Thursday, December 1, 2022

Gyunduz Mamedov: From victory to peace through legal means

by Gyunduz MamedovJuly 24, 2022 11:07 pm

Gyunduz Mamedov: From victory to peace through legal meansWork continues in the village of Stoyanka near Kyiv, on May 23, to restore a bridge over the Irpin River that was destroyed on Feb. 25 to stop the Russian army's offensive.

Editor’s Note: The opinions expressed in the op-ed section are those of the authors. They do not purport to reflect the opinions of the Kyiv Independent.

Ukraine has faced armed military aggression from Russia for eight years, but this should not prevent us from thinking about the restoration of peace. 

Soon, the reintegration of the temporarily occupied territories, as well as the struggle toward a new Ukraine, will be on the agenda. Russia will not disappear as Ukraine’s neighbor, so we must look to change the way it is governed and condemn its aggression from both within and outside Russia. 

To achieve this, it is necessary to outline a clear “roadmap” for the rebuilding of the Ukrainian nation, the peaceful coexistence of Ukraine and Russia, and Russia’s transition from autocracy to democracy and from war to peace with Ukraine.

Achieving legal clarity

Following the liberation of the temporarily occupied territories, Ukrainians living there must be reintegrated into Ukrainian society. For this purpose, it is critical that those living there do not fear reintegration, but support it. This task proves challenging due to the extensive propaganda by Russia and its proxies in these regions.

Ukraine must make clear that regular citizens in the temporarily occupied territories will not face repercussions, as well as clarify the grounds on which one may face consequences. Are those who worked in the occupying administrations or who maintained community infrastructure guilty? Or those who were given arms but did not kill anybody? How and who will conduct the investigations and ascribe punishment?

Ukraine must achieve comprehensive legal clarity on these issues. 

Coexistence between Ukraine, Russia, and Belarus 

When the war ends, conditions for the peaceful coexistence of Ukraine, Russia, and Belarus will be at the top of the agenda. 

Recent polls indicate that most Russians in the country support the ongoing war against Ukraine. At the same time, 92% of Ukrainians hold negative attitudes towards Russia. It is difficult to imagine reconciliation under such circumstances. Peaceful coexistence will depend on policymakers, both present and future, as well as on the readiness of civil society to learn the necessary lessons. 

On the path towards reconciliation, similar questions arise. Are all Russians guilty of the atrocities committed in Ukraine without exception? If not, who is guilty and what repercussions will they face? These questions must be answered in legal terms.

Such questions also apply to Belarus which, despite not directly engaging in Russia’s war in Ukraine, has allowed its territory to serve as a bridgehead for Russian aggression.

Transforming Russia and Belarus

The idea that, as a result of the war, Russia and Belarus will undergo irreversible political changes and transition towards democracy has gained popularity. This result is a possibility, but it is not guaranteed. 

This transformation will be challenging, but the success of this process will affect the likelihood of another war. It is important that mechanisms of legal responsibility and the identification of those responsible for Russia’s war in Ukraine be developed now. 

Mechanisms of lustration should be developed and the truth about Russian President Vladimir Putin’s regime, as well as other leaders, should be revealed. This will require returning to the past, as even Russia’s role in the wars in Chechnya and Afghanistan has not been properly addressed. The answers to such questions should be developed on an international platform with the participation of Russian and Belarusian civil society.

It is extremely important that the implementation of such change not be entrusted to these countries’ authorities. As practice has shown, these authorities are not able to transform themselves and reform will be reduced to a farce.

Defining transitional justice

The questions posed so far can be answered to some extent by the concept of transitional justice, a set of processes in international law that address large-scale human rights violations that have occurred in a military conflict. 

The main elements of transitional justice include the right to credible information about crimes committed during a conflict; the right to justice, including legal measures to prevent impunity and the public condemnation of crimes; the restoration of trust in justice and between formerly hostile parties; and, the right to compensation and guarantees of non-repetition of crimes. 

The success of transitional justice is determined by several factors, including the transparency and impartiality of authorities tasked with establishing justice, urgency, unity in approaches to the qualification of crimes and definition of responsibility, and ending the process in either fair sentences or amnesty.

Transitional justice will also be useful for Ukraine when it regains control of its temporarily occupied territories. 

Historical examples of transitional justice

History holds many examples of the restoration of peace and justice following armed military conflict, including post-World War II Germany, Bosnia and Herzegovina, and Colombia. These countries’ post-war experiences serve as important examples from which Ukraine may learn. 

