The transitional justice strategy for the Crimean Tatar people can and should be developed in two dimensions. Firstly, it is to become a part of Ukraine’s overall strategy for post-conflict and restorative justice following the revolutionary and military events. Secondly, the Crimean Tatars need a separate transitional justice strategy as an indigenous people.
Any transitional justice effort consists of justice for offenders and justice for victims. In the case of transitional justice for indigenous peoples, appropriate measures are aimed primarily or entirely at restoring justice for victims. Working with offenders (punishment, lustration, amnesty, truth in exchange for forgiveness, etc.) is difficult or impossible due to the time gap between the violation and justice, the inaccessibility, or uncertainty of the offenders. Therefore, efforts should be focused on restoring the violated rights, overcoming the consequences of the violations, ensuring their non-recurrence.
Transitional justice for indigenous peoples is perhaps the youngest theory within the concept of transitional justice, and it would therefore be premature to speak about the stability of its methodology. However, it seems that from the practical experience of different regions and situations, it is possible to identify certain areas, that can be basic for discussions on the avenues of transitional justice for the Crimean Tatars. Four such areas can be identified: material; cultural; integrative; symbolic. They can be implemented both separately, and in connection with each other.
The material direction of transitional justice for indigenous peoples has been most developed in Latin America. Belkis Izquerdo, Judge of the Special Jurisdiction for Peace(Jurisdicción Especial para la Paz) in Colombia, underlines the special multifaceted connection of indigenous peoples with their homeland, which justifies their right to the land itself and its natural resources. Natural objects are a living part of the self-consciousness of the indigenous people, and it is therefore necessary to secure the ability of indigenous people to maintain contact with these objects, not to create obstacles for them and not to destroy them . In the case of the Crimean Tatars, the material plan is supplemented by issues of restitution and compensation related to the deportation and return of the people to their historical homeland.
The cultural direction of transitional justice for indigenous peoples includes measures aimed at restoring the functioning and development of the culture of the people affected by the atrocities of the past. As a rule, the cultural direction of transitional justice takes forms of return of the language of the indigenous people to schools, as well as symbolic acts demonstrating recognition of the importance of indigenous culture.
At the same time, transitional cultural justice for indigenous peoples cannot be concentrated solely on restoring and ensuring the functioning of that culture. The primary objective of such measures is to overcome cultural alienation and normalize relations between the indigenous people and the state. The situation of indigenous peoples does not allow them to fully reanimate their culture as it was before the indigenous people became part of a larger state. Moreover, often the indigenous people, as is in the case of the Crimean Tatars, do not form a majority in a certain territory, and their culture is inevitably influenced by the culture of other peoples. Under such conditions, the attempt to restore the former state of culture is doomed to failure. The policy of transitional justice regarding the culture of indigenous peoples should be aimed at ensuring the equality of this culture with other influential cultures, attention to the achievements of this culture and their further development in the new environment. For example, the Canadian Truth Commission, under its mandate, has the right to apply interdisciplinary methodologies based on the social sciences, historical, oral, or archival knowledge. This norm aims to provide the Commission with a vision of the problems in terms of traditional indigenous culture .
The integrative aspect of transitional justice for indigenous peoples is closely related to the cultural agenda. In practical terms, they represent one approach to two different issues.
The traditional culture of the indigenous people must develop in new conditions, so also the traditional mechanisms of self-government must continue to exist in the conditions of interaction with public authorities. The existence and effectiveness of such mechanisms guarantee indigenous people political representation so that the voice of the community is heard andrelevant in any public decision concerning indigenous people. At the same time, traditional mechanisms of self-government can serve as guides to public policies towards indigenous peoples. The key to this is the creation of formal relations of subordination and coordination between public authorities and indigenous self-government bodies. However, in addition to the formal relationship, there is a deeper plan, which is to take into account the legal traditions inherent in indigenous peoples [for details, see: 11].
In the case of the Crimean Tatar people, the integrative approach to transitional justice is currently probably the most developed due to the activities of the Mejlis and the representation of Crimean Tatar deputies in the Verkhovna Rada of Ukraine. Nevertheless, this integration remains insufficiently formalized and concerns mainly the external institutional sphere. In developing and implementing a transitional justice strategy for Crimean Tatars, it is advisable to focus on essential aspects, such as regulating coordination between Ukrainian authorities and Crimean Tatar self-government mechanisms and integration of the administrative and legal traditions of Crimean Tatars in the state policies relating to Crimea.
Finally, of outstanding importance is the symbolic dimension of transitional justice strategy for the indigenous people. Normally, symbolic measures (the policy of memory and monuments, the establishment of symbolic dates, memorialization, etc.) are auxiliary and are applied as a final feature of a transitional justice strategy. Yet in the case of transitional justice for indigenous peoples, symbols are no less important than material, legal and other aspects. The reason for this is that when the state or other dominant people violate the rights of the indigenous people as a group, the symbolic plan is one of the main objects of oppression. The attack on the symbols strikes at the deepest foundations of the people, and the restoration of respect for the symbols demonstrates the state’s commitment to the restoration of justice for the indigenous people [9, p. 542].
Ukraine has already taken some important steps to restore justice for the Crimean Tatars on a symbolic level. In particular, the historical names of a number of Crimean settlements have been officially returned , measures are being taken to commemorate the deportation of Crimean Tatars. Undoubtedly, the full implementation of transitional justice for the indigenous people in the symbolic field will be possible only after the de-occupation of Crimea. However, the symbolic direction is the easiest to implement and it can be most relevant in the current situation.
