Ukraine Insta-Symposium: Crisis in Ukraine–A Transitional Justice Perspective

[Ilya Nuzov is an Assistant Researcher with the Geneva Academy of International Humanitarian Law and Human Rights and a PhD student in International Law at the University of Geneva. His main research area concerns transitional justice in Eastern Europe.]  

Much has been said in recent discussions on the Ukraine crisis in an attempt to qualify the ongoing Russian intervention as one kind of violation of international law or another and to ascertain possible legal and political repercussions for either state. (See previous posts in this symposium by Robert McCorquodale, Greg Fox, Remy Jorritsma). This post seeks to bring to the foray what it considers a fundamental issue driving the rift between the two brotherly nations and standing in the way of their reconciliation and democratization. Namely, the failure of either Russia or Ukraine to meaningfully work through the Soviet past internally, as well as with respect to each other, through the institution of any of the transitional justice measures previously employed and recommended by the international community. See a description of these by the Office of the High Commissioner of Human Rights here.

The importance of coming to terms with the past in the post-communist space cannot be overstated. Nations that have transitioned most successfully from authoritarian communist regimes in the former Soviet Union and Eastern Europe, including East Germany, are ones that have implemented robust judicial and non-judicial mechanisms designed to methodically work through the past in order to heal societies and rebuild institutions modeled on democratic principles and the rule of law. Upon its reunification, Germany, which has achieved remarkable economic success while ushering in democracy and restoring trust in public institutions, has employed prosecutions, vetting procedures and a commission of inquiry in order to rid its institutions of the authoritarian legacy, restore societal trust and reconcile Germans who collaborated with the communist regime with those who were persecuted by the infamous Stasi.

The same cannot be said with respect to either Ukraine or Russia. Leaving aside the monumental work of NGOs like Moscow-based Memorial, both countries rank near the bottom of the spectrum of post-communist states in terms of official government efforts to work through the past after the fall of the Soviet Union. In Russia, the most noteworthy reforms were instituted in the early 1990’s and addressed primarily rehabilitations of victims of Soviet-era repressions. In 1991, Yeltsin approved Federal Law of the Russian Federation On the Rehabilitation of the Victims of Political Repressions, No. 1761-1 rehabilitating all victims of political repressions after 1917 and offering, albeit miniscule, financial reparations.

No one has ever been held accountable for human rights abuses in Russia. What has been optimistically called the ‘trial of the CPSU’ was nothing more than a constitutional law challenge by some communists in December 1991 of Yeltsin’s decree that suspended and later banned the Communist Party and its Russian Federation branch. Although the proceedings did manage to unearth thousands of pages of secret archives detailing past atrocities, at the end of the day the trial was condemned as a bureaucratic farce that failed to acknowledge the collective trauma of the past. Today, the archives are under the de facto control of the KGB’s successor, the Federal Security Service, which restricts access even to documents dating back to the 1920s. To further complicate matters, many of Ukraine’s Soviet-era secret police archives have been moved to Moscow and the remaining files, maintained by the Ukrainian Archives Committee, are effectively closed to the public. Compare this with the experience of Germany, which has allowed individual access to Stasi archives under the Stasi Records Act and over five million applications from individual victims of the totalitarian regime have been received since 1992 to view them.

Like its bigger neighbor, Ukraine has similarly failed to prosecute any former Soviet party official or secret agent, undoubtedly due to the cooptation of Soviet political elite in post-1991 Ukrainian governments and institutions. Although both countries considered lustrations as a way to hold accountable past perpetrators and informants, these proposals failed to materialize into law in either state. In Russia, politician Galina Starovoitova — who proffered a relatively mild lustration bill, in 1992 and then again in 1997, which failed to garner any support within Yeltsin’s circles — was murdered in her apartment building in Saint Petersburg in 1998. After the Orange Revolution of late 2004, two legislative lustration proposals, based loosely on the Czech and Polish models, were propounded by the All Ukrainian Union ‘Fatherland’, also to no avail (even President Viktor Yushchenko openly opposed these lustration proposals).

