During a war in Ukraine the state didn’t decide on a number of important issues, and one of the most acute – what will happen after the deoccupation with the population of Crimea and temporarily uncontrolled to Ukraine territories of Donetsk and Luhansk regions? The society with absence of the legislative provisions decided to set on independently the ‘stage of responsibility’ of those, who’s now suffering in the occupation, on an equal basis with those who actually committed criminal offenses.

Last month mass media have released a number of publications about the activity of a working group, created by the initiative of Ombudsman for Human Rights Valery Lutkovska. Suddenly first time a word ‘collaborators’ sounded loudly and aggressively. These messages are being retranslating on the occupied territories and a fear, quarrels, breaking of the connections, the absence of the constructive part – this means the base of a dialogue, are become an answer.

Such a situation can’t contribute neither to the finish of conflict, nor the success and development of Ukraine. So, what working group is doing and what will bring the conception under the name ‘Principles of state policy for the protection of human rights in the context of overcoming the consequences of armed conflict’ to citizens of Ukraine in NGCA and Crimea?

Informator.media was looking for answers on these questions.

Valery Lutkovska: I don’t think that somebody could suspect human rights activists will write bloodthirsty document

Valery Lutkovska has emphasized that ‘working group, which was created today by an initiative of Ombudsman for Human Rights, includes human rights activists, MPs, as well as interested citizens, who are ready today to work 24/7 in fact, over the document, which, we hope, will become tomorrow, first, a subject of a wide discussion in the society and second, will become a law, which will be adopted by the parliament; we’re working over the conception of a state policy in the sphere of the protection of human rights to overcome conflict consequences’.

According to words of a working group members, their activity is directed not to create a ‘punitive tool’, but to develop a basis for legislation. The conception, over which the working group is working, has no words-irritants, such as ‘collaborator’, ‘accomplice of the invader’, ‘forgiveness’. Members of group consider that people, living in the occupation, can’t be judged only because they stayed to live in their own houses and go to work to feed their families. If a person didn’t commit criminal offenses, it can’t be persecuted.

‘Our point of view is that initially the state of Ukraine, having restored its control over the border between Ukraine and the Russian Federation, should protect the rights of those citizens who were compelled for some reason to remain on an uncontrolled territory’, Lutkovska’s emphasizing.

‘And, completely, we consider that at the moment, till the conflict will over we must form such statements of a state policy, which, from the one side, will protect those citizens, who we making their work fairly – they’re doctors, teachers, firefighters, who, unfortunately hyad no possibility to leave and and, strictly speaking, didn’t change the oath they gave initially in their lives, say, like those doctors who still carry out the oath of a medic…

From the other side, really, any state won’t allow to escape punishment to those, who have committed crimes. But what crimes could be and for what to punish, the state must decide right now, at least if there is to be legal certainty among those citizens who are today in NGCA and who are now in the controlled territory, for them it’s also important’, ombudsman continues.

Otherwise, it’s very important to make a formulation clear – who is the victim of a conflict.

‘By and large, the victim of a conflict is the hall population of Ukraine: and in connection with the occupation of Crimea as well as with Donbass hostility, in connection with all these deaths, which Ukrainians, unfortunately, had because of happened events… But these are all the words – it must be determined clearly who will be considered a victim of the conflict, and what the victim of the conflict can expect as compensation for the moral and material harm that she suffered as a result of the conflict and the occupation of the Crimea’, Lutkovskaya says.

She also speaks on the sessions of a working group, ‘what state must do next day after a conflict will be finished and deoccupation will be done – accordingly, how the state will continue to implement its state policy, and what kind of state policy should it be?’.

Moreover, there will be a case to solve one very important issue – concerning the creation of ‘truth commissions’.

‘I must say that after 1945 all conflicts, which were in the world always ended as such with the work of a ‘truth commission’, which must examine all conflict aspects  (and occupation, if we’re talking about Ukraine and Ukrainian situation) and to tell to society, which, really, interests, who’s guilty in every such ‘hurt points’, happened in our country. Of course, it will be impossible to find out all the historical events, all the events that have taken place recently. But, it’s possible to find out, let’s say, ‘hurt points’. Today we see as ‘hurt points’ the occupation of Crimea and holding of illegal ‘referendum’, today we see such ‘hurt point’ as Ilovaysk boiler, Debaltsevo boiler.

It’s really could be that after a conflict will over, I don’t exclude this, we will add to this list, because we will get an information, including, from NGCA, about what ‘hurt points’ exist there. And then, having made a certain daily routine for a ‘truth commission’, we can set the task: to tell the society what had been happening and who’s guilty in these victims, which people had.

