By Daria Platonova
The low-scale conflict in Ukraine, now in its fourth year, threatens to become a hot war as Ukraine passes a new law titled “Donbas reintegration law”. The law vests the President with new unprecedented rights, widens the prerogatives of the army in the non-government controlled areas of Ukraine and, crucially, calls Russia the aggressor country entirely responsible for the conflict. The law naturally provoked the ire of the Russian government while for Ukrainian opposition politicians as well as Donetsk People’s Republic (DPR or DNR) and Luhansk People’s Republic (LPR or LNR) authorities, the law “spells death” to a peaceful resolution of the conflict. The article aims to provide an analysis of the law by looking at different perspectives on it.[1]
Main propositions
On 18th January 2018, the Ukrainian Rada (Parliament) adopted the Donbas reintegration law or the law “On the special aspects of the state policy on securing the state sovereignty of Ukraine in the temporarily occupied territories of Donetsk and Luhansk regions” (No. 7163).[2] 280 MPs voted in support of the legislation. The Opposition Bloc members and some independent MPs voted against it.[3]
The law is meant to change the modality of the conduct of military operations in the non-government controlled areas of Ukraine.[4] Russia is now called “an occupying state” or an “aggressor country” (the Preamble; Article 7), which is the main leitmotif of the law. Constant references are made to “measures to ensure national security and defence, and repulse and deter the armed aggression of the Russian Federation in Donetsk and Luhansk oblasts” (Article 5.3; Article 10).[5] In the preamble to the October bill, Russia is said to have “initiated, organised and supported terrorist activities in Ukraine; it continues an armed aggression against Ukraine and temporarily occupies parts of its territory”. Similarly, in the preamble to the December bill, it says “the armed aggression of the Russian Federation began with unannounced and covert invasions (or operations) on the territory of Ukraine … as well as through organisation and support of terrorist activities”. According to the law, the Russian Federation carries responsibility for moral and physical damage inflicted on the citizens of the “occupied” territories (Article 2). Those who take part in the Russian aggression, or are involved in cooperation with the occupation administrations, are criminally liable for acts that violate the laws of Ukraine and the norms of the international humanitarian law (Article 2).
The President is now vested with rights to set the borders of (Article 1), and to determine the nature of military operations in these territories (Article 7) on the proposal of the Ministry of Defence and on the basis of the proposals of the General Staff of the Supreme Armed Forces. Articles 8, 9 and 10 confer unprecedented levels of responsibility on the Ukrainian army, and Article 11 officially ends the Anti-Terrorist Operation (ATO). The army now has the right to use civilian transport, enter civilian apartments and other premises, search and detain civilians and their belongings for the purposes of “deterring the armed aggression of the Russian Federation” (Article 10). The army is said to be given oversight on the kinds of goods that are allowed to be transferred between the “occupied” and government-controlled areas. Strategic command over all combat units and other formations is assigned to Ukraine’s Armed Forces Joint Operative Headquarters, the head of which is to be nominated by the army’s Chief of General Staff and approved by the President. The law further disassociates Ukraine from the “occupied territories”, by limiting the officially recognised documents issued in the occupied territories to birth and death certificates (Article 2).
Reactions, analysis and implications
The passage of the law provoked some of the most dramatic debates in the Rada for the past years. The law was registered as urgent in October 2017. The total of 675 amendments then took several months to process, amid fierce debates,[6] and even bombing, and the final vote was scheduled for January 16th 2018. The key debates were around the inclusion of the Minsk Agreements, the exact name and nature of the Russian occupation, and the precise date when the occupation of the Crimea, Donetsk and Luhansk had begun. Ukrainian MPs who proposed most amendments, especially Samopomich and People’s Front parties, reason that such precision is needed in the event of law suits against Russia, which bears sole responsibility for the conflict, according to this law.
There are radical divisions within the Ukrainian government as to how this law can come to force and whether it should have been allowed to pass at all. The opposition is fiercely against the law. The Opposition Block[7] politicians Yury Boiko, Oleksandr Vilkul and Mikhailo Papiev proposed to cancel the voting in support of the law due to the omission of the Minsk Agreements. The leader of the social movement “Ukrainian Choice” pro-Russian Viktor Medvedchuk thinks that the law “spells death” to a peaceful resolution of the conflict in the east.
