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16 Mar

[Guy S. Goodwin-Gill is a Senior Research Fellow, All Souls College, Oxford and Professor of International Refugee Law, University of Oxford.] Recent EU and ECHR jurisprudence on a range of State activities affecting refugees and asylum seekers has emphasized that fundamental rights are not just about freedom from torture or refoulement, but also about effective remedies. What comes through in the judgments of the CJEU in N.S. and Puid, for example, is acceptance of the notion that fundamental rights may well require proactive, protective action – in the case of the Dublin system, a duty to assume responsibility wherever transfer may expose the individual to a serious risk of prohibited harm, such as refoulement or inhuman or degrading treatment. The European Court of Human Rights decision in M.S.S. v. Belgium and Greece further supports this proposition, while that in Hirsi v Italy goes still further on the interception issue. Other courts in other jurisdictions have been no less robust in defence of the displaced, this especially vulnerable group of asylum seekers who require special protection – the UK House of Lords in the Roma Rights case, facing up to a policy and practice clearly discriminatory by reference to race; the UK Supreme Court in EM (Eritrea), recognizing that any real risk of prohibited treatment, not just a systemic failure, was sufficient to require non-removal under Dublin; the European Court of Human Rights in M.S.S. v Belgium and Greece, also on Dublin transfers, but also on knowledge and risk, among others, and on the right to an effective remedy; and again in Hirsi v Italy; and the Australian High Court in Plaintiff M70. Australia once actively promoted temporary refuge, then turned to mandatory detention as supposedly some sort of deterrent to boat arrivals; when that seemed to have little effect, it tried to emulate some of the interdiction practice. Interestingly till now, and as in the early days of US interdiction, it has expressly recognized its basic obligations towards the intercepted, and its goal, in theory, has been to accommodate non-refoulement, but to deny on-shore processing and even, from time to time, on-shore solutions. What the M70 decision of the Australian High Court reveals, however, is that international obligations are difficult to wish away onto other States. In its earlier dealings with the remote island nation of Nauru, Australia had clearly been the principal in a ‘principal-agent’ relationship, paying the full costs of detention accommodation of the intercepted, relying on Nauru and distance to keep lawyers and journalists at bay, but impliedly accepting that it remained responsible internationally. Behind M70, though, there was different thinking. It involved an agreement – intentionally not a binding treaty – to trade asylum seekers: 800 to go to Malaysia, 4000 to be resettled out of Malaysia over four years. The domestic legal background was a provision of the Migration Act which anticipated that the Minister would make a declaration, identifying a State as appropriate for such an arrangement, and as able to provide the requisite level of protection. The High Court placed this agreement firmly within the context of an effort by Australia to ensure that its international obligations were met; but as a ‘protection exercise’, this meant that, as a matter of domestic law and statutory construction, Australia was obliged to ensure that those transferred enjoyed legal protection of their rights, not just practical protection; what is more, this meant more than just non-refoulement, but the protection also of other, Convention-related rights in the State of intended destination.
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16 Mar

[Guy S. Goodwin-Gill is a Senior Research Fellow, All Souls College, Oxford and Professor of International Refugee Law, University of Oxford.]

Before Sale, before Haitian interdiction even, there was ‘piracy’ off the coast of Thailand, tolerated and encouraged locally as a deterrent to landing; there was towing out to sea, even of unseaworthy vessels; there was the blind eye turned to the plight of those in distress; and somewhere in-between was the refusal to allow disembarkation of the rescued – an exercise of legal competence on a matter regulated in the past by practice and expectation, but never written into law.

No, there is nothing new here, and many are the ways by which States have sought to keep others away from their shores, particularly those in search of refuge. And yet despite the many novel forms of interdiction, I do not share many of the premises on which this conference appeared to be based. For example, I do not think that Sale itself has influenced the practice of States in any meaningful way. It may have encouraged elements within States to push the envelope of legality, but looking around at what goes on in the name of ‘migration management’, it’s hard to believe that they need any encouragement.

