The role of transitional justice in reconciliation and protection of children’s rights in the perspective of de-occupation
Yevhen Didenko, judge of the Obolonskyi District Court of Kyiv City
The horrors of the war challenged not only the state authorities as a whole but also ordinary citizens who feel the consequences of armed aggression every day, experience losses, are under occupation, try to rebuild what was lost and dream of returning to their usual lives. If even adults find it challenging to overcome new realities of life, then children, as the most unprotected category of the population, need special attention and support from the state. No armed conflict lasts forever, and that is why the state must have a clear strategy for establishing a peaceful life in the de-occupied territories, particularly in the aspect of the future upbringing and protection of children’s rights, taking into account their quite different experiences: staying abroad, in occupation, in the aggressor country or on the controlled territory of Ukraine.
Thus, about 1,000,000 Ukrainian children remain abroad, about 744,000 children are illegally deported to the aggressor country, and 1,012 criminal proceedings have been registered for war crimes against children [1; 2; 3]. The above determines the relevance of the institution of transitional justice as part of the system of priority legal measures of the state to restore peaceful life in the territories under occupation.
The purpose of this publication is to analyse the institution of transitional justice, determine its role and prospects in protecting the rights of children in the de-occupied territories, and develop proposals for specific necessary measures within the framework of this institution.
International humanitarian law and its violation by the aggressor state.
It should be noted that the provisions of international humanitarian law pay special attention to the protection of children’s rights during armed conflict. In particular, the Additional Protocol to the Geneva Conventions, the Geneva Convention for the Protection of the Civilian Population in Time of War of 1949, provides that children enjoy particular respect and are equipped with protection from any indecent assault. The parties to the conflict shall provide the security and assistance they require, either because of their age or for any other reason. The parties are obliged to limit the participation of children in hostilities.
Forcible deportation of children, except for the need to ensure their safety and change their citizenship status, is prohibited. The occupying state is entrusted with promoting the proper functioning of educational institutions, taking measures to establish children’s identity and register their family ties [4; 5].
Despite the specified provisions of the norms of international humanitarian law, numerous cases of violation of children’s rights, their forced removal to the aggressor country and other war crimes indicate that Russia does not comply with its international legal obligations.
The UN Committee on the Rights of the Child, in its “Concluding Observations on the Combined 5th and 6th Periodic Reports of Ukraine,” noted numerous accurate reports of gross violations of children’s rights, such as murders, mass displacement inside and outside the country, as well as the destruction of civil infrastructure. According to the United Nations Children’s Fund (UNICEF), at the end of 2022, the education of almost 5.7 million children was interrupted. The Office of the United Nations High Commissioner for Refugees notes that as of February 23, 2023, as a result of shelling and bombing, 3,151 educational institutions were damaged, including 440 wholly destroyed. UNICEF reports that almost 1.5 million children face mental health problems .
In addition, in the occupied territories, the aggressor country takes active actions to deprive Ukrainian children of their national and personal identity. Such activities consist of the mass deportation of Ukrainian children to the territory of Russia, with subsequent placement in Russian families, the provision of educational institutions in the occupied territories by Russian teachers, conducting “educational” work among children in academic institutions to justify Russian aggression, forcing them to attend educational institutions in the occupied territories, with a ban on continuing education remotely in educational institutions according to the Ukrainian education program.
In addition, the aggressor country pursues an active policy of militarisation of Ukrainian children, involves them in participating in youth organisations in which military and patriotic education takes place, and ideas of Russian identity are promoted. It is also quite evident that under such conditions, children in the occupied territories are deprived of the opportunity to express their Ukrainian position openly. [7; 8]
It should also be taken into account that the temporarily occupied territories of Ukraine differ in the length of time they stay under occupation; accordingly, the longer the occupation lasts, the more negative its consequences become and more time and resources are needed to overcome them.
In this regard, it is essential at the state level to analyse future challenges, have a normatively established strategy and prepare for the solution of the post-conflict legal, humanitarian and social problems. Based on international experience, transitional justice is the peace-restoring program that, among other measures (adjustment of the economic sphere, restoration of social and administrative services, social security, infrastructure), should be implemented in the de-occupied territories.
Concepts and elements of transitional justice
Transitional justice should be seen as more than just judicial procedures. Thus, in the 2004 report of UN Secretary-General Kofi Annan, it is stated that transitional justice encompasses the entire complex of processes and mechanisms related to society’s attempts to overcome the grave legacy of large-scale violations of the rule of law in the past to ensure accountability, justice and reconciliation. These include judicial and non-judicial mechanisms with varying degrees of international participation (or without it) and separate actions on prosecution, compensation, fact-finding, and institutional reform .
