Poroshenko’s capitulation: The new “special status” law and implementation of the Minsk Protocol

UPDATE: The text in Ukrainian of the new law on “special status” is found here.

A very rough translation into English is found in Nikolai Holmov, “Status of The Donbas – Presidential Bill,” ODESSATALK, September 17, 2014, here.

*****

Minsk Protocol

The 12 points in the Minsk Protocol are:


1. Ensure the immediate bilateral ceasefire.
2. Ensure the monitoring and verification by the OSCE of the ceasefire.
3. A decentralization of power, including through the adoption of the law of Ukraine “about local government provisional arrangements in some areas of Donetsk and Luhansk Oblasts” (law on the special status).
4. Ensure the permanent monitoring of the Ukrainian-Russian border and verification by the OSCE with the creation of security zones in the border regions of Ukraine and the Russian Federation.
5. To immediately release all hostages and illegally detained persons.
6. A law on preventing the prosecution and punishment of persons in connection with the events that have taken place in some areas of Donetsk and Luhansk Oblasts.
7. Continue the inclusive national dialogue.
8. To take measures to improve the humanitarian situation in Donbass.
9. Ensure early local elections in accordance with the law of Ukraine “about local government provisional arrangements in some areas of Donetsk and Luhansk Oblasts” (law on the special status).
10. Withdraw the illegal armed groups, military equipment, as well as fighters and mercenaries from Ukraine.
11. To adopt the program of economic recovery and reconstruction of Donbas region.
12. To provide personal security for the participants in the consultations.

*****SIDEBAR*****

Armed with nuclear weapons and a powerful military, Vladimir Putin is as popular in Russia because of extreme nationalism and policies of aggression as Adolf Hitler was in Germany in 1938 or 1939.

The West had better give top priority to this existential threat to its vital national security interests.

It represents a far graver threat than ISIS or the “Islamic State”, however large and real that threat may be.

See Ilya Koval, “Russland: Warum Putin nicht einlenken wird,” Die Zeit, 17. September 2014 (14:39 Uhr).

“Mit Sanktionen und Zugeständnissen versucht der Westen, Russlands Regierung von ihrem aggressiven Kurs abzubringen. Das aber ist utopisch. Fünf Gründe dafür.”

*****END OF SIDEBAR*****

Since Russian regular forces entered the Ukraine in large numbers in August, and bloodied Ukrainian forces while pushing them back from the gains they had made in previous weeks, Ukrainian President Petro Poroshenko has been increasingly accommodating to the demands of Russian President Vladimir Putin.

First, Poroshenko announced that 70% of the Russian troops had been withdrawn from the country, after the signing on September 5 of the Minsk Protocol establishing a 12-point plan including ceasefire and other steps in a peace plan for the eastern Ukraine.

NATO did not confirm this number. On September 16, 2014, NATO’s Supreme Allied Commander for Europe, U.S. General Philip Breedlove, was quoted as making the following statement:

SACEUR commander, Gen. Philip Breedlove, Statement on Russian troops in and bordering Ukraine

“I will paint a picture for you, which is that from a peak of well over 10 battalion task groups inside of Ukraine, I believe we’re now down to elements of probably four battalion task groups inside Ukraine.

The Russians have been removing forces to the east of the Ukrainian border back into Russia, but make no mistake – those forces are close enough to be quickly brought back to bear if required. They have not left the area that would allow them to be either a course of force or a force used for actual combat, if required.

Inside of Ukraine, we see forces that now are arrayed, I think, with two purposes. One purpose is to keep the flow of support and supply to the separatist forces and the Russian forces in the Luhansk and Donetsk area wide open. So those avenues of support will remain wide open, and I think that the Russian forces are arrayed to ensure that.

Secondarily, I think we see Russian forces arrayed to bring great pressure on Mariupol. So currently, there is a large force that threatens Mariupol. I think it has one of two possibilities for use. It can sit there and be a coercive force to ensure that the negotiations for peace fall out along the lines that Russia wants them to fall out, or it could also be used to take Mariupol, if it was there. But these forces are arrayed to allow them to do either.

So I think it’s important to say that, yes, some of the force structure has come down. No, none of it has departed. It is all still available. And the forces that remain inside of Ukraine are arrayed to set conditions to completely support the long-term effort of the separatists in the east and to either coerce or force the hand in Mariupol,” Breedlove said.

–“Four Russian Battalion Groups Remain in Ukraine – NATO Allied Commander,” Censor Net, September 17, 2014 (07:32).

The ceasefire has been broken repeatedly by the separatists, though in general it still appears to be holding.

The monitoring of the ceasefire by the OSCE, as called for in the point 2 of the Minsk Protocol, is not firmly in place. Yesterday, fire was directed at an OSCE observer team, leaving their two vehicles damaged or destroyed.

Putin participated in a similar tactic in Syria in the spring of 2012, when UNMIS observers were shot at and increasingly became targets of Bashar al-Assad’s forces, until they were forced to withdraw first to their hotels, and then from Syria.

Nor does the monitoring of the border by the OSCE, called for in point 4 of the Minsk Protocol, seem to be functioning.

Second, Poroshenko has now caved into Putin’s demands regarding the terms of the “special law” on the status of regions of Donetsk and Luhansk Provinces under the separatists’ control.

See

(1) “Ukraine: Abgeordnete wollen Sonderstatus des Donbass kippen, Der Spiegel, 17. September 2014 (07:33 Uhr).

“Der Sonderstatus für die Ostukraine wackelt: Nachdem das Parlament in Kiew den Regionen um Donezk und Luhansk weitreichende Rechte gewährt hat, wollen Anhänger von Ex-Ministerpräsidentin Timoschenko den Beschluss für ungültig erklären lassen.”

