1 Introduction

On 17 March 2023, the International Criminal Court (ICC) in The Hague issued warrants of arrest for two individuals in the context of the war in Ukraine, namely Russia's President Vladimir Putin and his Presidential Commissioner for Children’s Rights, Maria Alekseyevna Lvova-Belova. The Chief Prosecutor of the ICC argued that both bear responsibility for the war crime of unlawful deportation of population, especially the abduction of Ukrainian children, and unlawful transfer of people from occupied areas in Eastern Ukraine to Russia (ICC, 2023). For many observers in the field of Transitional Justice (TJ) it was seen as a milestone in the future reckoning with systematic human rights violations in the context of the war in Ukraine. If the process against these two alleged perpetrators and victimizers is successful, and many more war criminals to come, it will be the basis for many more TJ measures.

A month before the warrant, in February 2023 and one year into the war in Ukraine, the United Nations (UN) General Assembly (GA) passed an 11-paragraph UN Charta-based resolution with an absolute majority of votes, namely 41:193 member states, reiterating its demand that Russia ‘immediately, completely and unconditionally withdrew all of its military forces from the territory of Ukraine and called for a cessation of hostilities’ (United Nations General Assembly, 2023).Footnote 1 The UN member states called it a ‘New chapter of history’ in times of Zeitenwende (turn of an era) when the world is facing choices between paths, the one of solidarity and collective resolution of threats to peace and stability or a path of aggression, war, normalized violations of international law and collapsed global action. And only in November 2022, six months after the investigations into war crimes in Ukraine began, the UN General Assembly (GA) sought to hold Russia as an aggressor that ought to be accountable for possible war crimes. The resolution, passed by a vote of 94 to 14, with 73 abstentions, condemned Russia’s violation of international law and paved the way for the arrest warrant by the ICC in 2023. In July 2023, the EU and the ICC established the International Centre for the Prosecution of the Crime of Aggression Against Ukraine (ICPA), operating at the EU facility of Eurojust in The Hague. The ICPA supports the preparation of crime of aggression cases by securing crucial evidence and facilitating the process of case building at an early stage.

Much earlier, though, shortly after the war began in February 2022, the UN Human Rights Council (HRC) already passed resolutions on possible war crimes and crimes against humanity based on their investigations. The councils’ investigators had recorded 159 witnesses of assault, harassment, torture, and other war crime atrocities in Ukraine.

Against this backdrop, several international organizations, including the UN, Council of Europe and European Union, NGOs, independent observers, investigators, and media, had from day one been collecting information and reporting on the destruction, deaths, and injuries for which Russia is responsible. The registry has been at full speed, and soon, thousands of pieces of data and evidence were collected and stored on different platforms and in various archives worldwide.

Even before the first trials on war crimes in Ukraine began in the summer of 2022, the UN and others had called for a reparation mechanism and fund for victims and survivors of the war. The EU, private donors, and other governments have contributed to this from day one.

This has marked the beginning of a Transitional Justice process in Ukraine that could last for decades, regardless of how long this war will last. It aims to hold perpetrators and war criminals to account, reckon with past injustice and war crimes, vet and lustrate perpetrators and bystanders, and compensate victims. This effort seeks to leverage democratic institutions and processes in Ukraine. Before the war, the country suffered from high corruption levels and low rule of law. Holding perpetrators to account on all sides, regardless of nationality, could be a chance for Ukraine to restore and leverage the rule of law. Nevertheless, it is a unique process because it is multi-level and multi-stakeholder based, using evidence from NGOs, the UN, OSCE, the EU, and other governmental and non-governmental investigators. Such a process needs careful assessment of the data and evidence provided because fake data and manipulation of narratives and proof have been part of this war from day one (Porciuncula, 2021). ‘Disinformation and cyber war’, the ‘cell phone war’, and a ‘hybrid war’ are just a few of the metaphors used to describe this war thus far.

Disentangling the array and different levels of stakeholders in this process will be the main challenge for advocates of TJ. The extent to which they manage to organize and lead the various stakeholders toward a structured and sequenced TJ process will determine the success and impact of TJ in consolidating democracy in Ukraine. International Human Rights Law (IHRL) and International Humanitarian Law (IHL) are critical legal benchmarks to assess and evaluate the data and information received as the basis for any accountability process. I hypothesize that the success of the TJ process depends on who will be taking the lead in disentangling the plethora of actors, donors, institutions, governments, and organizations that all hold a claim to providing evidence and data for a thorough TJ process once the war ends.

2 Investigation into War Crimes

A few months after Russia's invasion and war of aggression in Ukraine, in July 2022, the Organization for Security and Cooperation in Europe (OSCE) published its first report on possible war crimes in Ukraine, calling it Violations of International Humanitarian and Human Rights Law, war Crimes, and crimes against Humanity committed in Ukraine from April to June 2022 (OSCE, 2022). This was later used as the background source for the UN resolution in the GA.