Nor do I think that courts which clarify the legal limits to permissible State action thereby invite executives just to look for other ways to avoid law and obligation. They do, of course, but that’s part of the tension inherent in societies operating under the rule of law. Nor do I think that the judgment of the Supreme Court in Sale counts for anything juridically significant, other than within the regrettably non-interactive legal system of the United States. Here, the Court ruled for domestic purposes on the construction of the Immigration and Nationality Act. What it said on the meaning of treaty was merely dictum and the Court was not competent –in at least two senses – to rule on international law.

At best, the judgment might constitute an element of State practice, but even here its international relevance can be heavily discounted. The Court failed, among others, to have regard to the binding unilateral statements made by the US when interdiction was first introduced, and the ten years of consistent practice which followed. And as any student of international law will tell you, practice and statements of this nature are highly relevant, particularly when against interest.

UNHCR, moreover, which is responsible for supervising the application of the 1951 Convention/1967 Protocol, protested the judgment at the time and has consistently maintained the position set out in its amicus brief to the Supreme Court (and in earlier interventions with the US authorities). Significantly, no other State party to the treaties has objected to UNHCR’s position, though the forum and the opportunity are readily available, such as the UNHCR Executive Committee, ECOSOC, or the Third Committee of the UN General Assembly.

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15 Mar

[David A. Martin is the Warner-Booker Distinguished Professor of International Law, University of Virginia.]

I start with a high-altitude view of the history and contours of refugee protection, to provide perspective on the current use of interdiction – and also on the contrasting stances taken by the U.S. Supreme Court in Sale v. Haitian Centers Council (509 U.S. 155 (1993)) and the European Court of Human Rights in Hirsi Jamaa v. Italy (Application no. 27765/09, Eur. Ct. H.R. 10 (2012)).

Refugee protection is not, at its core, dependent on fixed or expansive legal obligations of states or other political actors.  Since Biblical times, refugees have been protected, even in the absence of treaty or legal edict.  These were policy decisions by political leaders, influenced by compassion, but also by pragmatic considerations that ranged from assessments of absorptive capacities, food supplies, and the tolerance level of the leader’s subjects or fellow-citizens; through perceived advantages to be gained if the refugees seemed a particularly skilled or enterprising lot; to judgments about whether the exodus would strengthen or weaken the state against its enemies.

Protection that rests on policy is uncertain and unpredictable – by definition not wholly or even principally guided by humanitarian considerations.  But it has nonetheless at many times afforded true shelter to multitudes.  And after 60 years of operation under the major international treaties relevant here, we can hardly say that treaties assure reliable and consistent humanitarian responses either.

Comes now a new generation of tribunals and treaty bodies that seem to believe they can end the modern era’s inconsistency and usher in a virtually pure humanitarian practice of refugee protection.  Their methods include reading selected provisions in refugee and human rights treaties quite expansively, deploying broad notions of a state’s jurisdiction – territorial and otherwise – and projecting onto the relevant treaties a mono-thematic conception of object and purpose, seeing only an objective to provide protection and issuing their interpretations accordingly.

This newly ambitious legal effort, most clearly exemplified in the Hirsi Jamaa decision, certainly is capable of improving protective outcomes for certain asylum-seekers in specific flight situations.  But there are reasons for deep skepticism that this idealistic effort to carpet the entire field with judicially enforced legal prescripts will somehow overcome or crowd out all those benighted considerations of tawdry policy that state leaders tend to take into account.  It may even interfere with efforts to optimize protection within the real-world constraints that government officials must account for.  I offer here four reasons for skepticism.

Original intent and government buy-in. 

First, this mono-thematic focus was not what states agreed to – not in 1951 or 1967, not in the European Convention on Human Rights.  The treaties have a more complex set of objectives.  Humanitarian shelter is one of them, to be sure, enough to motivate setting into law a floor reflecting modest but important commitments, focused on persons already present on the state’s territory – a floor, it must be emphasized, not a whole edifice.  Other important treaty objectives, given only muted expression but still decidedly on the minds of the diplomats creating the treaties, were to preserve the core of national control over migration by foreigners and also to protect against criminal and security threats.  There was no clear template for the mechanisms to be employed toward these ends, but states clearly regarded it as important to keep their protection commitments in balance with the sovereign right to make deliberate decisions about inbound migration.  At each stage governments provided clear signals that they were not writing a “blank cheque” (a frequent assertion in the travaux of the 1951 Convention).  They acknowledged that it would be good to do more, when possible, but they left the “more” in recommendations meant to inform ongoing policy decisions.

