Andriy Kulykov
Transitional justice: to help victims and to rebuild society or just to punish murderers? Anna Myriam Roccatello
Our today’s interviewee is Anna Myriam Roccatello, Deputy Executive Director and director of programs of the International Centre for Transitional Justice. And we’ll be talking mostly about transitional justice and Ukraine, or Ukraine and transitional justice.
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Guests1
Andriy Kulykov: Hello and welcome to Ukraine Calling, the English language podcast from Hromadske Radio in Kyiv. My first question to Anna Myriam Roccatello is: the very name «transitional justice» may suggest that it is something temporary, that after it’s been delivered, some changes may come. What is the real situation and how solid transitional justice is?
Anna Myriam Roccatello: Look, I would say yes and no. Transitional justice is not different than the general concept of justice. The principles are the same. What changes in the realm of application of transitional justice are specific circumstances that make the usual processes and institutions of rule of law inadequate, insufficient to address the justice needs of those specific circumstances, which are the context of particularly violent political turmoil and in that same category, of course, open conflict. It is temporary in the sense that the processes that transitional justice as a discipline has developed over the years to address these very specific circumstances are not lasting forever, and therefore, the ultimate goal of transitional justice is to provide responses that, with the length of time, create an environment, a political, social, and institutional environment, so that the rule of law principles and institutions are able and effective to operate again.
Does transitional justice applies to Ukraine in the same measure that to countries that were not victims of foreign aggression?
Andriy Kulykov: It’s becoming clear to me but I still have one question, or maybe more depending on what you tell me. I have always had an idea that transitional justice was for countries where there is, as you said, political turmoil and very deep-going changes. For me, for instance, South Africa has always been an example of transitional justice. In Ukraine however, we have foreign aggression, so I am in two minds, whether transitional justice applies to Ukraine in the same measure that to countries that were not victims of foreign aggression.
Anna Myriam Roccatello: Right. I think you are perfectly right in asking yourself those questions and asking the experts those questions because if, on the one hand, transitional justice over time has proven to be relevant even in contexts where the turmoil, the problems that generate those circumstances are still present and therefore we are applying more and more the lessons learned and the considerations of the needs of victims even during an open conflict, even during an open armed or not armed political opposition to an authoritarian regime. On the other hand, Ukraine presents a particularity which is the foreign element of the conflict. And therefore, these questions are very legitimate.
To which extent, is transitional justice applicable in a situation where a country has been aggressed, has been invaded by a foreign power? And certainly, there will be issues and things to consider that make and take in account these big differences. But if you think that transitional justice is also named victim-centred justice, then the main principle here, the main consideration that is still applicable, is still valuable, is what can be done even during an open conflict of any nature, international or internal, to ensure that whatever response, remedy, whatever process we put in place to mitigate or address the violations that are occurring puts victims at the centre of those responses. Puts the consideration of the change, what we want after, what we want to avoid particularly in the case of Ukraine, what we want to avoid after the conflict occurs. The discipline of transitional justice is an interdisciplinary subject and therefore, that’s also the value of it and that’s why, depending on the different situations, even if they do not fall squarely into the classic paradigm of transitional justice, there are still issues and thinking reflections that were developed in other situations that are very relevant.
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Andriy Kulykov: Dr. Roccatello, I noticed that you use the term «victim». Although in some cases, especially psychologists, say that we should talk about survivors and some other notions.
Anna Myriam Roccatello: Right.
Andriy Kulykov: Is a victim a legal term in your speech?
Anna Myriam Roccatello: Yes.
Andriy Kulykov: Yes? Please explain this.
Anna Myriam Roccatello: This is why I prefer, as a lawyer, to speak about «victim». I perfectly recognize that the term «survivors» implies an empowerment of those who have suffered violations and make them more clearly active agents of change and active agents to address what happened to them and the consequences. However, from a legal point of view, «victim» is the right term because «victim», a person who has been victimised, has certain rights. And my take, primarily, is to emphasise the rights and the need to enforce those rights without diminishing in any shape or form the need and the importance of having those individuals, those groups determine what form of justice is more meaningful, effective, and adequate for them and the society they live in.
Is the role of international experts paramount, or is there also a place for local lawyers?
Andriy Kulykov: In administering transitional justice or rather in organising the system of administering transitional justice, is the role of foreign experts experts paramount, or is there also a place for local lawyers? After all, international experts have vast experience and local lawyers may be dealing with this for the first time ever.
