The Role of Transitional Justice in Ukraine
Professor Louise Mallinder, School of Law and Legacy Theme Lead for the Mitchell Institute
Russia’s recent invasion of Ukraine has triggered considerable international support for international prosecutions of Russian President Vladimir Putin and other senior Russian figures responsible for aggression, war crimes, and crimes against humanity. The rapidity and ambition of these moves towards accountability is without precedent in previous conflicts.
The pressure for criminal accountability is understandable. It reaffirms international law and norms in the face of Russia’s apparent lawlessness. It feels like a moral response to the daily images of destroyed lives and cities that cover our television screens, newspapers and social media feeds. And supporting accountability demands provides other states with a means to signal their solidarity with Ukraine.
However, international legal responses, even if they are able to succeed in getting Russian leaders into custody, which seems unlikely at the present time, would not be sufficient to address the needs of victims and to promote reconciliation within Ukraine after the war’s end. Instead, this article argues that responses should look to the theory and practice of transitional justice in delivering holistic justice responses, including drawing on the considerable transitional justice work that has already been carried out in Ukraine in recent years.
Accountability for Aggression and War Crimes
International public opinion is rightly appalled by the devastating consequences of Putin’s aggression for Ukrainians and for Russians. It is unsurprising that Ukrainian political leaders and many of their international counterparts have been quick to label Putin as a war criminal and to call for accountability.
The situation in Ukraine had been under preliminary examination by the Prosecutor of the International Criminal Court (ICC) since 2014. In 2020, the Prosecutor decided that it met the criteria to open an investigation, but no further steps were taken. However, within four days of Russia’s recent invasion, the new Prosecutor announced he was opening an investigation. In an unprecedented show of international support for the ICC, 41 states promptly submitted referrals supporting this investigation, including Normandy Format countries, France and Germany.
The Ukrainian government has also been working with international legal scholars and former British Prime Minister Gordon Brown on proposals to establish a special court to try individual Russian leaders for the crime of aggression, which currently falls outside the International Criminal Court’s jurisdiction with respect to Ukraine.
The Shift from the Minsk Amnesty
The intensity of international support for criminal accountability contrasts with the previously dominant international approach encapsulated in the Minsk II agreement of 2015. This Agreement sought to halt the violence and create a framework for the peaceful resolution of the conflict. It was signed by Russia and Ukraine, mediated by France, Germany, and the OSCE, and unanimously endorsed by the UN Security Council.
This agreement made no provision for truth, justice, or reparations for victims of the conflict. Instead, Paragraph 5 called on the parties to ‘Ensure pardon and amnesty’ by enacting a law ‘prohibiting the prosecution and punishment of persons in connection with the events’ in the temporarily occupied areas of the Donbas.
Even before the recent invasion, the idea of such a broad amnesty was deeply controversial among the Ukrainian public.
However, Russia’s demands for the implementation of the amnesty and other provisions of the Minsk II Agreement continued to be supported by France and Germany, acting within the Normandy Format. When Ukraine tried to establish a transitional justice framework for the reintegration and reconciliation of temporarily occupied territories within the draft bill ‘On the Principles of State Policy of the Transition Period’, the Normandy Format countries reportedly viewed the transitional justice measures as contrary to the Minsk process. This international opposition appears to have influenced the Ukrainian government’s decision to withdraw this draft legislation on 25 January 2022.
Russia’s expansion of its military intervention in Ukraine soon after this decision has triggered some international actors to switch from supporting a broad amnesty to instead taking steps to ensure criminal accountability.
However, transitional justice theory and practice demonstrates that approaches to violence that focus solely on either amnesty or prosecution and punishment are unlikely to meet the needs of victims or deliver lasting peace and reconciliation for the people of Ukraine.
Transitional Justice in Ongoing Conflicts
The term ‘transitional justice’ emerged in the 1990s to denote holistic approaches to justice that could encompass both judicial and non-judicial measures and which were designed to help victims and societies recover from mass atrocities committed during conflict and dictatorship. The field is shaped by universal legal norms contained in human rights law, humanitarian law, and international criminal law. However, it nonetheless holds that justice responses should be context-specific. This means that they should be adapted to the local legal, political, social, cultural, and economic context.
Transitional justice is inherently Janus-faced. Its activities are intended to remedy past violations while also working towards a future imaginary of society. Where a conflict is ongoing, the necessity and complexity of this dual facing approach is particularly acute. In such settings, transitional justice does not just respond to crimes that have already occurred, but is often also tasked with helping to reduce the intensity of the violence, meeting the needs of existing and future victims, and creating conditions in which a peace agreement can be reached.
