Transitional Justice Bill Is Powerful and Unexpected Blow to Aggressor State

Since the beginning of 2014, Ukraine has experienced many social upheavals that have changed Ukrainian society. The Revolution of Dignity strengthened national consciousness, and Russian aggression and occupation of territories made Ukrainians unite in opposition to the enemy. In such difficult times, we found ourselves in the conditions of post-authoritarian and post-conflict stages of development, and this situation requires the introduction of comprehensive models for overcoming the crisis. For Ukraine, such a model is transitional justice, which makes it possible to move towards a European future.

“Unfortunately, so far there has been no comprehensive legislative act in Ukraine that would regulate public policy in the context of so-called transitional justice. As a result, the directions of transitional justice are implemented unsystematically, and certain priorities of public policy in the field of conflict resolution remain on paper due to the situational nature of political decisions. In view of this, the draft Law of Ukraine ‘On State Policy of Transitional Period,’ proposed by the Ministry of Reintegration of Temporarily Occupied Territories, is urgently needed,” Viktor Filatov, analyst at the SICH Human Rights Protection Group, said.

Therefore, we have analysed the document and share the conclusions of our expert, who tells whether the bill can become a panacea for Ukraine.

First of all, the draft law emphasises Russia‘s responsibility for external military aggression against Ukraine. It is about setting out not only Ukraine’s stance on this matter but also the international legal position of the occupying power. In other words, the Government expresses an unambiguous opinion about the criminality of Russia’s actions, including the activities of the occupying pro-Russian authorities in Donbas and Crimea. The document also provides that the stage of transitional justice will last 25 years after the full restoration of the territorial integrity of the state. That is, the Government for the first time outlined the boundaries of this period.

The policy of transitional justice is viewed by the Government as a process aimed at overcoming the consequences of armed aggression. On the positive side, there is a convalidation mechanism, i.e., a procedure for recognising the validity of void treaties in the occupied part of Donbas. In fact, this is a step towards the reintegration of the population of the uncontrolled territories, because after de-occupation, they can legally recognise individual acts as valid, for example, wills, certificates of birth or death, etc.

This is perhaps the first time that Ukraine has clearly announced the ideology of confrontation and condemnation of armed aggression, namely, it spells out political and diplomatic consistent sanctions against the occupying state. This will help convey Ukraine’s clear position on the occupation of territories to the world community.

As for the rights (namely electoral, economic and social ones) and freedoms of Ukrainians living in uncontrolled territories, Ukraine plans to protect them at the international level. This is almost the first time that the authorities have fixed their vision of an algorithm for solving problems in the occupied territories after de-occupation. This relates to a comprehensive solution to humanitarian problems, ensuring law and order and demilitarisation, and the release of illegally detained persons. The basis will be national dialogue as a form of the negotiation process. The logical completion of de-occupation should be holding of local elections in the liberated territories.

To summarise, the bill is social in focus and political in nature: it contains many effective forms of reconciliation and de-occupation. When the authorities demonstrate respect for citizens and disdain for the enemy, then transitional justice becomes a real tool on the post-conflict stage. The norms of the bill are aimed at internally displaced persons, residents of the temporarily occupied territories and the state.

“It is important that the document makes Ukraine responsible for resolving the conflict. After all, the authorities have so far tried to avoid such discussions, shifting the blame to the occupier. This shows that Ukraine is fully aware of the role of the authorities in resolving the conflict, and this position will be positively perceived by the world community. For the aggressor state, the bill is a powerful and unexpected blow that could touch the self-proclaimed government, based on criticising Ukraine, which, allegedly, has abandoned its citizens to their fate. If the guarantees envisaged by the bill for the residents of the occupied territories are actually provided, the failure of the occupying power will become more obvious even for pro-Russian citizens,” Viktor Filatov said.

By and large, the document is quite comprehensive and self-contained, but one significant shortcoming can be pointed out that should be corrected at the draft level.

“Almost all the provisions of the draft law relate to conflict and post-conflict periods. But the authors forgot that it is worth detailing the post-authoritative period and focusing on overcoming the systemic problem that led to the occupation of certain territories, including corruption in all branches of power and the lack of professionalism of its individual representatives, weak opposition to the Russian information war, the connection between politicians and oligarchs, pro-Russian media outlets that play along with the aggressor. These issues should be addressed within the framework of the transitional justice system so that reconciliation and de-occupation do not become short-lived and conflict does not flare up again. Therefore, in addition to lustration, it is necessary to outline a set of measures to overcome these problems,” Viktor Filatov stressed.

Kateryna Leonova