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The Ukrainian authorities tried to conceal the extension of a law granting special status to Donbas, while the parliament bowed to the president’s will. From Hromadske International.by Nastya Stanko and Maksym Kamenev 17 October 2017
Midday on 4 October, a message appeared on the official Twitter account of the U.S. Embassy in Ukraine: “We support efforts by the [Ukrainian Parliament] to extend [the Donbas’] special status, which will make it possible to regulate the conflict in eastern Ukraine.” A few hours later, the German Embassy published a similar message.
The “special status” described in both these messages refers to a law passed by parliament in September 2014 that gives the regions in eastern Ukraine – currently controlled by the self-proclaimed “Donetsk and Luhansk People’s Republics” – a different status within the country. Ukraine promised to pass the law within the framework of the Minsk Accords, the unified agreement for ending military operations on the territory of the Donbas.
The law covered a time frame of three years, which ends on 18 October. In practice, not a single one of its provisions has been realized.
The passage of such a special status, alongside constitutional changes strengthening its legal position, was meant as a demonstration that Ukraine was fulfilling the Minsk deal. However, in the last three years, Russia has failed to fulfill most of its responsibilities under the accords. Moscow has not provided for the disarmament of the separatists it backs in the region, has not removed its forces, and has not returned control over the state border to Ukraine. That has given Ukraine’s international partners, the United States and the European Union, a reason to extend sanctions against Russia.
If the Donbas’ “special status” were to expire, it would fundamentally strip Ukrainian President Petro Poroshenko of his ability to argue that Ukraine is ready to fulfill its part of the Minsk obligations during international negotiations. That would allow Russian President Vladimir Putin, in turn, to advocate for lifting sanctions against his country with the international community.
A few hours after the U.S Embassy’s Twitter message, Poroshenko presented parliament with a bill of his own, extending the “special status” until 18 October 2019. Less than two days later, parliament had passed a one-year extension of the “special status law” and Poroshenko had signed it.
A Touchy Subject
The special status law requires Ukraine to guarantee that it will not prosecute “participants in the events [that happened] on the territory of the Donetsk and Luhansk regions.” The country also promises to hold local elections in the region, appoint prosecutors and judges in cooperation with the local authorities, and create brigades of the “people’s militia,” which will be separate from Ukraine’s national police force. What’s more, Ukraine agrees to finance the occupied territories from the state budget.
The Ukrainian Parliament passed the “special status” law on 16 September 2014, almost immediately after the first negotiations in Minsk between Poroshenko and Putin, alongside then- President of France Francois Hollande and German Chancellor Angela Merkel. The negotiations were carried out under the conditions of military pressure – the Russian army had just sent troops into Ukraine, and the Ukrainian army had suffered a deadly defeat at Ilovaisk [in the Donetsk region]. This resulted in the Minsk Accords, intended to end the war in the Donbas. It also required the Ukrainian Parliament to pass the special status law.
In 2014, the parliamentarians voted on the law in a closed session. For nearly half an hour, Poroshenko tried to convince them to support the bill. He told them about the catastrophic condition of the Ukrainian army and the inability of Ukraine to withstand continued armed conflict with Russia. Oleksandr Turchynov, then the speaker of parliament, made a sneaky move: during the voting, he turned off the electronic vote tally, which records the results of the vote. Afterward, he announced that 227 parliamentarians had supported the document.
What happens when laws regarding Donbas are passed in an open session? The country found out on 31 August 2015. That day, parliament passed, in a first reading, constitutional changes granting the Donbas special self-governance. Because the law was perceived as recognizing the Kremlin-backed separatists and giving them certain rights, many Ukrainians flocked to the parliament building to protest. The protests soon grew into clashes with the police, and clashes turned into casualties: a member of the nationalist Svoboda party threw a grenade at national guardsmen, killing four. Another two dozen people were wounded.
As a result, it’s hardly surprising that, earlier this month, the authorities avoided making public discussions about extending the special status law for as long as they could get away with it – that is, until the day of the vote.
Meanwhile, since July 2017, the country has been following the preparations of another draft law, which Turchynov – now the secretary of Ukraine’s National Security and Defense Council (NSDC) – refers to as the “law on de-occupying the Donbas.”
One or Two?
This “de-occupation” document, prepared by Turchynov, officially declares the areas of Donbas not controlled by Kyiv as “occupied.” It also, for the first time, calls Russia the aggressor. At the same time, the law proposes introducing a joint headquarters for countering the aggressor instead of the current military operations in the east, the Anti-Terrorist Operation.
At the beginning of July, Ukraine’s government discussed this bill at an NSDC session but decided not to pass it on to the parliament for voting. Turchynov explained this decision by claiming that Ukraine’s international partners were not happy with the bill.
During this summer, foreign diplomats repeatedly stated that they did not want to discuss the de-occupation law because it simply would not be passed. Instead, they raved about the extension of the Donbas’ special status. They said this was the key task since it is part of Ukraine’s obligations under the Minsk Accords. The embassies even hinted that, if the special status law wouldn’t be extended, Ukraine would risk having its international partners cancel their sanctions against Russia.
Then came autumn and parliamentary members returned for a new session. But one thing remained constant: Turchynov continued to advance his “de-occupation law.” And that’s when the story broke: presidential administration staff told journalists that the latest draft of the de-occupation law had been approved by the U.S., Germany, and France. Poroshenko, who had just returned from a meeting in Washington with U.S. President Donald Trump, was now reportedly ready to hand it over to parliament.
