[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.
