Ukraine’s rulers are backing themselves into a corner

As Europe's sanctions resolve against Russia evaporates, Ukraine's domestic political contest is heating up — Kyiv is turning its sights on the constitutional court. 

Maryna Stavniichuk
20 June 2016

14 April 2016: Ukraine's president Petro Poroshenko, right, and prime minister Vladimir Groysman celebrate after Groysman was appointed prime minister. (c) Efrem Lukatsky / AP / Press Association Images. All rights reserved.Ukraine’s ruling elites may have solved the political crisis, but this solution was followed by outright disrespect to Ukraine’s constitution, laws and procedures.

Kyiv’s ruling group has consolidated itself as a result. But the logic of this consolidation is closer to dictatorial than democratic. And it is time for Ukraine’s new leaders to pay the price.

The betrayal in Munich

On 9 June, the French senate struck a painful "blow” to Ukraine. The senate passed a resolution on the gradual easing of sanctions against Russia. France’s socialist government may yet refuse the senate’s proposal, but Pavlo Klimkin, head of Ukraine’s ministry of foreign affairs, has already called this development "dangerous", hinting at the existence of French politicians who "are being nurtured” by the Kremlin.

I’d like to remind the minister that the French senate consists of 348 deputies, and 302 of them voted for liberalisation. Does Putin "nurture" that many French politicians? Are there any other reasons behind Paris vote than Kremlin machinations? Whatever goes wrong with Ukraine, president Petro Poroshenko and his team are keen to explain it in the same old way: blame it on the Kremlin as an aggressor.

Andriy Parubiy, the speaker of the Verkhovna Rada (and who is loyal to Poroshenko), also showed off his brilliant “logic” in a comment on the senate’s decision, stating: "What would General de Gaulle, who managed to unite the world to liberate France, do now?” Leaving this overstatement to the historians, let’s move onto Parubiy’s recommendation: France should stand up for Ukraine with the rest of the world. This is because, as Parubiy reminded us, Russia is “the aggressor that has made a war in Europe and annexed the territory of Ukraine.”

The Ukrainian authorities are increasingly having to face the consequences of its double-speak

Of course, historical parallels can be a valuable argument in political debate. But only if they are appropriate to current events. Parubiy’s metaphor fails him here — he has probably forgotten that France and Britain actually declared war against Germany after the latter invaded Poland in 1939. These countries declared war against Hitler’s regime and severed all ties with Berlin due to their obligations to Poland.

Now, how would London and Paris have acted if Warsaw had declared on September 1, 1939 that Poland had not been a subject of external aggression, and all that had happened was just an “antiterrorist operation”? The governments of France and Britain would have probably abstained from declaring war, as in the case of Czechoslovakia.

This gap in the logic of Ukraine’s rulers is simply tragic. The Ukrainian crisis is much closer to the case of Czechoslovakia and the Munich betrayal than the Polish tragedy.

Czechoslovakia lost its territories and sovereignty step by step. First, it lost the Sudety/Sudetenland on the basis of “oppression” experienced by ethnic Germans resident there. Later, in tandem with Poland, Germany took away Ćeszyński region. Then, under the pressure of Germany, the Czechoslovak government decided to grant autonomy to Slovakia, and then to Carpathian Ruthenia (in contemporary terms, they promoted “federalist decentralisation”, including “special status for some regions”). Finally, Hitler took the remaining territories of Bohemia and Moravia. The Czech army tried to resist, but failed without external assistance.

At the time, prime minister Neville Chamberlain, speaking in the British Parliament, explained the refusal of Britain and France to follow their obligations to Czechoslovakia due to the country’s “internal conflict”.

This kind of situation arises when politicians do not call a spade a spade for whatever reasons.

In Ukraine, we now witness a double-speak that promotes exactly the same situation as in Czechoslovakia in 1938. Poroshenko’s team calls Russia “the aggressor that unleashed war in Europe and annexed the territory of Ukraine” for the “internal market”. But then, in other communications, our government continues to refer to the situation in eastern Ukraine as an “antiterrorist operation” (ATO) with daily killings of our soldiers and peaceful citizens, use of artillery, tanks, and several waves of war-time mobilisation. So a question arises: why doesn’t Kyiv introduce a state of war, allocate all possible resources for defense and abstain from calling for international assistance to fight aggression?

The Ukrainian authorities are increasingly having to face the consequences of its double-speak

For over two years, the lack of answer to this question has led to many highly dangerous legal and political consequences for Ukraine. And one of the effects of this political double-speak has manifested itself in the arbitrary position of Ukraine's western partners: if you have the ATO, then, according to Chamberlain’s logic, this is just an “internal conflict”. This suits many in the west and in Moscow, but not those people living the reality of war.

This linguistic and political indecisiveness on behalf of Kyiv’s ruling group has forced Ukraine to engage with the “Minsk format” as the only option for resolution to the armed aggression against Ukraine. This format permits changes to Ukraine’s constitution that would permit loss of communities/territories in Luhansk and Donetsk regions, and provides the possibility of pardoning individuals who have been involved in separatist operations, including those who have committed war crimes, and legal provisions for holding elections. Whatever results the above list of provisions brings, it always has one added cost: damage to Ukraine’s sovereignty.

The problem with the Minsk agreements is that it links the behaviour of aggressor and victim. Paris and Berlin may lift the sanctions not because aggression has ceased (whether support to separatist groups or the annexation of Crimea), but because the country that suffers from aggression does not fulfill some clauses that contradict its constitution. As a result, if Ukraine changes its constitution and satisfies all "wants and wishes" of the aggressor and its allies, then the sanctions will be removed from Russia. In some strange way, agreements that were meant to save Ukraine may lead to the end of our statehood.