The investigators and forensic researchers authorized by the OSCE found clear patterns of violations of international humanitarian law (IHL) by the Russian forces (Benedek et al., 2022). They reported on the conduct of hostilities, the treatment of the inhabitants of occupied territories, and the treatment of prisoners of war. The latter was concerned for parties in a conflict in which civilians were killed and injured, and civilian objects such as hospitals, cultural property, or schools were damaged or destroyed. Violations of international human rights law (IHRL), including the most fundamental human right, to life and the prohibition against torture, were reported on in the areas under the effective control of Russia and its military forces.

Against this backdrop, the TJ process in Ukraine had already started when the first international investigators set foot into the areas where these violations occurred (Mihr, 2020a, 2020b). Legal and political accountability through tribunals or domestic courts or bringing war criminals to justice at the ICC or the International Court of Justice (ICJ) in The Hague are just a few possibilities that started with the ICC warrant against President Putin and Commissioner Lvova-Belova in March 2023. Other methods, such as public and formal recognition by both sides of the conflicting parties in the form of apologies and memorials, as well as compensation and reparation funds for victims and survivors, are other means of reckoning with the past. Disarmament of mercenaries on all sides, vetting and lustration programs and further reconciliation, and (re-)education programs for combatants, victims, and victimizers are also options (Hazan, 2010).

While the war is ongoing and even during cease-fire or peace talks, recording and reporting measures are pivotal for any TJ process that can take years, if not decades. Military commanders or mercenaries, private or government funded, such as the Russian oligarch-funded Wagner Group, the Ukrainian International Legion of Defense of Ukraine, and other privately organized armed and non-governmentally funded groups, are part of the investigations and potentially war crime tribunals.

The war in Ukraine has been privatized and funded, and even commercialized in a way that no other international war has ever been before. The complexity and number of private and governmental actors involved will be the main challenge for TJ to disentangle in terms of the interconnectedness, the line of command, and, ultimately, those responsible for war crimes. Ukrainian and Russian Oligarchs, private entrepreneurs, non-governmental organizations (NGOs), independent observers, researchers and media, IT billionaires, and multi-millionaires from around the world have donated and funded armor, technology, and combatants on all sides in a way not seen elsewhere in modern warfare. In a TJ process, each of them ought to be under investigation. It is the first glocalized war in which globally different actors engage with local ones. Foreign governments and NATO have granted credit and sent military equipment without getting directly involved, the ICC, the Council of Europe, and the UN set frameworks, and citizens worldwide have donated money for humanitarian aid and war machinery. Millionaires and oligarchs have funded their special military units alongside the official army combatants on the Ukrainian and Russian sides. This is unprecedented in Europe.

3 Reckoning War Crimes and Crimes Against Humanity

The OSCE report of summer 2022 on war crimes and crimes against humanity made clear that any TJ process will execute criminal justice in two ways: first, in front of a Special Tribunal on Crimes of Aggression for Ukraine if the ICC cannot deal with aspects of it. Secondly, in front of the ICC for the individual responsibility of President Putin, for example, and when dealing with reparation funds for victims and survivors of the war. Torture, rape, killing of civilians and prisoners of war, abduction of children and adults, disappearances, hostilities, and destruction of hospitals and other public infrastructure are the tip of the iceberg regarding war crimes and crimes of aggression in and against Ukrainian territory and civilians. Vulnerable groups, such as women, children, older persons, or persons with disabilities, have been strongly affected, and the constant violations of IHRL have produced millions of refugees and internally displaced persons. These violations likely amounted to crimes against humanity (Benedek et al., 2022).

From day one, the ICC has emphasized individual accountability as equal to state accountability concerning past injustices. In this context, retributive justice is defined by the retroactive clause, which enables perpetrators to be charged only under the laws of the past regime unless they have committed crimes against humanity, such as genocide, systematic rape, or torture. The main challenge to possible trials is the immunity of heads of state, such as Russia's President Putin. However, the ICC has already waived this immunity for cases of war crimes and possible genocide—if the evidence provides proof of these. For a Special Tribunal on Ukraine, as anticipated by the Ukrainian government, the immunity of commanders and heads of state is not seen to be an issue without being challenged by Russian lawyers under IHL.

According to the Geneva Convention, a war crime is a breach of IHRL and IHL committed against civilians or combatants during an international or domestic armed conflict (International Committee of the Red Cross, 2014).Footnote 2 Another aspect, namely crimes of aggression, is, according to the UN Charta, that of ‘waging aggressive war’, meaning the planning, preparation, initiation, or execution of an armed conflict and war by a military person, such as Commander in Chief, to exercise control over or direct the political or military action of one state against another. These crimes lie not only within the ICC juridical mandate since July 2002 and fall under its universal jurisdiction. They can also be prosecuted by any country and court in the world if their national jurisdictions allow for that. Not surprisingly, since day one of the war in Ukraine, the ICC began investigating potential crimes following a referral by 123 ICC member states. Although neither Ukraine nor Russia is a member of the ICC, and since Russia is a permanent member of the UN Security Council, a UN mandate or deferral to the ICC is most unlikely. A warrant was issued in March 2023 allowing individual member states to arrest and prosecute Vladimir Putin and Maria Lvova-Belova if they set foot on that countries territory. Thus, the ICC can investigate and issue arrest warrants, but whether it can hold trials on this specific case remains to be seen. More likely, there will be a spin-off independent tribunal on the war crimes and crimes of aggression in Ukraine.

