Today, Ukraine is going through the most challenging winter since the end of World War II. And although russian aggressors still need to be driven out of our land, preparations for the de-occupation of temporarily occupied territories of Ukraine must begin already today. In particular, it is necessary to learn how to properly document cases of violence and human rights violations, return to civilian life, resolve property issues, restore historical truth, and prosecute for collaboration with the aggressor. These challenges and tasks are the focus of the project “Protection of human rights in the concept of transitional justice: the Ukrainian model” which was implemented with grant funding from the National Research Foundation of Ukraine by researchers of the Academician Stashis Scientific Research Institute for the Study of Crime Problems of the National Academy of Law Sciences of Ukraine and Kharkiv National University of Internal Affairs.

We asked members of the project group – Professor Vitalii Pashkov (PI), Professor Yurii Orlov, and researcher Sabriie Shramko – to talk about the project’s objectives and findings.

 

The researchers submitted their application to the Call “Science for the Recovery of Ukraine in the War and Post-War Periods” in the winter of 2023. As Vitalii Pashkov emphasizes, they were confident then (and remain confident today) that Ukrainian territories would be de-occupied. They understood that since the onset of the full-scale armed aggression, the level, scale, and nature of threats to human rights (including criminogenic threats) had changed, making it necessary to systematically analyze cases of mass human rights violations, to assess the consequences of these violations, and to identify the internal transformations within Ukrainian society. They also realized what actions should be taken today to prevent or minimize negative consequences.

Mechanisms of transitional justice are applied worldwide during the post-war transition or the transition from authoritarianism to democracy. The researchers analyzed this experience and conducted surveys among residents of frontline and de-occupied territories, militaries with combat experience, police officers working in these areas, representatives of local authorities, and internally displaced persons. “This work was necessary to understand the scale of the challenges, analyze them, and develop a comprehensive approach for addressing them”, explains Yurii Orlov.

According to the researcher, transitional justice has four key directions: prosecution; restoring historical truth (namely, the causes of the war); assistance to persons affected by russian aggression (compensation, restitution of property, and restoration of rights); and institutional reforms to build the capacity of the Ukrainian state and society to effectively respond to armed aggression in the future.

For each of these directions, the researchers sought to identify the main challenges and find solutions to reduce potential (predicted) criminogenic risks. They also aimed to assess the overall scale of the challenges, analyze them, and develop a comprehensive approach for addressing them.

For a Future Tribunal

“There is a huge demand in society for justice and criminal prosecution”, Professor Orlov continued. “At the same time, there is a fundamental difficulty, because we cannot bring the main perpetrators of this war – the military and political leadership of the russian federation – to justice (some of them enjoy immunity from criminal prosecution under international law). Unfortunately, the International Criminal Court is ineffective regarding this category of crimes, therefore we must put forward proposals for the establishment of an ad hoc international tribunal”.

The Ukrainian diplomatic corps is working hard, and certain agreements have already been reached. However, as Professor Orlov noted, so far these efforts regarding the establishment of the Special Tribunal for the Crime of Aggression against Ukraine have been undertaken under the aegis and at the level of the Council of Europe. If the tribunal were to have only a regional status, this could reduce the weight of its decisions in a global context. “Agreements must be concluded between states on different continents so that the future tribunal carries the same weight as the Nuremberg Trials of 1945–1946,” he stressed.

The issue of amnesty is also a key concern, in particular, for military officers who go AWOL (Absent Without Leave), leaving their military unit or place of service. Such cases are numerous. “What penalty may they face? Will it be possible to grant amnesty for those who went AWOL? After all, even physically, the penal institutions cannot accommodate the corresponding number of convicts”, the Professor pointed out.

Learning Lessons from the Past

An even more complex issue is establishing historical truth.

“We focused on the concept of small and large transitions,” Professor Orlov went on. “The small transition begins in 2014 and involves establishing the historical truth about the causes of the war, countering the falsified narratives promoted by the russian federation, and restoring the original meaning of terms. The large transition involves integrating this historical truth into our post-totalitarian transformation. This transformation is still ongoing”.