Failing to rid their institutions of authoritarian tendencies, both Ukraine and Russia today are plagued by corrupt institutions, authoritarian or kleptocratic governments, deep societal divisions and mutual relations vacillating between luke-warmth to outright hostility. Indeed, instead of implementing legislation that could foster systemic, institutional changes, the political elites of both states have focused their efforts on employing fragments of their respective histories as political tools to consolidate ruling political elites. Transitions in Russian and Ukraine have not focused on justice or democratization, but rather on politics of memory, which has turned the last 20 years into a mnemonic battle between two nations with a largely shared history, religion and language.

Thus, the Ukrainian leaders have focused their memorial efforts on the qualification of Holodomor, the artificial famine of the early 1930s, as genocide of Ukrainians and the most tragic event in the nation’s history. In November of 2006, the Ukrainian parliament passed law No. 376-V recognizing Holodomor as an act of genocide against the Ukrainian people committed by the Stalinist regime. As a result, while in 2003 only 40% of Ukranians thought that Holodomor was a genocide committed by the Bolsheviks against the Ukranian people, by 2007 that percentage rose to over 63% of respondents. Despite assurances from Ukraine that recognition of Holodomor as genocide was not aimed against Russia as such, the Russian government has decidedly interpreted the act as an accusation that Russia committed genocide against Ukraine. In 2008, when NATO discussed the possibility of Ukrainian membership and Ukraine commemorated the 75 year anniversary of Holodomor, President Medvedev refused the invitation to attend the commemorative event and ordered the gas giant “Gazprom” to call Ukraine’s 2.4 billion loan, resulting in subsequent gas delivery interruptions to Ukraine and several other EU states.

The ideological rift is exacerbated by Russia’s political elite, which has its roots in the Soviet regime. Putin’s regime has sought to legitimize itself by uniting Russia around great achievements of the Soviet past, paramount among them the victory in the ‘Great Patriotic War’, while downplaying repressions. In the recent past, the Russian Duma has twice considered a bill criminalizing public criticism of the Allies’ actions in World War II, while the absence of any unequivocal condemnation of the Soviet regime has led way to the resurrection of Stalin as an ‘effective manager’ and a nostalgia for the grandeur of the Soviet past in the public discourse. This historical narrative, which resonates with many Russians and Russian speakers in Ukraine’s east, clashes with the predominant view of Stalin as a genocidal maniac in the eyes of many Ukrainians, the same Ukranians who embrace the likes of Stepan Bandera, a Ukrainian nationalist and independence fighter during World War II, as a national hero, but who is viewed as a fascist collaborator and an anti-Semite by many Russians. Unsurprisingly, Russia actively uses the fascist and nationalist threat against Russian-speaking Ukrainians as justification for its present intervention.

With both Russian and Ukrainian institutions thoroughly ‘Sovietized’ to this day, questions of the past continue not only to polarize the Ukrainian and Russian societies, but also to stand in the way of improving bilateral relations between the two states. While considering international law in its traditional framework is as important as ever in the current crisis, perhaps the international community can look to the deeper causes of the conflict through the transitional justice paradigm and offer alternative legal or quasi-legal solutions. The German Parliament, recognizing the legacy of the Socialist Unity Party (SED) that ruled East Germany from 1949 to 1989 and the need for all Germans to work through the history for the purpose of truly unifying the country, created the Commission of Inquiry for the ‘Assessment of History and Consequences’ of the SED dictatorship, which provided an invaluable documentation and clarification of the historical truth surrounding past human rights abuses by the East German authorities. Perhaps states like Germany could offer their lessons to Ukraine and Russia, emphasizing the necessity of a similar historical project that could help reconcile Ukrainians with each other and bridge the gap with the northern neighbor. Of course, the question of political will, at least from Russia’s side, will remain an obstacle to any cooperation on a common historical narrative in the near future. But as the international community contemplates the ongoing crisis and considers possible responses, it should start looking to Ukraine and the region’s future by helping Ukraine to overcome its past.