral Tribunal of the United Nations Convention on the Law of the Sea. Ukraine has also sought to enhance the training of its military in international humanitarian law (IHL) to strengthen its compliance with the laws and customs of warfare on the battlefield; develop the capacities of domestic investigators and prosecutors (eventually setting up a specialized War Crimes Unit in 2019) and of judges, all of whom were unprepared for an avalanche of new conflict-related cases; and to reform its domestic criminal legislation and introduce the legislative framework for cooperation with the ICC.
Ukraine’s civil society has been instrumental throughout these justice efforts. Human rights NGOs have co-written communications to the ICC with Ukraine’s prosecution (see here, here, here and here), and pressured the state to finalize the reform of the Criminal Code to ensure the full domestic criminalization of war crimes and crimes against humanity. Human rights defenders also have advocated for the ratification and implementation of the Rome Statute that created the ICC, as part of Ukraine’s obligation under Article 8 of the Association Agreement with the European Union.
But these initial responses to Russia’s aggression, however important, suffered from two principal shortcomings. First, they were not united by an umbrella policy. As an example, because different state authorities supervised different international proceedings, the strategies behind and the coordination of such proceedings often fell short or weren’t harmonized. Further, domestic investigators and prosecutors more often engaged in IHL and international criminal law (ICL) training than the Ukrainian judiciary, which made even the most well-prepared prosecution cases vulnerable to a possibly misinformed adjudication. Second, Ukraine’s lawfare was overfocused on courtroom accountability, largely omitting the broader and very crucial dimensions of truth-seeking, institutional reforms, reparations for individual survivors, memorialization, and prevention.
The Transitional Justice Roadmap
To fill these gaps, Ukraine in 2019 embarked on a path of transitional justice. Zelenskyy supplemented the Law Reform Commission with the Working Group on the Reintegration of the Temporarily Occupied Territories and tasked it with developing Ukraine’s transitional justice roadmap (roadmap). As that was underway, the Working Group continued the promising trend of complementing domestic state expertise with that of practicing lawyers, civil society representatives, and academics, supplementing it with sustainable international expert advice. The roadmap sought to identify and harmonize the already existing elements of Ukraine’s transition and set its further directions by extending justice and reconciliation initiatives beyond a courtroom.
The roadmap was designed as a foundational path-setting instrument rather than a completed and comprehensive transitional justice manual. The non-public draft roadmap was circulated for off-the-record expert review and submitted for presidential consideration in summer 2020. The President has not commented on the substance of the draft or the prospects of its adoption since then. The Working Group has repeatedly reiterated that it continues to enhance the proposed transitional framework for Ukraine, including since Russia’s full-scale invasion this year.
The draft roadmap clarifies certain reparative measures such as compensation and satisfaction; discusses the potential of a truth-seeking initiative on the basis of an already existing institution (possibly the existing Ukrainian Institute of National Memory); introduces an overdue single documentation authority, which would harmonize state and civil society efforts; and sets the foundations of a lustration policy, with the caveat that no amnesties are allowed for perpetrators of gross violations of human rights and international crimes. The document also addresses the gendered dimensions of the armed conflict and peacemaking, as well as the damage to Ukraine’s environment and cultural heritage. Originally, the plan was that, after the President approves the roadmap, the government was to come up with a much more detailed implementation plan to facilitate the de-occupation and reintegration of Crimea and Donbas.
The Draft Law on the Principles of State Policy of the Transition Period
Parallel to discussions of the roadmap, in late 2020, Ukraine’s Ministry for Reintegration of the Temporarily Occupied Territories presented a Draft Law on the Principles of State Policy of the Transition Period (Transition Period Draft Law). Unlike the roadmap, the draft law was made publicly available and comments to it were invited. However, even the updated draft registered with the Parliament in August 2021 received substantial criticism from Ukraine’s human rights community as well as international actors such as the United Nations (para. 53) and the Venice Commission.
