What is transitional justice and why is it needed?
During dictatorships or armed conflicts, parties often violate human rights. The task of transitional justice is to overcome the consequences of these violations, that is, to ensure comprehensive justice and build a sustainable peace.
Transitional justice mechanisms include the classic criminal process, initiatives to establish justice, urgent reparations for victims, and lustration of officials involved in crimes. Reforms of key institutions — security, law enforcement, judicial, and academic — are also important to strengthen democracy and ensure guarantees of non-repetition.
The practice of transitional justice began in the late 1980s and early 1990s in Latin American countries. The most famous examples are Argentina and Chile, where democracies came to power after long years of dictatorship. Elements of transitional justice were used in South Africa, when the apartheid regime ended, Nelson Mandela was released, and a truth commission was established.
Another example is East Timor. It is very relevant for Ukraine, because the crimes and human rights violations there are connected with the occupation by Indonesia. And even if most historical examples are internal conflicts, the toolkit remains relevant for international conflict as well.
After the fall of apartheid, a Truth Commission was established in South Africa. Victims and witnesses spoke there, and the guilty could confess to their crimes and receive amnesty. In the pic: a pathologist testifies about the wounds she found on the body of a murdered teenager.
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You said that East Timor is relevant for Ukraine, because there was also an international conflict and occupation there. Letʼs talk about that a little more. What happened there?
Indonesia was a colony of the Netherlands until 1945. And East Timor was a colony of Portugal until 1975. When East Timor declared independence, Indonesia occupied it. The occupiers committed terrible crimes against the local population.
Only in 1999, when the regime in Indonesia changed and, under pressure from world leaders, it agreed to a referendum in East Timor, did the people vote for independence. This caused clashes, and the pro-Indonesian police began to terrorize. The UN had to send in peacekeepers. So only in 2002 did East Timor become an independent state.
Now about transitional justice. There were criminal trials. In 2000, a hybrid tribunal was created — the Special Panels for Serious Crimes in East Timor. In 2001, Indonesia launched an ad hoc human rights tribunal, which tried crimes committed in East Timor. Truth-finding mechanisms were also launched: a Truth and Reconciliation Commission was created in East Timor, and a few years later a joint Truth and Friendship Commission between Indonesia and East Timor appeared.
The Indonesian authorities acknowledged the crimes they committed in the occupied territories, although their courts have been criticized more than once for not all perpetrators being actually punished.
In general, we can say that during the investigations, they did not focus much on sexual and gender-based violence, did not prioritize particularly vulnerable victims, such as women and children, and did not give them the right to influence certain decisions themselves.
There were indeed many problems, but this is an experience for us, and it proves that transitional justice applies not only to internal armed conflicts.
Some East Timorese citizens have opposed the joint Truth Commission with Indonesia. They have held rallies and called on the government to punish former Indonesian President Suharto and his generals at an international tribunal.
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All the examples you gave are from other continents — they relate to completely different societies. Are there any examples that are closer to Ukraine?
World experts say that Central and Eastern Europe also formed an understanding of transitional justice when the countries of the former Warsaw Pact were undergoing transformations. These are the former Czechoslovakia, Poland, Romania, Hungary, Albania. These were mostly mass lustration processes for them.
They did not always take place with due process and guarantees of a fair trial for the person they wanted to lustrate. Another element of transitional justice is access to state archives, for example, the opening of the Stasi archives after the unification of Germany.
In general, Germany went through transitional justice in two stages. The first was after World War II, when at the national level they continued to hold national trials of German judges, academics, and civil servants who made the existence of the Nazi regime and its crimes possible. The second stage was after the fall of the Berlin Wall and the reunification of Germany: the opening of the Stasi archives, the prosecution of the perpetrators, etc.
The fall of the Berlin Wall in 1998 allowed the archives of the Stasi, the East German secret service that monitored every move of Germans, to be opened. Stasi agents were tried for human rights violations. In the photo: A victim from West Berlin tells how the Stasi lured him to East Berlin in 1977, and then he was sentenced to 15 years in prison for alleged human trafficking.
