How Ukraine is Implementing Transitional Justice
Broad range of measures are needed to hold perpetrators accountable, support survivors and establish historical truth.
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Experts warn that current system is hampered by unresolved financial and legislative issues.
Although Ukraine has yet to formally adopt a comprehensive transitional justice strategy, the country is already putting some of its processes and mechanisms in place.
Transitional justice encompasses the processes and mechanisms for addressing the consequences of large-scale conflicts, repressions and human rights abuses in order to hold perpetrators accountable, deliver justice and establish historical truth.
Since 2019, repeated attempts to finalise a strategy or roadmap for transitional justice have been unsuccessful, each time failing to achieve a consensus between government officials, experts and the international community.
A draft was presented in 2021, developed by an ad hoc presidential commission, but the document was never approved by the head of state. Russia’s full-scale invasion in 2022 shifted the government’s focus to other, more urgent priorities.
Nonetheless, Kateryna Busol, a lawyer at the International Centre for Transitional Justice (ICTJ), said that Ukraine was already implementing various elements, albeit “in a chaotic way”.
“For example, interim reparations are paid to survivors of conflict-related sexual violence,” she continued. “The International Register of Damage caused by Russian aggression is operating in the Hague – that is also a reparations tool. There are also various initiatives to memorialise sites of the Russia-Ukraine war at both the national and regional levels. These are all pieces of the transitional justice puzzle.”
Busol noted that while prosecuting war crimes was also a part of transitional justice - Ukraine’s Prosecutor General’s Office has registered around 180,000 such proceedings – the sheer scale of the task was overwhelming.
“No criminal justice system can handle that number of cases, so there is a need to form a vision for how to engage with the vast number of survivors not only through the justice system, but also by using reparations initiatives, memorialisation efforts and perhaps establishing truth commissions,” the expert explained. “Given such a large-scale armed conflict, the response should be multi-dimensional. I see a need to restart the development of a comprehensive transitional justice policy.”
Maksym Vishchyk, a legal advisor at Global Rights Compliance, observed that transitional justice was not high on the Ukrainian government’s agenda at the moment, not least because of the limited options for implementation.
Projects such as community reintegration, for instance, required access to currently occupied territories. And he noted that reconciliation mechanisms, frequently used for implementing transitional justice, were not relevant for Ukraine as hostilities were still ongoing and the number of crimes continued to grow.
The priority, he argued, was “truth and justice for the crimes committed” in the context of Russia’s full-scale invasion.
Anton Korynevych, director of the International Law Department at the Ministry of Foreign Affairs, was a member of the commission that drafted the original concept.
He also noted that it was necessary to adapt any implementations to the realities of an ongoing conflict.
“The approaches and elements of transitional justice should be applied to relations with citizens of Ukraine, with temporarily occupied territories, but not with the Russian Federation and citizens of the Russian Federation,” Korynevych said.
A particularly sensitive aspect was prosecuting collaboration, also a component of transitional justice. According to data from the Unified State Register of Court Decisions, Ukrainian courts have issued over 3,000 verdicts in collaboration cases since April 2022.
Andrii Yakovliev, an expert at the Media Initiative for Human Rights NGO, argued that the broad definition of collaboration in the Ukrainian criminal code gave investigators leverage. It allowed them to initially inflate the charges and then reduce them through a plea deal, which ultimately affects the sentence.
“Lawmakers wrote the law to make it easier to prosecute collaboration,” he noted.
In his opinion, the current mechanism was ineffective, even with public demand for accountability, because so many verdicts were delivered in absentia.
Busol agreed that the legislation on collaboration needed to be amended. She posited that this was one of the most sensitive issues of any armed conflict and therefore should be handled with minimal reliance on criminal proceedings.
In her view, the current approach was overly harsh as individuals had received prison sentences for simply continuing to provide essential services to keep communities functioning under occupation. She proposed an alternative mechanism: having individuals who lived under occupation testify before a truth commission.
Given the new realities that the full-scale war had thrown up, Korynevych argued the existing draft transitional justice strategy should be adapted to include the situation in the occupied territories as well as the needs of internally displaced persons and Ukrainian refugees.
“Now is a good time to resume work on the concept of transitional justice. The most important thing is not the form, but the content,” Korynevych concluded.
For his part, Vishchyk said that continuing to hold war crimes proceedings in Ukraine was essential, even though most are conducted in absentia.
“This is important for establishing the truth about specific events,” he said. “It is sometimes crucial for survivors and witnesses to tell their stories and see that the state is doing everything possible to punish the accused... This is a form of non-financial satisfaction. And we never know what the future holds. Justice can take decades.”