Anna Myriam Roccatello: Again, it’s one of those questions that has multiple answers. I would say the presence and involvement of international experts may be necessary, in some circumstances. It certainly offers, and particularly in the case of Ukraine, not so much a superior expertise, experience of knowledge, right? In certain circumstances, in certain contexts where that knowledge is not available, it may be of help. But the international component is more often introduced to ensure independence, impartiality, and, what is even more important when we speak about transitional justice, big societal change and criminal accountability. So, in the case of Ukraine, maybe the expertise and the knowledge of international criminal law and international standards may not be as developed as in other contexts, like, for example, Columbia that has struggled to provide responses to the conflict for over 50 years. Ukraine may have had less exposure to international mechanisms even though I think it’s very relative because Ukraine has been a member of the Council of Europe for a long time. Technical assistance can certainly help even in the most developed jurisdiction, right? But it’s more the issue here that priority is to have processes and mechanisms that are credible, that are endorsed by different groups even, if possible, the opposing groups, in this case.
Andriy Kulykov: I will ask about the opposing groups later, but now I’m going to stick to the word «impartiality» from what you’ve been saying. I have written to you and I want to repeat this on air, that I was in awe of your penetration into Ukrainian problems and also of the compassion that you showed, so this actually makes me ask a question: are you sure you’re impartial? Because in many cases, I have heard foreign, or international experts, let’s say, being farther removed from our reality than you are.
Anna Myriam Roccatello: Look, I’m not impartial. My life companion is Ukrainian, I’ve known the country, I have come to Ukraine since a very young age, his family is by extension my family, I have an equal number of friends and relatives in Ukraine as in Italy, my home country.
Andriy Kulykov: What about the USA?
Anna Myriam Roccatello: Yeah, as well, as well. I have no family in the USA but I certainly have a lot of friends and a lot of very deep personal liaisons. Every time I speak at a public event or conduct technical activities, I disclose that I have this very strong link to Ukraine. So, I accept that it may be that I cannot be considered fully impartial. On the other hand, because of the work I do, and because of my experience in working in processes of accountability all over the world and because of my knowledge of the context, I think I can provide an analysis that is not the same as a full Ukrainian citizen that is in the middle of an aggression, that has to live with the tragedy and the insecurity of the war daily, and that I have seen enough situations of conflict to worry about the future and what this war would determine, what it would effect in the post-war Ukraine than those that are currently fighting in Ukraine or who live there and are directly impacted by the war.
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How does transitional justice apply to aggressors and to victims
Andriy Kulykov: I am sure that you are in the know of the discussion that erupted in Ukraine’s journalistic guild when the war started back in 2014, and then again when the full-scale intervention was unleashed whether we can remain objective or impartial. My answer to this is no, you cannot remain neutral or impartial but still you can be objective and I believe that this is what international experts like you, no matter what the link to the country is, are doing. You have the knowledge, you have the expertise and probably, it is impossible to be absolutely abstracted from what’s going on but still you can apply all the knowledge to the opposing groups, as you have mentioned.
And my next question is about the opposing groups. Of course, we are paying more attention in Ukraine to war crimes perpetrated by Russian invaders, but war is war and there may be crimes on both sides.
Anna Myriam Roccatello: Yes, you see, in transitional justice, we believe in the discipline that has developed processes whereby you recompose a society. A society that, because of what has happened, has been so affected on so many levels and with such a high degree of violence, of disruption of the social relationship that this necessarily blurs the distinction between perpetrators and victims. Rarely, if at all, you find a situation where only one group is the perpetrator and the other group is the victim. Even in the most binary political opposition where a group arm itself to resist a legal wrong, or in the case when the armed conflict starts, when the armed resistance starts, you need to have measures of accountability for all parties. Because even in the theoretical case where the armed group that is resisting or is trying to enact change against a dictator or against wrongdoing, even if in the theoretical case this group remains totally law-abiding, you need to ensure that is proven, that they remain accountable and that the original ethical reason why they have taken up arms is not betrayed by the way they conduct armed resistance. So, whether some individuals or groups have committed violations for which they must be held accountable, it is important that documentation is acquired and that these groups, in the conduct of their armed resistance, are held accountable.