The dateline limitation in Article 1 of the 1951 Convention relating to the Status of Refugees may be the clearest indication of this caution (treating as “refugees” only those who fled “as a result of events occurring before 1 January 1951” – hence a largely known and finite population already present in the West European countries leading the drafting effort).  But strong markers of the same attitude also appear in the exclusion from coverage of persons who had committed serious crimes, and especially the broadly worded exception to the nonrefoulement  protection of Article 33 when “there are reasonable grounds for regarding” a person “as a danger to the security of the country” of refuge. Commentary at the time, even pieces written by scholars of strong humanitarian instincts, generally accepted that Article 33 did not include non-rejection at the frontier.

Some have suggested that the 1967 Protocol, which eliminated the dateline, should be seen as global acceptance of a more purely protective stance.   This claim has to downplay the continuing exclusions from treaty coverage of serious criminals and national security threats. But there is an even stronger indication that the UN General Assembly, in adopting the text of the Protocol, was not propounding an absolute bar on interdiction or other barriers to arrival.  That same year the General Assembly adopted a formal Declaration on Territorial Asylum (GA Res. 2312 (XXII), 22 U.N.GAOR Supp. (No. 16), at 81).  Article 3 is widely quoted for its general provision that seems at first to bar “measures such as rejection at the frontier.”  But the very next clause, often omitted by the commentators, states: “Exception may be made to the foregoing principle only for overriding reasons of national security or in order to safeguard the population, as in the case of a mass influx of persons.”  The General Assembly clearly did not consider non-rejection at the frontier an absolute or nonderogable obligation for states. Governments still insisted on keeping in their hands certain tools to meter their obligations or keep them politically manageable, albeit at a higher protective level than in pre-treaty days. The Sale decision essentially recognized this tradeoff at the foundation of the legal obligations in the Protocol.  The Court, like the Convention’s drafters, acknowledged that going further toward protection would be desirable in many circumstances – but that is a task for policy, not treaty obligation (509 U.S. at 188).

The insufficiency of alternatives.

Second, supporters of expansive readings of nonrefoulement sometimes counter that non-entrée policies, which include maritime interdiction but perhaps also strict visa regimes, are not necessary to serve the state’s interests in migration control and in stopping crime, terrorism, or spying.  Instead those aims can be addressed in a far more precise and scientific way through careful application of the governing definition, which requires an asylum seeker to show a “well-founded fear of persecution” on account of five specified grounds, and which also excludes serious criminals and security threats.

This is an attractive claim, and it seems to accept that the treaties embody a more complex set of objects and purposes.  But government officials generally are not reassured that such reliance will sustain the needed balance, because of hard experience with adjudication systems.  In fact we still are not very good at accomplishing timely and accurate asylum decisions, with sufficient checks against fraud, even though intensive effort and millions of dollars have been devoted to improving adjudication since the surge in asylum applications in the 1980s.  Moreover, as government officials see it, the problem is not just insufficient progress in procedures.  The substantive standard also keeps expanding, now reaching far beyond fear of persecution or the five familiar grounds – especially under the ECHR jurisprudence.

