Oleksii Plotnikov, PhD (international judiciary)

Transitional justice is always a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation [11]. Work with the past is in all cases in the heart of transitional justice. Alongside with the establishment of facts, investigation of violations, identification of perpetrators, and compensations to victims, there is always a question of society’s attitude to the past atrocities. It is not for nothing that transitional justice is referred to as the law of troubled societies [11], which cannot continue to exist until a certain historical situation is cognized and assessed.

Such an understanding occurs not only on the legal, but also on the philosophical, historical and symbolic level. Of all the manifestations of transitional justice, such work with awareness of the past is the least definite and the longest. It is impossible to determine exactly the moment of its beginning and end, indicators that would indicate the completion or achievement of intermediate goals. Thus, in Spain there is still a debate about the civil war of 1936-1939 and the role of Franco in Spanish history. In the United States, the discussion about slavery as part of American history is far from being completed. More examples can be added which demonstrate, that that large-scale and tragic historical events give rise to a whirlwind of ideas that become part of society’s self-awareness and its historical memory.

The UN Special Rapporteur on Cultural Rights notes that periods of conflict and repression should be followed by an active memorial policy, which is a tool to ensure recognition as a form of compensation for victims of massive and grave human rights violations and an important guarantee of non-recurrence. In particular, indigenous peoples should be given the opportunity be provided with a symbolic acknowledgement of genocide or other violations in the past, as well as recognition of their contribution to the society [9].

Simultaneously, in contrast to legal issues, in which a single qualification of certain events and actions is possible, as well as a clear definition of violators and victims, in the symbolic field any actions will inevitably be evaluative, and such evaluation itself may give rise to new conflict. Moreover, differences can arise not only in the interpretation of the facts, but also in the facts themselves, even when such facts are established through special mechanisms, such as truth commissions and recognized by all parties to the past conflict [3]. A well-known example is the assessment of the Katyn tragedy, for which, even after the disclosure of documents and the admission of guilt of the USSR, there are allegations of falsity of clearly and unambiguously established facts and fabrication of evidence.

In any case, the policy of symbols and memory should be aimed at recognizing and protecting the interests of victims of violations, but it is in these interests that attention must be paid to recognition of this policy by all or the majority of the society. It is crucial to build a transitional justice strategy in the symbolic-memorial plane in such a way that it affirms the common belief in the inadmissibility of repetition of atrocities, belief in human rights, and the need to move forward on the basis of justice and mutual respect [4].

It seems that any policy of symbols and memory within the framework of the transitional justice mechanism should be completed with the creation of an undisputed version of the past, acceptable for the vast majority of the society. However, how can this be achieved without creating grounds for a new conflict? The experience of countries that have overcome the consequences of indigenous human rights violations in the past shows a number of possible solutions that can provoke an active public debate leading to a dialogue, without creating active resentment in certain groups. For example, in Brazil, the Clínicas do Testemunho project is being implemented, which simultaneously collects stories of victims who choose to share their experiences, provides psychological assistance and assistance to victims, and obtains new information about past events. The collected stories are better perceived by society due to their personal nature. Showing the past from different angles, they do not cause deep controversy [11]. In addition, this approach enables distancing from a state-centric approach and seeing violations from a human perspective. This can be combined with support for local initiatives to symbolically honor past events and build a collective memory of individual places and objects [6].

For the transitional justice for indigenous peoples affected by colonial policies, displacement policies and genocide, it is also important to symbolically restore ties between these peoples and their lands, as well as important objects for the people. Traditionally, renamings are used by a dominant national or social group to symbolically appropriate the lands and property of the indigenous people. Therefore, the return of traditional names becomes an important part of transitional justice policies, which contributes to the restoration of justice [8].

All the elements of the symbolic dimenstion of transitional justice are combined in the construction of collective memory. No person, even eyewitness, is able to have a personal idea of the past. The picture of the past is always the result of the memories of many people, which, over time, remain only in the form of recorded testimonies and documents. Therefore, the idea of the past should be considered as an image that exists in the minds of many people and is formed through collective efforts to know the past. This image is called collective memory [7]. Unlike personal memories, which are formed independently of the will of the individual, the formation of collective memory is the result of collective efforts. Creating a collective memory must be the long-term outcome of any transitional justice strategy.

Ukraine has taken some important steps in the symbolic field regarding the indigenous peoples of Crimea. One cannot but welcome the return of historical names to some settlements in the Crimea [2], and the discussion of historical names of other settlements [5]. Recognition of the deportation of Crimean Tatars as genocide and establishment of a Day of remembrance of this tragedy was an absolutely necessary and long-expected step [1]. These measures, however, remain half-hearted. Thus, the return of historical names in the Crimea is part of a nationwide process of decommunization, and it does not take into account all duties to restore the Crimean Tatar toponymys as such. No significant efforts have been made to commemorate the genocide of the Krymchaks. Much work is being done to collect testimonies from victims of human rights abuses, both in the past and in the present, but the question of forming a collective memory that would unite all the residents of Crimea remains unclear. Therefore, it should be concluded that the symbolic dimension of transitional justice for the indigenous peoples of Crimea in Ukraine has been initiated, but it needs further active and systematic work.

1. Про визнання геноциду кримськотатарського народу. Постанова Верховної Ради україни від 12.11.2015 № 792-VIII. URL: https://zakon.rada.gov.ua/laws/show/792-19#Text.

2. Про перейменування окремих населених пунктів та районів Автономної Республіки Крим та міста Севастополя. Постанова Верховної Ради України від 12.05.2016 № 1352-VIII.

3. Brants C. Transitional Justice: History-Telling, Collective Memory, and the Victim-Witness. International Journal of Conflict and Violence. 2013. No. 7. P. 36-49.

4. Brown K. Commemoration as Symbolic Reparation: New Narratives or Spaces of Conflict?. Human rights Review.2013. No 14. P. 273-289.

5. http://mip.gov.ua/files/foto/big_map_crt.jpeg.

6. International Center for Transitional Justice. Holding a Mirror to Society: Acknowledgment and the Struggle for Indigenous Peoples Rights. URL: https://www.ictj.org/news/holding-mirror-society-acknowledgment-and-struggle-indigenous-peoples-rights.

7. Koval D. The Eleventh Dimension of the International Criminal Courts: Collective Memory and Social Systems. Post-Conflict Justice in Ukraine: Materials of the Conference. Kyiv, Ukraine 26–27 May 2017. P. 9-11.

8. Mona A. Conceptualizing Indigenous Historical Justice Toward a Mutual Recognition with State in Taiwan. Washington International Law Journal, 2019, Vol. 28. P. 653-676.

9. Report of the Special Rapporteur in the field of cultural rights, Farida Shaheed. Memorialization processes. A/HRC/25/49. URL: https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session25/Documents/A_HRC_25_49_ENG.DOC.

10. Transitional Justice in Troubled Societies. Ed. by A. Fatić, K. Bachmann, I. Lyubashenko. Rowman & Littlefield International, 2020.

11. United Nations Approach to Transitional Justice: Guidance Note of the Secretary General. United Nations, 2010. URL: https://www.un.org/ruleoflaw/files/TJ_Guidance_Note_March_2010FINAL.pdf.

12. Vital-Brasil V. An ethical and aesthetic challenge: symbolic reparation and the construction of memory. Torture. 2017. No. 27. P. 70-83.