It is important not only for the perception of justice when you have to recompose such a devastating conflict, but it is important again for the future, if certain rules, procedures, can be derogated at the time of war. And that’s why you have international humanitarian law, there are provisions, there are values that cannot be put into question. The way you treat war prisoners cannot be compromised, the way you treat civilians and you protect civilians cannot be put in question. The fundamental rights, even during martial law, have a certain degree of protection, and therefore it is important at some point to determine how the martial law and certain legitimate restrictions on the civic rights have been applied. Because it’s a very slippery road when you start infringing on those rights beyond the physical, tragic, gross violations of human rights which are persecuted at any point of time. I think that’s more or less what I wanted to say. Transitional justice is based on different principles which are the principles of restoring justice. You know, basically, you have a catastrophe and you need somehow to start the process of re-putting the pieces of coexistence together. It is not therefore solely a legal approach. It requires a lot of analysis, anthropological, political, social analysis to put all the different components that make living together still possible and appropriate.
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It is the discipline that allows, or has as a goal, to reconsider, revisit the social contract between groups. Because of that, every stakeholder must participate and a very clear division or distinction between perpetrators and victims may be necessary in some processes when you want to give space and visibility to victims that have suffered, not only what they have suffered, but the consequences of what they suffer. But it is equally important to give perpetrators a space. Not only because you need to hear their version, it has historical and social importance if you want to ensure that that doesn’t happen again, and ultimately you want these groups to be reintegrated in society. You want to give them a space and a bond to the social contract you reintegrate so that they are persuaded and they become an active, peaceful part of that new society. Now, in the case of the aggression in Ukraine, of course, that framework is different.
Here we can speak about international society, the international community. The aggression was a breach of international principles and international law. But the consequences of that aggression and what Ukrainians are suffering now, inevitably brings division, brings an environment of violence, an environment of illegality, an environment that foments hatred and the strive for vengeance, right? Which needs to be rethought, needs to be absorbed, analysed, and redirected. Addressed as well.
How important it is to think not only about the restoration of justice?
Andriy Kulykov: About the social contract, I have never before heard anyone explain this in such clear terms. But there’s a question: We in Ukraine, and I’m sure that you have heard already about this, so, probably you have even said this, among other things, say that we not only want to restore Ukraine but we want to make it better than it used to be. On this plane and in this aspect, how important it is to think not only about the restoration of justice, because the justice that we used to have before was very much criticised? There should be steps to improve. Are we thinking about this when we administer transitional justice? Or is this being put aside for later?
Anna Myriam Roccatello: Look, we as the experts of the field, we certainly consider also that aspect very much because one of the pillars of transitional justice is institutional reforms and in the more classic model of transitional justice, you reform to ensure that what happened doesn’t happen again. But in the case of Ukraine, you may consider that institutional reforms are directly linked to the desire of the citizens to change and continue a change of Ukraine towards a model that they decided in Maidan, and that caused first the occupation and then the aggression. So, what are we doing in that respect? It is important to keep that aspect very much in mind because the war is damaging, and therefore it’s important not only to address the direct damage and crimes and violations that are being committed but keep in mind what originated the conflict, right? In other terms, when you speak about an internal conflict, or a political violent opposition, you speak about the root causes of the conflict and this is directly applicable in Ukraine as well. What has caused this aggression? And what we needed to focus on and not lose track of the ultimate goal during the reconstruction, during the recovery, during the restoration of civil rights after the war. I think that not many, also among the international community, keep this in sight. And it opens a platter of problems, because what it means is in which direction you reform, in which direction you go to establish or reestablish a future Ukraine. It also determines a very political discussion in Ukraine of what type of society and governing model you want in the future. And that discussion would be extremely difficult and sensitive even in times of peace. But during a conflict, everything is sidetracked by the need to resist and survive. And therefore a number of specific tools, specific powers are justified and enabled. The limitation of those powers, the limitations and the recovery of an environment where power is checked and is accountable remains to me the most important and critical issue for the future of Ukraine.
Andriy Kulykov: I would even put the full stop after this statement because it sums up, I think, the idea and the intention with which ICTJ and Dr. Roccatello take part in this work. There are still a couple of quick questions and quick answers. How satisfied or not are you with cooperation with Ukrainian civil society and Ukrainian officials?
Anna Myriam Roccatello: I cannot speak much about cooperation with Ukrainian officials because I do not have an institutional relationship with the officials. I’ve been trying very hard to establish that relationship, particularly with the newly created International Registry for the Crime of Aggression which sits in the Hague, and with the prosecution office in Ukraine. There have been discussions, but not systematic and not regular. So I cannot opine on that. I notice that there are a number of very good processes and many individuals that have directly applied international standards that are seeking actively for help and technical assistance in their daily work. But that’s the extent I can say. On the relationship with civil society, I think there is such a need, a strive for help, and particularly to receive knowledge and tools to go beyond the usual the instinctive documenting and prosecuting, which was very much the priority and the first reaction, you know, for the first three-six, months of the aggression. But now Ukrainian civil society, which is, you know, extremely sophisticated, generally very well-educated, has by themselves, identified needs and areas where that response is shortsighted, is not enough, and they have themselves, both at civil society level and, I notice also, in some institutions, they are now asking themselves the questions, «If we do this, what next? And what are the consequences later on?».
