By Kate Halenko
The Ukrainian constitution stipulates that “in the name of Ukraine” must the opening words of every decision issued in the country’s courts. It is one of those phrases that seems little more than a cliché; we seldom stop to think about what it actually means.
But this humble phrase makes a vital point. It signifies the public nature of justice and its service in the interests of the community and wider population. It is not a random human being passing judgment based on an abstract book of rules that has appeared out of nowhere.
Justice is not derivative of law; rather, law is based on what society understands as just. It is an ideal that we as a community strive for. Laws are passed to formalise in writing all preceding common practice, what has stood the test of time as being just, fair and equitable.
Justice is also a concept that evolves, and does so together with society. An eye for an eye was considered to be an appropriate act of justice for Babylonians almost 4,000 years ago, but seems barbaric in western democracies at this day and age.
In his speech of January 22, 2023 President of Ukraine Volodymyr Zelensky noted that “Justice, […] is one of the foundations of unity. In a society that feels justice, the unity of people is always stronger”.
There are currently at least 106,000 war crimes violations documented on Ukraine-controlled territories, according to Head of War Department in General Prosecutor office Yuri Bilousov. The real figure will be several times higher, and the war is not over yet. It is also important to note that a violation or crime is not necessarily of an individual nature, targeting a single person. A car full of passengers, a line of houses, a street, a whole village, or, in the case of the destruction of the Kakhovka Dam, hundreds of thousands of people and an ecosystem are all victims. The actual victim count will be millions. In a country whose population is somewhere between 28 and 34 million people, that means that every household will contain either a victim or a witness of a war crime.
This scale means that we need to bring justice processes closer to the people – illuminate and explain them. There are four very pragmatic reasons for that: closure, transparency, democracy and national security.
For more than 20 years, IWPR’s work in the Balkans centered on creating a broader understanding of transitional justice and war crime trials taking place at the Hague tribunal for the former Yugoslavia. Our projects aimed to improve local understanding of the process and strengthen regional support for war crimes proceedings, ultimately supporting long-term democracy, conflict resolution and European integration.
One of the lessons learnt was that whatever chance the ICTY had to contribute to the complex process of reconciliation was for a long time compromised by its failure to engage with people in the region.
Reconciliation is impossible to achieve by ignoring or forgetting the wrongs of the past. It comes through closure. Justice processes are indispensable for achieving this, as they help to credibly establish events and deal out punishments to perpetrators, thus helping to restore at least some modicum of peace in victims’ minds.
If appropriately implemented, victim participation can be a first step in the reparation or restorative justice process, and give survivors the right to participate in the fight against impunity.
According to the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, victim participation “is tremendously empowering for them and others… Victims’ participation increases the likelihood that the needs of victims will be taken seriously in processes that have had a long tradition of treating them solely as sources of information, as “mere” witnesses”.
Justice is a function of the whole society, not an elite group – and engaging the population in justice processes serves transparency as well, an essential feature of democracy.
The vast majority of the hundreds of thousands of cases to be prosecuted will be decided in local courts in Ukraine. We as a society cannot rely on judges to have the capacity to adequately engage with the public and explain the essence of those processes and decisions. They will need to be thoroughly reported on.
Civil society can bridge the gap between courts and the general public, advocating and educating. NGOs have in the past played a fundamental role in ensuring that international criminal justice finally takes victims into account. At the beginning of the Rome Conference in June 1998, Fiona McKay of the NGO Victims’ Rights Working Group, declared that “punishing criminals is not enough. There can be no justice until justice is done to the victims”.
And the impact these processes can have also extends to national security. The Ukrainian population needs to see all the efforts that their state is applying to achieve justice – and retribution – for its subjects. This inspires loyalty in return, and will combat any Russian disinformation and sentiments better than all media efforts put together.
Justice is ultimately always about the people it serves, and cannot be isolated behind the closed doors of the courts. The value of justice for society must never be underestimated – it is not about “them” but ultimately about “us”.
About the author: Kate Halenko is IWPR Ukraine country director. This is an adapted version of a an address she gave at an October 20-22 conference in Lviv on justice in the domestic adjudication of war crimes cases.
Source: This article was published by IRPR