For more than a decade, Russia has systematically violated the rights of Ukrainians in the territory of the Autonomous Republic of Crimea and in the temporarily occupied areas of Eastern and Southern Ukraine. Its international obligations to protect the rights of civilians in occupied territories remain unfulfilled. The restoration of citizens’ rights is only possible if the root causes of the conflict are identified and the crimes committed are fully investigated. This is precisely the role of a well-developed concept of transitional justice.
Transitional justice must take into account the post-war condition of the state and society and should involve comprehensive legislative reform to regulate all processes aimed at restoring justice and protecting human rights. The urgency of enshrining this concept in legislation stems from the risk of an overwhelming backlog of cases, which could severely overload the justice system and lead to unreasonably lengthy procedures for the restoration of victims’ rights. To avoid such an outcome and to respond effectively to the challenges of the post-war period, a holistic approach is essential. This includes both reforming the legal framework governing law enforcement and judicial institutions in line with the principles of transitional justice and initiating the review of cases concerning the restoration of rights and freedoms, already at this stage, to prevent the justice system from being overloaded in the future.
What Is Transitional Justice?
Transitional justice refers to the processes and mechanisms designed to address the consequences of large-scale conflicts, repression, and human rights violations — with the goal of ensuring accountability, delivering justice, and achieving both fairness and historical truth. Its overarching aim is to guide a society’s transition from a state of conflict — in which national justice and law enforcement systems are dysfunctional and human rights are systematically violated — to a state of peace and stability, where citizens’ rights are restored, and institutions are reformed to prevent future conflicts.
Transitional justice can be implemented through both judicial and non-judicial means. These may include accountability initiatives, reparations, truth-seeking efforts The concept of ‘truth-seeking’ means ensuring people’s right to know 1) why the conflict started, 2) who committed what crimes during the conflict, 3) how their loved ones died, 4) how, by whom and what decisions were made during the conflict, and 5) what was the nature of the conflict and what needs to be done to avoid its recurrence. , institutional reform, and measures to prevent future violations.
What Are the Foundations of Transitional Justice?
In 1997, L. Joinet Louis Joinet was a member of the Human Rights Sub-Commission on Prevention of Discrimination and Protection of Minorities, a mandate he held for 17 years. In addition, he participated in the creation of the Working Group against Arbitrary Detention at the former Commission on Human Rights (now the Human Rights Council). In 1988, he drafted the first declaration to the UN Convention against Enforced Disappearances in the Sub-Commission on Prevention of Discrimination and Protection of Minorities. presented a report to the UN Commission on Human Rights, in which he outlined a list of 42 principles for preventing impunity for those who had violated human rights. These principles were divided into four categories: (1) the right to truth; (2) the right to justice; (3) the right to reparations; and (4) guarantees of non-repetition.
To ensure the protection of human rights, the following are necessary: 1) access to justice for all citizens, especially those belonging to particularly vulnerable groups; 2) reform of the existing system (the judiciary, the police, etc.) and the establishment of new independent bodies to investigate crimes and violations, with maximum involvement of victims and civil society (in particular, truth commissions); 3) adoption of a strategy aimed at the comprehensive implementation of transitional justice at all levels of the state, and amendments to legislative acts; 4) reparations in the context of human rights violations (both material and non-material).
Transitional Justice in Ukraine Before the Full-Scale War
Transitional justice became an important topic in the context of human rights violations against Ukrainian citizens starting in 2014. However, a substantive discussion initiated by civil society organisations only began in 2016, and in 2017, the development of a draft law “On the Fundamentals of State Policy for the Protection of Human Rights in the Context of Overcoming the Consequences of the Armed Conflict” was announced.
In 2019, by a Decree of the President of Ukraine, a Commission on Legal Reform was established, which developed a Concept of Transitional Justice. However, the Concept was never approved.
The next step was the development of a draft law on the transitional period under the auspices of the Ministry for the Reintegration of Temporarily Occupied Territories. In 2021, the draft law “On the Fundamentals of State Policy of the Transitional Period” was registered in the Verkhovna Rada of Ukraine. It was criticised by both the civil society and the Venice Commission. The key argument was that a single legislative act is seen as an ineffective tool for addressing the broad range of issues encompassed by transitional justice. The non-governmental sector, in its analysis, advocated for the development of a strategy that would provide for amendments to specific legislative acts. The Venice Commission pointed to the issue of the list of occupied territories of Ukraine and recommended clarifications and revisions. The draft law was withdrawn by the Government in early 2022 and was not reintroduced to Parliament.
By the Decree of the President of Ukraine of 24 March 2021, the Strategy for the De-occupation and Reintegration of the Temporarily Occupied Territory of the Autonomous Republic of Crimea and the City of Sevastopol was approved. A few months later, by the Order of the Cabinet of Ministers of Ukraine of 29 September 2021, an action plan for the implementation of this Strategy was adopted.
Ukraine and Transitional Justice After 24 February 2022
Russia’s unlawful war against Ukraine has continued for over ten years. Despite previous attempts to address transitional justice, there is still no unified approach, resulting in fragmented legislative initiatives aimed at implementing individual elements of transitional justice.
These fragmented and uncoordinated initiatives include the following acts:
The action plan for the implementation The Action Plan was approved by Order No. 1171-r, as amended by the Order of the Cabinet of Ministers of Ukraine of 4 April 2023. of the Strategy for the De-occupation and Reintegration of the Temporarily Occupied Territory of the Autonomous Republic of Crimea and the City of Sevastopol includes 127 updated measures. The revised plan for the reintegration and de-occupation of the ARC was developed to protect the rights of Ukrainian citizens and legal entities whose legitimate interests were violated due to armed aggression. However, it focuses exclusively on the ARC and does not provide for a systematic approach covering all citizens of Ukraine.
The addition of Article 1111 “Collaboration Activities” to the Criminal Code of Ukraine, proposed by the Ministry for National Unity of Ukraine, is intended to regulate issues related to the activities of state authorities, local self-government bodies, and business entities in the de facto occupied territories of Ukraine. Citizens, local authorities, and municipal institutions must have a clear understanding of the limits of their actions to ensure that their activities do not fall under the relevant provisions of criminal law.
A draft of the new Strategy for the period until 2026 and an operational action plan for its implementation have also been developed and presented in April this year. The draft aims to synchronise the actions of state authorities, local self-government bodies and the restoration of human and civil rights and freedoms in the de-occupied territories.
Despite efforts to develop an effective concept, they have so far yielded no tangible results. In the case of pre-war initiatives, the main problem was the lack of a comprehensive approach to transitional justice, which led to unsystematic amendments to legislative acts. Consequently, the provisions of different laws contradicted or duplicated one another. In addition, transitional justice was often considered solely within the context of judicial reform, without parallel reform of law enforcement agencies or the necessary amendments to criminal, civil, and administrative legislation. During the full-scale invasion, the primary issue remains fragmentation.
According to the plan for the reintegration and de-occupation of the ARC, transitional justice is to be applied only to individuals who lived or continue to live in the territory of the ARC, which makes this concept rather limited in terms of the population it covers. Consequently, there is currently no unified and systemic vision for the implementation of transitional justice that would ensure the reform of all key sectors and the inclusion of all citizens of Ukraine.
Therefore, there are no simple answers to the challenges associated with the transitional justice system — they require new systemic approaches and, above all, the development of a current transitional justice strategy that genuinely considers all previous recommendations and remarks, both from civil society and the Venice Commission.