Perhaps Parubiy and Klimkin should inspire their team to re-think Ukraine’s strategy of solving the situation? So far Kyiv participates in chess-game where every move worsens our situation. No surprises that all loud comments of Ukrainian leaders did not get any response from the western leaders.

In my view, the Ukrainian authorities are increasingly having to face the consequences of its double-speak. Last week, UN representatives diplomatically (but clearly) indicated to Kyiv that the concept of the “anti-terrorist operation” displeases them. The report of the Special Rapporteur Christoph Heinz provided by the Secretariat of the UN General Assembly to UN Council on Human Rights expressly states: “The interpretation of the conflict as an anti-terrorist operation led to considerable confusion among observers and, in some cases, it seems, between the parties - including which rules of domestic and international law are applied and which state agencies - police, army or intelligence agencies – control military operations in eastern Ukraine...”. However, the Ukrainian mass media environment formed by the government ignores this report and its criticisms to all parties of the conflict, including Ukrainian authorities.

So here is my question to the rulers of Ukraine. Do you still want to continue with the terminology of the “antiterrorist operation”? Do you remember the Czech failure in 1938? If you do, why are you surprised at the French senate’s positions?

If you continue your double speak of war and internal conflict, recall Chamberlain, not de Gaulle.

Visa lustration

Another international blow to Kyiv is Brussels’ decision to postpone introduction of visa-free regime with Ukraine. Though the EU Ambassador to Ukraine tried to soften the blow, it was still perceived very painfully by pro-European Ukrainians. President Poroshenko and his team have long been assuring Ukrainians that the visa-free regime is a done deal. And the decision came against all expectations.

Even though this EU decision was done in relation to a group of countries (Georgia, Kosovo and Turkey), Kyiv seems to have added arguments against itself for the decision-makers in Brussels. Ukraine is getting into another conflict with Europe in regard to human rights protections and democratic standards, as well as because of unprecedented pressure on its Constitutional Court from executive and legislative branches of power.

Lustration is an extraordinary measure of democracy, it can enlarge democratic procedures and anti-corruption measures, but not replace them

Last week, Ukraine’s Constitutional Court, after a few months pause, continued its review of the law on lustration. Lustration policies were started in Ukraine right after Euromaidan. Almost immediately people began to criticise the grounds chosen for lustration: it looked too much like a political fight, not a quest for justice. The Venice Commission has recommended to review the lustration legislation at considerable length. The problem is that the law on lustration contradicts Ukraine’s constitution and certain European norms and standards. Finally, Constitutional Court reacted and started its review.

Some Ukrainian political forces, as well as leaders of Ukraine, have assessed it as an “attack on the sacred”. Parubiy publically “invited” the head of the Constitutional Court to discuss the lustration law and its importance for Ukraine. He also made a public speech stating: “I hope that the Constitutional Court did not take any decisions which might call into question the law.”

Ukraine’s new general prosecutor Yuri Lutsenko warned judges if they assessed the existing law negatively, a new and the harsher version would be approved. Some people’s deputies from Petro Poroshenko Bloc, Narodny Front and Samopomich, who are lobbying for lustration, followed this lead. Pavlo Petrenko, Ukraine’s minister of justice, called on Ukraine’s leadership to not let them stop the law on lustration.

The pressure on the court has thus reached a new level — open, brazen, cynical. Individually and institutionally, the Court and its members are under attack.

It is clear that the lustration law needs improvements to make it comply with Ukraine’s constitution and best European practices of democracy and rule of law. Lustration must ensure a fair balance between the protection of democratic society, on the one hand, and the protection of individual rights, on the other. Our current law does not provide it.

In June 2015, the Venice Commission, clearly evaluating not only the provisions of the law, but also its practical application, drew attention in its final conclusion to the fact that the large-scale process of lustration will create a huge bureaucratic burden and may result in an atmosphere of fear and non-confidence. It looks like we got ourselves into this trap: either the Constitutional Court cancels the parts of the law that contradict the constitution, and many officials that were fired based on it would file successful suits against the state, or it agrees with the political pressure and delegitimises itself. Whatever the result, Ukraine loses.

Moreover, as the Commission notes, lustration should not replace structural reforms aimed at strengthening the rule of law and replace the fight against corruption. For me, it is essential: lustration is an extraordinary measure of democracy, it can enlarge democratic procedures and anti-corruption measures, but not replace them. And it must comply with European standards of human rights and the rule of law, to not to worsen the situation.

But in absence of real reforms fight against corruption, official Kyiv keeps lustration as an achievement. If it is lost, there is not much left for president Poroshenko and his allies to show his compatriots. 

The last bastion

Since president Poroshenko, speaker Parubiy and other rulers love historical analogies, I want to end by reminding them of another historic event — the battle of Dunkirk, 1940.

Forty thousand English and French soldiers were captured and thousands killed in a small stretch of land between Wehrmacht-controlled land and sea. Dunkirk was the last bastion from which there was no exit without external help and evacuation.

It seems that the Ukrainian government now finds itself in a similar state. Failing foreign policy, domestic legal uncertainty, de-legitimisation of all political and legal procedures in parliament and courts, delayed reforms, and the signs that a personalistic regime may be emerging — all of this pushes the ruling group into an ever-shrinking and isolated area of political ground. They are surrounded by lost opportunities, unfulfilled promises, falling ratings, a robbed middle and small business class, a temporarily pacified aggressor and friends who have lost confidence. And there is only the sea ahead.

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