Ukraine struggles to adopt Transitional Justice mechanisms

15.11.2019

Interview with Oleg Martynenko

Experts from the Ukrainian Helsinki Union for Human Rights, supported by the Ombudsman Office, drafted a bill on Transitional Justice to initiate further legislation and a peacebuilding process. While compensation and criminal prosecution are important objectives, truth and dealing with the past are still on hold due to a lack of European support. We talk to Oleg Martynenko, one of the co-authors of the draft bill

R. Possekel: Transitional Justice seems to be a relatively new concept for Ukraine. You drafted a comprehensive bill covering almost all aspects of TJ. What would you like to achieve within the next few months?

Oleg Martynenko: The proposed text provides a framework law, which could also be called a "Strategy on ..." and adopted as a Resolution of the Cabinet of Ministers or a Presidential Decree. That is why the bill doesn’t pursue specific practical issues but focuses instead on the introduction of the full range of Transitional Justice mechanisms.
If the bill is passed, we expect the next steps in Parliament or government actions to be as follows:

  • development of the action plan for the creation of a national Transitional Justice model;
  • formulation of a package of bills, involving each parliamentary committee, for the implementation of the action plan;
  • establishment of working groups at the level of each ministry to develop the departmental steps for the implementation of the action plan;
  • launch of a large-scale consultation with international partners and donor organizations;
  • modification of Ukraine's domestic and foreign policies, taking into account the implementation of Transitional Justice. 


R. Possekel: One of the fiercely disputed provisions of the Minsk Agreement concerns some kind of unconditional amnesty for “persons with regard to the events that took place in individual areas of the Donetsk and Luhansk regions of Ukraine”.  It seems to me that the draft bill tries to avoid this hot issue, although without some kind of amnesty there will probably be no conflict resolution, not to mention the limited resources of the Ukrainian legal system to prosecute all the violations of Ukrainian law. What is your attitude to this issue and how it is reflected in the draft bill?

The amnesty process is crucial to starting peaceful coexistence after the conflict. However, in our bill, we deliberately did not mention amnesty for two reasons. Firstly, Ukrainian society is not yet ready to accept the concept of amnesty. The term "amnesty" itself is extremely toxic in the perception of most target groups. Secondly, amnesty is not mentioned as a mandatory element in UN documents on Transitional Justice, but is provided for in the Second Additional Protocol to the Geneva Conventions. We therefore postponed the development of an amnesty mechanism until subsequent joint work with experts in the field of international law.
Currently, there is only one draft law devoted to amnesty. It was developed by Yulia Timoshenko’s political platform. Named the “Law about Forgiveness”, this bill has yet to garner support. The text in Russian is available here: https://sila-prava.org/ru/none-ru/tekst-proektu-zakonu-ukrayini-pro-proshhennya/

R. Possekel: Two articles of the draft bill are devoted to some kind of truth commission. But reconciliation and social dialogue are not central to the draft bill – could you please explain why? What prospects do you see for these challenges within Ukrainian policies?

Oleg Martynenko: Reconciliation and social dialogue are not central to this bill (literally) for two reasons. First, reconciliation within the framework of UN Transitional Justice documents is seen as a very remote strategic goal that may or may not be achieved (for various reasons). The term "social dialogue" is more relevant to other concepts of conflict management: peacebuilding, dialogue/mediation initiatives (confidence-building measures – CBMs), for example.
Second, at the stage of hot conflict, the terms "reconciliation" and "social dialogue" may be unacceptable to the conflict parties and victims at all levels.
That’s why the definitions of Transitional Justice were chosen as the most neutral and more practical in terms of Ukraine’s further steps.
It goes without saying that all social dialogue and reconciliation activities are seen as an integral part of the Transitional Justice principles’ implementation. And truth commissions in any form will foster social dialogue and reconciliation, as they will work in the most important area of transitional justice – dealing with the past.
 
Draft bill on Transitional Justice  [pdf, 14 pages, 316 kb]

Draft bill on amnesty  https://sila-prava.org/ru/none-ru/tekst-proektu-zakonu-ukrayini-pro-proshhennya/

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Author

Oleg Martynenko is one of the Transitional justice promotion' leader in Ukraine, who works for Ukrainian Helsinki Human Rights Union.

Issue: Politics

Dealing with the past is often subject to passionate political struggles - on the national, as well as on the international level. They can lead to rather supportive or suppressive, truly effective or ineffective frameworks, institutionalised by state-policies and laws. However, below the surface, political struggles are about the access to scare resources, institutions or, more generally, the distribution of power. What political initiatives exist that try to foster inclusive and coherent processes of dealing with the past? Why do they exist and what is their room for manoeuvre?