Author: Eleanora Takitzi - Russia Team

What Is Transitional Justice?

Justice for the victims of international crimes encompasses a crucial facet of post-conflict societies. Albeit its significance, justice for victims remains a highly elusive, subjective concept that amalgamates elements of both retributive and transitional justice. To explain, retributive justice represents the traditional punishment of the wrongdoer, whereas transitional justice focuses on the needs of the victims, thus prioritising reparations and the establishment of a truthful record of events. Particularly, reparations are a symbolic way of compensation for the suffering of the victims, taking either monetary or non-monetary forms by means of collective or moral reparations. On the other hand, truth establishment can be pursued through different avenues, ranging from truth commissions and forensic investigations to witness testimonies and formal apologies.

Arguably, retributive justice, in the form of legal accountability, comprises a pivotal aspect, with many victims expecting to see the wrongdoers punished for their crimes. However, in recent times, transitional justice frameworks, with a growing emphasis on the participation of victims in trials, have gained significant traction, largely spurred by the Ukraine-Russia conflict.  

Victim Participation in Trials: Why Is It Controversial?

Victim participation in trials is a relatively novel development in the field of international criminal law, originating in the French criminal procedure that permits victims to participate in trials as parties against the accused and claim reparations. Victim participation in trials, however, is frequently opposed due to the principle of equality of arms under international law, whereby the parties involved in a trial, namely the prosecution and defence, should be able to present their case under circumstances that do not place them in an unfavourable position against their opponent. If victims are allowed to participate as a third, separate party in direct opposition to the accused alongside the prosecutor, then the accused’s rights of the accused will undoubtedly be affected. 

Victim Participation in Trials: Why Is It Important for Post-Conflict Ukraine?

Despite the present contestations over the participation of victims in trials under international law, many experts have used their voices to explain the value of victim participation in equipping victims with a reparative effect. 

In particular, the establishment of truth is the cornerstone of the rule of law, with the UN High Commissioner for Human Rights remarking that victims are entitled to “the full and complete truth as to the events that transpired”. Although the truth is objective, it is never one-sided; accordingly, adopting a pluralist approach whereby the victims are granted the possibility to hear the perpetrators exposing their own truth and narrating the events from their perspective establishes a fuller record of events. In turn, a (more) complete version of the truth can bring victims closer to healing and recuperation.

What is more, victim participation bestows on victims a platform where they can have their voice and suffering heard. Not only would such visibility empower victims, but also it would foster national reconciliation by affirming a sense of humanity in the highly technical and legalistic environment of trials.

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Lastly, reparations are powerful mechanisms to compensate for the harm and loss suffered by victims. As the former UN Secretary-General, Kofi Annan, explain, reparations are “arguably the most victim-centred justice mechanism available and the most significant means of making a difference in the lives of victims” (para 26). Indeed, reparations can contribute to the rebuilding of post-conflict societies, thus bolstering confidence in the state apparatus and leading to more durable peace.

Some Concluding Remarks

According to former UN Secretary-General Kofi Annan, states must “act both against perpetrators and on behalf of victims” (para 26). Judging from the manifest resoluteness of the international community to condemn Russia’s activities and hold culpable individuals accountable, the concept of transitional justice harbours the potential for practical deployment to the advantage of post-conflict Ukraine, despite legal reservations. The prospect of allowing victims to participate in the trials of individuals who have committed, authorised, or overseen atrocities on Ukrainian soil during the conflict would serve as a beacon of justice and empowerment for the victims. Furthermore, and perhaps most importantly, the active involvement of victims in trials would send a powerful message against impunity, reiterating the commitment of the international arena to uphold legal accountability and achieve justice for the most aggrieved by the conflict, the victims. As the Victims Commissioner elucidates, “the time has come to re-conceptualise the status of victims so that they are seen as active participants from the point the crime is committed throughout the criminal justice process and beyond”.