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23 February, 2017  ▪  Roman Malko

A legitimate capitulation?

What the January Cabinet of Ministers' decree on the occupied territory means for Ukraine and Russia

Photo: Vadym Chernysh, Minister of the Occupied Territory and IDPs

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.

RELATED ARTICLE: How elections in the occupied parts of Donbas under current security circumstances can affect Ukraine

“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.

RELATED ARTICLE: A long-time observer in previous elections in the Donbas shares her experience on the voting process, manipulation of voters, intimidation of election staff

Other 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. 

RELATED ARTICLE: How sentiments of Ukrainians on politics, economy and foreign policy change over the past years

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.

RELATED ARTICLE: How Ukrainian politicians see the likelihood of elections in the occupied parts of Donbas 

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.

Translated by Anna Korbut

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