Besides, I’m interested in the preventive role of this document for analogic conflicts have never repeated in the life of our country’, Valery Lutkovskaya clarified.

According to her words, group participants recognize, that after the document development painful enough for the Ukrainian society debates will follow.

‘Yes, we objectively understand that such a working group, which was created, it’s not the hall society and a whole range of additional public discussions will be needed and as much as possible the position of all citizens as to what the state should do after the end of the conflict in the sphere of human rights protection must be taken into account. Only after a lot of discussions we will pass the draft to MPs, who will continue the work with it in the Parliament’, ombudsman assures.

Valery Lutkovska accented that society has a right to know truth about the conflict. Propaganda, aggressive rhetoric, emotionally colored theses can’t be mixed with with an objective information.

The conflict must be finished with the creation of such a mechanism, because the society must know the truth about what had been happening – without propaganda, without any layers, which could be. This all is also about people from NGCA. There are two variants for truth to become known: either to create a commission of the foreign experts, to whom a priori there is trust, either it could be the creation of a several missions, which will present their point of view, but the society at this time, ar least, will be able to obtain certain information from a number of sources’, ombudsman emphasized.

Russian occupation in Crimea is a certain status. But NGCA of Donbass have no status ‘occupied territory’: even media haven’t decided on a clear terminology, and they call what’s happening in Donbass a ‘war’, ‘armed conflict’ or simply ‘the situation in Donbass’. Possibly, the information, which will be provided to ‘truth commissions’ on Donetsk and Luhansk areas after the end of a war, will be distorted enough.

‘I suppose, that a level of confidence to ‘truth commission’ can be enlarged. Either, it’s possible to receive a data by a way of the invitation of foreign experts, who could tell their point of view, either by the way of creation of few commissions for society to receive the information from a number of sources’, Lutkovska says.  

According to ombudsman opinion, rumors or even panics around a document, over which the group is working, appeared because of a certain aura of closeness.

‘I think that we here, maybe, have created a certain aura of closeness because it’s impossible to develop a draft by a very big working group, which consists from a dozen of people. And all process of a wide social discussion will begin later, when origin document will appear. It will emerge from the pen of human rights defenders – I don’t think that somebody could suspect that human rights activists could write a special bloodthirsty document. There will be a row of a big public discussions after that. According to the results of these discussions, the document, I think, will be changed (in the ranks of such borders, which were envisaged by human rights activists), and only after that the discussion of it will begin in the Parliament. I don’t think that any negative points of view, which are being expressed today, could influent on such a plan of work. We are ready to listen to all, but we’d want this conception of a state policy to be exactly in the sphere of human rights protection. It’s a base statement, which defines the boundaries that today the working group is building to address issues tomorrow’.

Alyona Lunova: people, living in the Non-Government Controlled Areas, aren’t criminals and can’t bear any criminal or administrative responsibility

The expert of the ‘Center of the information on human rights’ Alyona Lunova has reported that ‘group is working hard and final version of a document is expected to be issued on December 15’.

According to her words the necessity to work out the answers on different questions, connected with a conflict and how the state will live with it, when conflict will over, is appeared. And answers must be found already now, in spite of Donbass hostility is continuing now and Crimea is still occupied. For example, it’s important for the population of occupied areas that state of Ukraine should decide on for now how to deal with its citizens living in NGCA and Crimea.

‘I’ll tell you about Transitional Justice… What is it? This concept, which arose in the mid-90’s, but its principles have been used in various conflicts before. This is a justice or a system of norms that helps justice, the legal system of the state to move from conflict to peace. Transitional Justice principles are also used during the transition from a totalitarian regime to a democratic’, Lunova told.

She noted that ‘when a country is in the conflict condition, the mass violations of human rights are happened. And the justice system isn’t in a position to respond adequately to what’s happening. Consequently, the one of the main principles of justice – inevitability of punishment is lost; and when crimes are massive, the state can’t react on them and it turns that system is disbalanced’.

‘Transitional Justice must contain in itself at least four large sections’, Lunova says.

First, it’s a compensation to conflict victims. How the reinstatement will happen? It’s only the financial compensation, it’s not a compensation for a damaged property, the compensation to relatives of dea, hurt of health.There are also issues of rights rehabilitation, they inevitably will appear after deoccupation, when people will have a wish to come back home and their houses can already be occupied by someone.

The second is a block of criminal justice. This is about a responsibility of people in connection with the conflict. There are issues of a criminal responsibility, issues related to the officials who worked in the occupation, but didn’t participate in mass violations of human rights, may remain on their posts and who doesn’t.

