Read more about the discussion on the BalkanInsight.

Read about the three steps offered by Oleg Martynenko on the UGSPL website. (in Ukrainian)

In June representatives of civil society from Russia, Ukraine, and other European countries took part in a seminar on establishing justice and facilitating reconciliation in conflict affected areas in the OSCE, with a particular focus on the Ukraine conflict. The seminar looked at human rights and peace approaches in dealing with conflicts and their aftermath. It was organized by German Russian Exchange (GRE), and the Netherlands Helsinki Committee. GRE serves as the secretariat to CivilM+ a civil society network for conflict resolution in the Donbass. The NHC serves as secretariat to the Civic Solidarity Platform, a human rights network covering the OSCE region.

The first day opened with speeches by representatives of the UN and OSCE, and several sessions on different aspects of transitional justice. Eva Schmidt, Head of the Administration of Justice, Freedoms, and Civic Space Unit at the UN Office of the High Commissioner for Human Rights spoke about how the work of international organizations like the UN contributes to accountability and transitional justice issues. In particular, their findings and assessments can “inform on questions of transitional justice” and be relevant in discussions at the International Criminal Court (ICC) on complementarity—the principle which allows the ICC to investigate cases only when national governments are unable or unwilling to do so genuinely.

Wolfgang Sporrer, Head of the Human Dimension Unit of the OSCE Special Monitoring Mission to Ukraine (SMM), spoke about the mission’s work. He emphasized that the scope of SMM activities goes well beyond observing ceasefires agreed upon within the Minsk protocol. It has had a presence in Ukraine since before the breakout of the armed conflict and has a “wide political mandate” in monitoring and facilitating dialogue among all parties to the conflict. This mandate covers the entire country and a variety of issues from security to human rights, and its daily reports on the security situation are publically available. “In short it has a mandate aimed at stabilization and normalization of the country,” he said.

Framing narratives for reconciliation

Sporrer also described the OSCE’s attempts to contribute to future reconciliation by producing narratives of the conflict. In particular, the SMM is conducting in-depth interviews to “showcase how the conflict has affected the lives of people regardless of what side they are on”. Schmidt echoed this by calling for the need to “collect and disseminate impartial correct information for people on both sides of the conflict line and about both people on both sides of the conflict line”.

In the panel discussion on “how to escape dead ends” Izabela Kisić, Executive Director of the Helsinki Committee for Human Rights in Serbia spoke about the role of narratives in preventing reconciliation, stating: “The narratives Serbia created during the [Yugoslav] war are still there…as long as these narratives stay the same there is no hope for true reconciliation.” Kisić went on to say education was one of the “most important mechanisms of transitional justice especially” and that we needed to “speak with [students] about narratives and causes of war, otherwise we may create a new post-war generation of nationalists that could be ready to engage in another conflict in the future”. Similarly, Paata Zakareishvili, Former State Minister of Georgia for Reconciliation and Civic Equality, called for the need to understand each other better, to which common narratives could contribute.

The role of civil society

Another topic discussed was what role civil society could play in reconciliation. Schmidt said all actors involved in a conflict needed to “pave the road for transitional justice” as soon as possible. One such step are mitigation measures, with civil society playing a key role. These measures include activities which address the everyday concerns of people in conflict affected areas, and which contribute to building trust across conflict lines. Civil society has the potential to increase the legitimacy of processes based on its deeper roots in local society. They are also better equipped to provide better understanding of a situation which could help in forming adequate narratives during and after a conflict.

Safi van ‘t Land, Programme Officer at Impunity Watch spoke about the importance of inclusive processes, reminding the audience that “sometimes those at the table are the ones driving these systems of hostilities and violence” therefore having a wider group of people involved can increase likelihood of success. She said often civil society is given more of a “peripheral role in design and implementation” of transitional justice processes and called for a more holistic approach that serves to strengthen civil society leadership in these processes. NHC Senior Advisor, Harry Hummel later explained: “The OSCE has in different countries contributed to positive steps regarding aspects of transitional justice but is missing an organization-wide doctrine on the topic.” He also expressed his hope that civil society would be able to contribute to such a doctrine.

The opening session touched on topics the participants would dive further into the following days. It also provided an opportunity to get several civil society organizations together, from both Ukraine and Russia, to discuss how they can cooperate further. In general, there was a universal recognition of the need to keep dialogue open between groups on different sides of conflict lines, in order to work out complex issues like transitional justice and reconciliation.