Also it is important to research Ukrainian preparatory work on transitional justice: does it consider the need for transitional justice for Crimean Tatars.
The concept of transitional justice became increasingly popular among Ukrainian scholars and practitioners after the beginning of the Russian aggression and occupation of parts of Ukrainian territory. Currently, a number of researchers and work on the research of the avenues of its application on Ukrainian soil. The need for transitional justice also seems to be recognized by the government. The state and the expert community are actively cooperating in the development of the concept of transitional justice in Ukraine. However, the available works practically do not reflect the critical issue of transitional justice for the Crimean Tatar people.
For the first time, a major expert discussion of the concept of transitional justice for Ukraine took place in the spring of 2017 during the conference “Post-Conflict Justice in Ukraine”, held with the support of the Ministry of Justice and the European Society of International Law, which brought together the leading Ukrainian and international experts. However, the issue of Crimean Tatars was only briefly mentioned in some of the three dozes of reports, and the need to pay attention to justice for Crimean Tatars was reflected only in the report of I. Nuzov, representing the International Center for Transitional Justice in New York .
The Ukrainian Helsinki Human Rights Union takes continuous effort to study the prospects of transitional justice in Ukraine. In 2017, UHHRU published a collective monograph “Basic research on the application of transitional justice in Ukraine”. This in-depth collective workreflected the expert opinion on a number of issues related to law and justice during conflict and post-conflict reconstruction, including truth and reconciliation commissions, restitutions, amnesties, and the experience of transitional justice in other countries and regions. However, there was no place for the question of transitional justice for the Crimean Tatars as the indigenous people of Crimea. Crimean Tatars are mentioned only 8 times in almost 600 pages of the monograph, and only to describe the facts related to occupation [see: 1]. It seems that the issue of protection and restoration of the rights of Crimean Tatars was not considered, as well as the very idea of transitional justice for the indigenous people as a special direction of transitional justice.
The legislative regulation and regulation of certain state policies have also remained blind to this issue. The preamble of the basic law “On guaranteeing the rights and freedoms of citizens and on the legal regime on the temporarily occupied territory of Ukraine” mentions the protection of the rights of indigenous peoples in the temporarily occupied territory, but the content of this obligation is not addressed in-depth . The issue of protection of citizens’ rights in the temporarily occupied territories takes an important place in the National Human Rights Strategy, but again there is no provision concerning the Crimean Tatars as an indigenous people whose only homeland is the occupied territory of Crimea .
It is impossible to say that the problem is unknown to the legislator. Back in 2014, the Verkhovna Rada of Ukraine adopted the Law “On restoration of rights of persons deported on ethnic grounds”, which is apparently aimed primarily at restoring the rights of the Crimean Tatars. This law regulates certain measures that can be considered as the restoration of justice for the affected indigenous people, namely the recognition of the violation of the rights of representatives of indigenous peoples, compensation, measures to restore the rights of indigenous people . However, until the de-occupation of the territory of the ARC and Sevastopol, this law will remain declarative. Being hastily adopted in spring 2014, it appears to be a manifestation of a situational response to the occupation, rather than a thorough piece of legislation that would allow the rights of the Crimean Tatar people to be restored through the use of transitional justice mechanisms.
Currently it is possible to speak of a new stage in Ukraine’s efforts to apply the concept of transitional justice that has moved from forming an expert vision to the stage of development of specific action plans. Thus, in April 2018, a working group with the Offices of the Ombudsperson presented a draft law “On the principles of state policy for the protection of human rights in terms of overcoming the consequences of armed conflict” . This bill has absorbed many useful developments, but again has not paid due attention to the rights of the indigenous people of Crimea.
Finally, in 2019, the UHHRU presented a Roadmap for Transitional Justice for Ukrainian society in an armed conflict . This document points to the need to restore violated rights, but contains only a short reference to the need to draft legislation regulating the rights of indigenous peoples. Over the past year, the situation has not improved. As known from open sources, two new basic documents are being prepared: Concept of state policy of protection and restoration of human rights and fundamental freedoms in the conditions of the armed conflict in the territory of Ukraine and overcoming of its consequences; Strategy of deoccupation of Crimea.
No public information on these documents indicates that they take into account the need to implement special transitional justice measures for the Crimean Tatars.
The paradox of this situation is that both experts and the government are well aware of the special situation of Crimean Tatars, and that both historical and contemporary violations of the rights of Crimean Tatars cannot be considered solely as part of general human rights violations committed by the totalitarian regime of the past and the current occupation regime. Ukraine actively refers to the discrimination against Crimean Tatars and violations of the rights of Crimean Tatars as an ethnic group and indigenous people in its international lawfare against the aggressor. Suffice it to mention Ukraine’s lawsuit before the UN International Court of Justice and interstate complaints to the European Court of Human Rights. Similarly, the internal Ukrainian agenda regularly raises the issue of protecting the rights of Crimean Tatars as a special group distinct from all other citizens of Ukraine affected by the armed conflict and occupation. For example, it was the subject of parliamentary hearings on a strategy for the reintegration into Ukraine of the temporarily occupied territory of the Autonomous Republic of Crimea and the city of Sevastopol. However, the awareness of the problem did not lead to practical actions, and there are were no attempts to develop a meaningful strategy for transitional justice for the Crimean Tatars.
This situation is obviously acceptable. There is an urgent need to allocate transitional justice for the Crimean Tatar people in a separate direction within the framework of the relevant work carried out in Ukraine. 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.
Oleksii Plotnikov, PhD (International Judiciary)
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