The EU, the US, Canada, and the Ukrainian government have supported the idea of a Special Tribunal on Crimes of Aggression to try perpetrators separately from all possible sides. In July 2023, the EU Agency for Criminal Justice Cooperation (Eurojust) together with third party states has proactively created the International Center for the Prosecution of the Crime of Aggression against the Ukraine (ICA). One of the most significant caveats for this tribunal and the ICA will be who will act as independent investigators, interlocutors and prosecutors, who will be sitting as judges on the bench and whether all defendants will be allowed access to lawyers and a transparent defense process to avoid winners’ justice.

According to the Rome Statute of 1998, War Crimes and Crimes against Humanity fall under the jurisdiction of international criminal law (ICL) determined by IHRL and IHL, aiming to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes in the future. Furthermore, every State must exercise its criminal jurisdiction over those responsible for international crimes, which in the case of Ukraine allows any ICC member state to prosecute war criminals under their jurisdiction in their countries. Alleged war criminals, against which there is an international warrant (or not), can be extradited, held in custody, and tried anywhere if the country of their residence or choice of travel is willing or able to do so. This allows the global community to try and hold to account oligarchs, private entrepreneurs, mercenaries, and anybody who has been a combatant and responsible, partly or wholly, for the war crimes and crimes against humanity mentioned above.

This means that if alleged war criminals cannot be tried at the ICC, they can be in foreign domestic, international, or hybrid or special tribunals for Ukraine if ICL is applied. Apart from child abduction, thus far, there is evidence suggesting that at least some patterns of violent acts which have been repeatedly documented during the conflict, for instance, targeted killing, rape, abductions, or massive deportations of civilians, qualify as a widespread or systematic attack against a civilian population and are therefore war crimes. Any charges pressed against war criminals in the case of Ukraine will set benchmarks for TJ. It is against these benchmarks that any international and domestic compensation and/or reparation actions and policies need to be measured. The same is true for the TJ vetting and lustration processes of individuals and groups of people and communities who must pass the test of whether and to what extent they have been complicit in war crimes.

The outcome of the trials will determine the intensity and standards of vetting and reintegration or rehabilitation of war criminals. It will help to determine the amount of compensation and reparations and who will eventually pay for the destruction and harm committed. The EU has approved the possibility of seizing the Russian Central Bank's assets, and Russian oligarchs whose assets have been frozen as part of the sanctions (Associate Press, 2023). This action is intended to contribute to the reparations for the estimated damage of over 140 billion dollars caused by the Russian invasion in Ukraine. In this contest, the willingness of Russia's post-war elite to collaborate in any TJ process will give way to the possible lifting of so-called ‘smart-sanctions’ and conditional sanctions against Russia and against those individuals listed by the EU, the US, and other states that have issued restrictive measures against Russia since 2014 (Council of the European Union n.d.). The OSCE, in its statements, also recommends that these individuals pay for reparation to victims of IHL and/or IHRL violations.

Ukraine’s President, Volodymyr Zelensky, has been endless in his efforts to highlight the importance of TJ not only after but already during the war as a preventive mechanism to diminish the escalation of war crimes (United States Institute for Peace 2022). According to his government, any tribunal should identify the political and individual criminal responsibility for a military invasion, military occupation, annexation using force, bombardment, and military blockade of ports, such as at Mariupol and Odesa.

3.1 The Disinformation and ‘Cell Phone War’

In this war, evidence of crimes of aggression has primarily been recorded with cell phones and mobile devices, giving this war the title of a ‘cell phone war’. This has allowed not only victims to record and report on atrocities but also Ukrainian forces to locate and tap Russian soldiers’ cell phone calls to pinpoint their locations and provide evidence that these soldiers committed war crimes.

Intelligence services around the world have begun campaigns to counter disinformation. Canada’s government, for example, publishes daily fact-checked information on Russia’s disinformation and propaganda to achieve its objectives (Government of Canada, 2023). Most private, public, media, and military-driven initiatives inside Ukraine record and report daily and even hourly, but the ‘fact and fake news war’ is undoubtedly a stronghold fuelled by all sides.

Thousands of pieces of evidence, films, photos, stories, and data need to be assessed and put into the context of the severity of war crimes. Coincidentally or not, the 2022 Nobel Peace Prize was awarded to human rights advocates from Belarus, the Russian human rights organization Memorial, and the Ukrainian Center for Civil Liberties. All three NGOs have in common that they have been reporting and recording from and beyond the front lines on human rights abuses, war crimes, and crimes against humanity over the years, particularly since February 2022. The initiatives by NGOs and civil society, such as #HoldRussiaAccountable, the Reckoning Ukraine Project (The Reckoning Project 2022), and Amnesty International’s Crisis Evidence Lab (Amnesty International’s Crisis Evidence Lab, 2022) are just the tip of the iceberg.