So do the people of the Donetsk People’s Republic and Lugansk People’s Republic. For them and politicians such as Denis Pushlin, the new law means war,[8] which, strangely, concurs with some opinions expressed in the staunchly pro-Ukrainian Ukrainskaia Pravda newspaper. The separatists read Ukrainian armed aggression into this law, and that it stops short of declaring war on the occupied territories. Some go as far as to claim that it is a “step to[wards] a military dictatorship” to help the ongoing Ukrainian President Petro Poroshenko win the next elections. In retaliation, the head of the Donetsk People’s Republic Aleksandr Zakharchenko responded by proposing early elections in the republic and establishing “people’s tribunals” to sue Ukrainian combatants for “their crimes”. The former DNR Minister of Defense Igor Strelkov is now writing on the possible resumption of the Novorssiya project and the possible unification of the republics after simplification of customs procedures. Strelkov proposes to fight alone, without the help of Russia, as it is “too slow” to react, and there is a general anti-Russian feeling across a representative sample of separatist press.
In Russia, the response has been somewhat predictable, as noted by a famous pro-Russian blogger Colonel Cassad (Boris Rozhin). On the 19th of January, President of Russia Vladimir Putin met with the permanent members of the Security Council to discuss the law, and it was noted that the law will have a negative influence on the regulation of the Ukrainian conflict. Press-Secretary of the Russian President Dmitrii Peskov said that the Kremlin disagreed with the fact that Russia is called “the aggressor country” and that the law does not help regulate the conflict by omitting references to the Minsk Agreements. The Russian Ministry of Foreign Affairs issued a statement in which it declared that Poroshenko “untied the hands of the war party”.
Ukrainian opposition politicians, the Russian government and the representatives of the DNR and LNR latch onto the fact that the references to the Minsk Agreements have been removed from the latest version of the law. Their removal was the main proposition of Samopomich and People’s Front parties, with ensuing fistfights in the Rada. The law is particularly damaging to the Minsk Agreements as it omits references to Article 5 on the amnesty of the participants in the armed conflict. In fact it states that all people participating in the “occupation” of the east are criminally liable. Additionally, the Minsk Agreements do not put sole responsibility on any of the parties in the conflict, let alone one particular state, in this case Russia. The new law does. The Minsk Agreements call the DNR and LNR “certain areas of Donetsk and Lugansk oblast”, whereas the new law calls them “occupied” areas.
Human rights activists as well as DNR and LNR politicians also lament the expansion of the Presidents’ and the army’s prerogatives as to these territories. Firstly, the law confers unprecedented level of responsibility on the President. A lawyer and the coordinator of the Vostok SOS (East SOS) NGO Oleksandra Dvoretska says that the powers conferred on the President go beyond those allowed by the Constitution. The President can issue orders to the army without requiring confirmation from the Parliament. “This sets a bad precedent – it means that it is possible to overwrite powers specified by the constitution with a regular law, with just 226 votes,” Dvoretska said. Normally, to change the Constitution at least 300 lawmakers have to vote in favour. In fact, this means that the bill empowers Ukraine’s President alone (without subsequent parliamentary oversight) to decide on the use of the Armed Forces of Ukraine and other military formations, which directly contradicts Section 33, Art. 85 of the Constitution of Ukraine.
Human rights activists note that identifying Russia as liable for moral and physical damage is not going to help afflicted civilians. There are no details on the procedure of claiming compensation for such damage. Moreover, the wide range of powers given to military personnel, law enforcement officers raise human rights issues because there are no mechanisms of control. This can potentially affect the people living in the “grey areas” (that is areas not controlled by either the Ukrainian or separatist government) negatively. In general, the law is rather vague on the use of the military. The Ukrainian Helsinki Human Rights Union [UHHRU] maintains that the responsibilities and commitments of Ukraine are not specific enough. In particular, it is not clear which government is going to protect civilians: on one hand, the law vests Russia with this responsibility as the “occupying country”, on the other, it gives wide-ranging responsibilities in relation to civilians to Ukraine. With regard to the exact nature of the conflict, UHHRU proposes considering the conflict as both a non-international and an international armed conflict at the same time.
