Transitional Justice – A Bridge to Democracy in Belarus

Transitional Justice – A Bridge to Democracy in Belarus

[Julia Emtseva is a Research Fellow at the Max Planck Institute for Comparative Public Law and International Law.]

Belarus, a country known as “Europe’s last dictatorship”, held a presidential election on 9 August amid decreasing support of Lukashenko’s leadership. According to election officials, he won 80.23% of the vote, while his main opponent, Svetlana Tikhanovskaya, received 9.9%. Belarusians, however, said that election results were rigged. Ms. Tikhanovskaya rejected the results and demanded Lukashenko to step down. The Organization for Security and Cooperation in Europe (OSCE) did not monitor the nationwide vote in Belarus claiming that the observers were not invited to the country. The High Representative of the EU for Foreign Affairs and Security Policy called the elections “neither free nor fair.” He added that “the people of Belarus deserve better” and that they have demonstrated a desire for democratic change.

Mass protests erupted across Belarus with thousands of people in Minsk marching through the streets longing for the truth about the election results while clashing with the police. Internet access has been disrupted across the country, leaving demonstrators in an information vacuum.  As of August 17, the demonstrators continued to gather on the streets for a seven straight night after the elections. Thousands of people were detained, several hundreds were hospitalized, and two men have died. Several local and international NGOs have collected testimonies from protesters who say that they were tortured and threatened with rape. Brussels said it is considering “measures against those responsible for the observed violence, unjustified arrests and falsification of election results.”

This unprecedented mobilization of Belarusians opens up the possibility that the current government will hand over power to a democratically elected president under the pressure of the people and the international community. This long-awaited change, that will transform the country in the direction to the rule of law, respect for human rights, and economic and social prosperity has, however, to be tackled properly. Like the United States, Belarus needs a transitional justice plan, especially when the dictator has lost his strong positions and is now looking as vulnerable as never before. This post intends to look at what options the Belarusians have in order to facilitate a transition to a democratic future and how transitional justice mechanisms can help them in this struggle. The examples of civil resistance in Ukraine and transition taking place in The Gambia come in handy here. Although the second example might not strike as the most relevant to Belarus, we will see that the Eastern European nation shares some common features with this small West African state and Belarus could drag some inspirations from their post-dictatorial experiences.

For the past 26 years, Alexander Lukashenko has maintained to stay in power by keeping the country’s Soviet past alive as well as warm ties with his close ally, the Russian Federation. Lukashenko’s political agenda was shaped by the idea of the restoration of the Soviet economic system as well as the increase of political repressions which all could be done under the auspices of Russia. In short, he opted to maintain the communist ideology in his state which resulted in a slow development of the country and its human rights index. Up until now, Lukashenko has maintained control over media and political opposition. He is accused of at least four political murders and imprisonment of dozens who condemned the regime.

Many Belarusians have been showing that they had enough of their president and that it is time for bringing him and his accomplices to account. Although the help of Western democracies is vital in the current fight of Belarusians and the pressure of the international community on the current government is very needed, outside actors cannot determine the course of the future of Belarus. The power for change has to belong to those who suffered the most from the dictatorship. Before analyzing the transitional justice tools that could be utilized to help Belarus to reckon with its painful past, it is worth to look at similar experiences in other countries that resulted in dictators stepping down.

Authoritarian regimes, like the one of Lukashenko’s, almost never give up without violence and bloodshed. The Euromaidan Revolution has shown that deep grievances of the Ukrainian people, who have been craving for a democratic state that should have exchanged the Soviet past for the European future, could trigger the necessary revolutionary mood for the defeat of the old regime. The rapid expansion of the civil resistance was mostly due to the authoritarian use of power and the inability to reform Ukraine and build up a new statehood. Still, before getting the desired shift, Ukrainians had to sacrifice the lives of more than 100 people and spend three months in protests.

It is also worth looking at more recent examples like The Gambia, where the people were able to pave the way to democracy with the help of international actors. The 2016 presidential elections facilitated the transfer of power from the dictator, Yahya Jammeh, who ruled the country for twenty-two years, to his opponent – Adama Barrow. This loss was very unexpected to Jammeh since his method to win elections, which has stood the test of time, has been disrupted. Fake voters IDs, which supposed to be disseminated among citizens of Senegal and Guinea-Bissau recruited by Jammeh, were burned by six unknown men before the elections. Although Jammeh’s first reaction to the election results was a congratulatory telephone call to Barrow, he later announced the election annulment and placed soldiers in strategic locations across Banjul. He notified Gambians that post-election protests would not be tolerated saying “in this country we don’t allow demonstrations.” Gambians, unlike Belarusians, did not go to the streets to protest fearing of being arbitrary arrested and then tortured, as it happened with those who tried to voice their concerns of the regime some months before the elections. Instead, around 45,000 Gambians, including Barrow, fled to neighboring Senegal. Fearing a crisis and with the ultimatum coming from the Economic Community for West African States (ECOWAS) to either step down or the Community will deploy troops to install Adama Barrow, Jammeh decided to cede power to the winner. And Gambians finally stepped on the road to justice and truth.