Obtaining the most accurate, reliable, and credible evidence on what happened and who is responsible is pivotal for the success and outcome of any TJ process and, subsequently, non-recurrence. This means holding even individuals to account for crimes, including the founder of the Wagner Group, Yevgeny Prigozhin. an influential millionaire from St. Petersburg. Evidence suggesting the involvement of Priogozhin and his mercenaries in alleged war crimes has been derived from cell phone records. As a result, Priogozhin is now restricted from traveling to Europe or any country supporting an arrest warrant against him. The UN has supported inquiries and composed a list of potential people to be held accountable (United Nations General Assembly, 2022). This could later include even Minster of Defence, Sergei Shoigu, and dozens of other oligarchs and war supporters. Even if they, or President Putin, will never see an international courtroom from inside, their assets in Europe and overseas have been frozen and their mobility dramatically restricted. They will thus remain under quasi-house arrest in Russia for the rest of their lives or be traded as a pledge to the ICC in exchange for Russia to rejoin international organizations, participate in international events or lifting sanctions.

4 Preconditions for Transitional Justice in Ukraine

Legal accountability for crimes against humanity is only part of a thorough TJ process. A TJ process can also use historical measures to reckon with the crimes, such as memorials and museums, educational and informative measures such as school curricula, social media films, theatre plays, novels, academic conferences, online and offline public debates, and interpersonal reconciliation programs, bringing together, for example, youth from Russia and Ukraine. Facts, evidence, forensics, data, stories, testimonials, and witnesses are the prerequisites for every legal, political, and historical TJ process that reckons with the past. Thus, TJ combines all these processes and is two-fold (Hakeem et al. 2021).

TJ has both backward-looking and forward-looking components. Retributive justice measures look back at what happened. They aim to bring perpetrators to justice, acknowledge and atone with victims, pay individual compensation and country-wide reparations, and set new laws to prevent similar atrocities and crimes from happening again. Overall, any TJ measure, whether criminal, restorative, retributive, compensatory, or atoning, is best to be applied after the war and all sides have agreed to atone for possible war crimes—at least to some minimal extent. As long as one party, in this case, Russia, has not reached that catharsis and needs to cooperate either with the ICC or the EU in exchange for the lifting sanctions, there will be no thorough TJ process.

While the war is ongoing in Ukraine, the NGOs, the independent observers, the media, and even the Russian diaspora, with its social media channels, mostly Telegram, can pressure the aggressors to stand up to their wrongdoings. After fact-checking and clearance of data, it can later be used in trials and during investigations and inquiries to prove whether and to what extent war crimes were committed (Olson et al., 2010). Restorative justice is the forward-looking component of TJ, namely, to restore, repair, commemorate, acknowledge, educate, and raise awareness among populations and key stakeholders on all sides to avoid recurrences and re-building trust among citizens and in public institutions. Restorative justice is pivotal for any post-war period and reconciliation process between Russia and Ukraine in the foreseeable future. Non-recurrence would entail the restoration of full sovereignty to Ukraine over its territory as well as a political and, ideally, democratic regime. Ukrainian President Zelenskyy paraphrased this in his address to the US Congress on 21 December 2022, claiming, ‘The Russian tyranny has lost control over us’ (Zelenskyy, 2022). Yet, the war's outcome and the extent to which Russia and Ukraine will be willing and able to atone for their war crimes will determine whether tyranny prevails in Russia and whether Ukrainians will finally be free to choose their political regime and path.

Unfortunately, this first ‘hot war’ in this New Cold War between democracy versus autocracy might only be the first of many more worldwide. This New War started a decade ago when China openly declared its challenge to the existing world order. In 2021, the Chinese government issued a White Paper on ‘Democracy that works’ illustrating that autocracies have their definition of democracy, essentially one without fair and free elections and massive restrictions on freedom rights. It is a matter of time before people in autocratic countries will protest this fake form of ‘freedom and democracy’ (Mihr, 2022a). Other hot and many more proxy wars will likely follow in the next decades, as they did in the previous Cold War period between 1945 and 1990.Footnote 3

The war in Ukraine is not only the most multi-level and transnationally orchestrated war in recent history but also the first global–local, hence the glocal war we have seen in the twenty-first century. Global, transnational, private, and governmental stakeholders have financed the war machinery and taken sides, which will also impact how TJ is conducted in the following years in this case (Mihr, 2022b).

In 2022 alone, approximately 10 billion people have felt and suffered from the consequences of Russia’s invasion of Ukraine worldwide due to the resultant shortages of grain, corn, and sunflower oil. The interruption of economic vessels and supply chains along the Belt and Road initiative between China and Europe has affected millions of people and the millions of Ukrainian and Russian refugees that have fled their countries, escaping destruction and persecution.

Even if, over the past decades, Russian governmental officials and oligarchs have enjoyed great impunity following Russia's military interventions and war crimes, such as those in Chechnya and Moldova since the 1990s, in Georgia in 2008, and the annexation of Crimea in 2014, or Syria since 2015 and Mali since 2021, this war has changed the scenery, with half of the world’s economy and people affected in one way or the other. TJ will also investigate the responsibility of Russia’s government in withholding Ukrainian grain vessels at the ports of Odesa, for example, and the subsequent hunger and death of millions of people in Africa and the Middle East.