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15 Mar

[Thomas Gammeltoft-Hansen is Research Director at the Danish Institute for Human Rights and author of Access to Asylum: International refugee law and the globalisation of migration control (CUP, 2011), which won the Idman Award for best monograph in public international law.] In 1992 President George HW Bush ordered the United States Coast Guard to stop all persons fleeing Haiti in international waters. When a majority of the United States Supreme Court upheld the legality of this interdiction program, it paved the way for more than 65,000 people being returned to Haiti with no assessment of any claims for political asylum. Beyond this, the Sale case could be argued to have two legacies – one political and one legal. US policy and Sale undoubtedly inspired many other countries to adopt similar interdiction schemes and perhaps a more general trend to speculate in circumventing obligations under international refugee law. Yet, Sale also prompted other courts and refugee advocates to pick up the torch, ensuring that international refugee law has developed dynamically in response to new patterns of migration control. High seas interdiction forms parts of a wider set of deterrence measures to administratively or physically prevent refugees from accessing asylum. From visa controls to biometric scans, migration control is no longer something performed only at the perimeter of a state’s sovereign territory, but rather forms a set of progressive mechanisms to check travellers at every step of their prospective journey. A common trait of many of these policies is that they are designed to carve out exceptions to, circumvent or shift obligations otherwise owed under international law, often through governance measures that could hardly have been foreseen when the 1951 Refugee Convention was drafted. The US interdiction program in the 1990s constitutes a prime example. By geographically shifting migration control to block Haitian refugees on the high seas, it was argued that neither US nor international law applied. The majority of the Supreme Court in Sale not only upheld the government’s claim, it set off a proliferation of extraterritorial migration control practices. High sea interdiction programmes have since been introduced both in the Mediterranean and the Pacific. Migration control has further become a foreign policy issue, with bilateral and multilateral agreements paving the way for migration control within the territorial waters, airports or border zones of origin or transit states, or the enlisting of third country authorities to perform exit or entry control on behalf of sponsoring states. In parallel, responsibility for migration control has been delegated to corporate actors. From the initial imposition of carrier sanctions spreading through the 1980s, private security companies and other contractors are today increasingly taking on immigration controls both at the border and overseas. These practices all raise complex questions about the reach of international refugee and human rights obligations, attribution of conduct and the division of responsibility for human rights violations.
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14 Mar

[Bill Frelick is the director of Human Rights Watch’s Refugee Rights Program. See part one of his post here.] Since Sale v. Haitian Centers Council judgment in 1993 settled the issue of extraterritorial application of the principle of nonrefoulement in US domestic law, US-based refugee rights advocates after 1993 were left without recourse to US courts. But, writing for the Sale...