‘But according to conception it’s very important to understand how thesis sounds, with which I have come into group and with which everyone who is working in group has come too: ‘Civils, living in the NGCA, can’t be responsible for their living under occupation and even working in time of it. It’s a crucial message’, Alyona Lunova emphasizes.

The third part is to know truth.

‘Conditionally speaking, it’s a right to know historical truth. Maybe, soon we will speak about conflict in schools and we must know how it really happened to solve this issue. And it’s necessary to collect data for it. ‘Truth commissions’ were created for this goal in the Balkans – the special bodies, authorized to collect information about individual episodes of war (they can’t do it in another way, we’re really planning, that it will be a body, which will collect all the information). This is laborious work with primary sources, data collection, verification of data – nearly, like for the Memory institution’.

The fourth block is the structural system reforms. The prevention of the repeating of conflicts: ‘To understand what to do for conflict not to repeat, we will talk about system structural changes’.

‘There are four blocks, which we took as a basis. The sense of a document is to prescribe a framework in which legislation will be built, because now we can not avoid these chaotic ideas of deputies in the form of texts of bills that are fundamentally contrary to the concept we are discussing. We’d like deputies to adopt legislation based on the concept (consensus – in a broad sense), which we will agree on. There are different people and it’s wide spectre of opinions. If there are laws, which state could adopt, putting before the fact: ‘It will be so’ (for example, it was so, when state cancelled death penalty in Ukraine), so developed by us conception is the basis of legislation, will be only the result of a consensus, compromise – let it be not about all the issues, but for the basis. People should understand their responsibility for our future’, Alyona Liunova tells.

If we adopt strict legislation in relation to those whom the ‘society that has a conflict’ considers guilty, people from Crimea and NGCA really will stop to visit free territory, because they will afraid to be detained. It could bring the disconnect of communications. Otherwise, nobody knows temporary ranks of a conflict’.

‘So, that’s why we exactly speak only on rational topics. For example, there are no words ‘collaborators’ or ‘forgiveness’ in the document. We’re talking that surely this conflict has victims. There are people, living in the occupation; dead; wounded; removed on the territory of Russia; political prisoners; internally displaced persons; people, whose property was damaged; living in the ‘grey zone’; all uncontrolled/occupied territory; all ATO participants’, Alyona Lunova speaks.

The human rights defender touched on the most acute issue, from which all disputes begin in the society around NGCA and Crimea – the responsibility. Who and for what (and whether will be) will be punished? What will be the punishment? In fact, answers on these questions are more important than the others, because the choice will be given to citizens of Ukraine in NGCA and Crimea: Ukraine or…

‘The responsibility. I repeat once again, that people, living in NGCA, were living there in time of occupation, either they worked or simply lived, if they got certain paids – they’re not criminals and can’t bear any criminal or administrative responsibility. First, the conflict didn’t depend and doesn’t depend from them, second, the state, frankly saying, didn’t fully provide leaving for them, property transferring, didn’t give housing, didn’t provide an evacuation of ill people, evacuation of facilities, bedridden patients, didn’t fulfill a number of other obligations.

If the state would carry out all of the above, so we could speak about some other responsibility and choice of the population, but it hasn’t been done yet. People left to live there. Yes, they forced to work there, because where they must work, if they want to feed their families?’, the human rights activist emphasized.

Otherwise, according to her opinion, there are always were and will be those who want punishment to everyone. Different motives are moving such people: personal injury, resentment, a desire to repay the pain in the same coin, but they are reduced to the general thesis: ‘They have blood on their hands, they must be punished’.

‘We say on slogans ‘So, what about those who are with occupants?’ that ‘those who’ are responsible only if they committed criminal offenses. And at the same time we understand that amnesty also will be. But this issue must be regulated by Verkhovna Rada separately. We talk that there are people, who committed criminal offenses and after the fair investigation they must be held criminally liable; and there are people who worked in the occupation ‘administration’ without committing crimes. For example, ‘officials’. In fact the ‘events to clean power’ must be used to them. This means, these people mustn’t work on leadership positions. And also by the same way the issue about policemen and hall top-brasser block, judges, who serve in NGCA must be solved’, Alyona Lunova says.

Olga Skrypnyk:

Olga Skrypnyk is the coordinator of ‘Crimean Human Rights Group’. This is an organization of Crimean ombudsmen, who were forced to leave peninsula, because of occupation and persecutions.

