(Editor’s note: This article is part of Just Security’s Symposium, International Law in the Face of Russia’s Aggression in Ukraine: The View from Lviv.)
Author’s note: Ronald A. Brand is the Mark A Nordenberg University Professor and Academic Director of the Center for International Legal Education at the University of Pittsburgh School of Law. In December 2023, he served as Rapporteur for the Roundtable on the Reintegration of Newly Liberated Territories at the Stand Tall for the Rule of Law Summit in Lviv, Ukraine, organized by the American Society of International Law and the Ukrainian Association of International Law. His comments here borrow from the comments of the experts who participated in that Roundtable, as well as from translations from Ukrainian reports furnished to the author by Olha Tsyliuryk.
The end of the war in Ukraine, if it comes with the removal of the Russian occupation, will require the reintegration of territories now occupied by Russia into the sovereign state of Ukraine. While reconstructing Ukraine will be a welcome task, it will not be an easy one. It will require careful attention to matters of transitional justice and economic reintegration in the three distinctly different regions of Crimea (an autonomous region with a unique history); Donetsk and Luhansk (also occupied since 2014); and parts of the Kherson and Zaporizhzhia regions (occupied and annexed by the Russian Federation in 2022). Reintegration will also require special attention to the treatment of those in all regions who collaborated during the occupation.
The list of steps that will be necessary in all de-occupied regions will require careful coordination. That list has been a source of Ukrainian government planning in particular for Crimea, but extends to all three types of regions to be reintegrated. While military hostilities continue and prevent carrying out the reintegration until they cease, it is important to be ready to move quickly and effectively when that becomes possible.
The first step will be the provision of food, infrastructure, and basic law enforcement. This requires the restoration of public administrative bodies; bodies that will have to be staffed and reorganized. Ukraine has begun the process of preparing the workforce necessary for this purpose.
A second step will be the reconstruction of legal institutions. Decisions and documents from “courts” during the occupation will have to be both verified and weighted to determine if and how they will have continuing effect. Restoration and protection of property rights, particularly regarding real estate, will be necessary. And restoration of local self-government must be achieved. One survey indicates that this process may differ by region:
47% of respondents believe that local self-government in the territories occupied since 2014 (Donbas, Crimea) should be restored only 5 years after de-occupation, and until then, civil-military administrations should operate there. . . . . As for the territories of Zaporizhzhia and Kherson oblasts that are currently under occupation, 55% of respondents want local self-government to be restored immediately after de-occupation, and only 14% want it to be restored 5 years after de-occupation.
The differences among the three regions that will affect reintegration result from more than just the timing of Russian annexation for each of them. Crimea, for example, has a long history of Russian and Soviet mistreatment of its Tatar population and has been an autonomous region of Ukraine, with different status than other regions.
One of the most difficult questions is the role of military administrations in the de-occupied regions. Moving from military rule after intense conflict to democratic governance must occur in a timely but careful manner. This has been recognized when, on Apr. 4, 2023, the Cabinet of Ministers of Ukraine approved Resolution No. 288, amending earlier plans for reintegration.
A third, and perhaps most important, step will be the process of undoing Russia’s “mental occupation.” This will require careful attention to humanitarian policy and to the demilitarization of education and culture. Russian disinformation has been very effective in many cases and will require some time to counteract. As Volodymyr Viatrovych, a Member of the Ukrainian Parliament, said:
[A]fter the Armed Forces of Ukraine, and therefore the Ukrainian government, enter these territories, Ukrainian culture must return here. . . . . This includes decommunization, decolonization, language quotas, support for Ukrainian music, book publishing, and other activities in a Russia-free Ukraine.
A fourth step is the reinvigoration of the economy of each region and its full integration with Ukraine. This relates to the clear determination of property rights and the establishment of a trusted legal framework that will encourage economic development through clear enforcement of both property and contract rights. In short, it requires rule of law. Components of this step will include special attention to possible tax incentives in the region and to the development of the tourism sector in Crimea.
Reintegration of war-ravaged territories is not a new experience, but Ukrainian reintegration is likely to be different from existing examples, and simple comparisons with the post-World War II reintegration of Western Europe into the global economy may prove to be of limited use. If nothing else, twenty-first century methods of disinformation make the task very different and likely more difficult. The question of how to deal with occupation collaborators will be singularly difficult, and will require diplomacy, re-information mechanisms, and careful application of legal methodology. This process will be hampered by the fact that:
- there is no clear and useful definition of collaboration;
- while some persons may widely be known to be collaborators, others may not be so easily identified;
- Ukrainian legislation on collaboration is new and controversial;
- prosecutors may not always understand how to be neutral and impartial;
- in most regions, everyone could be considered a collaborator if they had paid taxes, obtained a new passport, obtained business licenses, or engaged in services such as teaching or trash collection, raising difficulties of levels of collaboration;
- those who escaped the occupied regions left everything, while those who stayed retained their property, raising questions about equal treatment;
- there will be a need to respond to incidents of “street justice” when collaborators have been or will be harmed or even killed by others who feel the system is not properly prosecuting collaborators; and
- where the Russian Federation engaged in forced assimilation, rather than proper treatment of persons under international humanitarian law, a determination will be required regarding whether liability lies with those who collaborated by compliance or with the Russian Federation.
More than 7,000 criminal collaboration cases have been brought in Ukraine, with estimates of many more. How Ukraine deals with the collaborator question will be a key element of both mental de-occupation and the establishment of a trusted legal system. Existing examples include the Belfast Guidelines on Amnesty and Accountability, but, again, as in any application of the Guidelines to a specific context, consideration of the unique nature of the Ukrainian reintegration process will be necessary.
The overriding question of collaboration will have the greatest effect on the reconstruction of legal institutions. Rule of law requires fair and equal treatment of all persons, and the difficult problems raised in determining collaboration, its extent, and its effect, will not be easy ones to solve. Legislation dealing with collaboration must be carefully drafted, and its implementation must be carefully monitored so that the response to collaboration does not create new divisions that hinder, rather than help, the reintegration process.
Reintegration can occur, of course, only after a proper end to the Russian invasion and the return of Ukrainian territory to Ukrainian control. That appears to be neither certain nor imminent. It is, however, the only development that will be both consistent with the rule of law both internationally and domestically. Quite simply stated, in the twenty-first century, it is what we must seek and expect.