A le­git­i­mate ca­pit­u­la­tion?

The Ukrainian Week - - CONTENTS - Ro­man Malko

How the lat­est Cab­i­net de­cree on the oc­cu­pied ter­ri­tory can turn into an in­stru­ment of Rus­sia’s hy­brid war

On Jan­uary 11, 2017, the Cab­i­net of Min­is­ters passed Res­o­lu­tion #8-р On Ap­prov­ing the Pack­age of Mea­sures to Im­ple­ment Some Ba­sics of Do­mes­tic Pol­icy on Cer­tain Ar­eas of Donetsk and Luhansk Oblasts Where Tem­po­rar­ily Not Un­der the Gov­ern­ment Con­trol. It is ob­vi­ous that the Don­bas and Crimea sit­u­a­tion should be reg­u­lated in some way. There is a num­ber of ways to move to the so­lu­tion. The eas­i­est one is to ac­cept the Krem­lin’s de­mands and give it what it wants. An­other op­tion is to fence off from the oc­cu­pied ter­ri­tory. It is partly in place al­ready: a buf­fer zone has been out­lined, but it is too por­ous to ac­tu­ally close all the gaps and for­get about the sep­a­ratists.

Nei­ther the first op­tion, nor the sec­ond one should even be con­sid­ered as de­bat­able. Both lead to the loss of part of Ukraine. There­fore, the only pos­si­ble sce­nario would be to even­tu­ally lib­er­ate the oc­cu­pied ter­ri­tory and take back Ukraine’s east­ern and south­ern fron­tiers un­der gov­ern­ment con­trol.

Mean­while, we are wit­ness­ing a para­dox. The Pres­i­dent has in­structed his team to sue Rus­sia at the In­ter­na­tional Court of Jus­tice and de­fined it as ag­gres­sor. The Verkhovna Rada has de­scribed Rus­sia as the party re­spon­si­ble for launch­ing the war in East­ern Ukraine, the oc­cu­pa­tion of Crimea and part of the Don­bas; it calls on the in­ter­na­tional com­mu­nity to rec­og­nize Rus­sia’s re­spon­si­bil­ity. PACE con­firms in a res­o­lu­tion that the an­nex­a­tion of Crimea by Rus­sia and the mil­i­tary in­va­sion in East­ern Ukraine are in vi­o­la­tion of in­ter­na­tional law. The Ukrainian Gov­ern­ment qui­etly is­sues de­cree #8-р, also re­ferred to as the Ac­tion Plan, which ig­nores the mere fact of the oc­cu­pa­tion or an­nex­a­tion of a large part of Ukraine’s land, and limit them­selves to the murky “un­con­trolled ter­ri­tory” for­mu­la­tion. It says that these were caused by a “mil­i­tary con­flict” with­out spec­i­fy­ing the na­ture of it or men­tion­ing Rus­sia as an ag­gres­sor state.

“The for­mu­la­tion ap­proved by the Cab­i­net de facto rec­og­nizes that the armed con­flict is not an in­ter­na­tional one and that Ukraine un­der­takes (or rather puts on its cit­i­zens) the re­spon­si­bil­ity for ren­o­vat­ing the ru­ined in­fra­struc­ture in Donetsk and Luhansk oblasts,” com­ments Ok­sana Sy­royid, Deputy Speaker of the Verkhovna Rada. Volodymyr Va­sylenko, an ex­pert in in­ter­na­tional law, has a sim­i­lar com­ment: “These gov­ern­ment de­crees do not meet Ukraine’s na­tional in­ter­ests as they deny the fact of Rus­sia’s oc­cu­pa­tion of part of Ukraine’s ter­ri­tory, while the mea­sures listed there en­cour­age oc­cu­pa­tion and help the ag­gres­sor wage its war. This is the re­sult of the lack of a clear le­gal po­si­tion in qual­i­fy­ing Rus­sia’s ac­tions against Ukraine as an armed ag­gres­sion and in re­pelling or deal­ing with the im­pact of those. The pro­ce­dure of re­pelling is not based on Ar­ti­cle 51 of the UN Char­ter which al­lows a state to de­fend it­self when faced with ag­gres­sion, nor on the Law On the De­fense of Ukraine which is based on the UN Gen­eral Assem­bly 3314 Res­o­lu­tion on the Def­i­ni­tion of Ag­gres­sion.”

At first glance, the Ac­tion Plan fits into the con­cept of a peace­ful res­o­lu­tion that has long been dis­cussed and in­sisted upon by peace­mak­ers. Yet, when looked in more de­tail, it turns into a time bomb.

