Traps and pitfalls of transitional justice in Ukraine – interview with Klaus Bachmann

14.05.2020

We are glad to publish our new interview with former observer of International Criminal Tribunal for the Former Yugoslavia, professor of the University of Social Sciences and Humanities in Warsaw – Klaus Bachmann.

As a historian and political scientist, he specializes in European integration, totalitarian regimes, and transitional justice, including institutions such as truth and reconciliation commissions, international criminal tribunals, and so called “lustration” – the process of vetting public officials to determine their involvement with the respective pre-transition political regime.

1. Comparing Petro Poroshenko and Volodymyr Zelensky, how would you evaluate a transitional justice policy of both presidents in the context of international relations and Ukraine’s cooperation with the Hague Tribunal? 

Transitional justice policies are very much dependent on the balance of power on the ground and much less on the character of political leaders, although political leaders tend to claim the opposite and overestimate their influence. Poroshenko came to power during the conflict between Ukraine and Russia, when emotions ran high and public opinion became at the same time more nationalist and anti-Russian, and, on the other hand, more pro-European and pro-Western. At the same time, Ukraine underwent a political transition (from an authoritarian hybrid regime under Yanukovich to an oligarchic, but pluralist democracy under Poroshenko) and a transition from war to peace. That is a very difficult situation and it makes the application of transitional justice policies much more complex than if there were one transition only. During Poroshenko’s rule Ukraine passed many transitional justice measures, which its institutions struggled to implement and, in the end, implemented only partially and without much vigor mixing them with anti-corruption measures, state and nation building and de-communization (or de-sovietization). The approach to the ICC was similar half-hearted: Under the Association Agreement between the EU and Ukraine Ukraine is obliged to ratify the Rome Treaty, but so far, it only conferred investigations under art. 12 of the Rome Statute to the ICC. Full membership would give Ukraine several additional assets: it would clearly distinguish Ukraine from Russia, because Russia withdraw its signature from the Rome Statute and never ratified it and because it would give Ukraine a say over the development of the Rome Statute and open the ICC for Ukrainian prosecutors and judges. 

2. The two presidents wanted to conduct elections in the occupied territories but there was no strategy of how to organize the process in the non-controlled areas. What risks and consequences will Ukraine face in the future, taking into account that there is no control over Donbas yet the president has already declared a plan to conduct elections the next autumn? 

Everything depends on the conditions, under which these elections will be held, who will be entitled and able to cast a vote and who will count that vote. I can imagine that carrying out elections on a territory which is controlled by a hostile power will open them to every kind of manipulation. Even if for example displaced persons are entitled to vote, it will be easier for Russia and the separatists to manipulate the vote than for Ukraine. Under such conditions, voting there will most probably mean legitimizing the power of those, who already rule these parts of Ukrainian territory. It may be a rational decision to concede that (though it is politically very costly for any Ukrainian leader) if there are also concession by the other side. 

  1. Negotiations with terrorists are based on the idea of restoring Ukraine’s control over the Donbas in a peaceful way. One of the steps on this path is the plan to create an advisory council with terrorists and include Russia in the conflict resolution process as a mediator, not a side of the conflict. In fact, creating the advisory council with terrorists means legitimizing them in the eyes of international law and all those countries which imposed economic sanctions on Russia in 2014. 

That is a dilemma during every peace negotiation: They only make sense, if both sides want to change the status quo. If one side does not want to change the status quo, it can just stay away from the negotiations and no negotiations will take place. But if you embark on negotiations, you must be ready for a compromise. And if you negotiate, you legitimize the other side. I never thought it a good idea to label separatists as terrorists, because it makes negotiations more difficult for them, but also for any Ukrainian government. You can more easily present concessions to an enemy to your own public if you tell the public you negotiate with an enemy than if you tell your public you are making concessions to terrorists

Can such policy of the Ukrainian government affect the perception of the crisis in Ukraine by the international community? (For example, treating Russia as a peacekeeper, not an aggressor, legitimizing terrorists and treating the war in Ukraine as a civil war, not an inter-state conflict).

