A Second Chance for Transitional Justice in Ukraine

Ukraine deserves a second chance for democracy through Transitional Justice (TJ) measures. They can spark that process. Whether the Ukrainian Parliament’s referral to the ICC of those responsible for the killings, torture and suppression over the past months on the Maidan and elsewhere in Ukraine is the best way of rebuilding trust in the weakened democracy remains to be seen.

The ICC should always be seen as a court of last resort rather than the first option. Ukraine has, for the second time since its independence in 1991, a chance to come to terms with its unjust past, including the atrocities to which it has borne witness. TJ methods can be used to strengthen those democratic institutions that have failed to respond to citizens needs over the past months and years. To ask for punitive justice only, instead of TJ which leans towards a more stable democracy, is one of the biggest pitfalls to which the revolution could fall victim in its current pursuit of judicial remedy.

Sadly enough, the past weeks and days in Ukraine have verified the assumption that a failure to terms with anunjust (communist) past, will continue to prevent a country from establishing legitimate democratic institutions, built upon citizens’ trust. When old myths persist and old elites remain in power. It is just a matter of time until new conflicts will emerge – so it happened in Kiev and other major cities since past November.

The post-independence lack of historical reckoning – concerning Soviet repression in general, but particularly the crimes of the Stalin period – coupled with the closure of archives has revealed that promises to introduce commissions of inquiry, issue trials or foster public debates were a complete farce. Eventually it led to a culture of impunity and irresponsibility of which the high level of corruption (Ukraine scores among the highest in international comparative measures) is a symptom of the political failures over the past 23 years. Instead, the culture of autocratic governance and corruption continued. Now Ukraine has a chance to end it.

After the independence movements in the early 1990s, some post-communist countries did better in using TJ measures to strengthen their democratic institutions, others did not. Among the latter is Ukraine. Although Ukraine had all the prerequisites, such as an active and organized civil society, courts and international legal support – for example from the European Court of Human Rights, international CSOs, the OSCE, the EU and theCouncil of Europe in general- no initiative resulted in much success.

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The key components of any TJ process are to trigger a public debate about the past, to hold people responsible and accountable for their wrongdoings – thereby delegitimizing them – and to reestablish civic trust in democratic institutions which are deemed to have failed. Instead, in the Ukraine, as in many post-Soviet countries which may soon face similar outbreaks, such as Belarus and Russia, the KGB archives remained largely closed and punitive measures, such as trials, were used by the new political elite or oligarchs with the aim not of achieving national reconciliation, but of consolidating power. After Viktor Yanukovych won the presidential elections in 2010 he cleansed the state structure of those seen as antagonists, in particular those who aimed to pull Ukraine closer to a more democratic Europe. Yanukovych’s methods in combating his political opponents included scurrilous means, such as alleged complicity in the poisoning of his presidential rival, Viktor Yushchenko, in 2004 or the targeting of former Prime Minister Yulia Timoshenko in 2011 through a series of political trials. Now, 20-25 years after the transition, a new generation of Ukrainians will hold him accountable for his wrongdoings and hopefully will do so based on the human right to a fair and open trial – a human right his government has not guaranteed to others.

Trials are one part of TJ measures but do not encompass the whole spectrum of TJ possibilities, let alone the whole process. Prosecution and trials against Viktor Yanukovych, his former interior minister Vitaly Zakharchenko and the former prosecutor general Viktor Pshonka and others should preferably take place inside Ukraine before Ukrainian courts and not before the ICC.

The impact that trials on past injustices can have on reestablishing citizen trust in the – not yet – independent judiciary and therefore on the Rule of Law is higher if the trials take place inside the country where the conflict originated and not outside. One more aspect worth considering is that Ukrainian oligarchs, the opposition and the interim government have one thing in common: they aim to increase their ties to Europe and to loosen their ties to Russia. This is also a window of opportunity for TJ regardless of the geopolitical interests and therefore the economic and political pull factors by the EU and Russia

Around 100 deaths and 2000 wounded protesters on all sides have been counted over the past weeks throughout the country. Each of them is one too many and could have been avoided. Their deaths stand as sad signals for change. Yet they mark the turning point for a second chance for TJ in a divided society if the interim government listens to the claims of people for justice and reconciliation, not for vengeance and tiresome power games.

TJ measures, such as vetting and lustration mechanism (laws that allow for examine peoples level of involvement in the past regime) for example, of former members of governmental, police or secret service authorities. Public acknowledgements, memorials and punitive measures can help to delegitimize the Yanukovich regime. If TJ measures are announced and realized with enough self-reflection and criticism they can legitimize the new regime. If this opportunity is missed, it will take another generation to do it.

Once the window is opened for TJ measures, the Ukraine will have to face two autocratic and unjust regimes and therefore two generations of unatoned past at the same time. This is not necessarily impossible, as has been seen in other post-communist countries like Poland or East Germany which have also had to deal with two very different autocratic and dictatorial regimes during the same TJ process. But such a context does not make the TJ process easier. The unresolved Soviet past and the autocratic regime of the past two decades is a double burden to Ukrainians CSOs, the judiciary and legislators alike. Nor will the process unfold in a vacuum: Russia and the European Union both have great economic and geopolitical interests in the region and will do anything possible to stress their interests.

Some of these external interests are not salutary to the establishment of TJ measures given the extent to which commissions of inquiry, memorials, public debates, literature and films as well as trials shed lights on the wrongdoings committed by all sides, victims and victimizers alike. Nevertheless, if the interim government under Oleksander Turchinov repeats the vicious game of “victor’s justice” until and beyond the next elections held on 25 May 2014 it will merely lead to history repeating itself. Issuing an arrest warrant against Yanukovych and asking the ICC to take up his case is one thing; also issuing warrants against protesters or leaders deemed responsible for violence during the past months in Kiev and elsewhere, is another.

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The claim for justice is an easy one to make in the light of the many victims of the Maidan and elsewhere – asAmnesty International has highlighted – but to realize it remains a challenge. If successfully done, based on international human rights norms, it could contribute to a better understanding of what the Rule of Law means: no one is above the law and less so if he or she supports or uses violence for whatever cause.

TJ measures are only one element to interrupt the vicious circle of power games and in return bring evidence of the misconduct of all sides, Russian, Ukrainians, oligarchs and politicians or opposition leaders alike and because all sides either share responsibilities or have suffered, too. The process creates understanding and empathy and therefore helps to shape new legislation during the law reform process that is just about to begin. But it should leave no room for political or personally motivated vengeance- which is often the case.

Memorials have to acknowledge all victims regardless which side they come from and public trials ought to address the wrongdoings of all parties involved. Excluding from justice those who succeed in the struggle of the past months on the Maidan, or during the Euromaidan as some call it, would be a fatal error and would hamper the democratic process.

Ultimately, TJ is only used to catalyze democratic processes and to strengthen democratic institutions such as the independent judiciary and effective legislative powers, only if all interest groups in society are involved in the decision-making process, winners and losers alike. Ukraine deserves this second chance.

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