On 2 October, President Poroshenko discussed the final draft in private with members of the “Strategic Council.” Apart from Poroshenko himself, this council consists of Turchynov, former Prime Minister Arseniy Yatsenyuk, current Prime Minister Volodymyr Groysman, Parliamentary Chairman Andriy Parubiy, Presidential Administration Head Ihor Raynyn and his predecessor Borys Lozhkin, Prosecutor General Yuriy Lutsenko, and Interior Minister Arsen Avakov.
A presidential administration staffer explained to Hromadske that registering this extension proposal as a bill separate from the “de-occupation law” would increase its chances of being passed. That way, even the Opposition Bloc parliamentary deputies and deputies elected from eastern single-mandate districts – who were strongly against proclaiming Russia an aggressor – would vote for it.
But there was another problem: members of the People’s Front party wouldn’t vote for the special status extension. Their main argument was that, if this law were extended, Russia might insist on carrying out local elections without withdrawing its forces first.
The People’s Front also wasn’t happy about the final draft of the de-occupation law because it mentioned the Minsk Accords. Andthey weren’t alone – the mention of Minsk even outraged some Petro Poroshenko Bloc parliamentarians such as reformist Mustafa Nayyem.
“By passing this document, we’re practically legalizing the Minsk Accords within Ukrainian legislation,” Nayyem said. “Formally [the Minsk Accords] cannot be recognized as a source of law, including international law, because they weren’t signed by the subjects of international law” — a term referring to countries who are members of international organizations.
Presidential administration staffers and the embassies of Ukraine’s international partners all disagree with Nayyem. They reiterate that the Minsk deal has already been enshrined within international law, including by the UN Security Council’s Resolution 2202 on Ukraine. That document, dated 17 February 2015, states that the UN Security Council gives its seal of approval to the 12 February 2015 action plan for implementing the Minsk Accords.
Looking for a Win-Win Situation
Poroshenko then had less than 24 hours to find backers for the special status extension. He actually expected parliament to examine it on 5 October. So on the morning of the following day, Poroshenko and Turchynov arrived at the Verkhovna Rada (parliament): The president came for a meeting of his party. Turchynov arrived for a People’s Front meeting. Both officials tried to convince parliamentary members to support the law.
Sources present at the Petro Poroshenko Bloc meeting told Hromadske that Poroshenko’s argument was that, if the parliament doesn’t extend the Donbas special status law, it would significantly increase the likelihood of the EU and the U.S. lifting their sanctions on Russia.
“The most important thing for us is to retain this international coalition that supports Ukraine,” insiders quoted Poroshenko as saying.
At the same time, Deputy Presidential Administration Head Kostiantyn Yeliseyev told the parliamentarians that not extending this law would practically mean acknowledging that Minsk is no longer effective – and that would allow Russia to escalate the conflict.
Turchynov spent his meeting with People’s Front parliamentary members looking for ways to reassure them to vote in favor of extending the Donbas special status law. They agreed but on one condition: it could come into effect only after the Russia-backed illegal troops are withdrawn from Donbas.
Before lunchtime, the edited document with this new amendment was published on the parliament’s website. And the People’s Front parliamentary members were now happy to vote for the entire law, skipping the first and second readings.
As for the de-occupation law, the coalition of the People’s Front and Petro Poroshenko Bloc voted for it in the first reading, and said that they would vote it in the second reading after Article 7, which touches upon the Minsk agreements, would be removed.
A Gentle Retreat
Turchynov presented the finished de-occupation law to his fellow parliamentarians himself, while the Donbas special status law was presented by the first deputy chairwoman of the parliament, Iryna Herashchenko.
But neither of the laws was approved on 5 October. The Self-Reliance (Samopomich) party, which had its own alternative project for restoring Ukraine’s sovereignty, blocked the parliamentary podium. Parubiy, the parliamentary chairman, called for a break and summoned the coalition leaders for a meeting.
After consulting with Turchynov in person and speaking with Poroshenko over the phone, Parubiy decided to call it a day at parliament to avoid further escalating the conflict in the session hall. After all, the only way to unblock the podium would be to use physical force. The chairman also announced that the mention of Minsk had been removed from the document.
Meanwhile, Poroshenko came to parliament specifically to ask his party members to arrive at work early the next day. That was a big request: many parliamentary deputies consider Friday their day off.
“Kremlin cronies in the session hall who blocked the podium and halted the passage of a law that would recognize Russia as the aggressor will take responsibility for their actions,” Poroshenko said. Turchynov made a similar speech.
On the morning of 6 October, the Petro Poroshenko Bloc and the People’s Front encircled the parliamentary podium to stop the opposition from blocking it. Chairman Parubiy announced the two laws, one-by-one, for voting. De-occupation received 233 votes in favor in the first reading. Extending the Donbas’ special status received 229 votes in favor.
The extension of the Donbas special status law – which, in practice, has never worked during the past three years – is Ukraine’s way of showing the West that it is sticking to the Minsk Accords. Meanwhile, passing the Donbas de-occupation law in the first reading can be read as Poroshenko’s warning that Ukraine is prepared to act radically. After all, Russia is unlikely to approve of being recognized as an aggressor.
Alas, history shows that some laws never make it to the second reading.
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