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14 Mar

[Bill Frelick is the director of Human Rights Watch’s Refugee Rights Program.] The UN High Commissioner for Refugees (UNHCR) rightfully characterized the US Supreme Court’s Sale v. Haitian Centers Council judgment in 1993 as a “setback to modern international refugee law,” and for the next two decades nongovernmental organizations (NGOs) and UNHCR have been trying to limit the damage, pick up the pieces, and salvage what they could after that setback. Refugee advocates saw immediately that the central idea of the Sale decision, that the principle of nonrefoulement does not apply extra-territorially, would give a giant push to a movement among asylum-destination states that was already well underway at the time of the decision to divert refugee flows, particularly of boat migrants. What made Sale particularly damaging was not only the judgment per se, but the fact that it came from the United States, the erstwhile leader of the modern refugee regime. From Europe to Australia, but no less so among less developed states in Asia and Africa, the US example of interdicting and pushing back Haitian asylum seekers, now blessed by the Supreme Court, looked like a green light for erecting barriers not only to prevent entry, but to operate unbound by the principle of nonrefoulement, cornerstone of international refugee law, on the high seas and in other legally grey areas, such as no-man’s lands between border crossings, where territorial jurisdiction is not always clear. This essay will look at how NGOs and UNHCR, among others, worked to reiterate in international law fora the principle that the principle of nonrefoulement knows no territorial limits, to dissuade other jurisdictions from adopting the Sale interpretation, and to challenge other states that might try to follow the US lead in interdicting and summarily returning boat migrants. A companion essay looks specifically at NGO advocacy post Sale directed at the executive and legislative branches in the United States. IACHR: The Inter-American Commission on Human Rights (IACHR) was an early battleground in this effort. A coalition of key Haitian-specific NGOs, including the National Coalition for Haitian Refugees, the Haitian Refugee Center in Miami, and the Washington Office on Haiti, joined with the Haitian Centre for Human Rights in Port-au-Prince to petition the IACHR to declare the US interdiction program a serious violation of internationally protected human rights. In 1997 in Haitian Centre for Human Rights et al. v. US, the IACHR found that US interdiction and summary return of Haitians contradicted the US’s nonrefoulement obligations under the Refugee Convention, which know “no geographical limitations” and that the US further breached article 27 of the American Declaration of the Rights and Duties of Man by preventing interdicted Haitians from exercising their right to seek and receive asylum in a foreign country. UNHCR’s Executive Committee: In the years immediately following the Sale decision, another key battleground for refugee advocates was the UNHCR Executive Committee, where the United States had heretofore played a relatively progressive role with respect to articulating refugee rights principles. But in the post-Sale 1990s, the United States began to play a decidedly obstructive role on the interpretation of the nonrefoulment principle. (See here.) Previously, ExCom conclusions on nonrefoulement going back to 1977 routinely said that the principle of nonrefoulment applies both at the border and within the territory of states. In the ExCom conclusions of 1996 and 1997- ExCom Conclusions 79 and 82--the “at the border” language was dropped.  An early draft of ExCom 79 had reiterated the standard “at the border” language, but the US delegation to the June 1996 standing committee opposed that language, calling it an overstatement of existing international refugee law. UNHCR wrote a letter to the US mission to the UN in Geneva saying that “no other state has adopted as a matter of law the circumscribed view of nonrefoulement advocated by the United States.” US advocates, including this writer, met with and corresponded with US government officials to argue that the position the US was adopting at the ExCom went even further than Sale, which had addressed high seas interdiction, but had not suggested that the principle of refoulement does not apply at the US border. In fact, Justice Stevens had said, “The INA offers these statutory protections [referring to §243(h) of the Immigration and Nationality Act] only to aliens who reside in or who have arrived at a border of the United States.” A letter signed by 12 executives of NGOs, including the US Committee for Refugees, the International Rescue Committee, the US Catholic Conference, Church World Service, and Hebrew Immigrant Aid Society wrote to Anthony Lake, assistant to the President on National Security Affairs, saying: “What standing will the US State Department representatives have next time we plead with West African nations not to push back Liberian boat refugees?... What signal is the US sending to countries like Turkey and Iran who have recently refused entry to Kurdish persons fleeing Saddam Hussein’s secret police?” The US NGOs were able to convince the State Department to include in its speech to the 1996 ExCom a “political statement” that referred to the principle of nonrefoulement as applying “from the border” of a state, but the State Department only consented to refer to this as a “humanitarian principle,” not a legal one. With the turn of the millennium and to commemorate the 50th anniversary of the Refugee Convention, UNHCR convened a series of Global Consultations on International Protection intended to clarify and fill protection gaps in the Convention. UNHCR commissioned scholarly analyses and convened expert roundtables geared toward maritime interdiction and the principle of nonrefoulement, all of which set the stage for ExCom Conclusion 97 of October 2003 on Safeguards in Interception Measures. Although ExCom Conclusion 97 did not explicitly use the term nonrefoulement, it said that:
“interception measures should not result in asylum-seekers and refugees being denied access to international protection, or result in those in need of international protection being returned, directly or indirectly, to the frontiers of territories where their life or freedom would be threatened on account of a Convention ground.”
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13 Mar

[Meron Estefanos is an Eritrean journalist, author and human rights activist.]  Introduction The last decade have witnessed an upsurge of Eritrean refugees taking to the Mediterranean Sea in search of a safety from repression and unlimited national service they are facing in their home country. However, in their flight from their home countries, these refuges have encountered several plights such as extortion...

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13 Mar

[Bradley Samuels is a Partner at SITU Research. All work described here was undertaken within the scope of Forensic Architecture, a European Research Council funded project based out of Goldsmiths Center for Research Architecture.] Whether captured by citizen videos, orbiting satellites, or international monitoring agencies, violations of human rights are increasingly documented in visual and spatial registers. Consequently, architectural representations –...