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To some extent, Ukraine also went through such processes in the 1990s and early 2000s, albeit not perfectly, but then they adopted legislation on memory, on Nazi and Soviet symbols. With the Revolution of Dignity, we also made not only a transition, but also the establishment of democracy, and we managed to preserve it, despite the challenges of Russian aggression.
We have a completely institutional framework, we have a working government, prosecutorʼs offices and ministries. And, above all, we have a super-active civil society. Already after the beginning of Russian aggression in Crimea and Donbas, we created associations of victims.
The number of such organizations of victims and their proactivity in advocacy processes in Ukraine and abroad after 2022 only increased. Vivid examples are organizations of victims of sexual violence during the armed conflict: the womenʼs network "SEMA Ukraine", the network "Alumni", which unites men who survived torture, and the CRSV.
And these organizations are already participating in the implementation of elements of transitional justice in Ukraine. For example, individual interim reparations, memorialization programs, initiatives to support civilian and military prisoners, and adaptation of the criminal process and other justice processes to the needs of victims and witnesses.
SEMA participants share their experiences of sexual violence through photo exhibitions.
SEMA Ukraine
And what useful experiences should Ukraine learn from?
We can also learn a lot from the experience of the 50-year armed conflict in Colombia. For example, they created the Special Jurisdiction for Peace in Colombia (JEP).
In fact, it solves the same issues that the Ukrainian prosecutorʼs office faces: what to do when there are thousands of documented crimes? How to investigate them effectively?
They created macro cases that show key patterns of crimes, prioritize investigations not only of CRSV, but also work with reproductive violence, which is often ignored.
You say the Colombian example is successful. How do you measure that?
The Office of the Prosecutor of the International Criminal Court closed its preliminary examination of the situation in Colombia because it recognized that the Colombian process in the Special Jurisdiction for Peace is comprehensive and effective. But if they see a setback, they may reopen the investigation into Colombia.
The Special Jurisdiction for Peace and the Attorney Generalʼs Office of Colombia jointly examined the remains of victims of the armed conflict and then handed them over to relatives for burial.
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And what is the relationship between the work of this Special Jurisdiction and the activities of the Colombian Prosecutorʼs Office?
The Special Jurisdiction for Peace is considered the most progressive and new transitional justice mechanism created at the national level, because it combines all the elements.
It carries out investigative functions, it has a unit that deals with amnesties, there is a unit whose task is to establish the truth, there is a unit that deals with recommendations for finding missing persons. And all these units interact. This is an important example of how the criminal process is not separated from transitional justice.
It is also important for us to take into account the experience of Latin America, especially in the event that we are again offered to introduce an amnesty for Russian criminals. After the regime change or the end of the war, most Latin American countries — Argentina, Chile, Peru, Colombia — wanted to hold criminal trials.
But then it turned out that the people who were removed from power still had a strong influence. It also turned out that, for example, in Colombia, criminal trials against servicemen of the official army were less proactive than trials against their opponents — armed groups.
Therefore, many countries then initiated amnesties at the national level. That is, the new authorities were looking for a compromise in this way. They hoped to hold some of the trials, and to guarantee other former officials that they would be protected by an amnesty, and thus calm them down. For example, this is exactly what happened with the Pinochet regime.
Chilean dictator Augusto Pinochet was detained in the UK on a warrant from a Spanish judge. But due to his health, he was released back to Chile. There, he was charged with no fewer than 300 crimes. Pinochet did not live to see his sentence.
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Therefore, when someone now suggests that Ukraine grant amnesty to Russians to appease them, we should remember the experience of Latin America. By the way, the Inter-American Court of Human Rights, Constitutional and National Courts in various Latin American countries have recognized amnesties as contrary to international law, because there can be no amnesty for international crimes.
