Various qualifications of “DPR” and “LPR” demonstrate that Ukraine has an inconsistent state policy toward conflict resolution in Donbas. Such contradictions complicate the protection of Ukraine’s national interests in the international arena as they have an impact on interpretation of the situation in Donbas. Ultimately, a newly adopted Donbas De-occupation law becomes a first document that defines the status of “DPR” and “LPR” at the legislative level.
An armed conflict in Donbas has given rise to legal contradictions in Ukraine over the status of the adversary. There are various definitions of “DPR” and “LPR” in official rhetoric, statutory acts and media: terrorist organizations, militants, separatists, Russian mercenaries, Russian-terrorist troops, representatives of particular districts of Donetsk and Luhansk regions (ORDLO), occupants etc. On the one hand, a controversial qualification is caused by a complex nature of the situation in Donbas which has features of both non-international and international armed conflicts. On the other hand, it is a result of Ukraine’s inconsistent state policy toward conflict resolution which often seeks situational benefits on the diplomatic front amid the lack of strategy.
In its turn, Russia commonly labels “DPR” and “LPR” as militia. This definition has characteristic features of propaganda and is used to portray “DPR” and “LPR” as protection units established to defend local population from Ukrainian government troops.
Currently, “DPR” and “LPR” members are predominantly defined as militants in Ukrainian information space. According to this definition, “DPR” and “LPR” are considered anti-government armed groups which carry out attacks on Ukrainian troops and pursue political goals by means domestic destabilization. This qualification is rather neutral, though it does not rake a number of complexities related to specific features of the conflict in Donbas.
In early stages of the conflict in Donbas, Ukrainian officials and journalists mostly defined “DPR” and “LPR” as terrorists. This definition gained popularity after acting president Oleksandr Turchynov introduced the legal regime of anti-terrorist operation (ATO) in April 2014.
In internal conflicts, loyalists often equate anti-government forces with terrorist organizations. In such cases, a government usually demonstrates that concessions to an adversary are unacceptable, exceptionally regards solution by force and seeks to minimize foreign involvement in the conflict.
Terrorists are identified as groups of people or organizations which use violence predominantly against innocent people and seek to achieve political goals by means of intimidating the population. Art 1 of the Law of Ukraine “On the fight against terrorism” defines terrorism as “socially dangerous activities, which is conscious, deliberate use of violence by the hostage-taking, arson, murder, torture, intimidation and public authorities, or commit other assaults on life or health or innocent people or the threat of committing criminal acts to achieve a criminal purpose”. Ukrainian prosecution bodies labelled a number of incidents in Donbas as terrorist attacks, including shelling in Volnovakha, Mariupol and Kramatorsk in early 2015 which led to civilian deaths.
However, Ukraine demonstrates inconsistent anti-terrorist policy. Despite ATO, “DPR” and “LPR” were not recognized as terrorist organizations at the legislative level. Instead, the Verkhovna Rada requested foreign parliaments to recognize “DPR” and “LPR” as terrorist organizations in January 2015. Moreover, in January 2017 Ukraine filed a lawsuit with the International Court of Justice in order to make Russia accountable for violations of the International Convention for the Suppression of the Financing of Terrorism, blaming the Kremlin for military, financial and other forms of assistance to “DPR” and “LPR”.
Given the current situation in Donbas, it will be more complicated for Ukraine to advocate its national interests in international negotiations and international court proceedings if “DPR” and “LPR” are recognized as terrorist organizations. In particular, this qualification would mean that Ukraine regards the situation in Donbas as a non-international armed conflict. Consequently, Russia would be able to preserve all leverages on the conflict as a mediator.
“DPR” and “LPR” are also identified as separatists in Ukrainian information space. This arises from the facts that anti-government forces conducted illegal referendums in Donetsk and Luhansk regions and proclaimed independence of quasi-state entities which have not been recognized by any country.
There are several approaches to the definition of separatism. Separatists may seek either secession of a certain territory in order to establish an independent state or greater autonomy. Consequently, this enables labelling “DPR” and “LPR” as separatist movements regardless of their ultimate goals – independence or special status of ORDLO within Ukraine.
Separatist movements can be a party to an internal conflict, though military, financial and political support from abroad is often crucial. A foreign power may even resort to military intervention in such conflict in order to secure an outcome favourable to it.
In theory, this qualification enables to bring all “DPR” and “LPR” to account under Art. 110 of the Criminal Code of Ukraine (trespass against Ukraine’s territorial integrity and inviolability) but does not cover other no less grave crimes against Ukraine’s national security committed by many of them.
Occupants is a term used to stress Russian aggression and occupation of a part of Donbas. This qualification complies with the recently adopted law “On the peculiarities of state policy on ensuring Ukraine’s state sovereignty over temporarily occupied territories in Donetsk and Luhansk regions” (popularly known as the “Donbas de-occupation law”). In particular, Art 1 recognized parts of Donetsk and Luhansk regions where “armed units of the Russian Federation and occupational administration of the Russian Federation have established and exercise general effective control” as temporarily occupied territory.
In this respect, “DPR” and “LPR” are regarded as Russian puppets which are controlled by and totally dependent on Russia. For instance, both army corpses in ORDLO are subordinated to the 8th Army of the Southern Military District in Russia. Besides, “DPR” and “LPR” are unviable entities without Russia’s financial support.
Labeling “DPR” and “LPR” as an occupational administration will strengthen Ukraine’s negotiating position and narrow Russia’s room for maneuver. In particular, this will hamper direct talks between Ukraine and “DPR” or “LPR” as well as decrease Russia’s chances to participate in a UN peacekeeping operation in Donbas as a party to the conflict.
However, for Ukraine to successfully maintain its position in the international arena, it is necessary that key international judicial institutions (International Criminal Court, European Court of Human Rights) should recognize that Russia is exercising effective control over “DPR” or “LPR”.
Summing up, four years after the beginning of the armed conflict in Donbas, Ukraine managed to define the legal status of “DPR” or “LPR” at the legislative level. Primarily, it is necessary for Ukraine to have an appropriate legal assessment of the adverse party to the conflict in order to work out a precise position during international negotiations and international court proceedings.