Source: Security and human rights monitor

On June 25-26 CivilM+ Platform and CSP Platform members met for an expert seminar “Re-establishment of justice and dialogue in the OSCE conflict regions – two angles of transitional justice“. We publish selected fragments of expert statements.

Safi Van’t Land, Impunity Watch (The Netherlands):

“We have been conducting the study on gender justice in western Balkans According to this study it appears that Women in rural parts of Bosnia who went through sexual abuse did not see justice and didn’t receive redress they still face stigmatisation and there is an impunity prevails. Basically that violence is considered to be normal. This is disappointing considering investments the transitional justice reform which has been championed by the western powers during thre last 20 years or so.

As a starting point I want to briefly mention of course that when we think about the holistic approach we need to acknowledge from the very onset that people experience violence differently. For example also different in the societies themselves and postconflict settings. And this is important to keep in mind. Thinking when we came in terms of transitional justivce we should think about the history and all this never again slogan, we have this key push for justice and accountability.

However criminal justice and this not necessarily lead to justice for a lot of victims. We see in 80s especially in Latin America this social and political movement which is driving change, the truth commission, the process where we see a lot of contribution from women, but not always were included in the formal settings. And here now we are trying to find this policy framework for transitional justrice, we could provide options for transitional justice. Lots of setbacks. We often see the disconnect between the dominant trend of transitional justice and the needs of victims and these two systems are not lining up. Some of the challenges the TJ is facing inherent to the implementation of the transitional justice: institutionalisation of transitional justice – the logis is often very top down, very technical approaches, toolboxes designed by international expertisa, practicioners – not always politically informed and context specific. We need to focus on symptoms, on immediate symproms of violence and we often ignore the root causes and the structures of impunity which is why we focus narrowly”.

On June 25-26 CivilM+ Platform and CSP Platform members met for an expert seminar “Re-establishment of justice and dialogue in the OSCE conflict regions – two angles of transitional justice“. We publish selected fragments of expert statements.

Izabela Kisić, Helsinki Committee for Human Rights in Serbia, Belgrade:

When I was young I dreamt to see all criminals on trial. I see now that the majority of them are free in Serbia. Many people who were engaged in war are today again in power. What we have today in 20 years after the so called conflict resolution and peace agreement is still a conflict. It is not armed conflict anymore but it is still conflict. International community has failed to articulate the coherent policy of how justice in the broader sense is ought to guide and direct activities of the peacebuilding the western Balkans. Maybe now there is a chance to build this policy.

One of the most important mechanisms in the Yugoslavian case is the ICTY established by the UN. Of course we needed political will for this court to be established and in this case Russia was on the same side with other countries. Cooperation with ICTY was highly uncertain and they were under the strong pressure of international community. Balkan countries in many cases refused on extraditions of the suspects. Serbia did not want to cooperate with the tribunal on providing documents, etc.

It should be noted that work of the ICTY was crucial for systematisation of the facts about the war and pre-war period. However, the expectations from the tribunal in reconciliation process were too high. The criminal justice certainly cannot be regarded as the single instrument of transitional justice, which is why it is necessary to consider the other aspects of the reconciliation process. Trials in the tribunal have not influenced public opinion in many post Yugoslav countries. Also there were some decisions made by the International Court of Justice, like decision in the case Bosnia vs Serbia, which qualifies Srebrenica as genocide and advisory opinion on Kosovo independence declaration, which are also important for the transitional justice process in Yugoslavia, but there was never a proper explanation of those decisions to the citizens of Serbia. There was no change in public opinion because there was no will to present those decisions to citizens.

No country in Western Balkans adopted any generally recognised transitional justice concept. We have just some ad hoc initiatives. Some domestic mechanisms include establishing courts for the war crimes, or some changes, some reforms of army services but all those mechanisms are in crisis today and the reconciliation process is in the regression. Regional relations are perhaps on the lowest level since the last war. The most difficult aspect of this process is creation of universal historical narrative about the conflict and defining the nature of the wars. Serbia is the main obstacle of this process because it did not change its narrative since the beginning of the war. War narrative is still present in public and political life. As long as the narrative stays the same there is no reconciliation between the societies in west Balkans. Reforming institutions and creating historical narrative on the causes of the war are two inseparable aspects of transitional justice in the region. Existence of only one of those processes and not the other does not automatically lead to the stable peace and reconciliation.