Conclusion
In conclusion, the new law is not going to help settle the conflict. From a purely legalistic point of view, the law needs many further provisions and clarifications. For example, the law is unclear as to the “special status” of the occupied regions, and a special Parliamentary procedure is required to establish a martial law in such areas, if this was deemed necessary by the Ukrainian President. Overall, it is unclear what status these territories have and how any kind of status can be conferred on them. Most importantly, the law has done further significant damage to the relations between Ukraine and Russia and the relations between Ukraine and its breakaway territories. By calling Russia the “aggressor country” and placing sole responsibility on Russia for conflict, Ukrainian politicians are sure to provoke the Russian government into retaliatory measures, although, to DNR and LNR politicians, such measures are too mild. By disassociating Ukraine further from the breakaway territories, Ukrainian Rada leaves ordinary citizens particularly in the “gray areas” caught between a rock and a hard place.
Daria is a PhD student at King’s College London and a Senior Editor with Strife. Her research focuses on violence and the unfolding of conflict across several regions in eastern Ukraine, 2013 – 2014. Prior to joining King’s, she worked as a teacher. She graduated with a degree in History from the University of Cambridge in 2011. Her broader interests include European history, war studies, and interdisciplinary methods.
Notes:
[1] For a succinct summary of the law in Russian, see “Osobyi Poryadok Mira: Zakon o Donbasse Vstupil v Silu”, Novosti Donbassa, 25th of February 2018, http://novosti.dn.ua/article/6978-osobyy-poryadok-myra-zakon-o-donbasse-vstupyl-v-sylu , Accessed 3rd of March 2018.
[2] Also called the law on “de-occupation” by the Speaker Parubii here: “Rassmotrenie Zakonoproekta o Deokupatsii Donbassa. Utrennee Zasedanie Verkhovnoi Rady”, 16th of January 2018, Accessed 24th of February 2018 https://www.youtube.com/watch?v=Av9Ei1tDvwk
[3] For the English language version of the key propositions see “Rada Adopts Controversial Donbas Reintegration Law”, Kyiv Post, 18 January 2018, Accessed 23rd of February 2018 https://www.kyivpost.com/ukraine-politics/rada-adopts-controversial-donbas-reintegration-law.html ; for Ukrainian, see “Rada ukhvalila zakon pro integratsiyu Donbasa”, Ukrainskaia Pravda, 18th of January 2018, Accessed 24th of February 2018 https://www.pravda.com.ua/news/2018/01/18/7168749/ ; for the law itself http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=62638. Two texts: one from October, the other from December 2017
[4] Or “against Donetsk People’s Republic and Lugansk People’s Republic”. This terminology is most likely to be used in these republics’ and Russian press while “Non-government controlled areas” is the terminology used in the Ukrainian press. See Novosti Donbassa site and Donetskaya Republika and Narodnoe Opolchenie Donbassa Vkontakte groups.
[5] For the two versions of the law, see http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=62638 .
[6] https://www.pravda.com.ua/news/2018/01/16/7168537/; https://www.youtube.com/watch?v=g04pIkTfWmA
[7] The Party was formed on the basis of the “pro-Russian” Party of Regions and receives consistent support among the Russophile regions of Ukraine, such as Mykolaiv, Kherson and the government controlled parts of Donetsk and Luhansk regions.
[8] https://news-front.info/2018/02/02/denis-pushilin-o-zakone-o-reintegratsii-donbassa/
Image Source:
Banner: https://www.aljazeera.com/indepth/interactive/2017/02/ukraine-map-170205081953296.html
Daria is a PhD student at King’s College London. Her research focuses on violence and the unfolding of conflict across several regions in eastern Ukraine, 2013 – 2014. She also leads one of the Causes of War seminars in the War Studies Department. Prior to joining King’s, she worked as a teacher. She graduated with a degree in History from the University of Cambridge in 2011. Her broader interests include European history, war studies, and interdisciplinary methods.