Our Association sent the input for the preparation of the report of the Office of the UN High Commissioner on human rights and transitional justice issues. During 2020-2021 “ARC” published a set of expert essays devoted to transitional justice issues so we presented them now for the relevant discussion to the UN officials. Among other things in our statements and analytic publications we pointed to issues of the symbolic dimension of transitional justice for the indigenous peoples of Crimea in Ukraine which needs further active and systematic work.
“ARC” reminded to OHCHR that the transitional justice effort of Ukraine is a response to a multi-layer conflict, which includes dealing with the legacies of the totalitarian rule and the subsequent kleptocratic regime, response to open occupation of parts of the territory of Ukraine by another state. A specific feature of the Crimea region is that it is home of three indigenous people, all of which were subjected to different forms of genocide by the Nazi and Soviet regimes. Those peoples are now opposing the occupation and are subjected by the occupying power to a systematic campaign of intimidation and cultural erasure, also as the ethnic Ukrainians on the peninsula.
The Association stressed in the input that Ukraine fully realizes the potential and necessity of transitional justice for the resolution of the conflict and post-conflict settlement and reconciliation. After a comprehensive discussion, which included consultations with the civil society organizations, scholars and international partners, the Ukrainian Ministry of Reintegration of Temporally Occupied Territories developed a draft law “On the Foundations of the State Policy of Transitional Period”, that is now pending before the Parliament and the Venice Commission. Experts of «ARC» sent before the prepared comments and proposals to that Ministry on the previous draft Law of Ukraine “On State Policy of Transitional Period”, announced for public discussion.
The remarks indicated that one law is not enough for the legal regulation of all areas. A whole branch of transitional law is needed, and this branch must be combined with the achievements of other sciences in the field of conflict resolution and overcoming. For such complex legal phenomena it is more expedient to create a whole set of legal acts. The Association’s comments also provided a critical assessment of the terms and conditions proposed by the project, regarding a significant number of general declarative norms of the project, regarding the project’s approach to ensuring the rights of indigenous peoples.
The comments stated that the administrative procedure proposed by the project for the recognition of agreements and documents formed in the occupied territories creates risks of restricting the rights of individuals and creates huge corruption challenges, for which the project does not provide any obstacles. This is especially true of transactions concerning property located in the occupied territories, the “convalidation” of which may lead to the acquisition of rights to things, including real estate, obtained by criminal or manifestly unlawful tools during the occupation. Some of our proposals were taken into account by the Ministry in the finalized version of the draft, given to the Venice Commission. Other “ARC”’s proposals were confirmed in the summary of the Venice Commission devoted to this draft.
“ARC” pointed to OHCHR that some other legal acts can be considered as having a potential for the future transitional justice efforts. Importantly for Crimea, this includes the recently adopted Law “On the Indigenous Peoples of Ukraine”. The Law largely repeats the provisions of the UN Declaration on the Rights of Indigenous Peoples, including the right of the Indigenous Peoples to representation, land and natural resources. Article 7 of the Law recognizes the right of the Indigenous Peoples to sustainable development, including to the preservation of the environment, and to a share of income from exploitation of natural resources of their land. The provisions of this article can become effective only upon de-occupation of Crimea and full restoration of Ukraine’s control over its presently occupied territory. As of now, the Government of Ukraine continues working on the bylaws aimed at practical enforcement of the new law, including recognition of the representative bodies of the indigenous peoples.
The Association mentioned to OHCHR on Ukraine’s “Strategy of Deoccupation and Reintegration of the Temporarily Occupied Territory of the AR of Crimea and the City of Sevastopol” includes “measures in the sphere of transitional justice, including compensation of damages caused in connection with the armed aggression of Russian Federation, armed conflict, temporal occupation of the territory of Ukraine, protection and restoration of the violated rights, bringing the perpetrators to justice”. Those measures are beneficial for achieving the 2030 Sustainable Development Goals, including Goal 16 on promotion of peaceful and inclusive societies for sustainable development, providing access to justice for all and building effective and accountable institutions at all levels.
«ARC» pointed out in the submission that Russia openly enforces its laws on the occupied territory of the Crimea. These laws do not include any legal acts on transitional justice or sustainable development, as these notions are uncommon for the Russian legislation. The Russian Federation does have a law “On the Guarantees of Rights of Indigenous Small-Numbered Peoples of the North”, however, that law lacks guarantees provided in the UN Declaration on the Rights of Indigenous Peoples and in any event it does not apply to the indigenous peoples of Crimea. The occupation precludes application of the significantly more developed legislation of Ukraine in Crimea.