In a broader sense, transitional justice can also be understood as fair treatment by the law to all participants in societal conflict processes [10, p. 31].
International law has developed four main components of transitional justice: criminal prosecutions – effective investigation of war crimes and gross violations of human rights, bringing the guilty to justice; Reparations – creation of national mechanisms to compensate victims, pay them compensation for physical and mental damage caused, reparation of damages, restoration of violated rights of conflict victims, providing them with medical and psychological assistance, as well as legal and social services; establishing the truth (Truth-telling) – providing objective information about the causes and consequences of the conflict, forming and providing access to war archives; institutional reforms (Institutional reforms), which provide for administrative measures to check public servants, reforms in the field of education, judicial, law enforcement and other bodies [11, p. 31-32; 9].
The state of normative regulation of elements of transitional justice in Ukraine
It should be noted that there is no universal model of transitional justice; therefore, in each case, such a model must be built based on specific political and economic realities, the nature of the conflict and the needs of society.
Despite the protracted armed conflict and the occupation of part of the territories of Ukraine, we can state that the state lacks a clear and sufficient regulatory framework that would determine the principles of state policy in the field of transitional justice and regulate specific mechanisms for the reintegration of the occupied territories.
Legislative acts in this area include the Law of Ukraine “On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine”, the Law of Ukraine “On Ensuring the Rights and Freedoms of Internally Displaced Persons”, the Law of Ukraine “On Military-Civil Administration”. However, these legislative acts are designed to address the needs of the present and do not provide for post-conflict measures.
Also, the Decree of the President of Ukraine No. 584/2019 established the Commission on Legal Reform, and its composition includes a working group on the reintegration of temporarily occupied territories. She developed the concept of transitional justice in Ukraine. Such a Concept traditionally consists of four essential elements known in international law: compensation for damage to victims of the conflict; bringing the guilty to justice and preventing impunity; ensuring the right to the truth about the armed conflict; implementation of measures to avoid conflict in the future .
In 2021, the Cabinet of Ministers of Ukraine submitted a project of the Law of Ukraine, “On the Basics of State Policy of the Transition Period”, which is currently withdrawn. The specified draft law was proposed to determine state policy’s main principles and directions in the transitional, conflict and post-conflict periods. In particular, the observance of children’s rights pointed out the need to intensify national-patriotic education, primarily among children and young people in the transition period, ensuring access to education, health care, social protection and mass media in Ukraine for persons living in the temporarily occupied territories; the implementation of an effective educational policy, the formation of a civic education strategy in the de-occupied environments, state support for the study of the Ukrainian language and the history of Ukraine, as a measure to prevent the recurrence of the occupation .
The above testifies to the need for a high-quality regulatory and legal basis in Ukraine, demonstrating to society and international partners Ukraine’s political readiness to reintegrate the occupied territories. In addition, in such a regulatory framework, special attention should be paid to restoring identity and protecting children’s rights, considering the predicted challenges and risks in this area.
Prospects for the application of elements of transitional justice in Ukraine in the aspect of protecting children’s rights
As part of the study of this topic, some aspects of transitional justice should be analysed in the context of protecting children’s rights and the impact on forming their collective memory in the future.
Criminal prosecution. Restoration of legality in the occupied territories, effective investigation and punishment of persons accused of war crimes and crimes against children are among the priority tasks of the state. Such measures fully meet the interests and demands of society and must be carried out in compliance with all international standards of the right to a fair trial. At the same time, ensuring the most open court processes to demonstrate to society the legitimacy of court procedures and to prove information about specific confirmed facts of crimes is essential. In the future, such points can become study subjects within the framework of educational processes to achieve the correct educational goal.
At the same time, it is necessary to maintain a reasonable balance between peace and justice and to prevent criminal prosecution from turning into revenge against those citizens who remained in the occupied territory and were forced to maintain relations with the occupying power. In particular, in the legal community, the question of the expediency of criminal prosecution of a separate category of the population of the occupied territories for collaborative activities that did not cause significant damage to the state or were aimed at maintaining the livelihood of the occupied territory remains debatable. Therefore, criminal prosecution mustn’t be repressive but protective and educational. Also, in our opinion, it would be helpful to introduce psychological support to families with children and children whose parents were convicted of serious crimes related to military aggression against Ukraine.