After the first unsuccessful sanctions by the EU and the US against Russia following the annexation of Crimea in 2014, the targeted and smart-sanctions passed in 2022 had a different impact, essentially isolating Russia from the global economy and as a political leader. They are part of this ‘glocal war’. Sanctions, for example, are used as a bargaining tool in exchange for TJ measures, such as the extradition of war criminals from Russia to a war crime tribunal or even the ICC by stakeholders who are not even directly involved in the war.

With the longest-standing involvement in the Russian-Ukrainian conflict, the OSCE is the only remaining European organization in which Russia and Ukraine are still members and will play a pivotal role in future peace and reconciliation processes between the two countries. Since Russia’s annexation of Crimea, the OSCE has been monitoring the situation and the low intensity war in Donbas. The OSCE observatory mission has been collecting data and testimonials that were in violation of the Minsk Agreement, which lasted from September 2014 and ended on 21 February 2022, three days before the war started (OSCE 2015). Back in 2021, another stakeholder, the Venice Commission, an advisory body of the Council of Europe (CoE), together with the OSCE and the Ukraine government, in the light of the massive breach of the Minsk Agreement, tried to establish a TJ framework between Russia and Ukraine for the reintegration and reconciliation of temporarily occupied territories in Donbas. This framework was called ‘On the Principles of State Policy of the Transition Period’ (European Commission for Democracy through Law (Venice Commission 2021) but never came into force due to the opposition of both parties to such an instrument (Mallinder, 2022).

Even before the war, the OSCE was deeply divided over the case of Ukraine, as the monitoring mission in Donbas was only holding back a war that was about to burst out, namely less the territorial claims and much more Ukraine's path since 2014 toward increased democracy and EU integration. This shift away from the former hegemon, Russia, provided sufficient reason for its invasion of Ukraine in 2022. Even before 2022, the EU had tried to accept Ukraine as a potential candidate for EU membership, signaling to Russia that EU expansion was coming closer to the Russian heartland. The Donbas was the battle line between NATO and EU members and hence between the autocratic regime in Moscow and Kyiv, leaning toward democracy. The Donbas soon became the frontier of the EU's human rights values and democratic norms, eventually turning the Eastern Ukrainian border in the Donbas into a non-official frontier between Western norms and standards and post-Soviet ones, which outraged the autocrats in the Kremlin. This will be even more important to remember when the TJ process is at full speed since the ultimate goal of this war is to defend and (re-)establish a democratic regime in Kyiv that can stand against autocracy.

Since Russia’s President's constitutional reforms in 2020 manifested his autocratic leadership, he has systematically undermined any OSCE agreements—not only the Minsk Agreement and IHRL and IHL (Hutcheson & McAllister, 2021). The OSCE aims not to fall apart and keep the status quo alive as much as possible. Even diplomatic confrontations between its members are strictly avoided. Instead, the organization has continued its collaborative and consensus-building purposes and the cooperative and confidence-building character of its meetings, including during the OSCE Summits and the Ministerial and Permanent Council Meetings in Vienna, where the intention was to launch a warning mechanism between participating states.

After Russia annexed Crimea in 2014, the OSCE Minsk Group’s success was contingent. It was neither complying with its standards nor leading by example. The ‘Minsk experiment’ was doomed to fail, as was the TJ framework created by the Venice Commission at that time, hindered by the lack of permanent and independent Human Rights observers and rapporteurs who could monitor IHRL compliance on both sides and report back to the OSCE and the public. Instead, independent observers were rejected by all sides of the conflict, which led to conspiracies, allegations, and accusations cumulating in war (Mackiewicz 2018). It is, therefore, essential to consider who is this time defining the criteria for success for this TJ process.

The only way out of this dead-end TJ corridor is to put actions into private and semi-public hands and get different governmental and non-governmental and private stakeholders involved to report, testify, and record the conflict. The involvement of many different stakeholders with different intentions has turned Ukraine into a territory-wide glocal armed conflict area already. In the TJ process that follows this glocal phenomena has to be mirrored.

When the 123 state parties to the ICC collectively mandated the ICC prosecutor to launch an investigation into the situation in 2022, they were aware of the plethora of stakeholders on the ground, many of them unprofessionally trained, and they also needed reliable, professional investigators on war crimes. Such verifiable and reliable data is pivotal for the TJ process. Whether the findings will lead to trials against war criminals (on all sides) at the ICC remains open. An international Special Tribunal for Ukraine on war crimes, crimes against humanity, and crimes of aggression seems more likely (Marchuk & Wanigasuriya, 2022).

5 Ukrainian Caveats

Although the Ukrainian chief prosecutor already went ahead and filed court papers against dozens of suspected Russian war criminals and has planned hundreds more, ten of whom had already been convicted by October 2022, the trials were seen as precarious and lacking in proper legal representation by Russian lawyers for alleged Russian war criminals. The taste of ‘winners justice’ is already in the air and can jeopardize a fair TJ process in the following years. Despite Kyiv’s Ministre of Justice assurances that all these trials are under the Rome Statute and in close cooperation with European partners and ICC, such actions could backfire if they do not respect the defendants’ fairness and proper legal representation.

