The Donbas de–occupation law is a first legislative document, which defines Ukraine’s state policy regarding conflict resolution. Its adoption will have important domestic and foreign policy consequences in the short run. In particular, the new law strengthens powers of military servants in Donbas without introducing martial law and draws Ukraine’s “red lines” on conflict resolution. However, the law does not provide for concrete steps towards Donbas de–occupation.
On January 18, 2018 the Ukrainian parliament approved in second reading the Law of Ukraine “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”). Prior to its approval, MPs were considering 673 amendments to the draft law which concern sensitive provisions, such as inclusion of Crimea, break of relations with Russia, reference to the Minsk agreements, introduction of martial law. However, MPs from the Opposition Bloc have delayed the signing of the law by registering a degree abolishing this legislative act.
The Donbas de-occupation law is likely to become a first legislative act, which defines the guidelines of Ukraine’s state policy regarding the conflict resolution. In particular, a number of its provisions will have important domestic and foreign policy consequences in the short run.
Which opportunities does the Donbas de-occupation law offer for Ukraine?
- The actual state of affairs in Donbas is enshrined at the legislative level. This law largely eliminated uncertainty, which had been existing in Ukraine since the ATO start in April 2014. In particular, the law 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 (Art 1). Thus, Ukraine recognized at the legislative level the situation in Donbas as an international armed conflict.
The law also allows abolishing the ATO and introducing measures to “ensure national security and defense, repulse and deter the armed aggression by the Russian Federation” (Art 5). These provisions will help mitigate public and political tensions caused by the gap between official rhetoric and legal regulation of the situation in Donbas. Meanwhile this law does not provide for introduction of martial law in the part of the territory, though the warfare had been lasting for nearly four year.
- “Red lines” are enshrined on Ukraine’s negotiating position towards conflict resolution. Having recognized Russia as an aggressor state and leaders of the self-proclaimed republic as an occupational administration, Ukraine strengthens its negotiating position and narrowed Russia’s room for maneuver. In particular, this law will not allow neither direct negotiations between Ukraine and representatives of the self-proclaimed republics nor Russia’s participation in a possible peacekeeping operation in Donbas. The law also equated the status of certain areas of Donetsk and Luhansk regions with that of Crimea and Sevastopol, which had been targeted by Russian aggression.
Moreover, MPs agreed to delete a controversial reference to the Minsk agreements, which had been in the original text of the draft law. On the one hand, it will secure Ukraine from an additional pressure by the Normandy Four countries, the EU and the US regarding the implementation of political provisions of the Minsk agreements. On the other hand, it will allow Ukraine to avoid accusations of withdrawing from the Minsk process.
- Ukraine makes a legal position regarding the protection of rights and freedoms of its citizens living in certain areas of Donetsk and Luhansk regions. The law preserves the property rights of the state, government bodies, natural and legal persons in that territory which have been obtained according to Ukrainian legislation (Art 2). Ukraine will also monitor human rights situation in that territory and document its violations (Art 6). Meanwhile Ukraine lays the responsibility on Russia for moral and material damages inflicted in certain areas of Donetsk and Luhansk regions (Art 2) and obliges it as an occupier state to “ensure the protection of civilian population’s rights and provide conditions for their vital activities”. (Art 7). In practice, it will enable Ukraine to protect its interests in national courts when citizens living in that territory file complaints against the state. If such matters are taken to the European Court for Human Rights, Ukraine will maintain its position with reference to the “effective control” concept.
- Ukrainian military servants in Donbas will be broadly empowered. All the security officials in the conflict zone will be subordinated to the Commander of the Joint Forces and the Joint Operational Headquarters of the Armed Forces of Ukraine (Art 9). Moreover, the law authorizes security agencies in “security zones” to resort to arms in cases of emergency, break into housing accommodations, carry out personal inspections of citizens and their belongings etc. (Art 10). On the one hand, it will facilitate prompt response to and operational control over the situation in the conflict zone. On the other hand, broadly empowered military servants will increase the risks of abuse, human rights violations and corruption in the given areas.
- Presidential powers will be increased in the conflict zone. First, a new vertical power structure is being formed in security bloc that will be headed by the president who will nominate the Commander of the Joint Forces and determine the powers of the Joint Operational Headquarters. Second, the president may take a decision on enacting measures to “ensure national security and defense, repulse and deter the armed aggression by the Russian Federation” without parliamentary approval (Art 8). The latter will enable the president to introduce certain elements of the martial law in the conflict zone without announcing the martial law itself.
Which risks does the Donbas de-occupation law bring to Ukraine?
- The Donbas de-occupation law does not specify date when the occupation of certain areas of Donetsk and Luhansk regions started. It causes uncertainty over when Ukraine’s responsibility shall be replaced by that of the occupier state for damages and human rights violations, especially in areas where the control was repeatedly passed from hand to hand (from April 2014 to February 2015).
- The law does not provide compensation for damages inflicted on citizens during the measures to “ensure national security and defense, repulse and deter the armed aggression by the Russian Federation”. Unlike the martial law, Ukrainian citizens will be unable to be recompensed for damages and restriction of rights and freedom under the conditions of such measures.
- The Donbas de-occupation law is at odds with the current Treaty on Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation (1997). Recognition of Russia as an occupier state contradicts to a number of provisions set forth by the bilateral treaty. However, MPs rejected an amendment to the law, which provides for denouncing the Treaty on Friendship, Cooperation, and Partnership on the grounds that Art 2 and Art 3 of this treaty oblige Russia to respect Ukraine’s territorial integrity and the inviolability of the common border.
Summing up, the Donbas de-occupation law defines the guidelines for Ukraine’s state policy, taking into account the current situation in the conflict zone, but does not provide for concrete measures to restore Ukraine’s sovereignty over the temporarily occupied territories. As a result, the law would rather facilitate institutionalization of the conflict than its settlement.