Violations of peace, aggression, armed conflicts, occupation, massive and grave violations human rights violations: they all distort the normal course of society. The cessation of violations does not automatically lead to the restoration of peace, the rule of law and social wellbeing. To the contrary, well-established and lasting peace is hardly possible without painstaking work to address the consequences of violations of peace and human rights. The concept of transitional justice emerged from the experience of such work in the twentieth century. This review describes the concept of transitional justice in general, and opens a series of publications on the prospects of transitional justice in Crimea.
The concept of transitional justice was developed as a response to the problems that arise in societies during the transition from conflict to stability, rule of law and democracy. Such a transition inevitably raises the question of how new governments should deal with the consequences of previous situations of violence and human rights violations. Should they seek to reveal the truth about previous violations, and if so, how? Should perpetrators and their associates be forgiven, punished, ignored, or integrated into the new society? Should their responsibility be individual or collective? Should special liability regimes be created for states, non-state actors, individuals and legal entities? All these issues concern the pressing social need in assessing the society’s past and overcoming its consequences through institutional development, creation of new political and legal balance, reformation of law-enforcement and judicial system.
The concept of transitional justice is applied in more than 30 regions of the world, including Latin America, the former Yugoslavia, the Middle East, Afghanistan, Iraq, Libya, and so on. The actual situations of its application differ significantly: transitional justice is considered necessary in such cases as violent change of political regime, internal riots, armed conflicts of international and non-international nature, protection of the rights of national minorities and indigenous peoples.
The term “transitional justice” first appeared in legal discourse about thirty years ago, although the methods, techniques, and processes that would now be associated with transitional justice existed centuries ago. Researchers [7; 11] see the roots of modern transitional justice in the World Wars, including the Nuremberg and Tokyo tribunals. Its development is associated with the democratic transits of the 1980s in Latin America, Africa and Eastern Europe. During this period, transitional justice was considered in the context of the transition of states and societies from authoritarianism to democratic rule.
The radical revision of the idea of transitional justice took place under the influence of the armed conflicts of the 1990s, especially in Yugoslavia and Rwanda, as well as in other regions, including the post-Soviet space. The world has seen seemingly long-forgotten horrors such as ethnic cleansing, concentration camps, mass killings, and other brutal acts of violence. At the same time, the reaction of international institutions, which should have prevented such situations, was either belated or absent. This has significantly discredited the UN system, which has failed to prevent conflicts and related human rights abuses. During this period, the concept of transitional justice began to be considered not only, and not so much as a tool of democratic transit, but as an instrument of overcoming the consequences of violent conflicts.
The mechanisms of international justice, such as the international tribunals for Yugoslavia and Rwanda, have proved to be effective for retribution and a relatively effective for truth-finding. However, their activities proved to be at least problematic in terms of restoring lasting peace. These were mechanisms of retribution and punishment, not recovery. In addition, they were reactive rather than proactive, i.e. to be a response to violations that have already occurred, rather than a mechanism to prevent future violations. International justice was not effective enough for peace-building, which has sparked interest in transitional justice as a mechanism that combines judicial and non-judicial instruments and is closer to the specific needs of troubled societies.
The contemporary view of the concept of transitional justice was shaped in the early XXI century, when it was reflected in the practice of the UN, in particular in the reports of the UN Secretary General and in the work of the Security Council . In 2004, the UN Secretary-General issued a report outlining the well-known definition of transitional justice as “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecution, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof” .
This definition has been constantly expanding. Thus, in 2005, the Human Rights Council stressed the importance of efforts to restore justice and the rule of law in conflict and post-conflict situations, as well as in the context of transitional processes .
In a new report dated 14 December 2006, the UN Secretary-General proposed to divide UN rule of law activities into three “baskets”: the rule of law at the international level, the rule of law in conflict and post-conflict situations and the rule of law in the context of long-term development. Transitional justice found itself in the second, which meant further emphasis on its tasks of overcoming the consequences of conflict. The report notably clarified the scope of the concept of transitional justice so as to include included national processes of consultation on justice in transition, truth and reconciliation processes, redress, international and hybrid tribunals, national human rights institutions, control processes and special investigations, fact-finding and investigations . In fact, it identified institutions, actions, and mechanisms in which the United Nations could assist in national efforts to implement transitional justice.
In 2011, the UN appointed a Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, the chief international expert on transitional justice. The Rapporteur’s first report stated that the term “transitional justice” did not refer to a particular type of justice, but rather a strategy to address the gross violations of human rights and serious violations of international humanitarian law . The Rapporteur pointed out the change in the understanding of transitional justice from its vision as a tool to ensure the transition from post-authoritarianism to democracy to its understanding as a method of overcoming the consequences of violations, which is more important than institutional reforms.
The concept of transitional justice continues to take shape. Each case of its application complements and expands it. This will obviously be true in the case of Ukraine, which combines situations of democratic transit, disputes within society, international armed conflict, occupations, and mass and gross human rights violations. Therefore, Ukraine can become a kind of testing ground for all developments in the concept of justice in transition.