Thus, transitional justice measures during ongoing conflict can include encouraging combatants to surrender, disarm and disclose information; providing financial, medical, and legal support for displaced persons, refugees and other victims; and documenting human rights violations. Documentation during conflict can be important for awareness raising and advocacy, and over the longer term, it can provide valuable evidence for future prosecutions and truth recovery. The widespread access of people in Ukraine to social media is providing an unprecedented opportunity to document human rights violations in real time.
The multifaceted objectives of transitional justice during ongoing conflicts at times need to be tempered by the realities that official capacity and political will for comprehensive and inclusive justice approaches may be strained. This can raise challenging questions of how transitional justice approaches should be sequenced and whether justice demands can at times be subordinated to military objectives or compromised upon in order to achieve peace.
How Transitional Justice has been Employed in Ukraine
Since the conflict between Russia and Ukraine began in 2014, in addition to the common strategies for doing transitional justice during conflict, civil society actors and public officials have engaged in sustained public dialogue to raise awareness of transitional justice. Law reforms to facilitate criminal accountability have been enacted and further proposals have been developed by civil society. The draft bill ‘On the Principles of the State Policy of the Transition Period’ would have expanded and deepened these efforts and placed them within the broader peacebuilding strategy.
Between early 2019 and late 2021, I worked as an international consultant to support public officials and civil society actors who were developing a draft legal framework for the reintegration of the territory and people of the temporarily occupied territories. As an outsider observer, I have consistently been hugely impressed by the deft way that the transitional justice policy has been designed to adhere to international norms, while also adopting creative approaches tailored to the challenging geopolitical and national realities with which Ukraine is grappling.
The future imaginary society that has been driving Ukraine’s transitional justice programmes since 2014 has had two main strands, both of which feature in the draft bill ‘On the Principles of State Policy of the Transition Period’.
The first strand follows from the history of Soviet rule, the Euromaiden protests of 2013, and the 2014 Revolution, which ousted the Russian-backed president, Victor Yanukovych. It is premised on deepening Ukraine’s identity as a Western orientated, liberal democratic state.
The second strand results from Russia’s annexation of Crimea and its support for the self-proclaimed autonomous Republics in eastern Ukraine. It asserts a future vision of Ukraine as territorially reintegrated within its internationally recognised borders and reconciled between its Ukrainian and Russian speaking populations.
These two visions are not inherently in tension. However, in practice, political decisions have sought to use transitional justice to promote hegemonic Ukrainian nationalist narratives of past and present violence.
It is hard not to be sympathetic to such approaches where they entail, for example, challenging the previously dominant Soviet accounts of the Holodomor, or Great Famine, in which several million Ukrainians died as a result of cruel policies enforced by a totalitarian regime.
However, I and others, such as the Council of Europe’s Venice Commission, have been concerned that the objectives of the draft bill ‘On the Principles of State Policy of the Transition Period’ risked being subverted by provisions that communicated Ukrainian nationalist narratives of the current conflict and which committed Ukraine to adopting a one-sided approach to justice. For example, the law would commit the Ukrainian state to providing reparations to victims of Russian aggression, but did not acknowledge the victimhood of those harmed by Ukrainian forces.
These narratives reduce the violence to its inter-state dimension and serve to conceal internal Ukrainian dynamics that are also at play in the Donbas and Crimea. In addition, such narrow and discriminatory approaches would exclude alternative narratives of the violence, and could serve to further marginalize minority populations, deepen their mistrust of state institutions, and undermine the possibility of future reconciliation.
It is necessary even in the midst of conflict, when the future remains uncertain, to hold onto an inclusive vision of the future society. With respect to transitional justice, this can entail avoiding actions that could make that future vision harder to realise. In this vein, I think it is positive that Kyiv announced in late March that it is committed to investigating allegations that Ukrainian soldiers tortured and shot Russian prisoners of war. Adopting this position, while also rightly pressing for accountability for crimes committed by Russian soldiers, adheres to the norms of victim-centred and non-discriminatory responses to violence that are inherent within transitional justice theory.
Image credit: Yehor Milohrodskyi, Unsplash.
Professor Louise Mallinder
Professor Louise Mallinder is the Theme Lead for Legacy at the Mitchell Institute and Professor of Law at the School of Law at Queen’s.