Based on the doc­u­ment, the Cab­i­net should ini­ti­ate amend­ments to laws “to reg­u­late the spe­cial fea­tures of eco­nomic ac­tiv­ity on the un­con­trolled ter­ri­tory.” But how is this pos­si­ble when the ter­ri­tory is not un­der con­trol, so no state author­ity acts there. “More­over, it is well known that the oc­cu­pant ad­min­is­tra­tions are levy­ing fees on the pop­u­la­tion that can per­fectly qual­ify as taxes,” Ok­sana Sy­royid com­ments. “These levied taxes are used to fund the ag­gres­sor’s army, and there­fore, to con­tinue the armed ag­gres­sion against Ukraine and to ex­pand the tem­po­rar­ily oc­cu­pied ter­ri­tory.”

Other pro­vi­sions of the doc­u­ment in­clude “the cre­ation of fa­vor­able con­di­tions for the de­vel­op­ment of en­trepreneur­ship, the de­crease of reg­u­la­tory pres­sure on busi­nesses”, “the im­prove­ment of so­cial pro­tec­tion for the chil­dren; the sup­port to spir­i­tu­ally and phys­i­cally sound, ma­te­ri­ally and so­cially safe fam­i­lies.” Sounds good. The plan is to pro­tect chil­dren from the neg­a­tive im­pact of the armed con­flict, to en­cour­age so­ci­ety, NGOs and ac­tivists, as well as the me­dia to raise aware­ness amongst the chil­dren and their fam­i­lies. One prob­lem with this is that it would at the very least take some­one to ac­tu­ally get into the heart­land of ter­ror­ists and try to un­fold the im­ple­men­ta­tion of these good in­ten­tions there.

More pro­vi­sions of the doc­u­ment read as fol­lows: “en­sure the pay­ment of salaries at en­ter­prises of all kinds of own­er­ship that carry out le­gal com­mer­cial ac­tiv­ity on the un­con­trolled ter­ri­tory, pro­vided that they com­ply with re­quire­ments on preven­tion of fund­ing ter­ror­ism and ac­tions to change the bor­ders and ter­ri­to­rial in­tegrity of Ukraine”; “en­sure the rights of cit­i­zens living in the un­con­trolled ter­ri­tory to freely choose the lan­guage in which they re­ceive in­for­ma­tion from the me­dia”; “sup­port the prin­ci­ple of me­dia in­de­pen­dence and au­ton­omy for the dis­sem­i­na­tion of in­for­ma­tion in the state and other lan­guages (in­clud­ing Rus­sian)”; “sup­port the pub­li­ca­tion and dis­tri­bu­tion of au­dio and au­dio-vis­ual pro­duce and print pub­li­ca­tions in dif­fer­ent lan­guages”; “sup­port pub­lic diplo­macy to keep the on­go­ing di­a­logue be­tween all groups of cit­i­zens re­sid­ing along the con­tact line”, and more.

It is dif­fi­cult to un­der­stand the logic of those who pre­pared this doc­u­ment: it is ob­vi­ous that any ac­tiv­i­ties on the oc­cu­pied ter­ri­tory in line with Ukraine’s laws are im­pos­si­ble un­der the cur­rent cir­cum­stances. What it fits per­fectly into is the logic of the hy­brid war.

“Un­der in­ter­na­tional law, all re­spon­si­bil­ity over what hap­pens on the oc­cu­pied ter­ri­tory lies with the oc­cu­pant,” Prof. Va­sylenko states. “The oc­cu­pant state must take care of en­sur­ing


hu­man rights and main­tain­ing rou­tine life on the oc­cu­pied ter­ri­tory. That’s its re­spon­si­bil­ity and duty. Mean­while, the given doc­u­ment sug­gests that it is Ukraine’s re­spon­si­bil­ity to take care of hu­man rights there. It also sug­gests that Ukraine funds the oc­cu­pant which will not stop its armed ag­gres­sion but chooses to con­tinue the fight­ing that af­fects both the civil­ian pop­u­la­tion and the Armed Forces of Ukraine. Such a po­si­tion is detri­men­tal on the in­ter­na­tional level. These acts will be used to jus­tify the claim that the de­vel­op­ments in East­ern Ukraine are caused by an in­ter­nal con­flict, not an armed ag­gres­sion.”

The doc­u­ment was drafted by the Min­istry on the Tem­po­rar­ily Oc­cu­pied Ter­ri­tory and IDPs chaired by Vadym Ch­ernysh. It is the en­tity tasked with de­vel­op­ing a strat­egy to reintegrate the oc­cu­pied Don­bas and Crimea. But the pro­vi­sions listed in this one barely dif­fer from the de­mands of Putin’s ne­go­tia­tors ex­pressed in Minsk.

Un­der the Con­sti­tu­tion, Ukraine is a par­lia­men­tary-pres­i­den­tial repub­lic. The Cab­i­net ap­proved by the Par­lia­ment has the right to pass sim­i­lar de­ci­sions. Pre­mier Hroys­man has signed the doc­u­ment and is in charge of im­ple­ment­ing it. Yet, it is a de­cree, not an in­struc­tion (lower in sta­tus but bind­ing nev­er­the­less). A de­cree is ap­proved by vote of the Cab­i­net while in­struc­tions are ap­proved by those charged with im­ple­ment­ing them. Could this be be­cause the Gov­ern­ment did not want to make the doc­u­ment pub­lic and have a wide dis­cus­sion? Also, it is a way to by­pass the Pres­i­dent’s rep­re­sen­ta­tive who is oth­er­wise present at all Cab­i­net meet­ings.