Both Ukrainians and Gambians illustrated that resistance can bring changes. Although this piece does not intend to analyze the effectiveness of transitional justice mechanisms in both states, Belarusians can draw some positive examples from these experiences and finally reconcile with their past to build a future they deserve. Rebooting of the authorities was one of the most popular demands of both: Ukrainians and Gambians. Indeed, Barrow and Poroshenko, to a certain extent, ‘cleaned’ their administrations from the old elites but the latter still have their representation in various state bodies (see here and here). It might be very challenging to assemble a government recruiting only those who have no affiliations to an old regime. The human resources are scarce and there is a lack of those who actually are ready to save a sinking vessel. Belarusians might anticipate this scenario but all those who will stay will have to go through a vetting process.

Another popular demand was accountability. The two countries approached this issue differently: Ukraine referred cases to the ICC, while The Gambia decided to find the truth first. Neither Jammeh nor Yanukovych was put behind bars after the transition, yet, the hope for this among victims is still alive. The Belarusian people might find their own way on how to bring Lukashenko’s government to account. They have to look back at the past twenty years and recall every possible violation or a crime committed by those who have been there to protect, not to abuse. Lukashenko’s damaging response to the COVID-19 pandemic, brutal suppression of post-election protests, derogatory comments about women’s ability to become politicians or businesswomen and much more have to be digested by the people in order to find a proper justice forum. The new government might consider developing an accountability body (such as a special court) that will carry out criminal investigations and prosecutions of crimes committed by Lukashenko’s regime.  

Demanding important legislative and institutional reforms would also be a paramount requirement of Belarusians. The Barrow government has initiated a mapping process for judicial, constitutional, legal, and security sector reforms. A similar has been done in Ukraine. Poroshenko’s administration started a comprehensive reform of the law enforcement system with lustrations (however, not very successful) as well as a reform of the judiciary, including the constitutional amendment which overruled Article 124 that restricted the administration of justice by international tribunals. The new Belarusian government will have to guarantee its people that what happened during the past twenty years will not reoccur again. Even though Belarus is a party to almost all core international human rights treaties, it will have to properly harmonize and domesticate them. Moreover, the new authorities will need to provide the judiciary with capacity building and technical and human resources to undertake effective, prompt, and adequate criminal investigations and prosecutions into the violations of the past regime.

In addition, a truth commission could bring Belarusians national healing. The Gambian Truth, Reconciliation and Reparations Commission (TRRC) can serve as a good model for Belarus. The purpose of the TRRC is to investigate all human rights violations that occurred in The Gambia for the past 22 years and to prevent their repetition. The Commission has conducted eleven public hearings and collected over 500 statements by victims and alleged perpetrators. The Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence positively assessed the TRRC and concluded that the public hearings have had a positive effect on those who suffered from Jammeh’s regime and allowed “Gambians to know the truth and understand the scope of the violations committed during the past regime.” Besides recent police brutality, the mandate of a truth commission in Belarus could cover such issues as gender discrimination, violation of social, economic, political, and cultural rights, as well as policies directed to silence media.

The right to reparations is also significant for establishing a democratic society and necessary during transitional periods. Neither victims of the Yanukovych regime nor those whose rights were deliberately violated during the war in Eastern Ukraine had the chance to exercise this right. Belarus, in its turn, should strive to find good models for designing their reparation programs. People who were attacked during the protests have to be redressed individually as well as those who were arbitrary detained, including Lukashenko’s political opponents. The new officials could also consider providing collective reparations to communities who suffered from the regime. A trust fund could be established, as it was done in The Gambia. The $1 million that were obtained from the sale of Jammeh’s assets went to the reparations trust fund and the TRRC will grant this money to victims. The TRRC also has a mechanism to initiate rehabilitation programs which include access to physiological support, health, and education. Belarus has to build a dialogue between the community and government to design the appropriate reparation program and ensure a victim-centered approach.

Social revolutions start when people are utterly disappointed by the inability of the government to improve their life. The Belarusian government found itself in the situation of the narrowest room for maneuver in its history. A big part of society is angry, the economy has been stagnating for years, there are no prospects for reforms, and relations with the West and Russia are worsening. These elections hit hard on Lukashenko’s legitimacy both in and outside of Belarus. Belarusians finally faced the rotten communist system and now they speak openly about the falsification of elections, usurpation of power, and the protracted development stalemate. Even those for whom politics was something abstract and outside of their interest started to voice their demand for change. Transitional justice, when carried out carefully, can bring Belarusians the future they want and the one they deserve. Addressing past abuses and injustices is paramount in a newly born democratic state. 

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Europe, Featured, General, International Human Rights Law
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