We had several attempts to establish truth and reconciliation commissions in Western Balkans and currently only one commission is active which presents the large coalition of civil society organisations in the region. This coalition is established to determine all aspects about the victims of the war crimes and other grave human rights violations in Yugoslavia from 1991 to 2001. The initiative is supported by the international community. Also half of a million people from post Yugoslav countries have put their signature under the initiative to declare their support. The coalition still faces some challenges. The critics say that regional approach to recording of facts ignores political, cultural and social context on the eve of the war. The advocates of this approach say that it is an imperative for the Serb society to face its responsibility for the war and war crimes. Yugoslav war was not a civil war. It was a war of aggression, Serbia occupied parts of territories of other republics, of Bosnia and Croatia first of all. However the insistence on the accountability for the massive war crimes casts the shadow on the by far more important dimension of the war – the policy which generated these crimes. In that context there has not been any responsibility of the state of Serbia, its institutions and elites. The facts about the war and the war crimes have been well documented even before the war. Reconciliation is only possible after telling all the context and discussing it. Ignoring the context undermines achievement of the whole project. Another solution would be the implementation of the educational approach as a mechanism of transitional justice. Comprehensive discussion with the youth about context and causes of the conflict. But the region does not have resources for implementation of such comprehensive educational programs and international help is needed. It is also important to note that all instruments of transitional justice should be based on the clear set of values because moral renewal of the society is needed to achieve sustainable piece.

On June 25-26 CivilM+ Platform and CSP Platform members met for an expert seminar “Re-establishment of justice and dialogue in the OSCE conflict regions – two angles of transitional justice“. We publish selected fragments of expert statements.

Oleksandra Matviichuk, (Center for Civil Liberties):

“When working with the issue of detainees in the context of the conflict in the Crimea and in Donbas, we conditionally divide the cases into the following categories: 1) fabricated cases on the territory of the Russian Federation; 2) war hostages on the ORDLO territory; 3) persons detained on the territory of Ukraine due to participation in the conflict. The latter category can also be divided into subcategories: citizens of Ukraine, detained due to participation in the conflict; Russian citizens detained in connection with participation in the conflict; and the third subgroup is constituted of citizens of Ukraine, who are being detained due to suspicion of participation in the conflict, but in whose cases there are no sufficient grounds.

We have verified information about 98 people who are illegally detained on the territory of the Russian Federation and the Crimea, and this is only the tip of the iceberg. There are about 120 people on our list detained on the territory of the occupied Donbas. The list is kept by the SBU (National Security Agency of Ukraine), it is classified. And even if it were open, an understanding of the processes that take place there suggests that the exact number is unknown. Among these people is the Ukrainian film director Oleg Sentsov, a farmer Vladimir Balukh who was detained for refusing to remove the Ukrainian flag from his house, prisoner of conscience Emir-Usain Kuku, Donetsk journalist Stanislav Aseev and many others.

The tasks we set for ourselves are divided into two levels. The first level is release. But since there is no clear understanding of how to achieve this, we concentrate on another level: people who are in Russian prisons must survive until the moment of their release, therefore it is necessary that they are provided with medical assistance, are not being tortured, and that attorneys are entitled to represent them. A 58-year-old Crimean Tatar Edem Bekirov is dying in the Simferopol jail. He was returning to Crimea to see his mother before a severe heart surgery. He is not able to lift a bottle of water but was accused of carrying 12 kg of TNT. He is in the SIZO (pre-trial detention center), where there is no possibility for providing medical aid and, where he is still being kept despite the decision of the ECHR.

We are trying to use international mechanisms, but we see that they do not work. This does not mean that one should not apply them but that one should not be limited by this. Therefore, our organization has chosen to put an emphasis on creating international networks of solidarity and putting pressure on states that consider themselves democratic so that they too are involved in solving this issue. In 2014 we launched the “Let my people go” information campaign, which was aimed at telling about such cases, and in 2018 the global campaign “Save Oleg Sentsov”, launched by our organization, has already taken an aim of a different order. We have united public groups in 40 countries of the world, and we were the first to introduce the practice of simultaneous demonstrations around the world with the same slogans. Indeed, there is a difference: when there are 7 cities in France, 8 in Germany and in each particular case, the number of people is not significant, but due to the fact that 40 countries demonstrate parallelly, the action becomes very visible. We have achieved such results as, for example, the phone call Macron has made to Putin and the conversation about Sentsov, for which the President of France interrupted his vacation. This became possible because French intellectuals and press joined the flash mob “send a leaflet to Macron”. We ensured that the resolution of the European Parliament listed the names of all political prisoners, and not only 2-3 most important ones. After a

letter campaign to the Council of Europe, Secretary General Jagland appealed to Putin to grant a pardon to Sentsov.