The governments taking part in the Normandy Format already treat Russia as a peacekeeper and an aggressor. Germany and France are themselves conflict parties (as NATO members they are regarded as antagonists by Russia) and moderators. This has been messed up from the very beginning, when they supported Ukraine, condemned Russia and tried to act as arbiters. Either you are an arbiter and you are neutral, or you take sides, then you can’t be an arbiter. Therefore, I don’t think Ukraine’s reputation will suffer, if it agrees to such a settlement over Donbas. Don’t forget, the separatists are already involved in the Minsk process. There is a basic rule in peace negotiations: if there is a party, which can prevent an agreement between the other parties, it must be included in the negotiations. If it is not included, it will make any agreement nil and void. This happened in Darfur, when negotiations excluded one conflict party, which had enough men and arms to continue fighting. So, when the others concluded an agreement, it continued to fight and there was no peace. If the separatists are strong enough to prevent a peace deal between the other conflict parties (Ukraine and Russia), they must be included. If not, keep them out. But it is a question of power, not of morality or law. 

  1. Steinmeier formula includes such things as conducting elections in Donetsk and Lugansk under control of OSCE, withdrawal of Ukrainian troops, granting amnesty to the militants, providing the region with a special status which includes political and economic autonomy.
the Dayton Accords 1995


Can we define Steinmeier formula as the Dayton Accords for Ukraine?

Dayton was a success, because NATO attacked the Bosnian Serbs, isolated them (and Yugoslavia) internationally and changed the status quo on the ground, to force the Bosnian Serbs into compliance. They understood, they could gain more from negotiations than from fighting on. During the Dayton negotiations all sides, which could prevent an agreement, were present – Serbia, the Bosnian Serbs, Croatia, Bosnia and NATO. The final agreement changed the internal borders of the ethnic groups in Bosnia, but it did not change international borders and it has brought quite some stability during the last 25 years. The Steinmeier formula has helped to de-escalate the armed conflict, but it did not stabilize the situation and of course it did not force any conflict party to withdraw from the positions it gained during the conflict. Therefore, we will still have to wait for a Dayton Accord for Ukrane. 

Federation of Bosnia and Herzegovina after the signing Dayton Agreement in 1995
  1. As an observer at the International Criminal Tribunal for the Former Yugoslavia, what can you say about the prosecution of military perpetrators responsible for war crimes committed during the Balkan wars? 

The ICTY has a mixed balance. It got all the suspects and fugitives it wanted, mainly because it enjoyed a relatively strong support from the EU and NATO and it managed to eliminate potential spoilers of the peace process. They were forced to hide and keep a low profile and could not run for public offices while they were investigated, prosecuted or under arrest warrants, even if they were not apprehended for a long time. But there also was a price for these successes: I doubt the ICTY would have been so successful, if it had really been impartial and independent. It certainly would have lost NATO and EU support, if it had investigated and prosecuted NATO actions in 1999, which undoubtedly constituted war crimes. There are also many high ranking suspects, which the prosecutor listed in indictments as members of a criminal enterprise, but who never were indicted afterwards. Some of them became prosecution witnesses. Finally, there was a lot of plea bargaining: perpetrators who admitted guilt and helped the prosecution to investigate and accuse other perpetrators, got low verdicts. And the distribution of indictments across the ethnic communities was quite biased to the detriment of Bosnian Serbs and Bosnian Croats and to the advantage of Kosovo Albanians and Croatians from Croatia proper (not from Bosnia). 

Is it possible to punish those in charge for war crimes in the East of Ukraine taking into account that Putin withdrew his signature from the International Criminal Court treaty in 2016?

Yes, the ICC has jurisdiction over people, who committed war crimes and crimes against humanity on the territory of Ukraine, no matter, whether they were Ukrainians or Russians. The problem is of course to get them, because Russia is not obliged to surrender them and the Russian Constitution even forbids the government to surrender Russian citizens to foreign jurisdictions. But if they travel to a country which accepted the jurisdiction of the ICC, the respective country has the obligation to arrest and transfer them to the ICC. 