Regarding the issue of transitional justice and Russian authorities, our Association stressed to OHCHR on the importance of the analytical report by Russian experts Nikolai Bobrinsky and Stanislav Dmitrievsky “Between revenge and oblivion: a concept of transitional justice for Russia”. The authors positioned the work as “a report in the genre of legal futurism on how in the future to overcome the impunity of crimes of the past and present”. Among other things, this document, published in 2021, analyzes the consequences of the Russian aggression in Ukraine, including the attempt to annex Crimea. The authors acknowledge that the international crimes previously committed by the Russian authorities in Chechnya are “to some extent relevant” for the situation with the armed conflict in Ukraine, since “here the number of victims is also calculated in very significant numbers, and the practice of enforced disappearances, although not so horrific in number missing is also present”.
To the contrary, as Association stated, the Russia’s occupying “authorities” runs a policy of ethnic discrimination, cultural erasure, social hatred and division, combined with predatory exploitation of the natural resources of the Crimea without paying attention to the rights and needs of indigenous peoples. The occupational regime is characterized by systematic injustice, endemic corruption, neglect of human rights, and massive persecution of those, whom the occupying powers considers its rivals, including, first and foremost, the Crimean Tatar People. The representative bodies of the people are declared extremist organizations, their media is silenced, their culture is marginalized.
Our Association pointed to OHCHR in input that the Ukrainian strategy of transitional justice for Crimea must ensure the representation of indigenous peoples of Crimean Tatars, Crimean Karaites and Krymchaks. The transitional justice mechanisms must interact with the representative bodies of these peoples. Furthermore, the transitional justice strategy itself should aim to develop solutions to ensure the representation of the indigenous peoples of Crimea in the Ukrainian state and society, as well as to support the proper representation of these peoples on the international level.
And more, as we pointed already, these groups are the indigenous peoples of Crimea, who have no connection with any land other than that of Crimea, and whose cultural life is inextricably linked with the existing cultural monuments and values in Crimea, and at least some of these sites are of global value to all mankind. Thus, the work on protection and restoration of the cultural rights of the indigenous peoples of Crimea, as well as on compensation for previous wrongs, is a direct responsibility of Ukraine, which stems from its own Constitution and international legal obligations and such work should become part of Ukraine’s transitional justice strategy for the Crimea.
Our Association stressed also on the importance of the restoration of justice for the Crimean Tatar People in the framework of Ukraine’s transitional justice strategy, which should include restoring and guaranteeing of the property rights of the indigenous people. Within such mechanisms, the Ukrainian government and civil society, with the participation of the representatives of the Crimean Tatar people, should develop concrete actions to restore the collective property rights of the Crimean Tatar people as the indigenous people of Crimea, establish procedures for exercising these rights, and determine compensation for damage to indigenous peoples.
The Association stated to OHCHR that transitional justice for the Crimean Tatars can be considered either in the format of a part of the all-Ukrainian strategy of transitional justice, or in the form of a separate strategy. It is important that these two approaches are not mutually exclusive. Perhaps the ideal option would be to implement both, but in practice, in order to increase the cost-effectiveness and efficiency of government and expert efforts, it is possible to split the work on both of these approaches over time. However, it remains important not to lose both perspectives: the current perspective of transitional justice for Crimean Tatars to restore their rights after the de-occupation of Crimea, and the historical perspective of overcoming the consequences of the deportation of the indigenous people of Crimea.
Our Association expressed to OHCHR its own position that the justice of the transition period for the Crimean Tatar People must go through two stages. At the first stage, it should be part of Ukraine’s national transitional justice strategy for the armed conflict with Russia. The second stage requires a special strategy for transitional justice for Crimean Tatars. Obviously, a truth and reconciliation commission can be set up on the model of similar commissions for indigenous peoples in other countries. However, other instruments of transitional justice, such as restitution or working with society’s collective memory, should be considered and opportunities used. The definition of such mechanisms can already be the subject of consultations between the Ukrainian authorities and representatives of the Crimean Tatar community.
“ARC” informed the OHCHR that a special research on the situation of transitional justice in the “grey zones” like Crimea, done by the UN OHCHR in cooperation with civil society and academic structures, may be a starting point for improvement of the current situation. Also we recommended the UN to enforce its monitoring missions in various conflict zones, such as UN Human Rights Monitoring Mission in Ukraine with exchanging information and data regarding the governmental, civil and academic initiatives regarding the transitional justice issues in the framework of their mandates.