Київ
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Antiterrorist operation or occupation? Calling things what they really are

Київ, February 27, 2017.

Ukrainian parliament has been struggling to adopt a law on occupied territories for months now, and still there is no final decision. Unfortunately, this problem has become a political one. During a discussion in Ukraine Crisis Media Center members of parliament and experts speculated over the fact that Ukraine has to decide what is happening in Donbas: antiterrorist operation or occupation, and call the foreign aggression by a “proper constrictive term”. 

Merging the occupation of Crimea and Donbas into one law: pros and cons

According to Mustafa Nayyem, MP from BPP faction, a single law has to embrace both the Crimea and the temporarily occupied territories of Donetsk and Luhansk regions. “From Ukraine’s point of view, these territories are equally inaccessible for its official bodies. They are equally occupied from Ukrainian point of view. In international practice the countries territories of which were occupied recognized the occupation legally before such a recognition was achieved in international courts. We will prove the occupation in international courts, but this does not mean that we don’t have to establish this in our national legislation,” explained Nayyem. The draft law defines the beginning of occupation at March 20 and April 7 for the Crimea and Donbas respectively and regulates the protection of human rights and facilitates the procedure of crossing the demarcation line.

According to Mykola Hnatovskyy, an expert in international law, placing these two occupations on the same shelf is not quite right from the point of view of international law. Crimea is occupied in a traditional meaning, as there are governing bodies of a foreign country supported by military force, and nobody denies this. In Donbas, there are occupied territories as well, but no foreign state claims official authority there. Instead the mediator structures, which are conducting authority allegedly independently, has been created.

Hnatovskyy noted, that Ukraine’s claims about a foreign aggression and occupation are not congruent with the concept of antiterrorist operation. This concept hasn’t been altered for three years now. This double position might undermine Ukraine’s chances of addressing international institutions: on one hand, we call Russia an aggressor, on the other hand we file a suit to the International Court of Justice with regard to terrorism financing. If government agencies fail to find common ground regarding these territories no legal consensus can be found. According to Hnatovskyy, Ukraine has to establish a single decision-making center, otherwise any legal initiatives are doomed to catastrophe.

Morten Enberg, the head of the Council of Europe Office in Ukraine, recalled that the Resolution of the PACE on the human rights violations calls Ukraine to do everything possible to help people in the temporarily occupied territories and facilitate administrative processes.

“This includes access to pensions, justice, water supply, etc. Any legislation ought to avoid territorial isolation,” stated Mr. Enberg. Therefore, the draft regulation should include the principles of reconciliation and post conflict settlement and avoid isolating the occupied territories.

Human rights in occupied territories

Despite the fact that territories are recognized as occupied, Ukraine still has “positive liabilities” regarding the protection of the rights of its citizens in these areas. “Russia is responsible for all human rights in these territories as the occupying state. Meanwhile Ukraine does everything possible to fulfill its positive obligations under international law and provide its citizens with right for education, and financial support, etc.,”- explained Mustafa Nayyem. In addition, the draft law also proposes simplified procedures of crossing checkpoints for Ukrainian citizens.

“Ukraine has obligations before its citizens. Any attempt to exclude them from the process or violate their rights is a shot at ourselves. Ukraine should give no ground for doubt that it is a humane and European state which observes human rights “- said Mr. Hnatovskyy.

Keeping contact with residents of the temporarily occupied territories also contribute to their future reintegration. That is why it is critically important not to introduce additional restrictions by the regime of international border when crossing the boundary line [according to one of the Ukrainian legislation projects, citizens will have to present passports at the border of the occupied territories].

“It is human relations that will in the future enable us to recover and reintegrate the territories that today are beyond the control of Ukraine. Preservation of these ties is a guarantee of future peace. If the leave will be only by foreign passports then people from the territories beyond the control of Ukrainian government will not be able take use this opportunity, and therefore will lose some of their rights “, – explained Lidiya Kuzmenko, Legal Adviser of the UNHCR.

Crimea: Ukraine’s slow action pushes the Crimeans towards Russia

The process of legislative regulation of all issues relevant to the Crimea goes too slowly. A law on free economic zone is still effective, thus complicates cooperation of inhabitants of the peninsula and the rest of Ukraine. At the same time, Russia in 2014 was actively working to establish ties with the peninsula. Russia is developing appropriate normative base and promptly changes its legislation. The lack of regulations regarding the Crimea at the legislative level results from actions such as blockade [of Crimea and Donbas] and the problem of smuggling.

Eskander Bariev, member of the Majlis, said that current laws create a lot of [bureaucratic] problems faced by thousands of people. Ukraine should maintain contacts, create favorable conditions so that children could get to the free territory of Ukraine and learn in the mainland territory of Ukraine. Russia allocates thousands of places in Russian universities, Ukraine is lagging behind in this respect.

“It is important to give signals to residents of the occupied territories, to let them know that they are still our citizens, and we do not forget about them. Ukraine has to show its positive commitment, especially in the framework of investigations of crimes against humanity,” – added Tamil Tasheva, founder and coordinator of the public initiative “Crimea SOS”.

Trade with Donbas: isolation or arrangements

The proposed draft law does not specify what exactly can be traded on temporarily occupied territories, and what cannot. There is an understanding that in some areas of Ukraine, businesses are dependent on the occupied territories, but the dependency has to be kept to a minimum. At the same time, Ukraine has to supply there the necessities like electricity, and water. Despite these commitments, some MPs insist that trade with the occupied territories at the state level is unacceptable. Ukraine is to supply basic necessities there but not to receive the goods from there, said MP Serhiy Vlasenko.

According to the MP Anton Herashchenko, Ukraine has to choose, whether to completely block these areas and wait until the geopolitical situation change, or to negotiate. “The arrangements provide for concessions from Ukraine. Any concessions can be used as a destabilization within the country and weaken it. Political leaders have to come to a consensus and take responsibility for decisions, including the unpopular ones,”- he said.

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