  1. The war in Ukraine is not as cruel as Yugoslav wars, nevertheless, there are such inevitable things of any war as killing civilians, torturing prisoners of war and actions with signs of genocide. 

Yes, for the victims it does not play a big role how many people die in a conflict. Getting tortured and getting killed, or losing a family member is always cruel, no matter why and in what context.

Is it possible that Ukrainian soldiers will be suspects at the Hague Tribunal together with the Russians as it was the case with Croatian soldiers after the end of the Serbo-Croatian war?

Yes, that is possible. The ICC does not investigate one conflict side only, it investigates crimes committed on a certain territory. Ukraine has accepted ICC jurisdiction and if the ICC issues an arrest warrant against Ukrainians, it has the legal duty to transfer these Ukrainians to the ICC. But in such a case, it might be able to demonstrate that it can do justice on its own and lodge an inadmissibility challenge at the ICC. Then the ICC will decide, whether Ukraine is willing and able to prosecute these Ukrainians or whether Ukraine must surrender them to the ICC.

  1. How the case of shooting down the Malaysian Boeing can affect the investigation of Russian crimes in The Hague taking into account that Ukraine violated its agreement with Netherlands when released one of the main witnesses, Volodymyr Tsemakh, in September 2019?
Volodymyr Tsemakh

The MH17 case is a very tricky one. It is currently tried in The Netherlands and according to Dutch law, therefore it can be prosecuted as a murder case or as a case of bringing about a catastrophe in airtransport. The ICC has no jurisdiction over such cases. The problem with MH17 is also, that the downing of the airplane most likely (according to the information available so far) was a mistake. The perpetrators wanted to shoot down a military aircraft during a military conflict, which is legitimate under the Geneva and Hague Conventions. They did shoot down a civil airlines, which would be a war crime or even a crime against humanity – but they did it by accident. And under international criminal law you cannot commit crimes unintentionally. The Tsemakh release may affect the evidence basis of the prosecution, but it will not affect this basic problem. Releasing him made the prosecution’s task more difficult, but it did not affect the jurisdiction issue. 

  1. Despite the documented facts of violating human rights in Crimea, torturing Ukrainians in the occupied territories and imprisoning Crimean Tatars, Russia tries to present Ukraine as a “fascist country” violating the rights of national minorities. Last year, during the Normandy summit, Putin even said that returning Ukraine’s control over the occupied territories would lead to genocide similar to the Srebrenica massacre. 

At the moment, the ICC prosecution deals with war crimes committed by Russia on Crimea.

It has rejected the Ukrainian self-referral concerning the Maidan sniping because it did not fulfil the criteria for “widespread or systematic persecution” (but it may be still regarded as murder under the Ukrainian Criminal Code). I am not aware about any investigation concerning Ukrainian war crimes or other international crimes. Even in Germany, where a large part of public opinion sided with Russia during the conflict, the talk about “fascism in Ukraine” (which was quite popular on the radical left) has calmed down, especially after the last presidential elections. Even for the most intransigent commentators it must be clear that voters in Ukraine can change their president peacefully, while voters in Russia cannot.  

How can Ukraine counteract this argumentation in the field of international law?

The best is to point to international bodies, like OSCE and ICC, who either not confirm this kind of propaganda, or even openly contradict it. I would also point to the fact that Ukraine has given the ICC jurisdiction over crimes committed in Ukraine (a clear indication that Ukraine has nothing to hide), while Russia is at odds with the ICC in Ukraine and Georgia. 

  1. The point is that Ukraine releases criminals, Russian soldiers or officers who go back to Donbas and fight against Ukraine again while Russia keeps most of the Ukrainian soldiers as prisoners and releases only civilians and sometimes even those who tortured the Ukrainians, as it was the case during the last big release. 