Transitional justice for ethnic minorities and indigenous peoples is a relatively new trend in the overall development of this concept. Associated measures have first been taken roughly a decade ago in Colombia  and Canada . Certain elements of transitional justice for ethnic minorities and indigenous peoples have been in use in Bosnia and Herzegovina, Guatemala, Iraq, Peru, Rwanda, and Sudan. The most common violations of the rights of indigenous peoples that were subject to transitional justice measures are are violations of the right to reside and benefit from their land and violations of cultural rights (mainly the right to culture and the right to education). In addition, ethnic minorities and indigenous peoples are particularly vulnerable groups in any armed conflict. Another problem is the marginalization of indigenous peoples, i.e. their exclusion participation in the exercise of power, economic and social processes, as well as state and public distrust .
Truth and reconciliation commissions are considered the most appropriate mechanisms for restoration of the rights of indigenous peoples . In fact, the protection and restoration of the rights of indigenous peoples through transitional justice has for the first time attracted the attention of relevant commissions in Colombia and Guatemala, which have addressed general human rights violations and encountered specific violations of indigenous rights. It turned out that commissions with general competence to deal with a specific situation of violence are not able to fully respond to violations of the rights of indigenous peoples, primarily because the commission is usually set up to deal with circumstances that took place several years before its establishment, while violations of indigenous peoples’ rights can last for decades or even centuries. In such cases, a special commission of truth and reconciliation for a particular indigenous people is necessary. In Canada, where a special commission deals with issues related to long-term discrimination against indigenous children in education . The Royal Commission into Aboriginal Deaths in Custody, which has been in operation since 1991, has certain powers related to transitional justice . In the United States, the Truth and Reconciliation Commission was established in Maine in connection with the long-standing practice of assimilation of indigenous peoples. It follows that the creation of special transitional justice bodies for indigenous peoples is a common practice in the world’s most developed countries.
An important feature of transitional justice for indigenous peoples is the possibility of its application in a society that is not in itself in transit. This is due to the difference in the history and current situation of the indigenous people from the rest of the population of the state, the peculiarities of the attitude to the indigenous people in the past, the presence of specific violations affecting only the rights of indigenous people. For example, in Canada, a country that is clearly not in need of political transit and has not experienced armed or any other major conflicts, transitional justice concerns only the relationship between the state and indigenous peoples to establish a dialogue to overcome the effects of racist and repressive policies. Transit in such cases occurs from a state of unrecognized and uncured violation of the rights of indigenous people, to awareness of the violation, its recognition, and overcoming its consequences.
Consideration of the rights and interests of indigenous peoples in the development and implementation of a transitional justice strategy is not just an opportunity, but a firm international obligation of Ukraine. This obligation stems from the UN Declaration on the Rights of Indigenous Peoples promulgating the rights of indigenous peoples to full participation in the political, economic, social and cultural life of the state [15, Art. 5], the right to participate in decision-making affecting their rights [15, Art. 18], as well as the obligation of states to provide effective mechanisms for prevention and legal protection against any action against the rights of indigenous peoples [15, Art. 8]. Given the fact that the Verkhovna Rada of Ukraine recognized the Crimean Tatars as the indigenous people of Crimea , Ukraine bears an obligation to take into account the protection and restoration of the rights of the Crimean Tatar people in developing its own transitional justice strategy.
There are two possibilities of transitional justice for the Crimean Tatar people. First, any overall transitional justice strategy for Ukraine intended to overcome the consequences of the ongoing armed conflict, must be aimed at restoring the human rights of all Ukrainian citizens affected by the conflict. It will also apply to Crimean Tatars who live in the occupied territories and who are subjected to violations of both fundamental human rights of individual members of the Crimean Tatar community (right to life, right to liberty and security of person, etc.) and collective rights of the Crimean Tatar people (right to education in native language, cultural rights, etc.). These rights must be restored within the framework of the general transitional justice mechanism for Ukraine.
Secondly, it refers to transitional justice for the Crimean Tatars in the historical context, including overcoming the consequences of the genocide of the Crimean Tatar people in 1944. Ukraine must reconsider the issues that were not resolved when Crimean Tatars returned to their historic homeland in the 1990s. The first positive step here should be the recognition of the deportation in 1944 as genocide, with further investigation and a broad public debate on the nature of the deportation, its causes and consequences, and work with historical memory. Such acute issues as the format of political representation of Crimean Tatars at the national and international level, restoration of the widest possible opportunities for the use of the Crimean Tatar language in all spheres of life (primarily in education), restoration of Crimean historical toponymies, property restitution and others are to be resolved. The ultimate goal here is to create a new socio-political reality for the Crimean Tatars in the ARC, which would guarantee full respect for the rights of the indigenous people of Crimea and interethnic peace and harmony among all nationalities of the Peninsula.
It should be concluded 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 the Russian Federation. 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.
Oleksii Plotnikov, PhD (International Judiciary)
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