How Poroshenko Passed The Unpopular “Donbas Special Status” Law
7 October, 2017

Passing the Donbas de-occupation law in the first reading can be read as Petro Poroshenko’s warning that Ukraine is prepared to act radically. This photograph shows Poroshenko (L) and the Secretary of Ukraine’s National Security and Defense Council Oleksandr Turchynov. Photo credit: Viktor Kovalchuk/UNIAN

This article was written by Nastya Stanko and Maksym Kamenev, Hromadske journalists who have followed the “Donbas de-occupation” and “Donbas special status” laws from the beginning.

Midday on October 4, a message appeared on the official Twitter account of the US 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 the parliament in September 2014 that gives the regions of Ukraine’s east 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 was passed for three years, but it runs out on October 18. In practice, not a single one of its provisions has been realized.

The passage of special status, alongside constitutional changes strengthening its legal position, served as a demonstration that Ukraine was fulfilling Minsk. However, in the last three years, Russia has failed to fulfill most of its responsibilities under the accords. It 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. This gave 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 will fundamentally strip 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 US Embassy’s Twitter message, Poroshenko introduced into parliament his bill extending the “special status” until October 18, 2019. Less than two days later, the parliament had passed a one-year extension of the “special status law” and Poroshenko had signed it.

Hromadske breaks down why the Ukrainian authorities tried not to draw attention to the extension and how Poroshenko managed to get the necessary votes in parliament in the end.

This photograph shows Ukrainian President Petro Poroshenko (L), Belarusian President Alexander Lukashenko (C) and Russian President Vladimir Putin.  Photo credit: Tatyana Zenkovich/EPA

Touchy Subject

The special status law requires Ukraine to guarantee that it will not prosecute “participants in the events 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,” that will be separate from Ukraine’s National Police What’s more, Ukraine agrees to finance the occupied territories from the state budget.

The Ukrainian Parliament passed “special status” on September 16, 2014, almost immediately after the first negotiations in Minsk between presidents Poroshenko and Putin alongside the then President of France Francois Hollande and German Chancellor Angela Merkel. The negotiations were carried out under conditions of military pressure — the Russian army had just sent troops into Ukraine and the Ukrainian army had suffered a deadly defeat at Ilovaisk. The result was 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 the MPs 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. Afterwards, 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 August 31, 2015. That day, the parliament passed in its first reading constitutional changes granting the Donbas special self-governance. Because the law was perceived as recognizing the Kremlin-backed separatists and would give them certain rights, many Ukrainians flocked to the parliament building to protest. 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. Two dozen more people were wounded.

As a result, it’s hardly surprising that, this week, the authorities avoided making discussions about extending the special status law public 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.”

While President Poroshenko (L) stood by the extension of the Donbas special status law, Turchynov (R) prepared another document — a law he refers to as the "de-occupation law."Photo Credit: Mykhailo Palinchak/UNIAN

Two or one?

This “de-occupation” document, prepared by Turchynov, officially declares the areas of Donbas not controlled by Kyiv “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 don’t want to discuss the de-occupation law because it simply won’t 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 isn’t extended, Ukraine risks having its international partners cancel their sanctions on Russia.

Then came autumn and the MPs returned for a new parliamentary session. But one thing remained constant: Turchynov continued to advance his “de-occupation law.” And that’s when the story broke: Presidential Administration employees told journalists that the latest draft of the de-occupation law had been approved by the US, Germany, and France. Poroshenko, who had just returned from a meeting in Washington with President Donald Trump, was now reportedly ready to hand it over to parliament.

On October 2, 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, Parliament 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 employee 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 MPs and MPs 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. And they weren’t alone — the mention of Minsk even outraged some Petro Poroshenko Bloc parliamentarians like 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 in international organizations.

Presidential Administration staffers and the embassies of Ukraine’s international partners all disagree with Nayyem. They reiterate that Minsk has already been established within international law, including by the UN Security Council’s Resolution 2202 on Ukraine. That document, dated February 17, 2015, states that the UN Security Council gives its seal of approval to the February 12, 2015 action plan for implementing the Minsk Accords.

This photograph shows Poroshenko Bloc MP Mustafa Nayyem (C) at the Verkhovna Rada session on October 5. Photo credit: Oleksandr Kosmach/UNIAN

Looking for a win-win

Poroshenko then had less than 24 hours to find backers for the special status extension. He actually expected Parliament to examine it on October 5. So on the morning of October 6, Poroshenko and Turchynov arrived at Verkhovna Rada: The president came for a meeting of his party. Turchynov arrived for a People’s Front meeting. Both officials tried to convince the MPs to support the law.

Sources present at the Petro Poroshenko Bloc meeting told Hromadske: 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 US lifting their sanctions on Russia.

“The most important thing for us is to retain this international coalition that supports Ukraine,” the insiders quote 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 MPs looking for ways to reassure the parliamentarians to vote in favor of extending the Donbas special status law. The MPs agreed but on one condition: it can 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 MPs 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 first reading, stating that they will vote it in the second reading after the article 7, which touches upon Minsk agreements, is 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 Chairman of the Parliament, Iryna Herashchenko.

Turchynov took to the Verkhovna Rada podium to present his "de-occupation law" himself. Photo credit: Oleksandr Kosmach/UNIAN

But neither of the laws were approved on October 5. The Samopomich party, which had its own alternative project for restoring Ukraine’s sovereignty, blocked the parliamentary podium. Parubiy 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 the 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.

Things got a little physical at the parliament on the evening of October 5. Parubiy had to call for a break and the MPs returned to Verkhovna Rada the next morning. Photo credit: Andriy Krymskyi/UNIAN

Meanwhile, Poroshenko came to the parliament specifically to ask his party members to arrive at work early the next day. That was a big request: many MPs 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 October 6, 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.

/Translated by Maria Romanenko and Matthew Kupfer