An introduction of the notion of transitional justice by a law and not, as in the case of the roadmap, by an executive decree could contribute to a more firm rooting of this concept in Ukraine’s legal landscape and solidify the foundation for further law- and policymaking. However, the drafters did not explain how the proposed legislation would correlate with the roadmap and whether the drafting processes of the two instruments were harmonized (the public statements of those involved indicate that they were not). More problematically, as the draft law aimed to cover so many diverse issues, it did not go into much detail with any of them. Its approach to transitional justice was quite limited and one-sided, because it focused exclusively on the consequences of Russia’s aggression and occupation (articles 1.1(4), 2.4, 13.1), and thus risked inaction in case of possible violations by Ukrainian actors, even if far less prevalent. This revealed the larger flaw of the instrument: the lack of its survivor-centered approach. While the drafters invited comments from the public, they did not have a targeted policy to ensure the necessary and sustainable engagement of victim groups in general and in terms of geography (Crimea and Donbas), patterns of victimization (conflict-related sexual violence, torture, sham trials), age, sex, gender, and other specific defining features.
The Draft Law was eventually withdrawn from Parliament in January 2022. While the Ministry for Reintegration stated that it wanted to enhance the instrument, the withdrawal also could have been a response to the threat posed by Russia’s unprecedented military buildup along the Ukrainian border and an attempt to forestall further escalation, an effort that, in hindsight, of course appears to have been futile.
Transitional Justice Before a Transition to Peace?
Russia has been a persistent objector to Ukraine’s transitional justice path. Initially, the Kremlin demanded blanket amnesties, including for the perpetrators of international crimes. According to Russia’s interpretation, such amnesties are envisaged in the Minsk Agreements, the two controversial peace deals that ostensibly were intended to end the war in the Donbas before this year’s escalation. However, since 2021, the Kremlin has expanded its condemnation of the whole idea of transitional justice for Ukraine, essentially calling it the project of the West. Foreign Minister Sergey Lavrov further explained last year that Russia would interpret the adoption of the Transition Period Draft Law by Ukraine as Kyiv’s withdrawal from the Minsk Agreements.
Similarly to the Kremlin’s disregard for Ukrainians’ commitment to their nationhood, it also ignored the fact that it was the Ukrainian people and their representatives, not the West, who were the chief advocates for a transitional justice process. Contrary to concerns that discussions of transitional justice might be premature during the then-ongoing conflict in Donbas and the occupation of Crimea, already in 2021, 54 percent of Ukrainians supported the idea and only 11.5 percent believed such policymaking should start only after the Russian occupation ended. Asked what should be the government’s first steps for transitional justice, respondents listed accountability for the perpetrators of atrocities (37.2 percent), rebuilding infrastructure and housing (32.2 percent), and resuming the functioning of state authorities (28 percent). Most importantly, already back in 2020, 54.7 percent of Ukrainians regarded the residents of occupied Crimea and Donbas as victims who need holistic support from Ukraine.
Ukraine’s 2021 National Strategy on Human Rights and the De-Occupation and Reintegration Strategy for Crimea also envision development of transitional justice mechanisms. Ukraine’s National Action Plan on the Implementation of the U.N. Security Council Resolution 1325 on Women, Peace and Security, which extends to 2025, notes the particular relevance of transitional justice for addressing conflict-related sexual violence, considering the interests of different survivor groups, and ensuring the larger participation of women in all stages of peacemaking. The National Security and Defense Council of Ukraine supported the implementation of transitional justice policy in 2020, stressing that the Crimean Tatars, Ukraine’s indigenous people who have been gravely affected by Russia’s occupation of Crimea, should have a particular role in this process.
Using the Cracks to Let in the Light
The contrasting eras of Mariupol in autumn 2019, when hope sprang of transitional justice, vs. the assault that its widely admired residents resisted this spring reflect the larger history of Ukraine, where light-giving periods of independence and blooming culture were marred by imperial, Soviet, and now contemporary attempts to suppress a national revival. Despite such cracks, Ukraine has always managed to let the light in through them and move forward. The ongoing Russian aggression should be no exception. Ukraine — as a state but, more importantly, as a civil society — started thinking about a holistic approach to peace and reconciliation three years ago. It is high time now to update that plan and to sensibly and sensitively implement it.
(To be continued with recommendations in part 2.)