(2) Carsten Luther (Kommentar), “Uraine: Putin behält den Fuß in der Tür,” Die Zeit, 16. September 2014 (17:48 Uhr).

“Ein Tag voller Zugeständnisse: Autonomie für die Separatisten in der Ostukraine, Freihandel mit der EU erst später. Putin hat bekommen, was er gewollt hat.”

(3) Rodrigo Fernandez / Ignacio Fariza (Moscú / Bruselas), “Ucrania aprueba el autogobierno para el este con una policía autonómica,” El País, 16 Septiembre 2014 (20:57 CEST).

(4) “Donbas ‘special status’ law is a concession to the West — Heraschenko,” EuroMaidan Press, September 17, 2014.

The new law, approved by the parliament or Rada in Kiev on September 16, is being challenged as invalid by the Fatherland Party of Iulia Timoshenko, due to alleged violations of parliamentary procedure (e.g., the law failed to win approval on the first vote, the vote was secret, electronic voting was used instead of a roll-call vote).

The law passed on Tuesday represents a capitulation to the demands of Russia and the “separatists”.

While intended to uphold the sovereignty of the Ukraine over these areas, the law calls for a three year period of “autonomy” for the region which has a very strong potential for splitting the country permanently, and even facilitating a secession by the region from the Ukraine as new facts are created on the ground.

With passage of the law, if it goes into effect, Putin through military aggression will have achieved one of his principlal goals, that of creating a “frozen conflict” in the Ukraine (like the one in Georgia).

Several provisions of the law are worth noting.

First, it provides for local elections on December 7, but establishes no mechanisms to ensure that they are free and fair. One might imagine that they would be held under OSCE auspices and supervision, which would include oversight over the voter lists and the counting of votes in a transparent manner. But there is no evidence that this will be the case.

Second, the law establishes the right of the territories under separatists’ control to establish their own militias independent of Kiev’s control. Again according to first reports, there appear to be no obstacles to the separatists’ militias simply reconstituting themselves as these militias, assuming the mantle of legitimacy which the law confers.

Third, the separatists are apparently given control over state prosecutors and the courts. The practical result will be felt when the law’s limitations on granting amnesty to those involved in very serious crimes are put into practice. It also gives the insurrectionists the authority to persecute their opponents through the legal system.

Fourth, the law authorizes the region to establish relationships with bordering regions within the Russian Federation to deal with matters of local concern. While the text of this prvision appears inocuous enough, it could potentially be misapplied to open a slippery slope that could lead to secession and/or incorporation of these areas into the corresponding Russian regions.

There is evidence to suggest that Western leaders pressured Poroshenko to pass the law on “special status”.  See the comments of Anton Haraschenko, quoted in the EuroMaidan Press article cited above.

A close reading of an informal translation into English of the law suggests that its terms may not actually be as bad as they seemed in the first reports in the press. This would be similar to the way the actual text of the Minsk Protocol turned out not to be as one-sided as first press reports had suggested.

Still, while up until now Poroshenko has done an excellent job of defending his country’s sovereignty and territorial independence, there are signs that Putin through his threats and acts of military aggression has convinced him that the only way he can prevent further military advances by Russia and its “separatists” is to go along with what Putin wants.

His calculus may be that a “frozen conflict” in Donetsk and Luhansk is preferable to the Russians and their “separatists” taking Mariupol, and indeed going on to take territory that would build a land bridge all the way to the Crimea.

Poroshenko has called for EU and NATO countries to join in negotiations with Russia over the Donbass, recognizing that Ukraine by itself is not in a position to negotiate effectively with Putin. They should do so, without illusions, in order to buttress Porosheno and the Ukraine.

There is the additional factor that Putin’s word is absolutely worthless, while his and Russia’s statements are full of blatant lies, distortions, and misrepresentations.

Putin’s leverage over Poroshenko resides in his ability to uphold the Minsk Protocol and ceasefire, or not.

Poroshenko needs to be careful not to overvalue his own ability to get along with Putin and elicit promises that he will keep, or even the viability of the Minsk Protocol if it gets in the way of Putin’s drive to achieve his goals.

Poroshenko needs support from the West and the rest of the civilized world which is interested in upholding the U.N. Charter and international law, and in particular the prohibition of the threat or use of force.

One way to provide this support would be to bring the Minsk Protocol to the U.N. Security Council, which could table a resolution incorporating its provisions. This might possibly be done in a manner which would make it very difficult for Russia to exercise its veto.

Finally, there is an important human rights dimension to the adoption of the “special law” on areas in the Donetsk and Luhansk Provinces under “separatists” control. The law should not create an enclave in which the internationally protected human rights of Ukrainian citizens are left to the arbitrary rule of separatists who up until now have been guilty of committing war crimes and widespread violations fundamental human rights in territories they control.

The “special law” should be amended to include mechanisms to ensure the observance of international human rights within the special territories governed by the law. These should include the right to vote in free elections and to participate in government.

One need have no illusions that they will be fully honored. Nonetheless, they should be added to the law, as they could exercise some influence toward moderation and introduce reporting and accountability considerations for the “separatists” to take into account.

This, at least, can be done to help mitigate the Ukraine’s moral and legal responsibility for delivering to the “separatists” areas where a large percentage of the population does not not support their goals or methods

Actually, if it is only one human being, his or her fundamental human rights should be protected.

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

1 Comment on "Poroshenko’s capitulation: The new “special status” law and implementation of the Minsk Protocol"

  1. искал в гугле донецк 4, нашел ваш блог The new “special status” law and implementation of the Minsk Protocol, спасибо!

Comments are closed.