The Expert of the Regional Centre for Human Rights on the definition of transitional justice and prospects for its implementation in Ukraine’s conditions.

The topic of the post-conflict reconciliation emerges now as one of the most urgent in Ukraine’s social and political landscape. Tens of thousands of victims in the temporarily occupied territories and the area of fighting look for ways to restore justice every day. They left almost alone with violations of their rights, but who will bear responsibility for these violations is still an open question.

The concept of transitional justice is still a subject of initial discussions rather than an effective tool in addressing border situations. Only now the first steps were taken in order to create strategies that would be effective and consider all difficult aspects of the great disasters in which our country finds itself.

The Ukrainian Helsinki Human Rights Union is preparing a series of analytical comments on the topic of transitional justice, kindly provided by leading Ukrainian human rights activists and experts. This article contains answers to basic questions about the concept given by Roman Martynovskyi, the lawyer of the Regional Centre for Human Rights and Chairman of the Board of the Ukrainian Legal Aid Foundation. Referring to the international experience, the expert explains the essence of the concept and gives his interpretation in the light of specific Ukrainian realities.

What is transitional justice?

It should be noted that the term justice that is used in this context does not coincide with its definition in Ukrainian legislation. The Law “On the Judicial System and Status of Judges” establishes provisions under which exclusively courts administer justice in Ukraine.

However, the term transitional justice includes both elements – judicial and non-judicial mechanisms. It includes the system of investigation of criminal offenses, as well as war crimes and crimes against humanity, mechanisms for redress, and memorialization. All this should take place on a background of radical institutional reforms. All reforms enable the society to get rid of the effects of conflict or the consequences of dictatorial rule and reactionary regimes.

The main objective, a kind of mission, of transitional justice is to ensure the rule of law in the society through the help in creating such a system of justice that will be able to perform their functions fully, and restore public confidence in the courts themselves.

As a rule, the need for implementation of transitional justice is at stake when there is a change of ruling authorities in the country. There is a moment of impact assessment of the mass grave violations of international human rights norms, serious violations of international humanitarian law. There is a possibility to overcome the violations as well as to bring those responsible to justice.

In this situation, mechanisms of investigation and enforcement that remain from the old regime are not able to ensure the effectiveness in addressing these issues.

The situation is usually complicated by high levels of corruption that prevail in the country, and sometimes by ethnic nature of the conflict.

The main objective, a kind of mission, of transitional justice is to ensure the rule of law in the society through the help in creating such a system of justice that will be able to perform their functions fully, and restore public confidence in the courts themselves.

Therefore, transitional justice should be seen as a temporary form of organization and involvement of judicial and non-judicial mechanisms in countries in conflict or post-conflict situations. The purpose of it is:

• ensuring the prosecution of perpetrators of massive violations of human rights and international humanitarian law;
• truth-telling about the past;
• compensating in the form of recognition of the right to compensation for victims of violations and perpetuating with the aim to prevent a repeat of the situation in the future;
• reforming of institutions, primarily in the area of security, law enforcement, and judicial authorities.

What does transitional justice mean for Ukraine and what are conditions of its implementation?

First of all, it should be emphasized that there is no universal formula of implementation (functioning) of transitional justice and no artificial imposition of foreign models. Taking into account the political, economic, social and national characteristics, as well as the causes of the conflict, is a guarantee of success in selecting forms, models, transitional justice mechanisms and ways of its implementation.

In other words, Ukraine should have its own model of transitional justice, which must take into account both positive and negative experience of other countries.

Based on problems whose solution relies on transitional justice directions for its implementation should be defined.

We see already attempts of institutional reforms. We can also see more active work of the public sector regarding the truth and memorialization of victims of the regime and conflict.

In matters of compensation, we must strictly follow the basic principles and guidelines concerning the right to a remedy and reparation for victims of gross violations of international human rights and serious violations of international humanitarian law, adopted by the UN General Assembly resolution of 16 December 2005.

Speaking of criminal justice, it is necessary to create mechanisms for the preliminary investigation of crimes. It is necessary to attract foreign specialists and launch new judicial mechanisms, involving trustworthy, professional, well known and respected in their countries, foreign lawyers in the administration of justice.

We often hear about the need for hybrid courts, i.e. courts that would employ both Ukrainian and foreign judges. I like more the term “mixed”, because hybridity for us is associated with forms of aggression of our eastern neighbor.

In matters of implementation of transitional justice, there is no universal formula of implementation of transitional justice and no artificial imposition of foreign models.

The advantages of this mechanism are obvious. They lie in the fact that foreign judges are more impartial and independent than most Ukrainian. They are well prepared to work with war crimes, crimes against humanity and crimes committed on corruption grounds. The judges would share experience in the administration of justice. This experience would not disappear in 10-15 years, and would remain here in a form of a new generation of judges, able to demonstrate a high level of professionalism and impartiality.

Today there are two main conditions for the introduction of mixed courts. We can determine the political will and resources to provide the system with foreign elements. It may come in that in order to achieve the second condition the states that are willing to delegate judges (investigators, prosecutors) to Ukraine could pay them.

The political will is difficult to predict, but the events of recent years have shown that the pressure of our Western partners and overseas authorities have forced to fulfill the promises the ruling authorities gave during and after Maidan.

These steps ultimately should ensure prosecution of those guilty of gross and massive violations of human rights, reconciliation in society and restore confidence in the courts and to raise the idea of the rule of law in society to a new level.