Yet, ever since 2014, the Ukrainian government has been anticipating ‘legal battles between Russia and Ukraine’ over its sovereignty. In 2015 the parliament in Kyiv passed a law to punish the offense of disseminating Communist and Nazi symbols, which were used by Nationalist and pro-Russian propagandists to undermine the pro-EU and democratization processes in Ukraine. Still, the law is predominantly devoted to symbols of the communist and Stalin regimes, and the use of Nazi symbols remains unpunished primarily in Ukraine. This gave ground for President Putin to call the Kyiv government a Nazi regime. In response, the Ukrainian government legally weaponized itself against Russian propaganda and passed discriminatory laws against its Russian population. In 2006, the Ukrainian parliament passed a restrictive law forbidding the denial of the Holodomor, Stalin's genocide, and the famine catastrophe of 1932/33. Although morally justifiable, this law also hampered an open discourse about the role of individual perpetrators during that genocide. The Ukrainian parliament also restricted the use of the Russian language for native Russian speakers. In April 2019, the parliament issued a law disenfranchising the country’s native Russian speakers to strengthen national identity. Critics perceived it as ‘anti-Russian’, fuelled the conspiracy not only in Moscow that the government in Kyiv was persecuting and systematically discriminating against the Russian minority in Ukraine and made the success of any proper TJ process, even before 2022, most unlikely.

Russian historian Kasianov, now in exile, highlighted in an interview how manipulation of the past and its symbols, even linguistic ones, were used to enforce political interests on both sides. As per Kasianov, Ukraine reassures itself of its history to ensure its future; Putin’s Russia glorifies the Soviet past and the fight against Nazism to justify the aggression of the current regime (Kasianov, 2022).

Against this backdrop, a precondition of a non-partisan TJ process in Ukraine ought to be kept in mind, cleansing the penal code of anti-Russian laws. Furthermore, its level of inclusivity, and hence success, will be based on external stakeholders, such as the ICC, EU, OSCE, UN, and NGOs, and how much they provide information and resources to set up an international and nonbiased TJ process. Much of their data and actions must be fact-checked and classified before being used in trials and commissions of inquiry. That alone will challenge stakeholders such as lawyers, politicians, historians, and local administrators to conduct a successful TJ process.

6 Transitional Justice Beyond the Ukrainian War

Transitional Justice is both a concept and a process at the same time. It encompasses several legal, political, and cultural instruments and mechanisms to strengthen, weaken, enhance, or accelerate regime change and consolidation processes. The process can take years, often decades, and even generations, to complete, and it is both backward (retributive) and forward (restorative) looking (Mihr, 2019).

TJ measures, such as commissions of inquiry, trials, memorials, compensations, and amnesties, can foster or hamper the successful transition from one regime type to another (Minow, 1988). In this case, the transition from a semi-authoritarian regime to democracy in Ukraine. There is little doubt that if Russia and Ukraine attain to coexist in a peaceful and friendly neighborhood in the future, some, if not all, TJ measures ought to be applied. There will be no peace without justice between the two countries. This will also be a chance for Ukraine to reconcile not only with its ethnic and linguistic Russian minorities but also with others, such as the Tatar and Roma minorities, which were part of the inter-state and internal controversies that led to the war in the first place. Bias and anti-Russian sentiments in Ukraine have led to severe charges and political imprisonment of pro-Russian activists. These charges were internationally condemned in the past but without much response from governmental authorities (US State Department, 2020).

There is no guarantee of a given political or societal outcome following TJ. It can be politically instrumentalized, used, and/or abused and is often at odds with Realpolitik or the Zeitgeist, and the desire for vengeance rather than justice. This will likely happen if Ukrainian prosecutors and heads of local commissions of inquiry turn a blind eye to ‘good Ukrainians’ and hunt only for ‘bad Russians’. If the exclusive process only targets Russians, TJ will not reach its anticipated outcome.

Based on Amnesty International’s Crisis Evidence Lab investigations, the Ukrainian prosecutor warned the NGO that justice and truth were at odds in this war. In August 2022, Amnesty published its first fact-finding mission report about the war, accusing Russian and Ukrainian military forces of war crimes. In the 2022 report, Amnesty criticizes Ukrainian forces for putting civilians in harm’s way by establishing bases and operating weapons systems in populated residential areas, including schools and hospitals, as they repelled the Russian strikes. This violates IHL and the Geneva Conventions. It turns civilian objects into military targets. This might become a controversial issue during the TJ process, namely that being in a defensive position does not exempt the Ukrainian military from respecting IHL (Amnesty International, 2022). In the same vein, the UN’s Independent International Commission of Inquiry on Ukraine, established by the UN HRC in March 2022, has repetitively alerted all war parties that ‘enhanced coordination of international and national accountability efforts to improve effectiveness and prevent harm to victims and witnesses’, needs to be upheld (UN OHCHR, 2022). Identifying those responsible for war crimes and human rights violations must be a priority, but it cannot only be against Russian combatants. Since March 2022, the UN HRC has launched several calls and passed several resolutions on Ukraine (i.e. UN HRC Resolution 49/1), and launched joint actions with the OSCE and the ICC calling upon civil actors, individual reporters, and NGOs to help to collect data in line with IHL. The UN and the ICC have set deadlines for submissions. The UN aims to write a timely report as soon as possible ‘to recommend accountability measures, all to end impunity and ensure accountability, including, as appropriate, individual criminal responsibility and access to justice for victims,’ expecting a far-reaching report and recommendation for TJ by March 2023 (UN Human Rights Council, 2022). They fear that, otherwise, arbitrary trials will lead to winners’ justice against Russians, jeopardizing the trustworthiness and effectiveness of any trial or reparation fund and, ultimately, Ukraine's future role in Europe.

