Ukraine Urged to Get Ready for Post-Conflict Justice

August 30, 2019
Setting out an agenda to deal with human rights abuses and prosecute perpetrators of crimes committed during the war in Ukraine is a complex but crucial challenge facing the country’s new government.
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The Ukrainian president’s office announced on August 15 that a new plan is being discussed to reintegrate the currently separatist-controlled Donetsk and Luhansk areas of eastern Ukraine after the conflict finally ends, using the concept of transitional justice and the rules and principles of international humanitarian law and international criminal law. The deputy head of the president’s office, Ruslan Ryaboshapka, said it was intended “to restore peace and normal life in the occupied territories [Donetsk and Luhansk], to eliminate violations of our citizens’ rights, to hold [perpetrators] accountable for crimes committed, to compensate for losses”.

Transitional justice, which is a relatively new concept in Ukraine, is a set of judicial and non-judicial mechanisms to redress human rights abuses in a post-conflict society.

It includes the prosecution of suspects, truth-seeking, reparations for victims, and institutional reforms.

Ryaboshapka also said that one of the priorities was for Ukraine to finally ratify the statute of the International Criminal Court, which it signed almost 20 years ago.

Although the war between government forces and Russian-backed separatists in the Donetsk and Luhansk areas of the eastern Donbas region is still ongoing, human rights experts believe that it is high time to address the conflict-related problems that have arisen in Ukraine and to develop mechanisms that can be used once the conflict ends.

Oleg Martynenko, head of the analytical department at the Ukrainian Helsinki Human Rights Union, began this process several years ago, along with other human rights experts. In January 2018, they presented a bill to lawmakers and human rights activists entitled ‘On the Principles of State Policy on Human Rights Protection in the Context of Overcoming the Effects of the Armed Conflict’.

The draft legislation, prepared by the Ukrainian Helsinki Human Rights Union with Ukrainian officials and partner NGOs on the initiative of Ukraine’s then human rights commissioner Valeria Lutkovska, was then revised and approved by Lutkovska’s office in December 2018.

The current human rights commissioner, Lyudmyla Denisova, who replaced Lutkovska, has not taken the proposed legislation any further yet as there was not time for it to be passed in parliament before the elections in July. But Martynenko believes the bill has now “more chances to pass” in the new parliament.

‘Law on war criminals’

As soon as the legislature starts work, the draft law is ready to be registered - the first step towards approval by MPs. However, precise steps towards the implementation of transitional justice strategies in Ukraine are still subject to deliberation.

For Ukraine, demilitarisation of the Donetsk and Luhansk areas is the crux of the issue. Yulia Tyshchenko, an expert at the National Institute for Strategic Studies, said that one of the stages in this process, the voluntary surrender of weapons by individual combatants and veterans, is already ongoing.

But comparing Ukraine to conflict situations in Colombia, Northern Ireland or Indonesia, Tyshchenko said she believes that her country is “in a more complex situation in terms of the number of weapons”. “The disposal of heavy weapons in the occupied [separatist-controlled] areas of Donetsk and Luhansk regions will rather be a part of diplomatic arrangements,” she said.

Because demilitarisation in the Donbas region and in Russian-annexed Crimea would depend on Moscow’s assent, it is most likely to happen under pressure from the international community.

Nevertheless, if the separatist-controlled territories in the Donbas region are demilitarised, Ukraine needs a judicial strategy to determine what to do about members of the administrations and armed forces of the self-proclaimed, Russian-backed Donetsk People’s Republic and Luhansk People’s Republic. Currently Ukraine has no mechanisms that it can use to prosecute them.

In June meanwhile, a crucial step was made towards developing legal protections for victims when Ukrainian parliament adopted the long-awaited bill number 9438. This so-called ‘law on war criminals’ harmonises the criminal code of with international legal norms.

As there were no provisions on war crimes in Ukrainian legislation, grave human rights violations were previously qualified as general criminal offences. However, as Oleksandra Matviychuk, head of the board at the Centre for Civil Liberties, told UkraineWorld: “Such [legal classifications of] crimes do not reflect the true nature of what [the perpetrators] actually did.” The new legislation allows the prosecution of individuals who committed war crimes or crimes against humanity under international law, and Matviychuk said she hopes this will put an end to impunity.

Besides criminal liability for torture, forced disappearances and murders on the separatist-controlled territories of Ukraine, the law includes a subsection on rape and other sexual crimes that might help to address the gender dimension of transitional justice in the future.

Amnesty is another pivotal issue and a daunting challenge for future judicial processes in the country, where patriotic feelings run high.

Experts have been looking abroad for best-practice ideas, and believe that the experience of Colombia could be helpful for Ukraine.

The civil war between the rebels of the FARC (Revolutionary Armed Forces of Columbia) guerrilla movement and the Colombian government, which lasted for 52 years, was one of the biggest conflicts to recently be resolved. In July 2018, the former Minister of Internal Affairs of Colombia, Juan Fernando Cristo, shared his experience on transitional justice with Ukrainian human rights activists and parliamentarians.

In Colombia, perpetrators of serious crimes on both sides were brought to justice, Cristo explained. However, amnesties were granted to those guerrilla group members who did not commit war crimes or crimes against humanity. This could be a controversial issue in the Ukrainian context today, but the Colombian example is important for Ukraine’s future reintegration processes, said Iryna Gerashchenko, the first deputy chairman of the Ukrainian parliament, the Verkhovna Rada, after the meeting with Cristo.Gerashchenko noted the importance of those being given an amnesty first pleading guilty: “People who are subject to amnesty should not only lay down their weapons, but give assurances that they will never again take up arms,” she announced in parliament.