Transitional justice consists of four key elements: punishment of perpetrators, establishing the truth, reparations, guarantees of non-repetition, and memorialization. Is there any sequence as to which elements should be applied first or which are more important?
The UN has a special rapporteur with a very long mandate — “on justice, reparations, truth and guarantees of non-repetition”. In fact, this is all that we call “transitional justice”.
The first person appointed to this position was Pablo de Greif (he is now a member of the UN Commission of Inquiry on Ukraine; read Babel’s interview with him here). In none of his reports did he, as a special rapporteur, say that any one of these elements would ensure full support for victims.
That is, all the elements you mentioned should work, and there should also be interaction between them. No report says that criminal proceedings should be initiated first, reparations after that, and memorialization even later, for example. It depends on the specific context.
The only thing he insisted on in his reports was a completely victim-centered approach. For example, it states that reparations should be provided as early as possible.
And now Ukraine is doing it, because we have introduced urgent interim reparations for victims of CRSV. This category of victims has a different level of challenges and trauma: from the need to terminate a pregnancy after being raped by Russian soldiers to health support, because there are urological and gynecological problems after captivity or occupation.
It is very important that this reparations program is available to all victims of Russian aggression since 2014, and not only after the full-scale invasion. Yes, there are problems with financing the pilot program of these reparations.
And it definitely needs to be expanded to other victims — from torture, enforced disappearances, medical experiments. But the vector is undoubtedly correct: victims of especially grave international crimes should have urgent support that is not tied to the end of hostilities or any other political or geopolitical considerations.
The village of Pisky-Radkivski near Izyum was liberated in the fall of 2022. After the de-occupation, it became known that at least six people were held by the Russians in the basement of a house that was used as a command center. People were beaten and tortured. In the pic: one of the victims gives a statement to the police.
Getty Images / «Babel'»
When I talked about transitional justice with a psychologist, she said that Russia never became a healthy society after World War II, even though they turned memorialization into a cult there.
Russia has never had a comprehensive and critical memorialization. It supports the aggressive propaganda of a one-sided memory policy. The Criminal Code of the Russian Federation punishes not only the so-called alternative interpretation of the events of, as they call it, the Great Patriotic War. The Russians criminalize alternative opinions regarding the Nuremberg Trials.
And when Russia banned Instagram at the beginning of the full-scale invasion, they referred, in particular, to the fact that Ukraine and its partners were distorting the history of World War II, distorting the conclusions of the Nuremberg Trials and the values of the Convention on the Prohibition of Genocide.
In addition, Russia did not investigate the crimes of the Soviet Army. And mentions of them fall under the article of the Criminal Code of the Russian Federation on “alternative interpretation of history”. For example, books by the British historian Anthony Beevor, who wrote a lot about mass rapes and other crimes of the Soviet Army, are banned in Russia.
Working with the truth means that we will have to talk not only about the crimes of the Russians, but also about the crimes of the Ukrainian military, if there were any. For example, the UN Commission of Inquiry on Ukraine and the UN Human Rights Monitoring Mission write in their reports about two alleged violations by the Ukrainian side.
The first is the treatment of Russian military personnel during detention and transportation to the place of detention. We understand that this is happening on the battlefield, so after all, this is a very emotional and stressful process. We can only imagine the state of our military personnel at this time.
The second violation, which both institutions write about, is, of course, the attitude towards alleged collaborators. Both within the framework of the so-called lynching and within the framework of more official processes.
I hope that future truth-establishing mechanisms will be competent and will show that the number of such violations by Ukraine is very small, compared to the Russian side. But yes, the approach must be comprehensive. And I am almost certain that Russia will challenge and try to discredit absolutely all narratives and conclusions that will emerge from such mechanisms.
The Russians continue to exploit the theme of victory in the "Great Patriotic War", hold parades, but now they are also adding the symbolism of aggression against Ukraine.