‘For today there are no any weighted and understandable policy in Ukraine towards people who remain in the occupied territory – both Crimea and Donbass.In fact there are two approaches. One, more populistic and unfortunately not the best for people – it’s the way from the point of view of territories: the most important is to come back territories and people is the second stage. But the other way exists and the priority of it are people. We return and protect people first of all, who left on the occupied territory, who became hostages of this situation and suffer from this occupation in different ways.

Our group teamed up as a counterweight to ‘territorial approaches’ to develop an approach to how to protect people. The goal of our group is not to persecute people, but, on the contrary, to create the principles by which the people who remain there will be maximally protected from unreasonable persecution’, human rights activist says.

There are few parts in the conception, over which the group is working. They’re about NGCA. One of them is really about issues of responsibility for such a crimes, which were made in NGCA and Crimea.

‘But we’re going out from such a manipulative thesis as ‘collaborationism’. One of our goals is to give people clear signal, that Ukraine is not a punisher, Ukraine is the state, which protects its people. Of course, there are people who committed serious crimes, these people should be responsible, because these are gross violations of human rights. But there is another category of people who did not commit serious crimes, but for many reasons, including objective, remained in the occupied territories. They why they forcedly contact either with illegal armed formations in NGCA or with occupied power in Crimea, because they have no other chance to survive’, Skrypnyk emphasized.

The head of the Crimean Human Rights Group gave an example: ‘Woman borns a child in the occupied area. She forcedly gets to hospital. The main in this situation is the health of her child. So she makes a certain contact with them, she gets a certain ‘document’, for example, the birth certificate is handed in Crimea. But our citizen was borned on the occupied territory. Ukraine interests to save this legal connection. That’s why one of the tasks of the connection is to recover and strengthen legal connections with the residents of occupied areas.

For example, this involves simplifying the procedure for obtaining Ukrainian documents for these citizens, including eliminating discrimination’.

According to Olga Skrypnyk words ‘it’s necessary now to develop more comfortable, more quick and possible for NGCA residents procedure how to get legal Ukrainian documents on birth, death and marriage’.

‘Life’s continuing, four years the war is going on, the occupation is going on, but nevertheless people are born, people are dying, and these are the people of Ukraine, these are the citizens of Ukraine, whom Ukraine must record, including in order to know how many hostages, how many people suffered from the actions of the Russian Federation in these occupied territories’, human rights activist says.

According to her words Ukraine must take care about not only fair punishment for those, who committed hard crimes in NGCA and Crimea, but to set clear statuses of suffered as a result of hostility and occupation.

‘People, who left there under occupation, who was illegally imprisoned, who was captured – who are they? What about their statuses, rights, who we can protect them and compensate for the losses they incurred? How it will be possible to exact from Russian Federation? To exact something from Russia there is a need to establish the damage that we suffered as a state, and the damage that people suffered. To date, there is no such register. To understand the damage, it’s necessary to state this in legislation’, Skrypnyk tells.

According to her opinion, there are criminals, done their actions consciously and there are those, who was tricked by Russian propaganda and went on the so-called ‘referendum’ under influence to vote.

‘The referendum in Crimea is discussed very often. There are people, who organized this ‘referendum’, consciously contacted with foreign state, got the money for it and there are people, who were tricked by Russian propaganda, because Ukrainian mass-media were absent, and they went on ‘referendum’ to vote. And the other case is Sergei Aksenov, who organized this ‘referendum’ in Crimea. These things we want to demarcate to get to know: grannies, people who left to work as medics, fire fighters – what to do with them? A lot of them didn’t committed crimes, they extinguished fires, provided medical assistance. But today, in the absence of a unified concept, they don’t know what will happen to them’, Olga Skrypnyk says.

According to her words Ukraine, as a state, must give to its citizens ‘a clear answer: what will be with all these people when Ukraine come back its sovereignty’.

‘It’s the necessary element to reconcile, it’s also element to overcome a conflict. Yes, Russia attacked us, but it’s our country, our people, we need to look for ways how to decide these problems, we need to keep connections with these people. And if we begin to cry that everyone is a collaborator, of course, it won’t help to overcome a conflict: people will fear, will protect themselves. We want to show in this conception that there will be clear demarcation: if you tortured people, raped, killed, so you won’t avoid a criminal persecution, but you will have a right to get fair court and attorney. If you just provided medical assistance, or, deceived by propaganda, went to any of the pseudo-referendums, then you will not have this criminal responsibility, which is intimidated. Yes, there may be other restrictions, for example, for officials – for those who made decisions. It’s clear that a fair investigation and verification should be conducted against them’, human rights activist says.

Marina Kuraptseva for Informator.media

As an illustration to the material, we used the photo of the Donetsk citizen, photographer Sergei Vaganov.