Historical truth is essential for understanding the broader context of the war, as some people fail to recognize that the russian federation continues practices of genocide and crimes against Ukrainians and cannot distinguish russian propaganda from reality.

As surveys have shown, nearly 10 percent of internally displaced persons place the blame for the war on Ukraine and do not consider the russian federation an aggressor. “Ukraine does not punish people for their thoughts and beliefs; they are our citizens”, emphasized Yurii Orlov. “On the de-occupied territories, after prolonged propaganda by the russian media, there are people like this. And the same applies to temporarily occupied territories. We cannot treat them as criminals. These are our socio-cultural fault lines. We need non-repressive ways to communicate historical truth and foster mutual understanding”.

Establishing the historical truth and promoting broad social dialogue are among the ways to restore trust in the Ukrainian state. This is long-term work, and the research findings provide an opportunity to begin addressing this issue systematically.

And, of course, people affected by the war must receive fair compensation. This requires documenting the damage, establishing special funds to compensate for losses, and thus restoring not only citizens’ property rights but also trust in the state.

Being Prepared

Another part of the research concerns institutional reforms aimed at preventing the recurrence of attack. “I am convinced that as long as the russian federation and its fascist regime exist, Ukraine will remain under threat”, says Yurii Orlov. “If we enter a state of peace, we must already prepare for defense”.

The surveys conducted by the researchers covered all regions of the country. Military administrations, city councils, specialists from the Ministry of Internal Affairs of Ukraine, the Main Directorates of the Ministry of Internal Affairs of Ukraine, and the National Police of Ukraine assisted in distributing the questionnaires. “We asked about lustration, elections in de-occupied territories, the criminogenic situation after de-occupation, and more. We aimed to achieve practical results and make our project socially useful. I am convinced that we succeeded”, told researcher Sabriie Shramko.

Based on the survey results, the researchers developed four draft laws, which were submitted to the Verkhovna Rada of Ukraine. For example, the Draft Law “On the Principles of State Policy of the Transition Period” defines the objectives of this policy, its implementation principles, and provides for the establishment of a Truth commission.

Draft amendments to the Criminal Code of Ukraine were also developed to improve criminal liability for certain crimes against the foundations of national security. The researchers proposed a list of critically important public services, the provision of which in temporarily occupied territories should not be considered a crime (for example, water system repair, medical services, etc.).

Amendments to the Law of Ukraine “On Amnesty in Ukraine” were also proposed, specifying criteria under which amnesty may or may not be applied.

Guidelines for the population were also developed and distributed.

“These materials relate to compensation for losses caused by russian aggression – how to act, where to turn. Military administrations distributed them, and these guidelines are now available on the websites of territorial communities”, added the researcher.

The researchers also developed a guidelines for police officers on interacting with residents of de-occupied territories and working with victims of various crimes.

Guidelines for the military were developed for preserving evidence of crimes committed by occupiers. “Of course, only authorized law enforcement agencies and special experts can collect such evidence, but the military are the first to enter de-occupied territories and must understand how to preserve evidence of crimes”, explained Sabriie Shramko.

“About Us, About Me, About Ukrainians”

We asked the project group members why this research is important to them personally.

“I am from Kherson and have worked in Kharkiv for a long time. Many of my friends and colleagues live in de-occupied territories. That is why this research is about us, about me, about Ukrainians”, explains Yurii Orlov.

“I am a Crimean Tatar, and for me this project is about what happened in 2014”, explains Sabriie Shramko. “Our research did not cover reintegration of these territories, but the questions of historical truth and all conflict-prone situations I experienced personally as a Crimean. I believe Crimea will return to Ukraine, and we must be prepared for that”.

“I am also from Crimea, and this project is very personal for me”, answered Professor Vitalii Pashkov, the PI. “My parents died after the beginning of the full-scale invasion, and I didn’t get a chance to say farewell to them… I share the results and guidelines of the project with colleagues abroad. I am glad to have the opportunity to convey important messages based on reliable data. I hope these results will be useful at the local, national, and international levels”.

 

Interviewed by Svitlana GALATA