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Therefore, a parallel with the former Yugoslavia is called for here. Or rather, with the behavior of Serbia and its proxy in Bosnia and Herzegovina — the Republika Srpska. They do not recognize the conclusions of the International Tribunal for the Former Yugoslavia. They hang photos of criminals recognized by the tribunal on boards with captions that they are heroes... Russia will behave in the same way. How in this case can we satisfy the demand of Ukrainians for justice and the establishment of the truth?
It should be understood that the tribunals for Yugoslavia and Rwanda were the first special tribunals after Nuremberg. They operated very slowly, they had nothing to rely on in terms of practice and experience.
Unlike the International Criminal Court, for example, they did not involve victims as a separate party in the process, they did not award reparations. They had a relationship with the special chambers that investigated international crimes at the national level.
Secondly, when the processes began in the mid-1990s regarding the former Yugoslavia, there was no such global practice as paying reparations before the end of the armed conflict.
The larger our domestic justice component, the better. And one more thing: in all mechanisms, including international ones, at all levels, Ukrainians and specialists with a deep understanding of the Ukrainian and regional context should work.
This applies to investigations, reparations programs, the Aggression Tribunal, and the Register of Damages. Unfortunately, there was no such equal inclusion of national specialists in Yugoslavia and Rwanda.
Serbian General Ratko Mladic has been found guilty of war crimes by numerous courts and tribunals, but he is still considered a national hero in Serbia. His portrait can be seen on buildings in Belgrade and other Serbian cities.
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You say that reparations should be paid now. There was a not very successful experience in Sierra Leone, when reparations were paid only to certain categories of victims, and the money was still not enough for everyone. This created a feeling of injustice among the victims.
As for Sierra Leone, most of the money went to the Special Court, which punished the most serious criminals. There was also a Truth Commission, which analyzed the conflict more comprehensively and provided specific recommendations on reparations and institutional reforms.
But, firstly, the Commission was catastrophically underfunded, and secondly, both mechanisms could be more effective if they interacted more. By the way, this experience was taken into account by Colombia, where, as I already said, there was interaction between the criminal process and the establishment of the truth.
As for reparations, yes, they were not fair, because most of the money went to the Special Court. And this is also a question for us, because at the moment the Tribunal for the Punishment of the Crime of Aggression will not be able to detain Putin, Lavrov or Mishustin — they have immunity.
The question is whether victims in Ukraine are ready to see large investments in this important mechanism at a time when the development of national reparations programs or support for the Register of Damages is proceeding more slowly.
Letʼs talk about collaborators. The criminal article on collaborationism is too harsh now. What transitional justice tools might work best in dealing with collaborators? Truth commissions where people would share experiences?
It doesnʼt have to be a truth commission. It could be a parliamentary inquiry, it could be a parliamentary temporary investigative commission. And ideally, the final report should be public. Because there is a negative example when in El Salvador or Haiti the truth-finding process was closed, it was led mostly by foreigners. These commissions did not bring the desired result.
The worldʼs first full-fledged truth commission (CONADEP) was operating in Argentina. At the time, the announcement of the operative part of its report was broadcast on television, and everyone watched — everyone wanted to know what had happened.
During its work, it is important that the commission does not name the names of the alleged perpetrators, but is able to establish how the collaborators were recruited, how their families were pressured, what methods of torture were used. It is clear that we all want to "expose" the enemy. But even in the most difficult situations, we must remember the principle of the rule of law.
And another important point: if Ukraine begins to qualitatively establish the truth about the ongoing aggression, which is enshrined in the imperial practices of Russia and the Soviet Union, it will thereby actually begin the process of transitional justice for Russia and Belarus.
Belarusians tried to achieve democratic changes in 2020, but they failed. We do not have to establish the truth for Belarusians and Russians or do anything for them.
But it is worth convincing our partners and skeptics that if Ukraine manages to collect facts about crimes and the intent to destroy it as a nation, Belarusian and Russian society will not be able to ignore it. And when they transition from autocracies to democracies, they will be able to base themselves on the conclusions and processes that Ukraine will launch.
Kateryna Busol near the UN office in Geneva.