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12 Mar

[Rhodri C. Williams is a US human rights lawyer living in Sweden and working for the International Legal Assistance Consortium. He writes on human rights issues on his own blog, TerraNullius.] In the crisis triggered by Russia’s poorly concealed incursion in Crimea, there are plenty of grounds to believe that Moscow’s international law arguments are largely a smokescreen, albeit one arguably enabled the West’s own blurring of legal lines in the course of two decades of liberal interventionism. Lying behind Russia’s normative protestations, however, are concrete assertions of political interest that will have to be addressed in order to achieve a sustainable resolution. In this sense, an emerging normative challenge relates to the extent to which international law and practice on self-determination would facilitate such a process. Russia’s has a number of arguable political interests in the Crimean peninsula. The most obvious relate to security, and Crimea’s role as a warm water port of longstanding strategic significance to the Russian Navy. However, a far broader claim relates to Russia’s asserted right to protect both its citizens and Russian speaking minorities throughout a “near abroad” corresponding to the boundaries of the former Soviet Union. Like any country, Russia has a legitimate interest in the fate of its citizens and an arguable interest in supporting kin minorities. However, the unilateral and open-ended imposition of Russia’s own “protection” in a neighboring state is taken by many in the region as a thinly veiled excuse for a new round of post-Soviet revanchism. Indeed, comparisons have inevitably been drawn to “Hitler’s substitution of ethnicity for state borders” in the lead-up to World War II. The issues raised by Russia’s “ethnic” claims in Crimea, eastern Ukraine and beyond play on debates about the alignment of states and nations that have been with us since the 19th century, but which gained an explosive new life since the end of the Cold War. Ironically, the original political emergence of these issues arguably came with the Crimean War of the 1850s, in which France and Britain sought to prevent Russia from encroaching on Ottoman Turkish-held territories in the Balkans. However, while both Ukraine and the Balkans have subsequently provided spectacular examples of the failure to peacefully manage diversity, the Åland Islands of Finland – the little known northernmost theatre of the Crimean War – give some grounds for hope. The “Åland example”, as described in a recent book by the Åland Islands Peace Institute, has significant resonance for Crimea. Perhaps most obviously, Åland, like Crimea, occupies a strategic location in a region long troubled by ethno-linguistic cleavages. Åland is an archipelago in Finland that projects toward Sweden across a narrow strait in the Baltic Sea. Like the rest of Finland, Åland was part of Sweden until 1809, when the country was incorporated into Russia. Eager to consolidate an outpost within striking distance of Stockholm, the Russians built a fortress at Bomarsund on Åland. Thus, the issue of strategic location arose early, with the British and French war aims focused on destroying both Bomarsund and Sevastapol in Crimea, and preventing them from being militarized again. Since the Crimean War, Åland – in contrast to Sevastapol – has remained demilitarized, in a local regime rooted in the 1856 peace settlement. The “ethnic issue” on Åland remained dormant for another 60 years until 1917, when Finland became independent. Until then, the tiny Åland population had aligned itself with the minority of mainland Finns (at the time about 10%) that spoke Swedish as their mother tongue, but that would quickly change. In 1918, the first Finnish Constitution granted the Swedish language formal equality with Finnish, paving the way for an enduring cultural autonomy that has guaranteed linguistic and cultural rights for Swedish-speakers without granting them either political veto powers or control over their territories. Meanwhile, the Ålanders had already begun to agitate for secession to Sweden and succeeded in bringing their case to the newly founded League of Nations. The result was a 1921 compromise solution in which sovereignty was retained by Finland, but on the condition that Åland was to be granted an extensive territorial autonomy, or local self-rule. In order to assuage Sweden’s security concerns, Crimean War-era demilitarization was affirmed and expanded. As described in the Peace Institute’s book, all this led to a surprisingly durable regime, sanctified by international law obligations (compiled here), but fundamentally anchored in consent. The authors attribute the longevity of Åland’s arrangements to a number of factors. A key departure point was the astute balance of dissatisfaction set by the original League of Nations decision. Finland was granted sovereignty without control, Åland self-rule without self-determination, and Sweden security guarantees without territorial gains. This may have contributed to a dynamic whereby all parties acted on “the basic premise of accepting a compromise and learning to live with it” (196).
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12 Mar

[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.
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