Reimbursement. Within the framework of this mechanism, it is necessary to ensure the possibility of receiving fair compensation for children who suffer from the consequences of war. Moreover, this applies equally to both children who became direct victims and those who lost loved ones in connection with the commission of war crimes. Implementing this mechanism requires the state to create an administrative procedure within which it is possible to determine the status of victims, the amount and the process for receiving compensation. However, it is economically justified that ensuring the payment of such settlements should mainly be carried out at the expense of the resources of the aggressor state. Therefore, the perspective of implementing the compensation system depends on successful political decisions and agreements.
It is establishing the truth. This element is one of the most important in the context of restoring the identity of Ukrainian children as a result of the occupation, as well as establishing relationships with children who will return home to the de-occupied territories. Establishing the truth involves a whole set of information measures aimed at providing objective information about the war’s causes, chronology and consequences. At the same time, it is crucial to convey the position that the victims of the armed conflict are both those children who left the occupied territories and those who were in the occupation. Thanks to providing accurate information, the younger generation should have the same attitude towards the events of the war. As part of this element, world experience suggests the creation of special commissions to establish the truth. Thus, in the 2004 report of the UN Secretary-General, it is stated that more than 30 such commissions have been established. They can bring significant benefits, helping society in the post-conflict period to establish the facts of past human rights violations, strengthen the accountability regime, preserve evidence, identify violators and make recommendations on compensation and organisational reforms .
The creation of such commissions in the national system of Ukraine should be politically, organizationally and economically balanced. As evidenced by international practice, in many cases, such commissions had quite broad powers, in particular, to conduct investigations and collect evidence, which in turn requires adopting an appropriate legal framework for their legitimisation and functioning. Based on the current political and economic realities, the creation of such commissions will not be justified. At the same time, we offer to ensure the achievement of the necessary result thanks to the interaction of judicial and law enforcement agencies, mass media, local executive authorities, and participants in the educational process. Thus, Ukrainian journalism is already discussing the challenges that will arise when resuming work in the de-occupied territories; in particular, it is emphasised that preparation for such work should be started in advance . Also, educational processes should include open discussions of the events of the occupation and war, highlighting the negative consequences of armed aggression against Ukraine.
Reforms. The main reforms in protecting children’s rights in the de-occupied territories should relate to the restoration of educational institutions, the education of children taking into account the hostile experience of occupation, the implementation of gradual patriotic education and the elimination of the consequences of Russian propaganda. In particular, the issue of continuing the education of children who studied under the control of the aggressor country and the conditions for legalisation of the education documents they received need to be resolved. Also, providing psychological support for children should be ensured, both within the framework of educational activities and at the family level. When conducting academic and educational policy, state authorities and local governments should take measures to prevent discrimination against children, primarily based on “those who stayed” and “those who left during the occupation”.
At the international level, it is necessary to continue the work on the return of all Ukrainian children who were illegally deported to the territory of Russia, as well as to adopt the appropriate legislative framework for this.
The analysed topic confirms the relevance of the state’s preparation for the reintegration of the occupied territories, especially in the area of children’s rights. Such practice is necessary both for the formation of a clear and balanced policy of the transition period at the national level and for informing the population about the real intentions of the state to protect citizens to return democracy and legality to the occupied territories. To restore peace, law and order and protect children’s rights, transitional justice, the experience of which has already proven its effectiveness at the international level, should become an effective mechanism. At the same time, applying transitional justice requires adopting an appropriate legal framework, and the measures taken by the state must consider the needs of the younger generation, separately providing for measures to protect children’s rights and prevent discrimination.
The article was prepared by the Center for Civic Education “Almenda” as a part of the project “Steps towards each other: approaching the reintegration of youth from the temporarily occupied territories”. The project is implemented with the financial support of the Ministry of Foreign Affairs of the Czech Republic as a part of the Transition Promotion Program. The views represented in this material belong to the authors and do not reflect the official position of the Ministry of Foreign Affairs of the Czech Republic.
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The article was prepared by the Centre of civil education “Almenda” as a part of the project “Steps towards the meeting: bringing youth from temporarily occupied territories closer to reintegration”. The project is implemented with the financial support of the Ministry of Foreign Affairs of the Czech Republic as a part of the Transition Promotion Program. The views represented in this material belong to the authors and do not reflect the official position of the Ministry of Foreign Affairs of the Czech Republic.