This is a problem that only prisoners exchanges can solve. Ukraine should try to capture as many Russians as possible – then it has the leverage to exchange them against Ukrainians captured in Russia. I don’t think there is a means to get Russians who committed crimes in Ukraine – they are protected by the Russian government, the military and the Russian  Constitution.

How should Ukraine behave in this situation: agree on the release of those whom Russia is ready to release or require releasing those whom Ukraine would like to return?

    As I said: the more prisoners you take, the more you can demand from the other side. This is a mechanism which – paradoxically – lowers the level cruelty in a conflict, because it inclines both sides to take prisoners rather than to kill them. 

  1. Is it worth to start practicing truth commissions and conditional amnesty to investigate the crimes? If yes then to what extent, maybe you know any examples from your Balkan or African experience?

Yes, there are many examples. Truth Commissions and conditional amnesties make sense, if there is no better way to hold perpetrators accountable, if you have the perpetrators and if you want to achieve reconciliation between the conflict parties. In the Ukrainian context, this would only make sense if Russia left Donbas and Crimea and then Ukraine would have to deal with the separatists and would be unable to arrest and try them (for example because they enjoy a lot of support in their region). At the moment, it does not make much sense, because separatists will not agree to participate in a Truth Commission. Truth Commissions exchange punishment for the truth. In a trial, the accused has every incentive to lie and conceal the truth, because otherwise he risks punishment. In a Truth Commissions, the perpetrators have every incentive to say the truth, because it guarantees them impunity in exchange for their knowledge about the crimes. But Ukraine does not need knowledge about the crimes committed in Donbas and Crimea, it needs the perpetrators to punish them. Therefore, a Truth Commission would not make much sense even if separatists participated in it. Finally, as long as the ICC is involved, it is even impossible, because then perpetrators would risk to get impunity from Ukraine and be arrested by the ICC. And because they know that, they would have no reason to cooperate with a Truth Commission.

  1. What should Ukraine do with its own citizens who supported Russian aggression and whose guilt was proven?

Put them on a fair trial. 

Many experts look at the Baltic experience of the non-citizen passport. Others offer the Croatian strategy of allowing those who do not want to be a Ukrainian citizen to move to Russia, if they did not participate in illegal armed groups, and using those who did not commit serious crimes as a labor force during the restoration of the region after the end of war like in Belgium after the Second world war.

What do you think about such scenarios? 

All these solutions are ad odds with international humanitarian and Human Rights Law and some may even be in contravention to the Ukrainian Constitution (for example depriving them of their citizenship). Latvia and Estonia could do that (as well as Croatia) because at the time, they were no EU members and had not yet ratified many of the international treaties they now adhere to. The same with postwar Belgium. People who collaborated with Russian separatism and committed crimes and were Ukrainians remain Ukrainians and are punished according to the law. That is the only solution. If Russia wants them to exchange against prisoners of war and they agree – so be it. That is a clear indication about their collaboration and Russia’s attitude towards them. 

  1. Is it possible to end the conflict using both a military and a diplomatic strategy as Franjo Tudjman did in 1995? 

Yes, but remember that he was the president of the country that won the war. Croatia managed to get his country out of the war with the same international borders as before, while Serbia did not achieve any of its war objectives, the Bosnian Serbs lost much of the territory they had conquered and a few years later Serbia lost Kosovo. The situation of Ukraine is very different.

  1. Do you know any examples when perpetrators or functionaries of ancient regime were restored in their rights because of decision of the European Court of Human Rights?

No. 

  1. Which scenario of conflict resolution is the most possible for Ukraine taking into consideration all the circumstances and the current political situation?

Regime change in Russia as a result of the corona-crises, a weakening of Russia (like the one of the Soviet Union under Gorbachev) due to the oil price and decreasing gas consumption and social unrest. Under such circumstances, I can imagine a Russian government coming to power, which needs US and West European support and credits and is ready to withdraw from Ukraine in exchange for support and money. If that does not happen, the conflict will last for many years and sometimes flare up, when the Russian or Ukrainian governments need a short escalation for domestic purposes. 

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