One pos­si­ble ex­pla­na­tion is that the whole con­cept could be a prod­uct of the Don­bas mas­ter Ri­nat Akhme­tov. He has his loyal peo­ple in many min­istries. He is the only Ukrainian oli­garch (other than Pres­i­dent Poroshenko) not hit by de-oli­garchiza­tion. He is also one of the ma­jor ben­e­fi­cia­ries from in­ter­ac­tion with the oc­cu­pied ter­ri­tory. The doc­u­ment opens great op­por­tu­ni­ties for his busi­ness cur­rently di­vided by the con­tact line.

One other po­ten­tially in­ter­ested party is Olek­sandr Tre­ti­akov, a per­son who lob­bied for Ch­ernysh to get ap­pointed to his cur­rent po­si­tion. Tre­ti­akov looks for ways to join the lu­cra­tive busi­ness of distribut­ing re­sources chan­neled to the restora­tion of the post-war Don­bas.

Also, sim­i­lar mes­sages are of­ten heard from Ukraine’s in­ter­na­tional part­ners. They are pas­sion­ate about find­ing so­lu­tion to the cri­sis as soon as pos­si­ble. Yet, they are less pas­sion­ate about ac­tu­ally fig­ur­ing out the nu­ances of the sit­u­a­tion in the re­gion or rec­og­niz­ing the par­tic­i­pa­tion of Rus­sia in the war. In­stead, ex­pe­ri­ence from dis­tant con­flicts in Africa or else­where is ap­plied and ob­scure for­mu­la­tions like “ef­fec­tive con­trol” pop up (Ukrainian of­fi­cials would hardly come up with any­thing like that on their own). Ch­ernysh’s pre­sen­ta­tion of the plan was wel­comed by for­eign diplo­mats. “The Plan can pave the way for in­creased so­cial co­he­sion, peace build­ing and rec­on­cil­i­a­tion in the con­flict-af­fected ar­eas,” the EU Del­e­ga­tion and the em­bassies of EU mem­ber-states in Kyiv wrote in a state­ment on it.

One other thing to re­mem­ber is that this whole thing costs money. In ad­di­tion to the cash that can flow to Akhme­tov as a re­sult, sig­nif­i­cant amounts will prob­a­bly be chan­neled from in­ter­na­tional funds and can be ad­min­is­tered lu­cra­tively.

How the Ac­tion Plan will help re­store Ukraine’s ter­ri­to­rial in­tegrity and the re­turn of its east­ern bor­der un­der its con­trol – the ob­jec­tive clearly stated in the Con­sti­tu­tion and out­lined by the Pres­i­dent and Ukraine’s al­lies who don’t rec­og­nize the oc­cu­pa­tion – is hard to see. In­stead, it looks like a set of ac­tions that plays well with Putin’s strat­egy to dis­man­tle Ukrainian au­thor­i­ties and fur­ther desta­bi­lize the coun­try.

If Ukraine is a truly sov­er­eign state, there can be no dis­cus­sion about sur­ren­der­ing part of its ter­ri­tory to the en­emy. It may be un­able to ac­com­plish its strate­gic task and re­turn its east­ern bor­der un­der con­trol and reintegrate its cit­i­zens for now. But it does not mean that Ukraine should ac­cept just any sce­nario. Ukraine does not need its own Trans­d­nis­tria. Nor does it need a sit­u­a­tion where the Krem­lin-fu­eled ter­ror­ist threat spreads over Ukraine.

First of all, Ukraine must fig­ure out the ter­mi­nol­ogy and call things as they are. Then, it should pass a frame­work law to reg­u­late Ukraine’s in­ter­ac­tion with the oc­cu­pied ter­ri­to­ries. The law should state clearly as a strate­gic goal the need to lib­er­ate them, re­turn its east­ern bor­der un­der con­trol, and give a de­tailed ac­count on how the state will carry out its pol­icy: in the mil­i­tary, po­lit­i­cal, eco­nomic, hu­man­i­tar­ian, in­for­ma­tion and other ar­eas. Then, the Pres­i­dent, of­fi­cials and the mil­i­tary should work to ac­com­plish that goal. So that all those who live un­der oc­cu­pa­tion, those who have oc­cu­pied the ter­ri­tory, and all other in­ter­ested par­ties, un­der­stand that this is the zone of Rus­sia’s re­spon­si­bil­ity tem­po­rar­ily, but Ukraine will re­turn to it. This should be a clear pol­icy of a state that knows what it is do­ing and bases that on in­ter­na­tional norms.


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