Ця стаття також доступна українською мовою тут.
(Editor’s note: This is the second of two parts exploring Ukraine’s effort of several years to establish a transitional justice process. Part 1 is available here.)
Any successful transitional justice framework for Ukraine must take into account the impact of Russia’s armed conflict with Ukraine that preceded this year’s full-scale invasion. A 2021 survey showed that 48.9 percent of Ukrainians were acutely affected by the years of fighting in the country’s east that was spurred by Russia’s 2014 annexation of Crimea and its expanding direct and proxy presence in Donbas. These events and the efforts of the Ukrainian government and civil society to respond to them, must be integrated into current discussions about a transitional justice framework. Failure to do so risks alienating one part of Ukrainian society from another, and means the loss of valuable lessons already learned about the challenges of taking a holistic approach to justice in Ukraine.
The following offers recommendations, grounded in a survivor-centered approach to justice, for Ukraine and its international partners to consider:
- Survivor groups should be meaningfully involved in all stages of the development and implementation of Ukraine’s transitional justice policy. This applies to those victimized both before and after Russia’s 2022 invasion. The lack of holistic survivor participation in transitional justice policymaking has been one of the main points of criticism of Ukraine’s earlier efforts (paras. 53, 18, 62). This survivor-centered approach must be particularly mindful of traditionally under-reported/under-investigated crimes, such as conflict-related sexual violence, and be sure to reach survivors from different regions, and across different age groups. NGOs can help facilitate this engagement, but they should be careful not to replace actual survivor representation.
- Crimes committed from 2014 to February 2022 should not be forgotten. This recommendation flows from the centrality of survivors and their interests to all transitional justice processes. It also acknowledges that crimes such as enforced disappearances, torture, and conflict-related sexual violence not only are occurring now but have for years during the armed conflict that started in 2014 (International Criminal Court report, paras. 278-280, and United Nations High Commissioner for Human Rights report, paras. 28-30).
- Documentation efforts require coordination, not only among lawyers, but also among journalistic and academic initiatives. Since February 2022, an extraordinary number of documentation efforts have been initiated. In addition to Ukrainian government investigators, there are two major documentation coalitions of Ukrainian NGOs (“5 a.m.” and “The Tribunal for Putin”), alongside external investigators from the International Criminal Court (ICC), investigative teams from foreign countries, and the U.N. Commission of Inquiry. While the outpouring of interest in preserving evidence is commendable, it also brings significant risks unless there is a rapid and dramatic increase in work to coordinate and de-conflict these various lines of investigation. Uncoordinated efforts will invariably lead to inefficiencies and, more problematically, to the avoidable re-traumatization of survivors, as different investigators re-interview the same victims and witnesses. Efforts at coordination should, where possible, also consider journalistic (here, here and here) and academic documentation.
- Documentation efforts should be survivor-sensitive and based on the do no harm principle. Documentation, even when driven by the best of intentions, can cause harm unless investigators are appropriately trained. In particular, special training is needed to interview vulnerable victims, such as sexual assault survivors or children. Insensitive interviewing, or multiple interviews conducted with the same survivor, can be retraumatizing and can impact the integrity of the evidentiary record. Core best practices should always be consulted before interviewing. For example, the Murad Code and the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict (both the Code and the Protocol are available in Ukrainian) should serve as guidance consistent with the do no harm approach when interacting with survivors of sexual assault.
- Ukraine should ensure impartial and effective investigations and prosecutions of allegations of crimes on the Ukrainian side from 2014-2021 and following the 2022 invasion. While reporting by U.N. High Commissioner for Human Rights indicates that the majority of violations are attributable to Russia, any allegations of Ukraine’s misconduct (e.g. para. 60, here and here) should receive proper consideration in law, policy, and strategic communications regarding transitional justice. Such an approach will reaffirm the centrality of the interests of survivors to all justice processes, build an inclusive and nuanced narrative about the armed conflict, and demonstrate Ukraine’s recognition of the supremacy of the rule of law.
- Ukraine’s transitional justice framework should consider the role of religious leaders and institutions as catalysts and/or victims of human rights violations. The Russia-Ukraine armed conflict has many religious dimensions. Synagogues, Jewish cemeteries, and Holocaust memorials, along with mosques and Christian churches, have been struck by Russian shelling. Muslim Crimean Tatars are being targeted by Russia on bogus charges of possessing extremist Islamic literature. Moscow-based Russian Orthodox Patriarch Kirill has endorsed Russia’s war as “holy,” and Russian forces have forcibly disappeared, tortured, and killed Ukrainian Orthodox and Greek Catholic clergy. Meanwhile, Ukraine’s response to Russia’s aggression since 2014 has demonstrated the strong solidarity of its Christian, Jewish, and Muslim religious leaders and communities, including specific support of persecuted and displaced Crimean Tatars.
Analysis of the victimization and/or culpability of religious communities should be part of Ukraine’s transitional justice process, but the involvement of religious leaders in its design and implementation requires a careful balancing act. On the one hand, some religious groups have been particularly affected by Russia’s attacks on their clergy and places of worship; they deserve a voice in building a response to such victimization. On the other hand, churches and human rights groups might have divergent views on some crucial issues such as gender-based violence and abortion. The number of religious organizations in Ukraine is another challenge for designing their representation in a way that is fair, yet not overwhelming.
- Designing and granting reparations to individual survivors should be a policy priority both for Ukraine and its international partners. Such policies should include immediate interim reparations as well as access to certain reparations through simplified administrative, rather than judicial processes. Specialized reparation programs may be needed for particular populations, such as conflict-related sexual violence survivors, as well as children and the elderly.
- Ukraine’s truth-seeking initiatives on Russia’s ongoing aggression and accompanying atrocities will benefit from a larger reflection on Soviet-era crimes. Ukraine, like Russia and Belarus and unlike the Baltic states, has not reflected on the crimes and the larger impact of communist rule. Any understanding of the root causes of Russia’s aggression, the policy element of Russia’s crimes against humanity, and the Kremlin’s potentially genocidal conduct now will be incomplete without a deeper critical introspection into the broader legacies of Russia’s imperial and Soviet violence against Ukraine. The U.N. Commission of Inquiry might touch upon such historical legacy issues. However, the effort may benefit from a separate truth-seeking initiative. An impartial, evidence-based, and nuanced historical examination could propose avenues for a sustainable transition from the oppressive past and present, not only for Ukraine but also for Russia and Belarus.
- While international assistance for Ukraine’s legal response to conflict-related atrocities is laudable, it should not be confined to support for criminal accountability. Pablo de Greiff, the first U.N. Special Rapporteur on the promotion of truth, justice, reparation, and guarantees of non-recurrence, is a member of the recently established U.N. Commission of Inquiry. To the extent that the “people are policy’” truism holds, this offers hope that the commission might take a much-needed wider and inclusive approach to justice than can be achieved through criminal accountability, informed by constant engagement with Ukraine’s dynamic civil society.
Now more than ever, Ukraine needs to continue its systemic and cultural transformation by strengthening state-civil society cooperation, eradicating corruption across the state sector, implementing interim and comprehensive reparation schemes for survivors, proposing sustainable and inclusive truth-seeking initiatives, elaborating prevention policies, and meaningfully involving women in policy- and decision-making in all sectors and levels of governance. The need for such transformations should be emphasized not only by survivors and Ukraine’s wider civil society, but also by Kyiv’s international partners.