The transitional justice as a field was identified in the early 2000s
Andriy Kulykov: Back in the 1940s, did Italy have transitional justice, or was it too early for this concept?
Anna Myriam Roccatello: The concept was not knownю Transitional justice as a field was identified in the early 2000s. Even though mechanisms, remedies, processes of transitional justice are as ancient as humankind, right? You can find examples in Ancient Greece, in Egypt, in many different countries throughout history. But it was not, of course, identified as transitional justice at that time. Italy did not apply a transitional justice model. Italy had a very wide amnesty regime after the Second World War. You ask because clearly you are aware that Italy went through the Second World War but in the meantime, had a very serious civil war that divided the country in many different ways: geographically, socially, politically and so on. It didn’t apply transitional justice, it applied a very wide regime of amnesties, and the main social political energy and capital to transition from fascism that brought the intervention in the war and the consequences with the civil war were addressed through the constitutional revision. The process of drafting the constitution was really the critical one that determined the change in the political regime of Italy and recomposed, put together very different political ambitions, and also determined the balance and how the different political ideology interacted. The [Italian] constitution remains one of the best models in the world. It’s a rigid constitution.
Andriy Kulykov: Well, many people say that the Ukrainian Constitution is one of the best in the world, but there’s a lot of difference between what is enshrined in the constitution and how it is applied.
Anna Myriam Roccatello: Of course. But the constitution in Italy has the peculiarity of being written by very different political forces, and therefore, even though Italy has been what you would call a «Western liberal democracy» for the most part of the post-war period, it enshrined principles that are very different from a liberal model of government.
To help the victims and to rebuild our society or just to punish the murderers?
Andriy Kulykov: My last question is: understanding the relativity of experiences, can you still name one or two countries whose experience is most relevant for Ukraine as far as transitional justice is concerned?
Anna Myriam Roccatello: We can take certain elements of a variety of different models. It is now clear to everybody that international criminal prosecution will be prominent. And therefore, you can take examples from the proceedings at the International Tribunal for the Former Yugoslavia, or for Rwanda, and take stock and analyse what was positive and what didn’t work well. You can take lessons and considerations from hybrid tribunals. Tribunals that were under the auspices of the international community but with a strong presence of national officials. But at the same time, you can also look at the few examples of processes that were implemented after an international war. For example, the tribunal that was created in Bangladesh after the occupation, or the aggression of Pakistan. And there are several lessons that need to be considered. For example, the indiscriminate application of the death penalty, for which I will not be necessarily in favor. And certain problematic aspects of the legal proceedings which are very relevant in Ukraine because of the possibility to try defendants in absentia, which is possible in Ukraine, right? So, there are elements that you can take from different models.
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I know that many Ukrainians would raise eyebrows when I speak about truth commissions and commissions of inquiry. I still believe that internationally, if not nationally, it’s important at some point to have such a process because this conflict, this aggression has certainly strengthened the sense of unity and the national solidarity, Ukraine is a country that is pluralistic. It has different ethnic groups, and groups that feel they have a certain different identity, even though at this moment they recognise and they endorse the need to be united in the territory and under the flag of Ukraine. But, their individuality, their specificity, their cultural rights need to be respected. This is an area that I have several concerns about at the moment. For example, taking lessons from certain attempts to have an International Truth Commission that was rarely successful and why it was not successful, and what we can do to make it possible at some point. There’s a need to absorb, analyse, study everything possible about reparation programs and post-conflict restructuring. There you have a wealth of models, and whether they are identified as transitional justice or not is irrelevant, but I think Ukrainians need to get their act together and manage expectations and really determine what are the priorities for reparation. Is it to help the victims, to rebuild our society? And/or, to punish aggression? These are very different goals. And it is clear, I think, what should be the most important.
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This podcast is produced within the project «EU Emergency Support 4 Civil Society», implemented by ISAR Ednannia with the financial support of the European Union. Its contents are the sole responsibility of Hromadske radio and do not necessarily reflect the views of the European Union.