TJ must, nevertheless, include a mix of judicial and non-judicial instruments and mechanisms such as trials, truth commissions, vetting, and lustration procedures, memorials, reparations, restitutions, or compensations, and even amnesty and rehabilitation laws that allow different actors, governmental and non-governmental alike, to redress the human rights violations of the war and the past (UN Human Rights Council, 2022). TJ measures should establish a democratic society that is resilient toward the recurrence of a similar conflict in the future (United Nations, 2010).

The ICC has confirmed its support wherever possible, and the EU and the US have already agreed to support financially and with manpower to set up a Special Tribunal on Crimes of Aggression in Ukraine and to support the democratization process. Hence, what is left for negotiation once the TJ process starts is, first, fair and transparent cooperation by and with the Russian authorities. Second, a clear strategy for turning court decisions into benchmarks for restorative lustration and vetting policies, compensations, and reparations (Teitel, 2014).

However, it is this collaboration that will determine whether Ukraine will consolidate democratically and be able to remain peaceful neighbors with Russia. This can take generations to be successfully implemented. Excluding people because of their political views, language, or nationality and glorifying ‘war heroes’ even if they have committed war crimes would be the wrong avenue.

A thorough vetting and lustration of all Ukraine actors and stakeholders is necessary. This will be a very individual process, and the scanning and screening of individuals should determine who will be allowed to take public office or become a ministry or police officer (Winter, 2014). Countries that have failed to undertake such processes over the past decades, such as post-war Serbia or Bosnia and Herzegovina, as well as most post-Soviet countries such as Azerbaijan, including Russia and Ukraine, have all faced severe difficulties in democratizing successfully (Stan 2008). The line cannot be drawn at who is the aggressor or victim, but rather on the extent to which the person was responsible for or involved in war crimes—no matter the nationality or language (Mihr, 2020b).

Suppose the TJ process needs to be more inclusive and happen according to international law—in such a case, the Russian aggressor will not be demystified and delegitimized, nor will the authoritarian and corrupt past that the Ukrainian government is haunted by being left behind. Proceeding in the most transparent, accountable, and inclusive way possible will build trust in a rule and law-abiding new regime and reconcile divided societies (McAdams, 1997). If that is not the case, former combatants will turn against each other again, and lines will be drawn according to ethnic, linguistic, religious, or political ideas—and, in the case of Ukraine and Russia: along historical lines. For example, in June 2023, the Dutch Supreme Court resolved the Ukrainian ‘Scythian Gold ‘case in the ‘Russian-Ukrainian Identity War’. The Dutch authorities withheld the 2.300-year-old treasure in an Amsterdam Museums exhibit since 2014 because the place of origin, namely Crimea, was annexed by Russia that year. The Dutch Museum wanted to return it to Kyiv, but Russia objected. The museums in Crimea, now under Russian authority that lent the works, argued that their loan terms had been violated and that archaeological artifacts recovered from Crimean soil belonged there, regardless of politics and annexation. Eventually, ten years later, the Supreme Court ruled that the Gold would be returned to Ukraine, not Crimea. The same day, the Ukrainian President called this decision a victory of International Law and an act of TJ (Reuters, 2023). Even historical artifact cases such as this, if not dealt with under international law in a TJ context, can be a cause or reason for violent conflict in the decades to come.

Working slowly toward an inclusive TJ process in Kyiv and Moscow could illustrate that both sides aim to make politics different and more democratic than the previous regime. Such an approach also delegitimizes their previous regimes—which have been far from democratic and the rule of law-abiding.

In contrast, an exclusionary TJ process usually selects victims and perpetrators whom the current government and not an independent court or commission portrays as enemies and victimizers in the previous regime. This leads to the winner’s justice.

Although it is hardly ever possible to be fully inclusive and non-partisan because victims and perpetrators also overlap, it is vital to keep the door open for future generations who might want to talk to one another despite their parents and grandparents having been opposing parties. There is no fully—fledged inclusive or exclusive TJ process in this world; however, some lean more toward inclusivity, and others toward exclusion. This tendency has made, in the end, all the difference in the democratic outcome of the (new) regime (Mihr, 2019).