Transitional justice in Germany was based on the perpetrators’ full admission of guilt, albeit through the total military defeat and occupation of Germany by the Allied powers, and the payment of reparations. For Ukraine, this process is an example of how to properly employ international support and rebuild a strong economy as a powerful mechanism for reintegration. For Russia, it demonstrates that institutional change and development can be achieved through the full admission of guilt on an institutional and individual level.

Unlike in Germany, Bosnia and Herzegovina (BiH) did not clearly define who was guilty and for what, thereby complicating the post-war transformation of political institutions across all parties involved. The dominant messaging in BiH was to “punish the guilty,” rather than to “establish the truth.”

The “hybrid” nature through which justice was served is also important to note. Like in Ukraine, the first war criminal hearings took place amid ongoing armed conflict. This caused controversy, as objectivity and indisputable evidence are difficult to procure in a war. An International Tribunal was established in 1993 under the auspices of the United Nations to help prosecute war crimes, delegating some of the rulings to national courts.

The example provided by BiH is useful for Ukraine to consider, as the combination of national and international mechanisms of justice will help guarantee the objectivity of proceedings. Ukraine already has over 15,000 registered proceedings and it is not feasible for us to investigate so many cases on our own. 

Transitional justice in Colombia during the 1964 conflict came with a peace agreement in 2016 between the Colombian government and the leaders of the Revolutionary Armed Forces of Colombia (FARC), the largest involved insurgent group. 

In 2016, Colombia approved an amnesty law shielding the FARC from being prosecuted for minor crimes, forming a legal basis for the reintegration of insurgents into society. However, this crucially did not apply to those that committed war crimes and crimes against humanity – a special tribunal was set up to investigate their crimes. Colombia has also created a registry of victims to whom reparations are paid. As a result, most of the rebels involved in the conflict laid down their weapons and relocated to designated reintegration zones and ongoing initiatives are dedicated to the social reintegration of insurgents.  

While Ukraine’s post-war experience is unlikely to reflect that of any of these countries in their entirety, they provide valuable examples that must be studied. 

Another transition: dismantling corruption 

The issue of dismantling corruption in Ukraine has been at the forefront of conversation in recent decades. While widespread corruption in Russia has thankfully prevented its army from succeeding in its aggression towards Ukraine, we must take care to ensure that Ukraine’s defense capabilities and the country’s reconstruction do not suffer for the same reason.

Corruption is a legacy stemming from the Soviet Union – one in which the citizen is a servant to the state, as opposed to the reverse. The elimination of corruption will constitute a final farewell to the USSR’s totalitarian legacy, and Ukraine must complete the transition towards transparency democracy and a competitive market. 

This transition will require the use of mechanisms of transitional justice, namely: condemning corruption as a means of oppression; recognizing corruption as a consequence of authoritarian rule and a threat to Ukraine’s national security; prosecuting those found guilty of corruption and granting amnesty for petty acts of corruption; eliminating compromised institutions and constructing new ones.

In addition to these steps, incentives for whistleblowers, as well as their protection, is necessary. Temptation toward corruption should be reduced through increased transparency of institutions and elections. Unfortunately, this is a long-standing Ukrainian political tradition.

Dismantling corruption can be achieved through the privatization of multifunctional state monopolies. Those that cannot be privatized should be broken into separate, monofunctional entities. The guidance of North America and the EU in this sense should be utilized, at least for a while. Foreign enterprises trust the practices of their home countries. 

The application of foreign jurisprudence does not, for the time being, constitute a loss of sovereignty. On the contrary, it creates greater financial capacity for Ukraine and its defense capabilities. It is important to introduce the widespread use of arbitration to resolve commercial disputes.

Gyunduz Mamedov
Gyunduz Mamedov

Gyunduz Mamedov (Twitter: @MamedovGyunduz) is a Ukrainian expert on international and Ukrainian national criminal law, PhD of law. Deputy Prosecutor General of Ukraine in 2019-2021. The founder of the specialized direction for the investigation of international crimes within the Prosecutor‘s Office of Ukraine. During full-scale Russian aggression, he became one of the initiators and co-founders of the NGOs coalition on documenting war crimes Ukraine 5AM (@Ukraine5am). He is the author and lobbyist of the hybrid justice mechanism model (national jurisdiction with international professionals) for Ukraine.

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