Foreign Policy Research Institute

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Foreign Policy Research Institute

tel. +38 (044) 287 52 58

Despite the complete lack of objective preconditions for the return of the territories occupied by Russia, the Law of Ukraine «On State Policy of the Transition Period» is important in the context of determining its own legal position

On January 11, 2021, the draft Law of Ukraine «On State Policy of the Transition Period» was published on the website of the Ministry of Reintegration of the Temporarily Occupied Territories (MINTOT). This is the first document that contains the main provisions concerning the implementation of state policy in the context of Ukraine's restoration of control over the temporarily occupied territories of Donetsk and Luhansk regions, as well as the Autonomous Republic of Crimea and the city of Sevastopol. The adoption of such a law has long been on the agenda, as the state needs to clearly outline its vision of ways to return and restore state control over the occupied territories. According to Deputy Minister of Reintegration of the Occupied Territories Igor Yaremenko, the bill submission is scheduled for this summer.

The draft Law of Ukraine «On the State Policy of the Transitional Period» is still being developed, therefore, the document still contains vague wording and controversial provisions, for example, the definition of the dates of the settlements occupation in Donetsk and Luhansk regions, which have not yet been finally established, in contrast to the date of the beginning of the Crimean Peninsula occupation. However, work on the document continues, and the main task that MINTOT pursued by promulgating it was to initiate a discussion in society around this document. As Mr. Yaremenko noted during an expert discussion at the Ukrainian Crisis Media Center, MINTOT has already received more than 1,000 pages with comments and suggestions from civil society representatives on the development of the draft law.

The released document outlines the position of Ukraine regarding the fundamental issues that arose within the framework of the Minsk process. In particular,  the unitary status for the state is emphasized while the issue of changing the territorial organization can be decided exclusively at an all-Ukrainian referendum. This testifies to the intention of the Ukrainian authorities to prevent the federalization of Ukraine, which Kremlin attempts to impose. In addition to signaling external actors, this paragraph also prevents debate within the state, confirming the inadmissibility of crossing the «red lines», claimed by the opposition. It is worth noting that the process of granting special powers to all regions of the state is already under implementation within the decentralization reform, what is also enshrined in one of the paragraphs of the document.

After two years of negotiations and blackmail by the Russian Federation through ceasefire violations, Volodymyr Zelenskyy has changed his approach to a peaceful settlement and is not trying to reach an agreement with Vladimir Putin at any cost, as it was at the beginning of his tenure when the government intended to implement the Steinmeier formula. At the same time, attempts to return the occupied territories through diplomatic pressure on the Russian Federation strongly depend on the readiness of the European Union to strengthen sanctions against the Russian Federation, which is difficult to achieve, given the common economic interests of France, Russia and Germany.

Another important aspect of the draft law «On State Policy for the Transition Period» is assurances of equality of persons before the law, regardless of political convictions, place of residence, citizenship, occupation, linguistic or other characteristics. Upon the return of the territories, Ukraine will face the task of reintegrating the population which currently lives in the occupied territories under conditions of total Russian propaganda. Therefore, it is important to convey to the population of ORDLO that in Ukraine their rights will be respected, regardless of the above-mentioned factors, and only persons who have committed crimes against Ukraine will be prosecuted. At the same time, the draft law provides for a possible amnesty for a person who committed criminal offenses during the armed conflict in Donbas. The specifics of the mechanism for exemption from criminal liability have not yet been determined, but a list of persons who cannot be amnestied or pardoned has been fixed. In particular, these are persons who have committed: crimes falling under the jurisdiction of the International Criminal Court, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression; intentional grave and / or especially grave crimes, if death was caused; intentional serious and / or particularly serious crimes against the life and health of the person, against the will, honor and dignity of the person, against the sexual freedom and sexual integrity of the person, against peace, security of mankind and international law and legal order. Another clause excludes amnesty for foreigners and stateless persons who have committed criminal offenses related to the temporary occupation of Ukrainian territories. However, according to the leading expert and lawyer of the Regional Center for Human Rights Roman Martynovskyy, amnesty for those who were in illegal armed groups, but did not commit illegal actions against the Ukrainian population or the armed forces, as well as the restriction of foreigners on the application of amnesty to them is controversial. In his opinion, such a provision can be recognized as discriminatory, since it is based on citizenship.[1]

In addition, the draft Law of Ukraine «On the State Policy of the Transition Period» raises issues related to the establishment of international transitional administrations, lustration, recognition of documents and elections. In particular, elections in the occupied territories will be held simultaneously with the next local elections, but not earlier than two years after the deoccupation of the relevant district, region, or the Autonomous Republic of Crimea and the city of Sevastopol. Such a short period from the moment of establishing control over the occupied territories before the elections can have certain political consequences. As the expert of the Foundation for Democratic Initiatives Petro Burkovskyy noted, such a period is very risky, because, for example, after the Second World War, 4 years had passed before the elections in Germany were held, moreover the country was actively pursuing a program of denazification in parallel. In addition, after the first elections, until the 60s, the special services of the Federal Republic of Germany were pursuing war criminals throughout the country. Also, Mr. Burkovskyy noted that the ways of reintegration of the territory will depend on the way of its returning - either by military or diplomatic means. So far, there are no objective preconditions for the return of the territories, but this legislative initiative is important in the context of determining state’s legal position, at the same time it is necessary to introduce it in such a way as not to split the population of Ukraine - he stated.

The draft Law of Ukraine «On the State Policy of the Transitional Period» is an important initiative directed at development of a common strategy for de-occupation and reintegration of certain areas of Donetsk and Luhansk regions, the Autonomous Republic of Crimea and the city of Sevastopol. Also, the initiative reinforces Ukraine's position in the legal dimension and testifies to the fact that the Russian Federation is perceived as a party to the conflict and Ukraine refuses to accept the occupation of its own territories. At the same time, this legislative initiative carries certain threats related to contradictions with the legislation of Ukraine and the possibility of splitting the society. Therefore, we can expect significant changes in this document until its final adoption by the Verkhovna Rada of Ukraine.