Questions Remain in Ukraine’s New Donbas “De-Occupation Law”
18 January, 2018

On January 18, the Ukrainian parliament passed a law guiding state policy regarding the occupied territories of the country’s Donetsk and Luhansk regions. The document — popularly known as the “Donbas de-occupation law” — was initially written by the president and now awaits his signature.

Among its key provisions, the de-occupation law recognizes parts of Donetsk and Luhansk regions as “temporarily occupied” and declares Russia an “aggressor state.”

But many questions remain. How will the law change the lives of people living in the occupied territories? How will it affect those who cross into Ukrainian-government controlled territory? And how is the government planning to use this law to regain control over the occupied territories? Hromadske explains what we know and what remains unclear.

What’s in a name?

Despite its name, the law does not actually “de-occupy” the Donbas. It presents liberating the region as a goal, but does not describe how to achieve it. The law is also often referred to a “Donbas reintegration law.” But this is also misleading, as the law does not describe how these territories and the people who live in them will be reintegrated back into Ukraine.

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The law’s preamble states that it aims to define state policy for “providing for the sovereignty of Ukraine on the temporarily occupied territories in Donetsk and Luhansk regions.” Put more simply, the law gives the state guidelines for how it should act when dealing with the parts of these regions that are not under government control, when troops are on the border of non-government controlled territory, when parts of the Ukrainian population live in de facto occupation, and when nearly 30 thousand citizens cross between the two sides every day — all issues the state constantly encounters.

What norms should guide the military’s actions if it begins to liberate parts of these territories? Or if conflict erupts again on already liberated territory? How should the military behave vis-a-vis the civilian population if fighting intensifies? Or during an offensive on occupied territory? The law strives to answer these questions.

Who is responsible for your destroyed home?

In the “de-occupation law,” the Ukrainian authorities clearly declare that Kyiv is not responsible for the actions of Russia and its proxies in the occupied territories. Thus, Russia bears the entire responsibility for the conflict and must pay compensation for destroyed housing in the region.

But there are some nuances. The law’s first article notes that Russia exercises “general effective  control” over these territories. However, no such term exists in international law, and one would have to sue Russia in international courts to receive compensation. Additionally, the law does not explain how it can be determined that Russia exercises “general effective control” in a given area.

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The law clearly states that Russia bears moral and material responsibility damage inflicted during the conflict. However, it is vague about the details: the period in which the damage was done, the territory on which it occurs, or the conditions under which it occurs.

This, however, is a minor detail since only an international treaty can impose legal responsibility on another state. No other document — including the “de-occupation law” — will have any consequences for Russia in this case. As a result, the law will not allow anyone to receive compensation from Russia for destroyed housing in international court.

But the “de-occupation law” has standing in Ukrainian courts. Now, Ukraine does not bear legal responsibility for destroyed homes in the Donbas region.

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However, the law does have other benefits for homeowners. Now, if you have housing or other property in the occupied territories, the “de-occupation law” guards your ownership of it. Whether you are an internally displaced person, live on liberated territory, or have remained in the occupied territories, it belongs to you.

The “de-occupation law” also does one other thing to simplify life for residents of the occupied territories. Now, Ukraine will recognize birth and death certificates issued by the self-proclaimed “Donetsk and Luhansk People’s Republics.” Previously, Ukrainian citizens had to go to court to get these recognized.

When can you cross the demarcation line?

If you are one of the many people crossing the contact line in either direction daily, who decides whether you can cross and what you can bring with you? The Ukrainian Cabinet of Ministers sets the rules for travel and transportation of goods across the line. Now, however, the “de-occupation law” will allow the Commander of the Joint Forces (a representative of the Ukrainian Armed Forces) to restrict travel “in connection with the security situation.” The law does not explain what the phrase “security situation” means. Thus, hypothetically, the Commander could decide to close one or all six of the checkpoints along the contact line. Why? “For your own safety.”

Are you in a “combat zone?” How can you know?

On the surface, that sounds like a simple question. But, legally, it’s a more complex issue.

The “de-occupation law” introduces several new concepts. Apart from the currently occupied territories, there are now “combat areas” and “security zones bordering military action.” The law gives certain additional powers to soldiers, Security Service officers, and other security and law enforcement forces to counter Russian aggression in these territories. However, while the President must clearly define the borders of the occupied territories at the recommendation of the Ministry of Defense, the law does not state where these “combat areas” and  “security zones bordering the military action” are located.  

What can soldiers do during an “emergency?”

According to the “de-occupation law,” in an emergency situation, the security agencies — the Ukrainian police, National Guard, Armed Forces, State Border Guard Services and Security Service — can use force against you if you violate the law or commit any other action that impedes their work against Russian aggression. However, the law does not explain what these “other acts” are.

Additionally, if you — according to the leadership of the Joint Operational Headquarters — cross into the (undefined) territory bordering military action without authorization, security forces can also use force against you or detain you and take you to the police department to have your documents checked.

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Entry into this area without permission from the military is forbidden. However, at the moment, it is unclear how representatives of humanitarian organizations, journalists and volunteers will be able to travel there and which permits they will need to do so.

Security officers will also be able to stop you and search your belongings, stop your car, prohibit you from going out by car or on foot, and remove you from your building or other place of residence. All of this could occur “in the event of an emergency.” Moreover, in an emergency, anyone tasked with countering Russian aggression can enter your home or workplace or use your vehicle (however, in this case, only with your permission).

However, if you voluntarily help the security forces counter Russian aggression — if you provide them with transport, lodgings, or other assistance — and are killed in the process, the state will recognize you as a participant in the war and will pay your family compensation accordingly.

/Text by Anastasia Stanko

/Translated and adapted by Matthew Kupfer and Sofia Fedeczko