In Colombia, restrictions on freedom of movement lasting between four to eight years in specially-designated areas were imposed on those who pleaded guilty instead of 20 to 30 years in prison, and they were ordered to do community or social work. They also had to pay reparations to the victims.

In the Ukrainian context, Martynenko agrees there should be alternative punishments for people who were combatants, in line with the Geneva Conventions. He noted that if Ukraine decides to jail all the authorities from the self-proclaimed Donetsk People’s Republic and Luhansk People’s Republic, it will be impossible to enforce the sentences because there are simply not enough prisons to hold them.

Martynenko said he favours the examples of Croatia and Bosnia and Herzegovina, where the international community played a pivotal role in pushing governments to make changes. A former UN peacekeeper in Bosnia and Herzegovina, he saw the situation on the ground for himself.

“UN peacekeeping missions served as freezers of the conflict, stabilisers of security for the peaceful population, and initiators of positive changes for governmental bodies,” he emphasised. As a result, various aspects of transitional justice have been gradually implemented in Bosnia and Herzegovina. 

A system for reparations

Although Ukraine regards Russia as the perpetrator of rights abuses in the conflict, Moscow does not recognise itself as responsible, and therefore is highly unlikely to agree to pay any compensation to victims.

As Tyshchenko noted, “it is worth considering more realistic payment mechanisms [for compensation] at this stage”. On July 10, the Ukrainian government finally set up a mechanism for financial compensation “for owners of residential buildings (apartments) that were destroyed as a result of the armed aggression of the Russian Federation in the East of Ukraine”, said the Ministry for Temporarily Occupied Territories and Internally Displaced Persons.

However, as Kateryna Koba, the coordinator of the Civic Interaction Project NGO, recently commented, it is unclear who will be entitled to this compensation and on what terms. The lack of clarity could open up the potential for corruption, she warned. Since there are still no clear definitions of victims of war in Ukraine, both Tyshchenko and Martynenko agree that it is yet to be seen how exactly the reparations system will work.

According to a recent report by CivilM+, a civil society coalition, as of the beginning of 2019, on both sides of the ‘contact line’ between government forces and rebels in Donbas, around 40,000 houses have had to be urgently repaired after damage caused by the fighting. Around 9,000 of them are in the government-controlled territories of Ukraine.

Reconciliation is ‘a remote goal’

Propaganda and disinformation have played a major role in the conflict on both sides, so the process of truth-seeking has to be as neutral as possible, which is why there have been suggestions that it should be delegated to human rights organisations to avoid any political or ideological influences.

Martynenko argues that state archives should be opened up to allow “the maximum possible information about combat actions in the Donbas and Crimea” to be assessed. After that, he added, experts should consider whether to set up regional truth commissions or an international one with independent experts.Tyshchenko agreed that this might help establish the truth “both in relation to the conflict, the war in a global sense, and at a personalised level”.

Advancing the possibility of reconciliation is one of the aims of transitional justice – but for Ukraine, where the fighting is not yet over, this is “a very remote strategic goal”, according to Martynenko. Reconciliation is an all-encompassing process, but for now, “the minimum we can all agree on is existence without war,” he added.

Instead, the experts agree that the accent should be put on institutional reforms. Given the ongoing war, Martynenko believes, security sector reform is crucial, but “nothing will move further without the reform of the judiciary system”. Tyshechenko suggested that specialised courts and international transitional administrations, which would see post-conflict areas temporarily administered by international organisations, could be worth considering.

Nadia Volkova, director of the Ukrainian Legal Advisory Group, argued meanwhile that “it is imperative that specialised investigative bodies and courts are put in place as part of transitional justice measures” to address the most serious human rights violations.

A recent decree issued by President Volodymyr Zelenskiy on the establishment of a legal reform commission offered a glimmer of hope that long-awaited steps towards the reorganisation of the judiciary and the justice system might be taken.

However, all of the necessary tasks are unlikely to be completed as part of a comprehensive transitional justice process without external support for Ukraine. The process requires human resources, for instance - investigators which Ukraine desperately lacks.

Transitional justice is rather expensive, Martynenko warned, and so far, international governments and organisations have backed separate initiatives and helped Ukraine to respond to pragmatic tasks such as providing aid for internally displaced persons. This is important, but in the long run, it is not enough, the human rights expert insisted.

Even with the war still ongoing, “so much preparation work has to be done now”, he added. Many questions, such the potential lustration of the authorities from the self-proclaimed Donetsk People’s Republic and Luhansk People’s Republic, remain open. “If we get back the occupied territories and dismiss the separatists from their positions, we should think of who could replace those 30,000 people in the liberated cities and towns now,” Martynenko argued.

While the proposed human rights protection bill awaits a vote in parliament, Ukraine has to think about practical measures that would make its transition to a post-conflict society less painful and more achievable.

Despite serious restraints and “the lack of access to the territories where a great majority of violations has taken place”, Volkova said, “it is not too early” for a transitional justice framework to be put in place. She believes that it would “ensure that all the alleged violations are properly investigated and perpetrators are brought to accountability”.

Martynenko agrees: “Considering the bitter experience of other countries, if we can do anything during the conflict, it is better to do it now,” he said.

This article has been first published at the Balkan Insight

This article was prepared with financial support from the International Renaissance Foundation

Iryna Matviyishyn
analyst and journalist, Internews Ukraine and UkraineWorld

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