The TJ process in Ukraine will be challenged by the demands for truth and justice on the one side and the claims for revenge and condemnation on the other. The Venice Commission well acknowledges this threat even before the war. In 2021, the commission launched a draft TJ framework for Ukraine, stating in Art. 12 that safeguarding the right to the truth is the primary role of the Ukrainian government and all stakeholders involved. It mandates that they ‘promptly inform the public, providing reliable, accurate, and complete information about the causes, evolvement, and consequences of the armed aggression of the Russian Federation against Ukraine (…)’ (European Commission for Democracy through Law (Venice Commission) 2021).

TJ never took off before the war, and Realpolitik has always been at odds with it. Claims by victims, combatants, and survivors that seek vengeance rather than justice often prevail, preventing the TJ process from attaining justice in a philosophical or ethical sense. Whereas TJ is a process with medium to long-term impact, Realpolitik is the politics and policymaking of everyday life. The most TJ can do is to provide a pathway for more rule of law and democratic consolidation. For that to happen, it is pivotal that actors such as the UN, the OSCE, the EU, and even NATO see their role as incentivizing supporters but not as replacing governmental responsibilities in Kyiv or Moscow. They ought to abide by IHRL and ICL and be ultimately responsible for implementing decisions taken at tribunals and courts concerning the war.

A normative legal and political framework in Ukraine and Europe supports these efforts: the EU, the CoE, and the OSCE. Over the past three decades, they have succeeded in changing laws and political habits in post-communist Eastern and Central European countries. The post-soviet Baltic States are the most prominent examples of these transition processes. The EU has been the most significant donor and contributor to all rule of law-related measures and democratic institution building and continues to be so.

In 2022 alone, the EU spent almost 500 million euros on humanitarian aid for Ukraine, some of it going into TJ measures, and it decided to collaborate with the ICC. It adopted a conclusion to fight any sign of impunity in Russia’s war of aggression, calling upon other EU bodies, such as Eurojust, Europol, the Genocide Network, and EUAM Ukraine, to continue providing their support and guidance on investigations and TJ (Council of the European Union, 2022).

Yet, the challenge for this TJ process will remain coordinating and disentangling the different actors, actions, mandates, sources, and data. As early in the process as this may be, it needs a more centralised, non-partisan coordination, ideally under UN leadership. There is no indication that any of the stakeholders, thus far, can or is willing to take the lead in this process—even though Ukraine’s pathway to democracy will depend on it.

7 Conclusion

Shortly after the beginning of the war of aggression against the Ukraine in February 2022, the UN, EU, OSCE, ICC, NGOs, and numerous individual rescuers and observers started fact-finding and recording missions from outside and inside Ukraine. These aimed to provide open-source platforms for anybody who collects data on war crimes and shares stories for potentially upcoming trials on war criminals. Over a year later, that process still needs to be coordinated, unorganized, and on the brink of missing its intended effect.

Based on the impact that TJ measures can have, in the case of Ukraine, it could be recommended that leadership be given to an international UN body to monitor TJ interventions and make these as inclusive and responsive as possible.

But even after the ICC arrest warrants against Russia's President Vladimir Putin and his Presidential Commissioner for Children’s Rights, Maria Alekseyevna Lvova-Belova, in March 2023, with the vast array of stakeholders, this body needs to establish ways and mechanisms for assessment to provide information about the preferences, needs, experiences, and perspectives of the beneficiaries and allow for adjustments along the way (Porciuncula, 2021). Setting clear standards and sequences for the TJ process is pivotal. Hybrid tribunals with international and national participation must be established to decide upon and define the scope of damage and violations before a vetting process or compensating victims’ scheme can begin.

At the beginning of the war, data transparency was only seen to put pressure on the aggressor in Russia, but not used as an instrument for long-term peace, justice, and reconciliation between the two countries. Evidence of war crimes and the threat of persecution of war criminals have been weaponized against predominantly Russian aggressors and hence do not serve the purpose of TJ but that of intimidation and threatening the enemy. Therefore, even the data and forensics investigators soon became part of the ‘cell phone war’ to make war crimes transparent, but without coordinated actions.

Alongside the reports and fact-finding missions of the OSCE, EU, UN, ICC, and NGOs, platform initiators argued for the ‘power of story-telling and legal accountability to fight for justice, safeguard rights, and restore truth in the face of Russia’s invasion of Ukraine’ (The Reckoning Project 2022), which yet remains to be seen.

The challenge for this TJ process will be to disentangle and fact-check the hundreds of thousands of pieces of evidence and data. It should only aim to preclude their outcome if they are dealt with in a rule of a law-abiding way following IHRL and IHL.

Overall, the TJ process in Ukraine is one of the best funded and legally prepared as soon as the war ends. There is no lack of judges to sit on the bench, nor is there a lack of data, evidence, or witnesses. The challenge lies in ensuring a non-partisan and transparent conduct of the proceedings. It is crucial that judges are willing and capable of impartially ‘blaming all sides,' conducting the process inclusively, and maintaining independence from any side during the war (Gibson, 2006). This, in turn, will determine the quality of democracy in Ukraine and possibly Russia in the future (Mihr, 2013).