There are several issues that we can only solve in cooperation:

1) The issue regarding the categories of criteria and list of detainees. The problem lies in the conceptional framework: who should be considered as a political prisoner? Can we apply a guide to those who are detained in connection with the conflict?

2) The issue of tactics and strategy. We need international experience in order to avoid doing harm.

3) The issue of negotiation platforms. Minsk negotiations cover issues only in regard to Donbas. Detainees in Russia and in the Crimea are not included in the framework of the Minsk process, and therefore there is a need for another negotiation platform”.

Valerii Novykov (Luhansk Oblast Human Rights Center “Alternativa”):

Over the years of the conflict in Donbas NGOs and international groups have collected a vast amount of evidence of international humanitarian law and human rights law violations but this is frequently not enough for speaking about the wholeness of establishment of certain international crimes. There are several issues which cause complications while investigating international crimes. The Ukrainian law enforcement bodies and judiciary were not prepared for aggression. A part of the law enforcement bodies has turned to the side opposing the Ukrainian armed forces. A part of courts has remained in the non-government-controlled area (NGCA), hence the access to the documentation was lost, the workload of the courts in the government-controlled area (GCA) has increased. Some of the judges working in the government-controlled areas have relatives and property in the non-government-controlled which makes them vulnerable. There are cases when judges were unlawfully detained after entering the non-government-controlled area. The investigating authorities don´t have access to the NGCA which prevents from conducting investigations, to enter a crime scene, to collect evidence. Since a part of the law enforcement bodies has defected to the side of the unlawful armed groups, the victims do not always trust them and do not file petitions. Often people prefer to share information with human rights organizations.

During 2014-2018 the conflict was defined by legislation as an anti-terroristic operation. After that a new term was established – joint forces operation. As a result, discrepancies in interpretation emerged leading to jurisprudential contradictions. The Ukrainian legislation has still not been harmonized with the international humanitarian law. Recently a draft law aimed at solving this issue was approved in the first reading. Nevertheless, it is currently impossible to bring to justice those, responsible for war crimes and crimes against humanity committed in the conflict zone, which in turn limits the capacity of the investigative bodies.

Another issue in the context of fighting impunity lies in the fact that defendants can escape from law enforcement bodies simply by escaping to the non-government-controlled territory. Since Ukraine doesn´t interact with Russia in such investigations, obtaining Russian citizenship becomes for this category of suspects another chance to escape punishment. As for those victims who live in the non-government-controlled territories, they cannot file complaints to the law enforcement bodies on the government-controlled territory, fearing the consequences for their own safety in ORDLO (Separate Raions of Donetsk and Luhansk Oblasts).

While the hot phase of the conflict in Ukraine still goes on, amnesty issues are perceived very acutely. Discussions on this topic are controversial, even within the human rights community. In western as well as in central and eastern Ukraine, the conflict has affected a lot of people whose relatives or friends were killed or injured. In the non-government-controlled areas, the situation is even more complicated due to the involvement of people in the system of illegal bodies. The so-called “DNR” and “LNR” invented a lot of ways to somehow “tie” people down. For example, in order to formalize the sale of property in the non-government-controlled territories, one is forced to obtain an “LNR passport”. Such a massive involvement of people into the system is intended to ensure that people have fears and are afraid of persecution in Ukraine. People are not ready to share information regarding the crimes committed in the non-government-controlled areas because they are not sure about their own future. Ukraine has no legislation that would give a clear signal to residents of the non-government-controlled areas about what is not a subject to prosecution. People working as doctors or teachers think that they will be prosecuted in Ukraine for working in the “LNR”. It is necessary to elaborate comprehensible legislation that clearly defines who has and who does not have to be brought to accountability. This will reduce fears and increase the chances of mutual understanding among the Ukrainians on the other side of the contact line.